Federal Court Prevents ALDF and Others From Helping the State of California Defend the Foie Gras BanPosted by Jeff Pierce, ALDF Law Clerk on August 21st, 2012
An oikos, in Athens, is a house. When Heraclitus busied himself at oikonomia—from which we get our word “economy”—he wasn’t calculating gross domestic product, he was tending to his housekeeping.
“Economy,” then, doesn’t refer merely to markets and labor, to GDP and inflation, nor even to interest rates and presidential approval ratings. Etymologically speaking, my economy is how I handle my affairs, how I keep my house.
In the field of law we sometimes speak of “judicial economy.” The judicial economy refers, in some measure, to how a judge manages her docket—to the housekeeping of her courtroom. But the concept of judicial economy derives less from what we mean by the word “economy” than from what we mean by the word “economical.”
To behave economically is to exhibit care with resources, to avoid waste. Bringing your own five-pound bag of peanuts to the Coliseum, as was the custom in my family, is economical. Spending thirty dollars on a wee bag of shells and a couple of beers, which has become my habit, is not.
So judicial economy signals not merely managing the docket but managing the docket with prudence and thrift. Insofar as judicial economy involves a judge’s effort to conserve resources, it’s rather more like the austerity measures in modern Athens than Heraclitus’ sweeping out his entryway and dusting his red-figure pottery.
Judicial economy is a good thing for those of us fed up with administrative waste and government inefficiency. Courts should exhibit care with resources, because judicial resources consist mainly of our tax dollars and litigants’ time.
On the other hand, a commitment to judicial economy might feel on occasion a little too streamlined, a little overcautious.
Earlier this month a federal court in Los Angeles exhibited just such overcaution when it denied ALDF’s application to help the State of California defend the recently enacted ban on the production and sale of foie gras. The lawsuit at issue concerns the claim of producers and retailers of foie gras in New York, California, and Quebec that California’s ban is unconstitutionally vague and that it treads on Congress’ exclusive right to regulate interstate commerce. Exercising judicial economy, the court ruled that ALDF’s participation would cause the lawsuit to suffer “undue delay” and would have the unwelcome effect of “multiply[ing] the proceedings.”
The court’s decision likewise foreclosed the participation of Farm Sanctuary, the Humane Society of the United States, the Humane Society Veterinary Medical Association (HSVMA), and the Marin Humane Society, all of whom applied alongside ALDF to “intervene,” or to participate voluntarily in the lawsuit.
In addition to its fear of “delay” and “multiplication,” the court insisted that the attorney general and other state officials—because they are charged with upholding state laws—must surely be qualified to defend the ban’s constitutionality. That the governor and attorney general did not oppose ALDF’s participation in the lawsuit failed to impress the court.
Neither was the court impressed by ALDF’s concern that—their qualifications aside—state officials represent the interests of the public at large, and the public at large includes the meat industry. ALDF submitted to the court that there might be something different at stake for animal welfare organizations than for elected officials. For one thing, two of the proposed defendant-intervenors—Farm Sanctuary and the HSVMA—were official sponsors of the legislation, having helped draft the bill that Schwarzenegger signed into law nearly eight years ago. For another thing, a third proposed defendant-intervenor—the Marin Humane Society—is tasked with enforcing the ban, which includes collecting fines for violations.
As far as judicial economy goes, the court’s refusal to admit the animal welfare organizations as defendant-intervenors may be sound. Nobody wants an undue delay or an unjustified multiplication of arguments and proceedings. That would be messy and costly and, well, annoying. We can’t have people clogging up the courts willy nilly.
But as far as justice goes, the judge’s refusal may be less sound.
Consider the case of Perry v. Schwarzenegger (on appeal to the Ninth Circuit Perry v. Brown, and now, on certiorari to the Supreme Court, Hollingsworth v. Perry), in which a different federal courthouse in California granted ProtectMarriage.com (the special interest group that sponsored Proposition 8) the right to participate as defendant-intervenors.
There, as here, plaintiffs challenged a California policy on the grounds that it violated protections in the US Constitution. There, as here, the named defendants included California’s governor, attorney general, and other state officials, all presumably qualified to defend the policy’s constitutionality. There, but not here, the trial court found that the proposed defendant-intervenors would contribute meaningfully to a courtroom discussion about the policy’s constitutionality.
And that’s not all. When the trial court held for the plaintiffs—finding that the Prop 8 marriage ban violated both the due process and equal protection clauses of the Fourteenth Amendment—ProtectMarriage sought an appeal, but Governor Schwarzenegger and then-Attorney General Brown refused to defend the initiative any further. Since ProtectMarriage was only an intervenor and not the originally named defendant, the Ninth Circuit asked the California Supreme Court for help: the Ninth Circuit wanted to know whether anything in California law might grant the proponents of a ballot initiative a “particularized interest” to defend the initiative’s validity on appeal even when state officials refused to do so. The California Supreme Court answered yes, such proponents did have standing independent of the originally named defendants, and the appeal went through to the Ninth Circuit. (The outcome? The Ninth Circuit agreed with the trial court that the marriage ban is unconstitutional, and ProtectMarriage has since petitioned the US Supreme Court to overturn both the District and Circuit decisions.)
Admittedly there may be a meaningful distinction between the intervention at issue in Perry and the intervention at issue here. Whether ProtectMarriage could participate in Perry turned in part on California’s commitment to “direct democracy,” that quirky institution that, from time to time, has rendered the state nearly impossible to govern. In contrast, whether the animal welfare organizations should participate in the foie gras lawsuit concerns a sort of “citizen-participation representative democracy,” in which nongovernmental organizations helped to draft legislation that passed through ordinary legislative channels.
Nevertheless, the decision to allow ProtectMarriage to participate in trial and to carry forward multiple appeals on its own recognizes that the proponents of a given policy may have something different—or something more—at stake than the state officials who may (or may not) vigorously defend the constitutionality of that policy and who may (or may not) vigilantly enforce that policy.
Are Governor Brown and Attorney General Harris qualified to answer questions about the constitutionality of California’s foie gras ban? Certainly: they’re both fine attorneys. Will they bring the same interests, and the same effort, in answering those questions as might the proponents of the foie gras ban? I’m not so sure.
As an ordinarily tidy person, I consider good housekeeping a virtue. Nevertheless, I believe a house was meant to be lived in. Too much housekeeping—too much economy—can get in the way of a good thing.