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Brown Beauty's Bill
a 2002 ballot initiative to ban the slaughter of Massachusetts horses for human consumption
Office of the Attorney General One Ashburton Place Boston, MA 02108-1698 Atn: Susan Paulson August 31, 2001 Response of Proponents to Comments on the Brown Beauty Initiative Made by Massachusetts Farm Bureau Federation, Inc. The Massachusetts Farm Bureau Federation, Inc. has submitted comments on the Brown Beauty Initiative, Petition #01-14, to the Massachusetts Attorney General. This response was prepared by attorney Lowell Finley, who drafted the proposed law for Save Our Horses, sponsor of Brown Beauty's bill. The Massachusetts Farm Bureau Federation argues that the Attorney General should not allow the initiative on the ballot for three reasons. It claims, first, that the initiative is vague; second, that it is preempted by federal law; and third, that the "private right of action" it establishes is "unfair and perhaps illegal." As demonstrated below, none of these arguments has merit, and even if they did, they are not grounds on which the Attorney General has the authority to stop an initiative from going before the voters. The Massachusetts Attorney General Cannot Bar an Initiative from the Ballot for Any of the Supposed Defects Alleged by the Farm Bureau Federation The Constitution of the Commonwealth of Massachusetts specifies the exclusive substantive grounds on which an initiative may be kept off the ballot, as follows: Section 2. Excluded Matters. - No measure that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal, recall or compensation of judges; or to the reversal of a judicial decision; or to the powers, creation or abolition of courts; or the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth; or that makes a specific appropriation of money from the treasury of the commonwealth, shall be proposed by an initiative petition; but if a law approved by the people is not repealed, the general court shall raise by taxation or otherwise and shall appropriate such money as may be necessary to carry such law into effect.Mass. Const. Art. XLVIII, The Initiative, II, sec. 2. It is clear from a thorough reading of this constitutional provision that none of the alleged defects cited by the Farm Bureau Federation is covered. Thus, even if the alleged defect were a real one, it would not give the Attorney General the authority to prevent the initiative from appearing on the ballot. We can now turn to a separate examination of each of the three flaws from which the Farm Bureau Federation claims the initiative suffers. The Initiative Is Not Vague The Farm Bureau Federation contends that horses are assembled, shipped, bought and sold in the state for recreational use and farm use, as well as for slaughter. It therefore argues the initiative is vague because "[i]t would be impossible to distinguish the ultimate use of various animals or the intentions of the ultimate buyer." The initiative is, however, quite clear and explicit about what it prohibits. Proposed Chapter 272, Section 78B, subdivision (a) provides that "no person shall slaughter a horse or other equine for food for human consumption, nor shall any person receive, possess, offer for sale, sell, offer to buy, buy, offer to give away, give away, or transport any horse or other equine where that person knows or should know that it will be slaughtered for food for human consumption." (Italics added.) Under the italicized language, a person could be convicted of a criminal violation, or held liable for a civil penalty, only if it could be proven that the person knows or should know that the horse or other equine the person is selling, buying, transporting, etc., will be slaughtered for human consumption. That is an issue of the sufficiency of the evidence, not vagueness. The Initiative Is Not Preempted by Federal Law The initiative does not purport to regulate transport of horses or other equines into or out of the state. It does not discriminate against interstate commerce in favor of intrastate commerce. Indeed, the initiatives purpose is not the regulation of commerce, but to protect horses "as an important part of the heritage of Massachusetts" and prevent theft and consumer fraud. Courts considering Commerce Clause challenges are tolerant of state laws that are not designed to achieve economic benefits but rather to advance social welfare, safety, or other non-economic goals: When there is a reasonable basis for legislation to protect the social, as distinguished from the economic, welfare of a community, it is not for the Court because of the Commerce Clause to deny the exercise locally of the sovereign power of the [state].Breard v. Alexandria, 341 U.S. 622, 640 (1951). This deference to non-economic regulation by states is based on the Supreme Courts view of the proper balance between state and federal authority under the Constitution: In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when "conferring upon Congress the regulation of commerce, . . . never intended to cut the States off from legislating on all subjects related to health, life, and safety of their citizens, though the legislation may affect commerce and person engaged in it without constituting a regulation of it, within the meaning of the Constitution." [Citations.]Huron Cement Co. v. Detroit, 362 U.S. 440, 443-44 (1960). The United States Supreme Court has recognized the propriety of local regulations that are designed to prevent fraud or deception. California v. Thompson, 313 U.S. 109 (1941). The initiatives purpose of protecting an animal that is "an important part of the heritage of Massachusetts" is also likely to be regarded by courts as a legitimate state purpose. It is comparable to the declared purpose of Congress in enacting the "Wild Free-roaming Horses and Burros Act," 85 Stat. 649, 16 U.S.C. §§ 1331-1340 (1970 ed., Supp. IV.) Congress deemed these animals "living symbols of the historic and pioneer spirt of the West." 16 U.S.C. § 1331. The Senate committee found: [These animals] have been cruelly captured and slain and their carcasses used in the production of pet food and fertilizer. They have been used for target practice and harassed for "sport" and profit. In spite of public outrage, this bloody traffic continues unabated, and it is the firm belief of the committee that this senseless slaughter must be brought to an end.S. Rep. No. 92-242, pp. 1-2 (1971), quoted in Kleppe v. New Mexico, 426 U.S. 529, 536 (1976). The Farm Bureau Federation cites a single trial court decision, Animal Legal Defense Fund Boston, Inc. v. Provimel Veal Corporation, 626 F.Supp. 278 (D.Mass. 1986) in support of its claim that the initiative is preempted by unspecified federal statutes and regulations on interstate shipment of livestock and slaughter of animals for human consumption. That case, however, is readily distinguishable. First, the ALDF case involved veal calves, not horses or other equines. Second, the case concerned detailed meat labeling and animal feed requirements that are not implicated by the Brown Beauty initiative. The ALDF court found that the plaintiffs request for an order under state law requiring labeling of veal meat sold in the state to disclose that the calves are raised in dark, confined pens, fed iron-deprived diets, and given feed that contains antibiotic drugs was pre-empted by "the comprehensive federal scheme regulating the labeling, packaging and marketing of meat and the use of medicated animal feeds." Id. at 281. That comprehensive federal scheme has no bearing on an initiative that simply bans slaughter of horses for human consumption, and related possession, ownership transactions, and transport. The Initiatives Private Right of Action Is Fair and Lawful The Farm Bureau Federation argues that the initiatives private right of action is "illegal" or "improper" because "courts have found in the past that private parties cannot enforce criminal statutes." The statement of the general legal principle is correct. See Whitley v. Commonwealth, 369 Mass. 961, 962 (1975) (the rights to pursue criminal prosecution "are not private but are in fact lodged in the Commonwealth as it may proceed to enforce its laws"). See also Tarabolski v. Williams, 419 Mass. 1001 (1994); Taylor v. Newton Div. of the Dist. Court Dep't, 416 Mass. 1006, 1006 (1993) ("it is settled beyond cavil that a private citizen has no judicially cognizable interest in the prosecution of another"). But see Katz v. Commonwealth & Others, 379 Mass. 305 (1979). That general principle does not apply here, however, because the private right of action created by the initiative is civil rather than criminal in nature. Stated differently, the initiative does not empower a private citizen initiate or to act as prosecutor in a criminal case. Rather, proposed section Chapter 272, Section 78C authorizes a private "civil action" to recover a "civil penalty." Finally, the Farm Bureau Federation complains that the private right of action provision authorizes an award of costs to a prevailing plaintiff but not to a prevailing defendant. Suffice it to say that the Massachusetts General Laws already contain at least one major law with such a unilateral cost award provision. See M.G.L. - Ch. 151B, Section 5 (award of attorneys fees and costs to prevailing employment discrimination complainant). Cf. M.G.L. - Ch. 149, Section 185 (authorizing award, in employee whistle-blower cases, of costs and attorneys fees to all "prevailing plaintiffs" but to defendant employers only where the court finds the employees action to be "without basis in law or in fact," and only then if the employee has not voluntarily dismissed action with a reasonable time after determining that the employer would not be found liable in damages). Prepared for Save Our Horses by Law Offices of Lowell Finley 1604 Solano Avenue Berkeley, CA 94707-2109 Telephone: 510-290-8823 Fax: 510-526-5424 "Keep America's horses in the stable and off the table!" E-mail HOOFPAC |