Metropolitan News-Enterprise


Thursday, March 2, 2006


Page 1


S.C. to Rule on State Ban on Importing Kangaroo Products




The California Supreme Court yesterday agreed to decide whether 35-year-old legislation banning importation of kangaroo products into the state is preempted by federal law.

The justices, at their weekly conference in San Francisco, voted unanimously to grant review in Viva! International Voice for Animals v. Adidas Promotional Retail Operations, Inc., A106960. The First District Court of Appeal ruled on Nov. 22 that Penal Code Sec. 653 is invalid because federal law expressly allows such products to be imported into the United States.

That ruling affirmed a San Francisco Superior Court judge’s order granting summary judgment to companies that sell athletic shoes containing kangaroo leather, including Sports Chalet and a subsidiary of the German manufacturer Adidas.

A Yolo County-based vegetarian group and a Los Angeles County resident sued the companies, alleging that the sales violated the Penal Code section and thus constituted an unlawful business practice.

The defendants argued that the state law only applies to endangered species, while the three species of kangaroos whose hides are used to make the defendants’ shoes have been removed from the endangered species list; that the ban conflicts with federal law and policy allowing kangaroos products into the United States in exchange for Australian government efforts to control the kangaroo population, which the government estimates at 57 million; and that state prohibition of imports violates the Commerce Clause.

Summary Judgment Granted

The trial judge rejected the endangered species argument, granted summary judgment on the preemption claim, and did not rule on the Commerce Clause issue.

Presiding Justice James Marchiano, writing for Div. One of the Court of Appeal, said the trial judge was correct.

The Endangered Species Act, Marchiano explained, has been interpreted as allowing a state to ban importation of products whose importation has not been approved under federal law. But where federal law has permitted importation of a product under certain conditions, the state law has been held invalid to the extent it prohibits what the federal law permits, the presiding jurist said.

The plaintiffs’ contention that the delisting of the three species places the issue outside the scope of federal law, and thus avoids the preemption question, is “not unreasonable,” Marchiano said, but gives “insufficient attention” to the rule that state law is preempted if it “stands as an obstacle to the accomplishment and execution of the full purposes and objections of Congress.”

For more than 20 years, the presiding justice explained, the United States and Australia have cooperated with regard to the issue of kangaroo conservation, with this country employing a “proverbial carrot and stick policy” allowing Australia to avoid a ban on imports by implementing population management programs.

Federal Policy Cited

Since the programs for the three species at issue in the case have been approved by the Fish & Wildlife Service, Marchiano explained, importation of products made from those species is permitted by federal law. To apply the state ban to such products, he concluded, conflicts with the federal policy and is thus prohibited.

In other conference action, the justices:

Agreed to review the “one-strike” sentence imposed on a Northern California man who impregnated his 13-year-old stepdaughter, resulting in an abortion.

Gary Wendell Cross is serving a 21-year-to-life sentence after being convicted of non-forcible oral copulation and committing a non-forcible lewd act on a child under 14, including a 15-year-to-life enhancement for causing great bodily injury.

The Sixth District Court of Appeal upheld the sentence, concluding that the victim’s late-term abortion constituted “great bodily injury” and that the defendant “personally inflict[ed]” the injury within the meaning of the statute. The high court said it would review both of those holdings.

The vote to take the case was 5-2, with Justices Marvin Baxter and Ming Chin in the minority. It was the first conference in which Chin, who recently had surgery, has participated in several weeks.

Agreed to decide whether assault with a firearm is a lesser included offense of shooting from a vehicle. The Fourth District’s Div. Three held in People v. Licas, G034891, that it was not.


Copyright 2006, Metropolitan News Company