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Judge tosses ‘puppy mill’ lawsuit

Friday, May 29, 2015
Chicago Daily Law Bulletin
by Patricia Manson

A federal judge has thrown out a lawsuit challenging an ordinance that bars suburban pet stores from obtaining dogs, cats or rabbits from large commercial breeders.

U.S. District Judge Matthew Kennelly is allowing the plaintiffs a few days to fix problems in their suit and file an amended complaint. But in his written opinion, he suggested the challenge to Cook County’s “puppy mill” ordinance still won’t have much more than a dog’s chance.

The preamble to the Companion Animal and Consumer Protection Ordinance says the measure is aimed at stopping the retail sale of pets that come from “mass-breeding facilities that churn out puppies with an emphasis on profit over welfare.”

Kennelly rejected the statutory and constitutional arguments the Missouri Pet Breeders Association and three pet store owners raised against the ordinance.

“While it is highly unlikely that plaintiffs can cure the complaint’s defects by amendment, the court will give them a chance to try,” Kennelly wrote. “Unless plaintiffs filed a proposed amended complaint no later than June 11, 2015, that states a viable federal claim, the court will enter judgment in favor of defendants.”

The lead attorney for the plaintiffs, David J. Fish of The Fish Law Firm P.C. in Naperville, said his clients will make the necessary changes and refile the lawsuit.

“We do plan on proceeding full speed ahead,” he said. “We believe that the case has merit.”

Bruce A. Wagman of Schiff, Hardin LLP’s San Francisco office doesn’t see it that way.

Wagman represents the Humane Society of the United States and The Puppy Mill Project in other cases involving the regulation of puppy mills.

“There’s just nothing good about it,” he said of breeding animals in mills.

In a statement, Cook County State’s Attorney Anita M. Alvarez thanked lawyers in her office for their work on the case.

Defending the ordinance were Assistant State’s Attorneys Jayman A. Avery III and Kent S. Ray.

The case is Missouri Pet Breeders Association, et al. v. County of Cook, et al., No. 14 C 6930.

Kennelly is the second federal judge to consider — and turn aside — a challenge to legislation regulating puppy mills.

On March 31, Chief U.S. District Judge William E. Smith of the District of Rhode Island upheld East Providence, R.I.’s puppy mill ordinance.

Other challenges to some of the ordinances adopted by 70 or so municipalities are pending.

For example, a Missouri breeder and two Chicago pet stores are among the plaintiffs challenging the city’s puppy mill ordinance. Park Pet Shop Inc., et al. v. City of Chicago, et al., No. 15 C 1450. That case is pending before U.S. District Judge Jorge L. Alonso.

Both the Chicago and the Cook County ordinances are on hold until the respective suits are resolved.

Cook County’s ordinance allows suburban pet stores to obtain dogs, cats and rabbits only from nonprofit or government-operated entities or from federally licensed breeders who use no more than five female animals a year to produce their stock.

About three weeks before the ordinance was to go into effect on Oct. 1, the breeders association and the other plaintiffs filed their suit.

In addition to Cook County, defendants in the suit were Board President Toni Preckwinkle and Donna Alexander, director of the Department of Animal and Rabies Control.

The plaintiffs alleged the ordinance was pre-empted by state and federal law and exceeded the county’s home-rule powers under the Illinois Constitution.

But in his opinion last week, Kennelly held the Illinois General Assembly “has not expressly barred local governments from exercising power in the field of animal control.”

Kennelly also rejected the argument that the ordinance violates the equal protection clause by distinguishing between large and smaller breeding facilities.

That distinction “is rationally related to a legitimate government interest” in reducing the number of animals sold in the county that are obtained from mass-breeding facilities, Kennelly wrote.

And he held the ordinance does not burden interstate commerce by limiting the number of breeders from which Cook County stores may buy animals and thereby limiting the number of pure- and speciality-bred pets they can offer to their customers.

Kennelly conceded that customers might respond to the shortage of certain types of animals in stores by buying them directly from breeders.

“But a law does not burden interstate commerce if it shifts business from one in-state firm to another in-state firm,” he wrote.

Kennelly also was not persuaded by the argument that the ordinance impairs contracts — including building leases, franchise agreements and contracts to buy pets from particular breeders — in violation of the U.S. Constitution.

If a “significant and legitimate public purpose” justifies an ordinance, Kennelly wrote, quoting Chicago Board of Realtors Inc. v. City of Chicago, 819 F.2d 732 (7th Cir. 1987), it passes muster if its effect on contracts “is reasonable and appropriate” in light of that purpose.

And Kennelly rejected the notion that the ordinance is vague, writing that “a person of ordinary intelligence” would not be confused by its provisions.

Wagman said he is pleased with the ruling.

Animals suffer when they were bred in facilities with cramped living quarters and inadequate enrichment and veterinary care, he said.

People who adopt sick or unsocialized animals, Wagman said, often are unable to address those problems and either euthanize the animal or turn it over to government-run shelters.

And then taxpayers end up footing the bill for the care or euthanization of these animals, he said.

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