Filed 4/2/14 certified for publication 4/18/14 (order not available)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
APPELLATE DIVISION
THE PEOPLE, Case No: ACRAS 1300083 Plaintiff and Appellant, (Trial Court: MWV 1201986)
v. OPINION HORACIO ROQUE SANTORSOLA, Defendant and Respondent.
Appeal from judgment, San Bernardino County Superior Court, Rancho Cucamonga District, Stephan G. Saleson, Judge. Reversed.
Michael A. Ramos, District Attorney, and Brent J. Schultze for Plaintiff and Appellant.
Schiff Hardin LLP, Bruce A. Wagman; and Peter A. Brandt for Mercy for Animals and The Humane Society of the United States as Amici Curiae on behalf of Plaintiff and Appellant.
The Law Offices of Kirk M. Tarman and Kirk M. Tarman for Defendant and Respondent.
THE COURT*
FACTS On May 25, 2012, defendant and respondent, Horacio Roque
Santorsola, along with others, was charged with nine counts of cruelty to
* Alvarez, P. J., West, J., and Yabuno, J.
1 an animal in violation of Penal Code section 597, subdivision (b). On April
24, 2013, the complaint was amended to add nine additional counts
charging respondent with having received, improperly held, or improperly
moved a nonambulatory animal in violation of Penal Code section 599f.1
On May 30, 2013, during the trial of this action, the court made a
determination that the charges based on Penal Code section 599f were
preempted by the Federal Meat Inspection Act (FMIA) based on the
decision of the United States Supreme Court in Nat'l Meat Ass'n v. Harris
(2012) __ U.S. __, [132 S.Ct. 965, 181 L.Ed.2d 950]. On June 17, 2013,
plaintiff and appellant, People of the State of California, noticed their
appeal of that determination pursuant to Penal Code section 1466.2
DISCUSSION
The People contend that the trial court erred in its determination that
section 599f was preempted. “The supremacy clause of the United States
Constitution establishes a constitutional choice-of-law rule, makes federal
law paramount, and vests Congress with the power to preempt state law.”
(Jankey v. Lee (2012) 55 Cal.4th 1038, 1048.) “Congress may exercise 1 Penal Code section 599f requires “immediate action to humanely euthanize” nonambulatory animals and provides that “While in transit or on the premises of a stockyard, auction, market agency, dealer, or slaughterhouse, a nonambulatory animal may not be dragged at any time, or pushed with equipment at any time, but shall be moved with a sling or on a stoneboat or other sled-like or wheeled conveyance.” (Pen. Code, § 599f, subd. (d), (e).) Each count alleged against the respondent charged him with dragging a nonambulatory animal and not euthanizing it. 2 “An appeal may be taken from a judgment or order, in an infraction or misdemeanor case, to the appellate division of the superior court of the county in which the court from which the appeal is taken is located, in the following cases: (a) By the people: … (2) From an order or judgment dismissing or otherwise terminating all or any portion of the action….” (Pen. Code, § 1466, subd. (a)(2).)
2 that power by enacting an express preemption provision, or courts may
infer preemption under one or more of three implied preemption doctrines:
conflict, obstacle, or field preemption.” (Ibid.) “In both express and implied
preemption cases, whether preemption will be found in a given case
depends foremost on congressional intent.” (Ibid.) “If a statute contains
an express pre-emption clause, our task of statutory construction must in
the first instance focus on the plain wording of the clause, which
necessarily contains the best evidence of Congress‟ pre-emptive intent.”
(Brown v. Mortensen (2011) 51 Cal.4th 1052, 1060, internal quotation
marks omitted.) “Second, [i]n all pre-emption cases, and particularly in
those in which Congress has “legislated … in a field which the States have
traditionally occupied, … we start with the assumption that the historic
police powers of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.” (Ibid.,
internal quotation marks omitted.)
In National Meat Association v. Harris, the United States Supreme
Court invalidated the application of Penal Code section 599f to a
slaughterhouse‟s treatment of nonambulatory animals holding that the
Federal Meat Inspection Act (FMIA), 21 U.S.C. §601 et seq., “expressly
preempts … California law dictating what slaughterhouses must do with
pigs that cannot walk, known in the trade as nonambulatory pigs.” (Nat'l
Meat Ass'n v. Harris (2012) __ U.S. __, [132 S.Ct. 965, 968,181 L.Ed.2d
3 950].) The court noted that the FMIA “contains an express preemption
provision….” (Id. at 969.) That provision states, “Requirements within the
scope of this Act with respect to premises, facilities and operations of any
establishment at which inspection is provided under title I of this Act, which
are in addition to, or different than those made under this Act may not be
imposed by any State or Territory or the District of Columbia, except that
any such jurisdiction may impose recordkeeping and other requirements
within the scope of section 202 of this Act, if consistent therewith, with
respect to any such establishment.” (21 U.S.C.S. § 678, emphasis added.)
As respondent notes, “the FMIA's preemption clause covers not just
conflicting, but also different or additional state requirements” and
“therefore precludes California's effort in §§ 599f(b) and (c) to impose new
rules, beyond any the [Food Safety and Inspection Service (FSIS)] has
chosen to adopt, on what a slaughterhouse must do with a pig that
becomes nonambulatory during the production process.” (Nat'l Meat Ass'n
v. Harris, supra, 132 S.Ct. at 971.) However, the FMIA has a savings
clause providing, “This Act shall not preclude any State or Territory or the
District of Columbia from making requirement [requirements] or taking
other action, consistent with this Act, with respect to any other matters
regulated under this Act.” (21 U.S.C.S. § 678.)
The People argue that section 599f is preempted only to the extent
that it seeks to regulate premises, facilities and operations of
4 establishments at which inspections are provided under the FMIA and so
does not preempt the provisions that apply to livestock auctions like those
conducted by respondent, which are contained in subdivisions (d) and (e)
of section 599f. Respondent argues that there is no language in Harris
that specifically singles out auction houses as exempt from the FMIA
contending that the Supreme Court specifically referenced
slaughterhouses only because the petitioner there, National Meat
Association (NMA), was “a trade association representing meatpackers
and processors, including operators of swine slaughterhouses” and “sued
to enjoin the enforcement of §599f against those slaughterhouses….”
(Nat'l Meat Ass'n v. Harris, supra, 132 S.Ct. at 970.)
In Harris, the Supreme Court noted, “The FMIA regulates a broad
range of activities at slaughterhouses to ensure both the safety of meat
and the humane handling of animals.” (Nat'l Meat Ass'n v. Harris, supra,
132 S.Ct. at 968.) “The regulations implementing the FMIA … prescribe
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Filed 4/2/14 certified for publication 4/18/14 (order not available)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
APPELLATE DIVISION
THE PEOPLE, Case No: ACRAS 1300083 Plaintiff and Appellant, (Trial Court: MWV 1201986)
v. OPINION HORACIO ROQUE SANTORSOLA, Defendant and Respondent.
Appeal from judgment, San Bernardino County Superior Court, Rancho Cucamonga District, Stephan G. Saleson, Judge. Reversed.
Michael A. Ramos, District Attorney, and Brent J. Schultze for Plaintiff and Appellant.
Schiff Hardin LLP, Bruce A. Wagman; and Peter A. Brandt for Mercy for Animals and The Humane Society of the United States as Amici Curiae on behalf of Plaintiff and Appellant.
The Law Offices of Kirk M. Tarman and Kirk M. Tarman for Defendant and Respondent.
THE COURT*
FACTS On May 25, 2012, defendant and respondent, Horacio Roque
Santorsola, along with others, was charged with nine counts of cruelty to
* Alvarez, P. J., West, J., and Yabuno, J.
1 an animal in violation of Penal Code section 597, subdivision (b). On April
24, 2013, the complaint was amended to add nine additional counts
charging respondent with having received, improperly held, or improperly
moved a nonambulatory animal in violation of Penal Code section 599f.1
On May 30, 2013, during the trial of this action, the court made a
determination that the charges based on Penal Code section 599f were
preempted by the Federal Meat Inspection Act (FMIA) based on the
decision of the United States Supreme Court in Nat'l Meat Ass'n v. Harris
(2012) __ U.S. __, [132 S.Ct. 965, 181 L.Ed.2d 950]. On June 17, 2013,
plaintiff and appellant, People of the State of California, noticed their
appeal of that determination pursuant to Penal Code section 1466.2
DISCUSSION
The People contend that the trial court erred in its determination that
section 599f was preempted. “The supremacy clause of the United States
Constitution establishes a constitutional choice-of-law rule, makes federal
law paramount, and vests Congress with the power to preempt state law.”
(Jankey v. Lee (2012) 55 Cal.4th 1038, 1048.) “Congress may exercise 1 Penal Code section 599f requires “immediate action to humanely euthanize” nonambulatory animals and provides that “While in transit or on the premises of a stockyard, auction, market agency, dealer, or slaughterhouse, a nonambulatory animal may not be dragged at any time, or pushed with equipment at any time, but shall be moved with a sling or on a stoneboat or other sled-like or wheeled conveyance.” (Pen. Code, § 599f, subd. (d), (e).) Each count alleged against the respondent charged him with dragging a nonambulatory animal and not euthanizing it. 2 “An appeal may be taken from a judgment or order, in an infraction or misdemeanor case, to the appellate division of the superior court of the county in which the court from which the appeal is taken is located, in the following cases: (a) By the people: … (2) From an order or judgment dismissing or otherwise terminating all or any portion of the action….” (Pen. Code, § 1466, subd. (a)(2).)
2 that power by enacting an express preemption provision, or courts may
infer preemption under one or more of three implied preemption doctrines:
conflict, obstacle, or field preemption.” (Ibid.) “In both express and implied
preemption cases, whether preemption will be found in a given case
depends foremost on congressional intent.” (Ibid.) “If a statute contains
an express pre-emption clause, our task of statutory construction must in
the first instance focus on the plain wording of the clause, which
necessarily contains the best evidence of Congress‟ pre-emptive intent.”
(Brown v. Mortensen (2011) 51 Cal.4th 1052, 1060, internal quotation
marks omitted.) “Second, [i]n all pre-emption cases, and particularly in
those in which Congress has “legislated … in a field which the States have
traditionally occupied, … we start with the assumption that the historic
police powers of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.” (Ibid.,
internal quotation marks omitted.)
In National Meat Association v. Harris, the United States Supreme
Court invalidated the application of Penal Code section 599f to a
slaughterhouse‟s treatment of nonambulatory animals holding that the
Federal Meat Inspection Act (FMIA), 21 U.S.C. §601 et seq., “expressly
preempts … California law dictating what slaughterhouses must do with
pigs that cannot walk, known in the trade as nonambulatory pigs.” (Nat'l
Meat Ass'n v. Harris (2012) __ U.S. __, [132 S.Ct. 965, 968,181 L.Ed.2d
3 950].) The court noted that the FMIA “contains an express preemption
provision….” (Id. at 969.) That provision states, “Requirements within the
scope of this Act with respect to premises, facilities and operations of any
establishment at which inspection is provided under title I of this Act, which
are in addition to, or different than those made under this Act may not be
imposed by any State or Territory or the District of Columbia, except that
any such jurisdiction may impose recordkeeping and other requirements
within the scope of section 202 of this Act, if consistent therewith, with
respect to any such establishment.” (21 U.S.C.S. § 678, emphasis added.)
As respondent notes, “the FMIA's preemption clause covers not just
conflicting, but also different or additional state requirements” and
“therefore precludes California's effort in §§ 599f(b) and (c) to impose new
rules, beyond any the [Food Safety and Inspection Service (FSIS)] has
chosen to adopt, on what a slaughterhouse must do with a pig that
becomes nonambulatory during the production process.” (Nat'l Meat Ass'n
v. Harris, supra, 132 S.Ct. at 971.) However, the FMIA has a savings
clause providing, “This Act shall not preclude any State or Territory or the
District of Columbia from making requirement [requirements] or taking
other action, consistent with this Act, with respect to any other matters
regulated under this Act.” (21 U.S.C.S. § 678.)
The People argue that section 599f is preempted only to the extent
that it seeks to regulate premises, facilities and operations of
4 establishments at which inspections are provided under the FMIA and so
does not preempt the provisions that apply to livestock auctions like those
conducted by respondent, which are contained in subdivisions (d) and (e)
of section 599f. Respondent argues that there is no language in Harris
that specifically singles out auction houses as exempt from the FMIA
contending that the Supreme Court specifically referenced
slaughterhouses only because the petitioner there, National Meat
Association (NMA), was “a trade association representing meatpackers
and processors, including operators of swine slaughterhouses” and “sued
to enjoin the enforcement of §599f against those slaughterhouses….”
(Nat'l Meat Ass'n v. Harris, supra, 132 S.Ct. at 970.)
In Harris, the Supreme Court noted, “The FMIA regulates a broad
range of activities at slaughterhouses to ensure both the safety of meat
and the humane handling of animals.” (Nat'l Meat Ass'n v. Harris, supra,
132 S.Ct. at 968.) “The regulations implementing the FMIA … prescribe
methods for handling animals humanely at all stages of the slaughtering
process.” (Id. at 969.) “Those rules apply from the moment a truck
carrying livestock „enters, or is in line to enter,‟ a slaughterhouse's
premises.” (Ibid.) Their “scope includes not only „animals that are going to
be turned into meat,‟ but animals on a slaughterhouse's premises that will
never suffer that fate.” (Id. at 973.) In addressing the scope of the FMIA‟s
preemption clause, the Supreme Court noted, the “clause expressly
5 focuses on „premises, facilities and operations‟—at bottom, the
slaughtering and processing of animals at a given location.” (Id. at 972.)
The FMIA provides that “the Secretary shall cause to be made, by
inspectors appointed for that purpose, an examination and inspection of all
amenable species before they shall be allowed to enter into any
slaughtering, packing, meat-canning, rendering, or similar establishment in
which they are to be slaughtered….” (21 U.S.C.S. § 603(a).) Respondent
argues that his auction is a “similar establishment” and so within the
preemptive scope of FMIA, but does not address the statutory language
identifying such establishments as ones in which amenable species are to
be slaughtered. The FMIA states, “For the purpose of preventing the
inhumane slaughtering of livestock, the Secretary shall cause to be made,
by inspectors appointed for that purpose, an examination and inspection of
the method by which amenable species are slaughtered and handled in
connection with slaughter in the slaughtering establishments inspected
under this Act.” (21 U.S.C.S. § 603(b), emphasis added.) The FMIA also
requires “a post-mortem examination and inspection of the carcasses and
parts thereof of all amenable species to be prepared at any slaughtering,
meat-canning, salting, packing, rendering, or similar establishment….” (21
U.S.C.S. § 604.) It provides that “The foregoing provisions shall apply to
all carcasses or parts of carcasses of amenable species, or the meat or
meat products thereof which may be brought into any slaughtering, meat-
6 canning, salting, packing, rendering, or similar establishment….” (21
U.S.C.S. § 605.) “The inspectors provided for herein shall be authorized to
give official certificates of the condition of the carcasses and products of
amenable species….” (21 U.S.C.S. § 618, emphasis added.) Respondent
does not identify any part of the FMIA that would require inspection of an
auction where cattle are bought and sold, but are not killed, canned,
salted, packed, or rendered and this court has not found any such
provision.
Nor do the federal regulations governing the inspections under the
FMIA show an intent to extend the scope of inspections beyond those at
the places where animals are killed and their carcasses processed.
Inspections under those regulations are required at: “Every establishment
… in which any livestock are slaughtered for transportation or sale as
articles of commerce, or in which any products of, or derived from,
carcasses of livestock are, wholly or in part, prepared for transportation or
sale as articles of commerce, which are intended for use as human food;”
those “at which any livestock are slaughtered or any products of any
livestock are prepared, for use as human food solely for distribution within
such jurisdiction;” and those designated as “producing adulterated
7 products which would clearly endanger the public health.” (9 C.F.R. §
302.1(a)(1)-(3).)3
The Code of Federal Regulations requires that “All livestock offered
for slaughter in an official establishment shall be examined and inspected
on the day of and before slaughter unless, because of unusual
circumstances, prior arrangements acceptable to the Administrator have
been made in specific cases by the circuit supervisor for such examination
and inspection to be made on a different day before slaughter.” (9 C.F.R §
309.1(a).) Official establishment is defined as “Any slaughtering, cutting,
boning, meat canning, curing, smoking, salting, packing, rendering, or
similar establishment at which inspection is maintained under the
regulations in this subchapter.” (9 C.F.R § 301.2.)4 “Such ante-mortem
inspection shall be made in pens on the premises of the establishment at
which the livestock are offered for slaughter before the livestock shall be
allowed to enter into any department of the establishment where they are
to be slaughtered or dressed or in which edible products are handled.” (9
C.F.R § 309.1(b).) “When the holding pens of an official establishment are
3 There are exceptions, not relevant here, to these inspection requirements for animals killed by the persons who raised them, for custom slaughter for the household use of the owner of the animal, for operations traditionally conducted in restaurants and retail stores, and in unorganized Territories. (9 C.F.R. § 303.1(a)-(d).) 4 Amici note that the Department of Agriculture and the FSIS, in response to regulations seeking to “ensure more effective and efficient inspection procedures under the Federal Meat Inspection Act (FMIA), 21 U.S.C. 603, and improved compliance with the humane handling requirements established pursuant to 21 U.S.C. 603(b)[,]” have stated the “FSIS has no authority over the handling of cattle at auction markets, stockyards, or in transport vehicles before they reach official establishments.” (74 Fed.Reg. 11463, 11463-11464.)
8 located in a public stockyard and are reserved for the exclusive use of the
establishment, such pens shall be regarded as part of the premises of that
establishment and the operator of the establishment shall be responsible
for compliance with all requirements of the regulations in this subchapter
with respect to such pens.” (9 C.F.R § 309.1(b).) There is nothing in the
record that would show that respondent‟s auction is a holding pen located
in a public stockyard and reserved for the use of an official establishment,
and so respondent‟s auction is not brought within the preemptive scope of
the FMIA by the regulations governing its enforcement.
Because respondent‟s auction is not an establishment subject to
inspection under the FMIA, the charges alleged against respondent based
on the violation of Penal Code section 599f, subdivisions (d) and (e) are
not preempted and the judgment of the trial court dismissing those charges
is reversed.
DISPOSITION
The order of the trial court dismissing the charges based on the
violation of Penal Code section 599f is reversed and this matter is
remanded for further proceedings consistent with this opinion.