The Case of the Overlooked Law: Challenging Animal Confinement Through Forgotten Legislation

But you may have heard this news. There have been two big breaking stories with, uh, legal issues involving Direct Action Everywhere. One really bad, one mixed, but, but basically good. Uh, I'll start with a really bad one. Uh, Zoe Rosenberg, uh, has been convicted of conspiracy and trespassing, for her rescue of four chickens.

And we, you've, uh, you're probably familiar with this case. You probably heard our interview with Zoe, but, uh, we really had high hopes. She was really well represented. And of course the court made some terrible rulings not allowing her to bring her, her primary defense, uh, which is pretty, pretty disastrous.

And of course there will be an appeal, but my heart is breaking. I mean, it's just... to be living in a world where Donald Trump is president and Zoe Rosenberg might go to prison for, for rescuing, uh, unbelievably abused chickens is just, is just... what can I say? Uh, there'll be more news about this upcoming, but I just wanted to give you a heads up.

The other piece of news, uh, which is actually not perfect, but is good news is that, uh, you may have heard, you might be familiar with the investigation by DXE of Ridglan Farm... I think it's called Ridglan Farms. Uh, it's this dog breeding, uh uh, facility and research facility in Wisconsin. Their main business is breeding dogs and selling them. Beagles, of course, which 'cause they use beagles in research and, and, uh, they also do some research on their own.

There was a huge investigation and there was going to be a prosecution, and I think I interviewed Wayne and others, other defendants, uh, or lawyers, uh, about this back at the point where they were about to be, uh, prosecuted, then immediately after that, in this just inexplicable development. The district attorney in Wisconsin, uh, dropped the charges.

You know, to drop the charges of a very complex case right before trial is bizarre. They claimed it was because there were death threats, which was ridiculous. But that's the kind of thing they say. Alright, so then they, the tables totally got turned. Uh, DXE and its lawyers brought an action in Wisconsin and got a special prosecutor appointed.

Got a great decision from a judge, uh, to, to investigate what was going on at Ridglan, which is clearly against the law. It's, you know, everything these places do is completely against the law, just nobody cares about it. And that they've been stalling that for a while and they just, there was clearly a deal that was done.

They're not going to be convicted or plead guilty of any crimes, but they are going out of the breeding business. Uh, I think they're still gonna be able to breed dogs for their own research projects, which is very sad. And this isn't going to go into effect for eight months, so there will be much, much suffering before it ends.

But, but all in all, uh, you know, this is in animal rights terms, this is a huge legal victory. So congratulations to, uh, those folks and we'll be talking more about these, these cases in the future. But I just wanted to give you this heads up in case you hadn't heard.

Welcome to the Animal Law Podcast. I am so pleased to have two people back who have been on before to talk about this case, Animal Partisan versus Superior Court of Monterey County. And it, it's just one more case that, you start reading it, you're like, oh, and then by the time you're finished reading it, you're like, oh my God, what is going on here?

And establishing that when it comes to farmed animals statutes frequently don't mean what they seem to mean. Uh, and first, before we get to that, please remember to subscribe and hit like on your YouTube or wherever you are listening. And now, we're gonna get to my guests. Will Lowrey is the founder and legal counsel for Animal Partisan, a legal advocacy organization focused on challenging unlawful conduct in animal agriculture and experimentation.

And he also currently teaches animal law at the University of Oklahoma College of Law, which I did not know. Jessica Blome is an animal, environmental, open government, and land use attorney at Greenfire Law with nearly two decades of experience in complex litigation. Welcome back to you both, it's such a pleasure to have you here.

Will Lowrey: Thanks for having us.

Jessica Blome: Yeah. Thank you.

Mariann Sullivan: You know, one thing I should have asked you before I started, but I didn't, I don't really know which of you is responsible for what parts of this case, so I'm just gonna throw it out there and whoever wants to answer, please do. And then maybe the other one can add something.

But I, I won't ask you questions specifically most of the time, except like, let's start with Will just, just to give us the beginning of this case. Tell us about the, is it Schoch? The Schoch Family Farmstead?

Will Lowrey: Absolutely. So, this is a dairy in California, and so this is not the biggest dairy in the world, but it is a dairy in California. Um, and we have been looking for some fact patterns in California to try to use a law. And the law specific to this case is California penal code 599 A. And so to your question, we came across this dairy and we believed that some of the conduct committed at the dairy, specifically the confinement of dairy calves, violated the law.

And that was the impetus of the case. We did an investigation, got some photos, and it kind of went from there. But to your question, yes, it's a dairy in kind of central California.

Mariann Sullivan: Yeah. And I obviously we wanna get to the details of 599 a in a moment. But first, can we just have a little background? I know that Alexandra Paul, who has been on the podcast, was involved and, and there was an investigation. How it, how did you find out about it and how did you pick it? And can you just kind of walk us through what she found?

Will Lowrey: Absolutely. I think I'd start with the basis that the conduct that was witnessed here was visible from the roadside. And if you, I'm not from California, Jessica is, and feel free to chime in, but if you drive around California, it's not difficult to find agricultural operations. Um, and so you're right, Alexandra was involved in this case. she does a lot of activism and work in California. And, you know, ultimately identified from the roadside, this specific farm, amongst others. This is certainly not the only one that's committing this conduct. but identified this farm and the housing in which the dairy cows were kept, which appeared to be a violation of another law, which we'll talk about. And so it wasn't identified through any, you know, magic or anything like that, other than just observing sort of typical California agricultural practices. and the conduct was witnessed from the roadside, photographed. And then specifically what was at issue was the housing in which dairy calves were kept, was kind of these small, wooden, green, sort of dilapidated looking hutches in that the dairy calves were kept with no room for exercise. And then that led us to the legal case.

Mariann Sullivan: Yeah. Can you go a little bit more specifically like how... I actually, I had been picturing when I read about this, these more, these more typical white, little white, I guess, plastic hutches that you so frequently see dairy calves kept in. Sounds like these might have been about the same size, but maybe they looked a little different.

And can you just talk a little bit about, about the size and how she knew there were actually calves in them? I have certainly seen these, um, from, from roadsides in, in upstate New York as well.

Will Lowrey: Yeah. And so the size, um, I think in one of our complaints we had just as a matter of comparison, sort of an aerial image of the property comparing the crates to a pickup truck, and they were actually looking smaller than the pickup truck. So you're talking 20, 30 square feet of space. Um, and the hutches that you're referring to, most people have probably seen, they're kind of the plastic, you know, people might have seen the igloo type dog houses.

Imagine these for dairy calves, but larger. Um, well, this is about the same size, but constructed of a different material. I mean, here we're talking wood sort of planks that are nailed together with a metal roof. Then to your question on how the cows were viewed, um, the pictures that we obtained show the cows basically through the slats in the wood, you can see either ears or a calf kind of peeking over, or you can see legs and you could clearly see that many of these were occupied.

Mariann Sullivan: And, and I assume that during the time she watched, she didn't see the calves ever getting out or doing anything.

Will Lowrey: That's correct. And, and I think one key point, and this was a bit of an issue at the trial court, was that this wasn't just a quick drive by, here's a picture, we have no idea what's going on. This was over the course of three days, documenting this sometimes for an hour at a time or more than an hour at a time. Um, and to your question, Mariann, there was never any opportunity where the calfs were let out and they romped around a pasture. In fact, there didn't even appear to be a fence where they could go out. They were a confined to these, uh, specific dairy hutches. And, and also it's in the complaint, but even during a phone call, someone at the farm represented that these calves stay in here for months at a time.

So it wasn't just a tidbit of evidence. This was over three days, over many hours, plus a phone call. I think it's very evident that these calves are not being let out and not getting exercised.

Mariann Sullivan: So, uh, you know, probably a lot of people listening to this know about this kind of treatment of dairy calves, but you also do go through a lot of information in, in your complaint, uh, about why this is so bad. I mean, it may seem obvious that it's so bad, but can you kind of like summarize why this is so bad?

Will Lowrey: Sure, yeah. We cited a lot of, um, evidence and it is, it is not, you know, hey, animal rights websites, people saying dairy calves should, should run around. There's a lot of scientific studies cited in our complaint that speak to, um, the value of exercise for animals. You know, how they walk when they're deprived of exercise, how it's a little more difficult for them to walk. The value of socialization and all of these things speak to the benefits of. Not keeping dairy calves confined. I realize the dairy industry has its own reasons for why it says these animals should be confined. But there is a wealth of evidence out there that says, you know, these are animals that they want to play and they want to socialize.

And I think anyone who's ever been to a sanctuary or seen a dairy calf, I mean, we live, where I'm sitting now, next to 27 acres and our neighbor grazes cattle, and I look out my window all day and watch calves romping around on the fields. They're not just standing there saying, I wish I were confined to a 24 square foot space.

They want to play, they want to socialize, and that's not just me saying that. There are, you know, major agricultural universities, we've cited their studies and authorities in the complaint.

Mariann Sullivan: Yeah. Did, did you also point out at all, or maybe it wasn't relevant to this particular lawsuit, but just the relationship between the mother cow and the calf? It just seemed always just seems such an act of cruelty to, to interrupt that, but I guess you were focused mostly on space here.

Will Lowrey: We were, yes, I agree wholeheartedly, but specific to our complaint that that wasn't a point that we referenced.

Mariann Sullivan: Yeah. Um, all right, Jessica, maybe you'll, I I said I wasn't gonna ask you questions specifically, but now I am uh. 'Cause you're a California attorney, I, I don't actually know whether you're admitted in California, Will, or not, but, but can you just give us, Jessica, can you just give us an overview of the, the welfare of farmed, how the welfare of farmed animals, or the lack of welfare of farmed animals is governed in California, and then specifically go into this section 597T?

Jessica Blome: The farmed animals are protected in California from a welfare perspective more than most other states. We have a couple of really important propositions that were passed in past years including Prop 12 most recently, which was an update that prohibits the confinement of animals without exercise and specifically veal calves.

And so the 597T specifically states that... well, let me find it. Maybe Will knows this off the top of his head.

Will Lowrey: Sure. Yeah. 597T I mean the, the key provision here says every person who keeps an animal confined in an enclosed area shall provide it with an adequate exercise area or with an adequate exercise area, so that for our purposes, it's

Mariann Sullivan: important

Will Lowrey: that the animals are confined and if they're confined, they shall be provided with an adequate exercise area.

That's the important part.

Mariann Sullivan: Yeah, it, it, Jessica and I were talking before you joined us, Will, and just talking about how, how, how interesting it is that... I mean, this is an old statue, I believe, like maybe a hundred years old or so, and uh, they, they understood at that time that, it would've been cruel to keep an animal without adequate exercise.

And now that's all we do in the world. I don't know. That's not a question really. It's just a commentary about how far we have fallen. Um, alright, so, so this is a, a criminal statute, right? It's a misdemeanor?

Jessica Blome: Yes.

Mariann Sullivan: And, and of course the statute that is actually at issue here isn't 5 97 T, but I do want people listening to Remember 5 97 T is the one that provides that a animals have to have an exercise area and there is no exemption for farmed animals.

There's no customary farming practice exemption in California. So there's no question really, I think, that it applies. And it has pretty obviously been violated, I think here. Um, though I guess you, you could litigate it. They, they could litigate it based on what adequate means. If, you know, absolutely no exercise is adequate, you could, you could make that argument.

Clearly they don't wanna make that argument. But, um, this case, as is almost always the case, involves not whether the law has been violated, but who can do anything about it. So now can you tell us about the other statute, which sounds the same? It's 5 99 A, but this is actually the procedural statute. So as we're talking about it, everyone just remember that.

' Cause I kept getting them confused. Can you tell us what 5 99 a uh, provides?

Will Lowrey: Sure. Yeah. So 5 99 A is, uh, what I would lump in as a sort of a private citizen complaint statute. Um, and so you're right, we have 5 97 T, which says adequate exercise area. But 5 99 A by the letter of the statute allows a private citizen to go before a magistrate, which in California is a judge, um, and essentially seek a search warrant if that person believes that any part of California's animal protection or cruelty laws are being violated. It gives the right to go before a magistrate and ask for a search warrant, um, to go search that property. And so that's kind of what's at issue in this case is does it give that right? We obviously think it does. Um, but that's the point of contention here..

Mariann Sullivan: It is hard to imagine like what other, how, how else you could interpret the statute, but you know, that's where we are. Um, so this is old, right? I said a hundred years. Is it, is, is it about that era?

Will Lowrey: This statute was passed in 1905 as part of a much larger legislative packet of animal protection laws. And kind of to your earlier comment, Mariann, the legislature recognized that animals have value, they're important. And it wasn't just passing this random 5 99 A, it was all of these animal protection laws.

And included in that was this private citizens complaint mechanism to enforce them if needed.

Mariann Sullivan: Yeah. It's so interesting that even back then, Jessica and I were also talking about this, like even back then, they recognized that they were passing these laws, that they were important, but that they couldn't really rely on regular authorities. Maybe they thought it would be overloading re the regular police and district attorneys.

So they created like a number of, of like SPCAs. If they are given law enforcement power, they created these kind of unusual ways that private citizens could help help out in law enforcement when it came to animals. And there must have been some recognition that otherwise it would be very, very difficult to get these laws enforced, which of course it is.

Uh, has this statute, do you know if the statute has ever been used? I mean, I guess you wouldn't necessarily know because if it didn't get ended up in a reported case, you wouldn't know about it. But do you know of any instances in which it's actually been used?

Will Lowrey: I do not. And I've tried to find it and I, you know, I've had other people challenge me and say, surely it must have been used. But I've asked the groups that I believe would've used it and the people, and I've not found anyone that has directly used it. And I think that's part of the issue that we ran into this case is maybe nobody's used it and nobody knows what it's supposed to do.

So that's kind of why we're here.

Mariann Sullivan: Right. Or if it, if it was used, it just ended right there. It was used, it was granted. They went and arrested somebody and it didn't become an issue. Uh, and there are similar statutes in other states, including New York, right?

Will Lowrey: New York and Idaho have statutes that are almost identical to this. Um, you know, there's other states that have the right to go in front of a magistrate. In Virginia, where I'm at, I've, I've used that statute. I've gone in front of a magistrate in North Carolina, so this is not some random anomaly that only exists in California.

Mariann Sullivan: It, it's so interesting when you think back, like they, there must have been like kind of some kind of law reform effort that, that people, some people were working on to try and create this body of statutes and they sent it out to different states and some states adopted some of them. I don't know, I don't know the history, but I think it's really interesting.

Alright, so you have the evidence, you have a statute and um, as far as I can figure out from the papers you have what is probably the most important thing for any lawyer, like some kind of guidance of what, what the papers are supposed to look like, where you're supposed to file them. Who's supposed to who... well, it does say magistrate, which you tell me means any judge in, in California. So that's, that's helpful. Uh, so tell us that story. What papers did you prepare and then what did you do with them?

Jessica Blome: Well, it was, that was, that was a hard question to answer. Um, we first, well Will, I mean, Will, you should probably tell them what you, you attempted to do. But fundamentally what happened was Will called the clerk's office at the Monterey County Superior Court and asked them what it it would take for him to file this type of complaint with the Monterey County Superior Court in order to get the issue before a magistrate capable or qualified to issue search warrants.

Mariann Sullivan: Can I just ask something? Uh, first just 'cause I just don't know. So the mon, the Monterey County Superior Court, does that have both a criminal part and a civil part?

Jessica Blome: It does. Yes. And

Mariann Sullivan: Okay.

Jessica Blome: an issue.

Mariann Sullivan: Yeah.

Jessica Blome: in, in California, the judges are really siloed into their different departments. And so in order to get something before a judge capable or qualified or empowered to issue a criminal search warrant, you need to be in the criminal court. So the clerk of court responded and said no one can issue, no one can request a search warrant except for law enforcement or the district attorney, and so there's no process for you, Will Lowery of Animal Partisan to present this information to the court. Will responded by giving the clerk the case law that supports the use of 5 99 A in this way.

And that stems from two cases brought by the Animal Legal Defense Fund over the years trying to enforce 5 97 T um, through civil courts and in every instance of the Animal Legal Defense Fund's efforts, first using the unfair Competition code and later trying a taxpayer waste claim, the courts have said, you can't use the civil code to enforce a criminal law.

You must use 5 99 a or a different provision that allows an SPCA to enforce the criminal code.

Mariann Sullivan: And in those cases the, the court specifically referred to 5 99 a

Jessica Blome: Yes. Yeah. The

Mariann Sullivan: Wow.

Jessica Blome: incorporated the language of 5 99 A and said, this is clearly an

Mariann Sullivan: This is what you.

Jessica Blome: An option for a person. So, upon hearing that, the clerk said, and this is a very typical thing that the clerks say to us, um, not just animal lawyers, but all practicing lawyers in California, when they've hit any kind of road block or adversity or pushback, they say, well, I'm not allowed to give you legal advice.

So that, so that the conversation ends here.

Mariann Sullivan: They basically just had, and said it's.

Jessica Blome: just had, and even though they were wrong and they, they just refused to listen to the rest of the story. So that's when Will decided he needed to find somebody to help him with the civil proceedings. Um. So what we did was we just filed a com... we, we prepared at first, just the request for search warrant. With, uh, on, on a document that looks like a civil complaint, but we titled it Request for Search Warrant. Um, and in a, in the two affidavits, one from Will and one from Alexandra documenting the violations. The court rejected that filing saying that they couldn't in civil court accept anything called a request for a search warrant.

So now we're in a circular civil procedure quandary. So we decided to just file it as a complaint with an attached request for search warrant and a proposed search warrant. And this put us in a tricky procedural posture because civil complaint is a lawsuit against a defendant. Um, and in California there's really strong protections for something called a real party in interest.

So we were supposed to serve Schoch Family Farms, but serving  Schoch Family Farms with this packet of papers would certainly defeat any efficacy of a search warrant. So we felt a little bit stuck, but that's what we did. And then we decided just not to serve  Schoch family farms.

Mariann Sullivan: All right. It, I, I'm already like, oh my God. I mean, just, I, I so admire your patience in this case, because I mean, as any, anything, any lawyer knows, like, like the way you prepare papers is you copy other papers. Like that's what you do, that's what you're supposed to do. It's not cheating. And here you didn't, you had to make it all up yourselves.

Like what these papers are supposed to look like, what court you're supposed to be in. So there, there came a point where you did get before a judge, and though that took a little time, and also you had gathered some additional evidence. Is that right?

Will Lowrey: We had, um, I think you were speaking to the multiple days that we had gone to the farm, and so at the point we went to the judge, we had three days worth of photographs plus the phone call. Um, and so, you know, there were several months that had passed after the last photographs, mainly because we were trying to figure out how to get into court.

But we eventually did get before a judge.

Mariann Sullivan: Right. So that, that, that's when the story really gets, um, interesting. Before you got before the judge, though, you got what was called a tentative ruling. Is that a normal thing or like, is that, is that common?

Jessica Blome: Yeah. Yeah, so there's a couple of points. I mean, I think in Monterey County, in in counties across California, courts are really booked up, especially ever since the pandemic so it's hard to get a hearing.

So I just wanna point out this one little additional oddity and also, you know, potential issue that we ran into, which was the case would be automatically dismissed for failure to prosecute if we didn't serve Schoch Family Farms by the 60th day.

And the Monterey County Superior Court was also telling us that we couldn't have a hearing on our request for search warrant. So what we did is we moved for admission of Will pro hac vice, and then requested a hearing on his motion for admission pro hac vice and then told the court that we would piggyback our request for search warrant off that hearing so we could get the reservation.

Mariann Sullivan: Oh.

Jessica Blome: had, we had to do this crazy like procedural thing in order to even get the hearing before the judge, which took place on the 60th day.

Mariann Sullivan: Wow.

Jessica Blome: was no way we were gonna be able to serve Schoch Family Farms. And this ended up being a concern of the judges that  Schoch Family Farms hadn't been served.

Um, and with, and because he, they hadn't been served and the hearing was on the 60th day, there was no way to serve them after, on the 61st day, and still maintain the lawsuit. So it was really a ride or die hearing. We, we were gonna get this search warrant or we were gonna be done in civil court

Mariann Sullivan: And and the judge. The, I mean, I have some sympathy for the judge in which, in, in, in the sense that it must have been like, what the hell? Um, but on the other hand, I don't have a lot of sympathy 'cause she was not very interested in figuring it all out. Uh, all right. So.

Jessica Blome: Will handled that hearing. And he did a masterful job.

Mariann Sullivan: I'm sure. Will is like the soul of patience. I, I have to say. So the, the first I, I don't know whether this was the first thing that came up, but one of the big things that came up is that the court kind of understandably at first thought you were trying to file a civil lawsuit. I mean, here you were in civil part and you're filing. So, so at this point, can we just take a moment out from the timeline to talk about Mendez? And, and because she thought you were, you were doing what Mendez had told you you couldn't do, and this other case, I forget the name of the case, but there's two cases that say you can't file a civil lawsuit for, um, violation of this statute.

And, um, that you were, you, you had to explain to her that you were trying to do something different. Can you just, can you just explain that interaction?

Will Lowrey: Sure. Yeah. So. So there's two cases and, and the credit to Animal Legal Defense Fund. The first one is A LDF versus Mendez, and this is a 2008 case. And, um, they, A LDF was also trying to enforce 5 97 T, so the law that requires an adequate exercise area. But part of that complaint was trying to argue that there was a implied right of action in 5 97 T.

So they weren't going through 5 99 A, what we were using. They were saying, you know what, inherent to 5 97 T is a civil right of action that allows us to bring this case. And the court at Mendez said, no, you can't do that. There's no civil right of action. But you know what? There's these other things, including 5 99 a.

And so Mendez is very important. And when we got before the court, we spent quite a bit of time sort of arguing about Mendez and credit to the judge in the Superior Court who let me go on and on for about a half an hour. And we talked about Mendez quite a bit, and I think at one point the judge said something to the effect of Mendez can be read in many different ways, which I obviously disagree with because to me Mendez is pretty clear that 5 99 A is a legitimate path. I think there was some confusion, um, about what we were trying to do, and the judge may have thought that we were trying to do the same thing A LDF did and enforce 5 97 T through an implied right of action, which was absolutely not what we were doing.

And so we just kind of butted heads about the meaning of Mendez, um, and the judge viewed it differently and, and that was part of the reason that the search warrant motion was denied.

Mariann Sullivan: And I did see in your papers this statement from the court that said, Uh, I read it differently, or should be, it should be read differently. Did, did, was there any explanation as to how it should be read? Because it really is hard to imagine how it could be read differently.

Will Lowrey: Uh, there wasn't, to my recollection, any further elaboration on that. It sort of all just led to this, as Jessica said, you need to go through a prosecutor in law enforcement, right? I can't imagine why a private citizen could do this. The floodgates are, are going to open. And from my perspective, I'm looking at 5 99 a and it plainly says, we can do this.

Mendez says we can do it. There's another case in 2015, A LDF versus Cal Exposition, that endorses Mendez, says we can do it. So Mariann to your question, there was no real elaboration on what the different meaning or reading of Mendez was other than you can't do it. You need to go to a prosecutor or law enforcement.

Mariann Sullivan: Yeah, I, I figured that since it wasn't in the papers, but, uh, I just was really curious, like to say this could, this statute could be read differently and not explaining how... what that difference is is very frustrating, uh, especially when it's really hard to imagine how it could be read differently.

Alright. So did, does that cover everything that came up at the hearing? Um, should we get onto what the court ruled?

Jessica Blome: Well, real quickly, I wanted to explain the tentative part. Um, you had asked about that before, and it is, it is normal in California for judges to issue tentative rulings. Um, the California Rules of Civil Procedure require that you adopt a tentative ruling procedure. So we found out the, he, we found out the judge's decision the day before the hearing at, at 3:00 PM And then we had to tell the judge we were going to contest the ruling.

And her decision in the tentative was just a paragraph. Um, and it was sort of highlight, a preview of what she was going to, what her questions were gonna be and what she was going to rule. But it ultimately was not exactly the, the same as what she ruled. So what we can get into the ruling, okay.

Mariann Sullivan: I, I, I would like to get into the ruling because it had a few different aspects .

Will Lowrey: Yeah, I mean, so the, the tentative ruling touched on, you know, you have no private right of action. It also mentioned the service issue that Jessica brought up, the final ruling, and it, it's short, so I'll just read it if that's okay, you know, but the key passage says, quote, the court does not find civil court is the proper channel for plaintiff to enforce California penal code 5 99 A or the motion for search warrant. And the matter should be considered by the district attorney's office or law enforcement end quote. And so it is again, you know, hinging basically the entire decision on the fact that the court doesn't believe that we have a right to do this, that all criminal channels need to go through the prosecutor and law enforcement. And that just, you know, I think in our view, contradicts 5 9 9 A. It contradicts the case law and that's, uh, that's why we decided to take it up to higher courts.

Mariann Sullivan: Yeah, and, and also the, I mean, the court found that, aside from the fact that it had to go through the District Attorney, it found that civil court was not the proper channel, which seems actually correct, but you had asked her to refer it to criminal, haven't you?

Will Lowrey: Yeah, right at the end. And, and credit to Jessica for, for this, um, you know, we had asked at a, at a minimum, can you please transfer us to the criminal division of the Superior Court? And that was denied. And if I recall, the reason for denial was just, it doesn't matter. You can't do this regardless of where you are.

And so, um, we asked and we tried. And so, and to Jessica's point, it, it was in civil court because we had no other avenue, no one would tell us the way to bring this criminal action. This was the only way we could get before a judge. And, and we tried to get to the criminal division, but that did not work.

Mariann Sullivan: Uh, no, It's cra it's like such a runaround.

Uh, it's really classic. And to be clear, I mean, nobody ever reached the merits of whether there was a violation of 5 97 T, right? I mean, of course, of course it all, it was all procedure. And, and, and the court said something about opening the floodgates. And I think the court had a very valid point there because I think there's a very strong argument that, that virtually every animal-based farming enterprise in California is violating this law.

I mean, it, it's really pretty crazy, the different, like the, the contrast between what this law says and, and what is, uh, what is happening. So do you think that the real, the, I mean the floodgates problem, if people brought frivolous complaints, that wouldn't be a floodgates problem. You can just toss them if they weren't supported by evidence.

The real problem here is that, is that this is being violated all over the place. Right? Unless they wanna come in and argue that, what was the phrase in it? Appropriate amount of space or something like that.

Jessica Blome: Hmm.

Mariann Sullivan: Adequate.

You could litigate that they don't wanna do that, do they?

Will Lowrey: I, I wouldn't think so. I mean, I would think that that's not an issue. Um, I mean, to your question about the floodgates, I, know, I mean, the law's been around for 120 years and the floodgates haven't been opened yet. And the court, theoretically, as the law is written, should be a control. I mean, people aren't just gonna run out and get criminal charges on anyone.

You have to go before a magistrate and display probable cause, and so it's not like suddenly everyone is in violation and animal agriculture will collapse and crumble. We're just asking for a procedure that exists. We just want the opportunity to be heard, to make the argument that the law was violated and the court is in theory, the gatekeeper, but unfortunately we couldn't even get that argument out.

We couldn't get to the merits.

Mariann Sullivan: And clearly if there was some finding that any kind of intensive confinement was in violation of California law, the legislature could just hop on it and fix that. It's just that they don't want to, it seems like they just don't wanna have to deal with it. And they don't want it public that, uh, that.

Jessica Blome: think, I think that's the key point that. The, the length of the law being in effect indicates an endorsement by the legislature to be sure, but it's also evidence that the, that the legislature hasn't done anything to close a floodgate that they perceive. And so what the court was really doing, in my view, and this is kind of the point that we're making in the appeals, is disagreeing with the wisdom of the law by refusing to enforce it and refusing to provide a mechanism to enforce it.

They were nullifying a publicly enacted legislative provision without any input from the legislature at all. Just deciding not to use it.

Will Lowrey: I, was just gonna elaborate on on Jessica's point and we, we made this point to the court and that the 5 9 9 A has been amended twice since passage, I think in the fifties and then in the nineties. And so there's two times where the legislature could have said, you know what?

This is a mistake. We wanna reel it back in. And they didn't. Those changes that were made were like, form and format, nothing related to substance. And I think that just supports the argument that it is the intent of the legislature that this law exists. It's had ample opportunity to change it and it, and it did not.

Jessica Blome: That goes to 597 T as well. That's not been, I mean, it's not been significantly altered or removed from the code, nor has there been, uh, a farmed animal exemption, uh, inserted into it. These laws exist and they're just not being enforced.

Mariann Sullivan: Yeah, I mean, I don't think, I don't know whether there's any other state, you probably know this, that has a law like that. It's one that I'm not familiar with at all, but it is just this extraordinary situation that California has a criminal law making what virtually every factory, well, every factory farm and virtually every farm in the state in violation of the law. And they don't even try to fix it. They don't even try to say, oh, that law was stupid. And animals don't need exercise. I mean, they just let it continue.

Um, all right. I'm, I'm, I'm going on and on. Tell us about the appeal. Um, it wasn't actually an appeal, right? It was a, a though, California procedure is just very oblique to me.

Um, but it was a, oh, a writ a a writ of mandate? Is that like a kind of jurisdictional, um, complaint as it would be a New York, or did you not have an appealable order? Is that why you didn't bring a straight appeal or am I just not understanding California procedure?

Jessica Blome: We did have an appealable order because the judge dismissed the appeal. So we had, we had, we have two choices and we still have one open to us, which is the actual appeal. That appeal, uh, the notice of appeal is due in November sometime. Um, but first in order to get a judge to fulfill a mandate, you can file a writ, a request for a writ of mandate to the Court of Appeals, asking the Court of Appeals to review the issue and mandate that the judge take a different choice, but the choice has to be a mandatory choice, not a discretionary choice. Here we felt like the choice was mandatory, that they consider the request on its merits.

Um, and so we were asking, what we asked the court of appeals first was to issue a writ telling the court that they had to consider our request for a search warrant pursuant to 5 99 A. At that point, their discretion would kick in. Whatever magistrate judge caught the case, would be able to say yes or no based on the facts as presented.

But we just were trying to get past that initial hurdle that we believed 5 99 A provided a clear mandatory duty or mandatory benefit to us based on a mandatory duty owed to the public by the court.

Mariann Sullivan: So assuming, I mean, so far your, your appeal, which is, is on this very narrow issue, is, uh, not an appeal. Your, your application for a writ, um, is, has not been successful. Are you saying that if it were successful that, uh... or if it continues to not be successful. I'm sorry. I misspoke that you would then be able to bring a straight appeal?

Jessica Blome: Yes. Yeah, we would. So the next step we've, we, the, the Court of Appeals denied the writ without explanation in a summary decision, and then we, we have appealed that or requested reconsideration by the Supreme Court of California. Again, just asking for that procedural question to be answered.

But we can appeal, straight appeal, um, based on the decision, which was a final order dismissing the civil case. So we have an appeal option available to us where we could try and more fully brief and, and have the opportunity to respond and then to whatever, whoever's going, going to, to, to defend the, the decision. 'Cause that's another reason why we went with the writ, there's noone on the other side to really defend the court's decision except the court.

Again, Schoch Family Farms, we can't let them in, Um, they can't know about this. It's been kind of tricky to navigate that.

Mariann Sullivan: Right. Um, yeah, and I mean, I, I've worked at a court for many years and I'll tell you, there's absolutely nothing that courts hate more than ex parte decisions. 'Cause you don't know what the other side's arguments are, though here it seems like it's hard to believe that Schoch Family Farm was gonna come up with anything really, uh, really monumental.

It's a pretty simple issue. It really is. There's a pretty sim there's a lot of procedural complications here. The issue itself, it's just interpretation of a very clear statute, isn't it?

Jessica Blome: Well, Schoch Family Farms isn't entitled to a defense in this posture. It's a what we're

Mariann Sullivan: Right. I should, Yeah, no, please make that clear. 'cause I'm not sure we did actually make that clear.

Jessica Blome: Yeah. We're requesting a search warrant, so we're, what we're asking the court to decide is that there's probable cause to exist for the further investigation of this entity to determine whether there was a crime committed, and then ultimately eventual prosecution.

But there's a lot of discretionary steps along the way. Um, and the DA or law enforcement or sheriff's office or whoever would catch this search warrant and be required to execute it would need to do it in a way that would surprise Schoch Family Farms, in order to be able to gather the evidence necessary to substantiate the crime, investigations must be conducted in... confidentially. Otherwise, they're not much of an investigation at all because the other side can destroy evidence or change course or do something in order to thwart the criminal action.

Mariann Sullivan: And anyway, they just don't, I mean, there's just no reason they would be entitled to it. Other that, I mean, it would set a precedent that anybody, anytime you were getting a search warrant, the other party would have to be notified, which would be very silly indeed.

Jessica Blome: Yes.

Mariann Sullivan: So if this decision is correct and if it is either upheld or you can't manage to get it reviewed, uh, does that mean that 5 99 a really has no meaning whatsoever?

'Cause it doesn't, it doesn't seem to.

Will Lowrey: I don't think it says that. I mean, I think it will say that one. And I'd love to hear Jessica's opinion, but to me it would say that one superior court has found that it's not valid and that the two higher courts have said, you know what? We're not going to take this issue on. We're not going to address it. Um, I think if the California Supreme Court decides not to grant our petition for review, to me that just means they're not gonna look at it. It doesn't mean they're gonna look at 5 9 9 A and say, this is invalid. And so from my perspective, the law still exists. It's on the books, and I am kind of obstinate by nature, and so I'll try again.

We'll bring another case in a different court and see what happens.

Mariann Sullivan: Well actually the key to, uh, to, to, to getting this, getting this review seems to be to find a clerk's office that's a little bit more flexible in what they'll... a criminal court clerk's office. 'Cause that's really where you got stuck, isn't it?

Will Lowrey: It was really that, you know, the initial procedure, I mean, we were forced to go a route that probably wasn't a natural fit, uh, because we weren't given a procedure. So, yeah, I mean, I think if we were to find a court that said, you know what? This is how you should do this. We'll get it in the right channel, I think this probably would've been a very different case.

And we probably would've had the motion for a search warrant heard on the merits, and we wouldn't've had to appeal.

Mariann Sullivan: Yeah.

Jessica Blome: I'd even go further and say that you could probably try this in Monterey County again. The decision that the judge issued is, is nothing. It's, it's not published. It's hardly, it, it contains hardly any explanation or analysis. So if we, it, it would be dangerous in that we could get this judge again. Um, but maybe we'd get a different judge and they might have a different view or at least have that last thought in their head, which is what we requested at the end of the hearing, that the case be transferred to the criminal court. Maybe they would understand the procedures and process better and understand what we were asking for. 'Cause it fundamentally seemed like our judge was having a hard time with the idea that Schoch Family Farms wasn't there, that we didn't intend to serve them, that what we were asking for was a law enforcement activity.

Um, and she was a civil judge. She was, she was really hung up on that and, you know, potentially So it's just, we need someone to tell this court, and this is the beauty of the court appeals, right? That's, we were really optimistic about the Court of Appeals. We just need someone to say to the court, you have to do this.

You can't ignore this provision. Like you're trying, like this, this, uh, circular, um, you know... this guy, that it's this guy's job and we can't give you legal advice needs to stop.

Mariann Sullivan: Well, I mean, you certainly, it is like Bleak House. I mean, this has been the most ridiculous, well, not quite like Bleak House. I don't, it hasn't gone on for like 30 years or something. But, uh, but just crazy procedural morass and I think that it's not totally disassociated from the fact that this is an animal law case because people are, they're unfamiliar with them.

They're not expecting them to be well litigated and, and they don't want to end up in the papers. Um, so a lot of, a lot of, a lot of heroic work hanging onto this case. Um, we mentioned that New York and Idaho have identical statutes. Is there any case law in those states interpreting those statutes that make them clearer that of, of what they apply to?

Will Lowrey: I would say New York more than Idaho. There's a few cases that briefly touch on it. Um. Idaho? No. It's been a while since, since I've had anybody look into those. But there's not like a body of case law in some other state that would say, look California, look at this, look at this

other state. It's well-defined.

It's just not out there. And I think, I think these are just underserved statutes. There's a lot of 'em out there, um, that have utility. If someone would just acknowledge them and say that this is an appropriate path, but there's not a huge body of case law out there in either of those states either.

Mariann Sullivan: Yeah, I think that, um, sadly when, a hundred years ago when they passed these statutes and they thought, well. We can't, we can't put all of this on the, on the law, law enforcement authorities, but people will stand up to, um, to protect animals. And that didn't really work out. I think that they have not been used, uh, heavily.

And, and given your experience, I can definitely understand why. 'Cause uh, it turns out to be harder that one would, one would imagine, uh. If there's nothing more on that case, Will I, I would like you to tell us a little bit about other, some other matters that Animal Partisan is handling, um, you know, in different stages.

And, uh, and, you know, perhaps in the future we'll be able to catch up with you on those,

Will Lowrey: Sure. Yeah. Just one last point before we move on. I wanna give a shout. Shout out to Jessica's paralegal, Donna Wallace, who did a ton of work on the Schoch Family Farmstead case, and, uh, helped translate a lot of complicated legal procedure.

Um, but Mariann to your question, um, I. I would say another case worth mentioning, and I know you've, you've long been interested and I appreciate that. This is an, an Animal Outlook case that, um, animal partisan is acting as attorney for Animal Outlook, but credit to them for the underlying investigation and all the work that went into this. Um, I could talk about this for hours, I'll be very brief, but this is the, this is, this is another dairy case. This is a dairy case in Pennsylvania.

Mariann Sullivan: Oh my God. Not Martin Farms. Martin Farms?

Will Lowrey: Is, it is.

Mariann Sullivan: My God. I, I interviewed you about Martin Farms. like, I don't know, 50 or 60 years ago.

Will Lowrey: Yeah, it was, uh, yes, it, I've been working on Martin Farms for seven years now, and so the, the very quick update on that, again, credit to Animal Outlook for a 2018 investigation at this Pennsylvania dairy that documented just horrific cruelty. Um, that case also was a private complaint process. It started out as an, as an attempt to get the district attorney to prosecute. The district attorney denied. Ultimately went up to the Pennsylvania appellate court who said, you know what district's attorney you should prosecute. There's evidence, and it was sent back down. The short version, at the same time, the Pennsylvania Supreme Court decided another case that raised the standard of review for private complaints.

And so that win that Animal Outlook had, some of it got undone. And they said, you know what? Your bar is now higher if you want us to force the DA to prosecute, your bar is higher. Um. So I think the, the quick relevant update here is that that Animal Outlook case was back in front of the Pennsylvania Appellate Court.

Um, we argued that in early October. Um, and so now the bar to force the DA to prosecute is you have to show bad faith, fraud, or unconstitutional conduct. Um, so again, Animal Partisans litigating this on behalf of Animal Outlook. We argued it in October. We argued the DA acted in bad faith. I think the real interesting part of that is that we argued that the denial was unconstitutional because it rested on the normal agricultural operations exemption, like the ag exemption to the cruelty law, and we argued that that violates the non delegation doctrine.

It's a a long, convoluted argument, but we basically said. That exemption is giving the lawmaking power to the agriculture industry to define cruelty and neglect. And so that was argued in October, waiting on a decision. But

Mariann Sullivan: I love that argument. I love that argument. Those laws are ridiculous. I, I've always said that it's like if they passed a law, um, saying that you can't throw pollution into the river in, in more than anybody else does.

Will Lowrey: It's, it's, that's what it says. It says, basically, the law says if this conduct is normal in the agriculture business, then it's not cruelty or neglect.

Then our argument is that who, who defines what's normal? It's certainly not the general assembly, it's the agriculture industry that's saying what's normal.

Therefore, you're granting law making power to the agriculture industry that is a violation of the Constitution. And so that, uh, that case is pending a decision, but again, based on, based on some great investigative work by Animal Outlook way back in 2018.

Mariann Sullivan: Yeah. A long time ago. Yeah. Um, well, I, I, I'm really looking forward to hearing what happens in that case. That's a really important case, and I really love that you, that you come up with so many arguments that have to do with cruelty laws. They, they're the aga again, I mean, as we've said, like, or as I've said like a few times today, like back then when they passed all these laws, they thought they were gonna do something and I thought, I think they thought they were gonna do a hell of a lot more than they do, and they thought that animals needed exercise.

Unbelievable. So, uh, unless there's anything that you wanna add, I really appreciate you both coming on. I know you're both extremely busy. And, uh, thanks for joining us.

Thanks to all of you for, for for listening. And thanks to Vicki Beechler, Jen Riley and Akber Kahn for their help in producing this episode. Just to head up, this is our end of year fundraising opportunity and Our Hen House has been operating for 15 years. Wow. Feels like 50. We have this new podcast format, including YouTube.

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