WATT Poultry eNews: California egg farmers challenge Proposition 2 in state court

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 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.