Monday, May 2, 2011
C.A.: No Constitutional Right to Keep Pets Unaltered
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal on Friday upheld the constitutionality of a Los Angeles municipal ordinance requiring sterilization of dogs and cats within the city.
Div. One explained that the ordinance was a valid exercise of the city’s police power and did not implicate any constitutional rights.
The city amended Sec. 53.15.2 of its municipal code in February 2008 to require the owner of a dog or cat in the City of Los Angeles to spay or neuter the animal unless one of six exemptions is satisfied.
Exemptions were provided for animals whose owners hold breeder permits; certain breeds of animal trained and groomed to participate in show competitions; dogs used for carting, herding, protection, hunting, or working; trained guide or service dogs; dogs used for law enforcement, military or rescue purposes; and animals who would suffer adverse health effects from the spay or neuter procedure.
In enacting the ordinance, the council specifically noted its finding that “there exists a serious pet overpopulation problem within the City, that has resulted in a threat to public safety and health…that uncontrolled breeding is the cause… [and] that part of the solution is for all dogs and cats over the age of four months to be spayed or neutered.”
Before the amended ordinance’s scheduled effective date in October 2008, Concerned Dog Owners of California and various individuals filed a complaint seeking invalidation of the ordinance.
CDOC contended the ordinance compelled speech by requiring a “breeder’s permit” and thereby designating those owners as “breeders,” which is purportedly a stigmatized label. The group also asserted the law was overly broad, unconstitutionally vague, constituted a government taking, and violated equal protection.
Los Angeles Superior Court Judge David P. Yaffe was not persuaded and denied CDOC’s requested relief. Justice Jeffrey W. Johnson also rejected CDOC’s claims in his opinion for the appellate court.
Johnson reasoned the basis of CDOC’s contention that pet owners were being impermissibly coerced into complying with one of the ordinance’s exemptions “appears to be predicated upon the spurious notion that an individual has a constitutional right to keep his dog or cat unaltered,” although “no such right exists.”
He explained the ordinance “does not permit the city to effectuate a physical invasion or acquisition of the animals nor does it deprive owners of all economically viable use,” since “individuals who do not wish to sterilize their dog or cat, for economic reasons or otherwise, may purchase a ‘breeding permit.’ ”
The justice added that holding a breeders permit does not make an individual a “breeder” since the breeder exemption does not require pet owners to actually breed their pets in order to obtain the permit.
By creating an exemption for pet owners with breeder permits, Johnson said, he ordinance also “does not require any individual to convey any verbal or symbolic statement.”
Johnson emphasized that the ordinance “regulates conduct not speech,” and “the regulated conduct involves sterilizing an animal, which is neither integral to, nor commonly associated with, expression.”
Since the First Amendment’s protection “does not extend to conduct which cannot reasonably be interpreted to be expressive in nature,” the justice said CDOC’s free speech claims therefore were “baseless.”
He also concluded the ordinance provided “adequate notice to people of ordinary intelligence of the conduct that is prohibited and standards to protect against arbitrary enforcement,” and “satisfies rational basis review.”
Because the courts “have recognized that dogs are considered personal property and it is within the proper jurisdiction of the legislature to control and regulate the ownership of such animals,” Johnson said, the ordinance fell “squarely within the ambit of the City’s police powers and derives from the City’s authority to regulate matters of public health and safety.”
Presiding Justice Robert M. Mallano and Justice Frances Rothschild joined the opinion.
Counsel for the parties were Los Angeles practitioner John Michael Jensen and Deputy City Attorneys Casey Chon and Todd Leung.
The case is Concerned Dog Owners of California v. City of Los Angeles, 11 S.O.S. 2192.
Copyright 2011, Metropolitan News Company