Oklahoma SQ 777

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Oklahoma SQ 777

Here’s a question you might not have asked yourself lately—or ever:

Should puppy mills have a constitutional right to set up shop next to a daycare?

Out of left field, right? But that question—and countless others like it—will, in fact, be on the ballot this fall in Oklahoma.

Let me explain: On March 3, 2015, the Oklahoma Legislature passed a bill to prohibit commercial pet breeding facilities, including puppy mills, from locating within 2,500 feet of a school or daycare in cities with populations greater than 300,000 (a level met only by Oklahoma City and Tulsa). The governor signed the bill, and the law went into effect on Nov. 1 of last year.

The House sponsor of that bill was Rep. Lee Denney, the chamber’s second-ranking member and a veterinarian from Cushing, Okla. Denney was also a sponsor of the resolution to place State Question 777 on the ballot.

There’s some irony to that because 777 would make it possible for a commercial pet breeder to undo Rep. Denney’s work in passing that anti-puppy mill legislation.

You see, State Question 777 would give anyone involved in farming or ranching, or livestock production, the power to get laws that restrict their practices struck down in court. And since Oklahoma’s definition of “livestock” is interchangeable with “animals”— including “any animal or bird in captivity”—777 would give commercial pet breeders this same power.

The fact that Rep. Denney’s anti-puppy mill legislation is already on the books wouldn’t protect it from a lawsuit either.  State Question 777 contains a grandfather clause for past legislation, but only up through Dec. 31, 2014. Since Rep. Denney’s bill passed in March of 2015, it’s vulnerable to attack.

Here’s how that attack would work: If a person who owned property within 2,500 feet of an OKC or Tulsa daycare wanted to open a pet breeding facility, he or she could apply for a license to the Oklahoma Department of Agriculture, Food and Forestry (ODAFF).  ODAFF would deny their application under Rep. Denney’s law.

Under 777, this pet breeder could then sue ODAFF, claiming the law is an unconstitutional restriction on their rights. But it wouldn’t be the pet breeder’s job to prove that the law is unconstitutional. Instead, a state lawyer for ODAFF would have to appear in court and convince the judge the law is constitutional. And under the terms of 777, the deck would be strongly stacked against ODAFF.

That’s because 777 only allows for restrictions that serve “a compelling state interest.” Some have argued this phrase limits the power granted to the agriculture industry under 777.

Turns out, the opposite is true. The phrase “compelling state interest” is a legal codeword of sorts that tells judges the particular analysis they have to use when trying to decide a case under 777.

The shorthand name for this analysis is “strict scrutiny.” To win under strict scrutiny, ODAFF would have to convince a judge of three things: First, that the ban on pet breeders within 2,500 feet of a school serves a compelling state interest. ODAFF would then have to convince a judge the law is necessary to achieve that interest, and that no lesser intrusive law would achieve it.

If this sounds hard to do, it’s because strict scrutiny is the toughest test in all of constitutional law. It’s traditionally used when laws are challenged because they discriminate on the basis of race or interfere with our most treasured rights, such as free speech or voting. Strict scrutiny is a way to put a thumb on the scales of justice—to give oppressed minorities a leg up in court.

Under 777, this advantage would belong to Oklahoma’s entire agricultural industry, as well as commercial pet breeders.

It’s impossible, of course, to say what a judge would do with this particular lawsuit against Rep. Denney’s anti-puppy mill law. But the first questions a judge would have to ask are: Just what is a “compelling state interest” anyway? And does keeping puppy mills more than 2,500 feet away from schools and daycares in the two largest cities in Oklahoma meet that standard?

To figure out what a compelling state interest is, the judge would probably look at how the Oklahoma Supreme Court has used that phrase in the past.

For instance, the phrase appears in cases about the termination of parental rights.  Parental rights are so important and so fundamental they can’t be terminated unless proof of child abuse establishes “a compelling state interest” in the protection of the child (In the Matter of J.N.M., 1982 OK 153).

Furthermore, the phrase was used to justify the State’s interest in creating the Ethics Commission—to promote stability, transparency, and lack of corruption in our state’s politics (In re Initiative Petition No. 341, State Question No. 627, 1990 OK 53).

The “compelling state interest” standard also came up in a discussion over whether a prison’s “no beards” rule placed a burden on religious freedom, an American value of such longstanding importance that burdens on it have to be justified by “a compelling state interest in the regulation of prison affairs” (Gamble v. Benton, 1979 OK 122).

Finally, one thing the Oklahoma Supreme Court has said would not amount to a “compelling state interest” is “aesthetic principles.” (This was in a case regarding a highway billboard that read “GET US OUT OF THE UNITED NATIONS,” State ex rel Dept. of Transp. v. Pile, 1979 OK 152.)

It’s important to remember that cases like this are always about clashes of important values:

  • The State’s compelling interest in protecting children from abuse versus a person’s right to be a parent to their own child.
  • The State’s compelling interest in a stable, transparent, and non-corrupt government versus the right of political candidates to raise money and run for office.
  • The State’s compelling interest in the regulation of prison life versus a person’s right to practice one’s religion freely.

That leaves the judge in our case with a simple question: Is the State’s interest in keeping pet breeding facilities more than 2,500 feet away from schools or daycares (in only two Oklahoma communities) as compelling an interest as protecting children from abuse? Or preventing government corruption? Or regulating prisons? Is it, in the language of 777’s ballot title, “a clearly identified state interest of the highest order”?

That’s a hard sell and not because there’s anything wrong with Rep. Denney’s law. It’s a good law that comes from a good place, but it’s a hard sell because of how steeply 777 tilts the balance against all laws.

For instance, ODAFF could argue that the law’s compelling state interest is protecting children from exposure to puppy mills. But can ODAFF make that argument persuasively, since this law only protects children in Tulsa and Oklahoma City? What about the children of Edmond, Moore, Broken Arrow, Owasso, Elk City, Woodward, Stillwater or Ardmore? Do the children in Alva, Altus, Sallisaw, Okemah, Purcell, Miami or Poteau not deserve this same protection? Of course, they do, but should Rep. Denney’s law die simply because—for whatever complicated, sausage-making reason—her bill only addressed pet breeding in the state’s largest cities?

There’s a reason we only put a tiny fraction of our laws through the wringer like this. We want this kind of hard scrutiny when racial equality or fundamental rights are on the line.

But those kinds of laws fortunately don’t get enacted nearly as often as laws that regulate agriculture because agriculture covers a ton of territory: air quality, water rights, land use, food safety, consumer transparency, taxation, property rights, and yes, laws that govern animals—all animals.

To make the entire range of agricultural laws vulnerable to attack—and to make the judicial minefield of strict scrutiny their only path to survival—would be both unprecedented and unpredictable.

So why does the agricultural industry want this power? After all, people in the business of agriculture look for stability, predictability and certainty wherever they can get it.  Farmers and ranchers already live their lives at the mercy of the rain, wind and heat and the fluctuations of complex markets whose ups and downs can baffle even the surest and most experienced hand.

Why, then, would farmers and ranchers want to inject such chronic uncertainty into the laws that govern their livelihood?

The answer to that question begins in 2008, in California, with a ballot measure called Prop 2. Prop 2 was sponsored by the Humane Society of the United States, who had partners in that campaign, including Senator Dianne Feinstein, the United Farm Workers, the Sierra Club, Clean Water Action, the Consumer Federation of America, and the California Veterinary Medical Association.

What Prop 2 sought was to make it illegal for businesses to confine farm animals in a way that didn’t allow them to turn around freely, to lie down, to stand up, and to fully extend their limbs.

The opposition group in the Prop 2 campaign was funded by business interests.  The single largest contributor was Cal-Maine Foods, who contributed over half a million dollars to the No campaign. Other opposition sponsors included the California Farm Bureau Federation and seven organizations representing the poultry or egg industries.

At the end of the campaign, the people of California approved Prop 2 with 63.5 percent of the vote. This caused considerable disquiet among members of the agriculture industry, including the officials of the North Dakota Farm Bureau, who became further alarmed in 2010 when the Humane Society sponsored a ballot measure in their state that would have banned hunting in man-made enclosures—canned hunts. The Farm Bureau opposed that measure, and the voters defeated it, but only by the relatively close margin of 57 to 43.

Soon after, the Farm Bureau commissioned a local lawyer to prepare draft language for a proposed constitutional amendment—the precursor to 777—that would ultimately say, “The right of farmers and ranchers to engage in modern farming and ranching practices shall be forever guaranteed in this state. No law shall be enacted which abridges the right of farmers and ranchers to employ agricultural technology, modern livestock production, and ranching practices.”

In 2012, the amendment passed in North Dakota by 67 to 33, then migrated to Missouri in 2014, where it passed again, but narrowly by 50.12 percent to 49.88. Now, after some false starts, the question is on the ballot in Oklahoma this November.

The North Dakota Farm Bureau president explained, in clear terms, why his group wanted the amendment: “It doesn’t allow someone from the East Coast, the West Coast, to come in here and tell you what you can and can’t do because of their idealistic notions…We want to be able to farm in North Dakota, the way we think we should be able to.