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The Association of California Egg Farmers has been trying since Proposition 2’s
passage four years ago to get resolution on what type of hen housing meets the
law’s requirements.
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The Association of California Egg Farmers filed suit on November 16, 2012, in
Fresno County Superior Court asking the court to find that the language of
Proposition 2 is unconstitutionally vague according to California law. The
association contends that the law's lack of clarity in size and density
requirements for housing laying hens prevents egg farmers from modifying their
housing facilities in time to comply with the January 1, 2015, implementation
date.
Prior legal challenges
Proposition 2 has already has faced two court
challenges. The first unsuccessfully tried to clarify the type and dimensions of
housing for hens required by the law, and the second lawsuit,
filed by egg producer William Cramer, challenged Proposition 2
under the U.S. Constitution. The Cramer lawsuit was dismissed by a federal judge
with prejudice in September. In his ruling, U.S. District Judge John Walter
wrote, "The court concludes that the Proposition 2 is not impermissibly vague in
all of its applications, or even in a single application, as argued by
plaintiff. Proposition 2 provides a person of ordinary intelligence more than a
reasonable opportunity to know what is prohibited and provides explicit and
objective standards to prevent discriminatory enforcement." The Association of
California Egg Farmers tried unsuccessfully to intervene in Cramer's suit and
now challenges Proposition 2 under the California Constitution. Dale Stern,
attorney for the Association of California Egg Farmers, explained that the
standard of proof for a void for vagueness challenge is different under the
California constitution than it is under the federal constitution in some
respects. “Challenging under the federal constitution on a charge of void for
vagueness means you have to allege and prove that the statute is vague in all of
its applications,” Stern said. “Under the California Constitution, you have to
allege and prove that the statute is vague under all of its reasonable and
practical applications. The burden of proof is different. In some cases it isn’t
more or less; it is just different.”
Asking for clarity
Stern said that if the case survives demurrer from
the state, and the Cramer case did not, he expects that the trial wouldn’t be
completed until late 2013 or early 2014. Then, even if egg producers prevail,
there could be an appeal from the state or another party, such as the
Humane Society of the United States. He said that the
Association of California Egg Farmers has been trying since Proposition 2’s
passage four years ago to get resolution on what type of hen housing meets the
law’s requirements. “The lawsuit is the last option,” he said.
Arnie Riebli, president of the Association of California Egg Farmers, said,
"California's egg farmers have spent the last four years attempting to gain a
clear understanding of how to comply with Proposition 2, but, unfortunately, we
are no closer today to knowing how to comply than we were when the law first
passed in 2008. Given the ambiguity in Proposition 2 and the risk of criminal
prosecution for violating it, egg farmers have no choice other than to challenge
the validity of the law."
The Cramer lawsuit was dismissed before the
Association of California Egg Farmers was allowed to participate, and Stern said
that the current lawsuit will be the Association of California Egg Farmers’
first opportunity to make their arguments in court. "With the law taking effect
in just over two years, egg farmers cannot afford to wait any longer to begin
construction of new hen enclosures, but their dilemma is making a multi-million
dollar investment in new housing systems that could end up being considered
illegal,” Stern said. “The California Attorney General has been unwilling or
unable to take a position on this key point. The State Department of Food and
Agriculture commissioned a study at the
University of California at Davis, which concluded that the
law is unclear. As a result, the Association of California Egg Farmers has no
choice but to reluctantly seek invalidation of this poorly drafted
proposition."
Enclosure size hinges on an assumption
Stern said that the University of California’s
expert told the state
Department of Food and
Agriculture, “I can’t tell you because it is ambiguous, but if we assume
that only one bird at a time needs to be able to perform the pirouette behavior
than here is the math to figure out how much space you need.”
Stern contends
that the key defect in Proposition 2’s language is the assumption that only one
bird needs to be able to perform the behavior at a time. He said that the judge
needs to tell the industry that the law is either ambiguous, or if the ruling is
that the law is “crystal clear,” the judge needs to say what the law means. “The
key ambiguity of Proposition 2 is how many birds need to be able to perform the
prescribed behaviors at the same time,” Stern said.
Shipping eggs into California
When asked whether or not Proposition 2’s requirements for housing hens could
be enforced on egg producers outside of California who want to sell eggs in
California, Stern used the example of standards that have been set for milk sold
in California. “There are dairy requirements that make it difficult for
producers outside of California to send milk into the state based on food
safety, health and wholesomeness,” Stern said. “That law is challenged from time
to time. So far it has survived. But it is not a slam dunk each time it is
challenged.” He said that he wouldn’t be surprised if sometime around January 1,
2015, an out-of-state interest tried to challenge Proposition 2’s requirements
for out-of-state egg producers. Stern said that he wouldn’t predict how that
legal challenge might turn out, but said that it “wouldn’t be a slam dunk either
way.”
“This of course concerns the California [egg] industry,” Stern said.
