October 01, 2007

 

 California court OKs city's declawing ban - October 1, 2007

 

CVMA calls verdict a 'surprise,' appeals to state Supreme Court

posted September 15, 2007

 

California continues to be a legal hotbed for the state's veterinary profession. The California VMA was disappointed this June when an appellate court overturned a judgment invalidating the city of West Hollywood's ban on animal declawing for nontherapeutic purposes.

Then in July, the CVMA announced that it had adopted a neutral position on mandatory spay and neuter legislation it had initially co-sponsored. The change was prompted by amendments to the bill, A.B. 1634, that failed to address issues pertaining to breeding restrictions, such as exemptions for purebred dogs and cats.

On the positive side was the enactment this July of legislation, supported by the CVMA, allowing lay staff to administer pain medication and other controlled substances on the order of a veterinarian but without the need for direct veterinary supervision (see JAVMA, Sept. 15, 2007, page 827).

The seemingly constant legal challenges are simply "life as we know it in California," explained CVMA Executive Director Valerie Fenstermaker. California is home to a broad diversity of populations and opinions, which often leads to a clash of opinions on any number of issues, including veterinary medicine, said Fenstermarker, who called the appellate court ruling on declawing "very, very surprising."

Veterinarians in West Hollywood had been prohibited from performing onychectomies on domestic cats for nontherapeutic purposes when the city council outlawed the surgery as a form of animal cruelty in April 2003.

In 2005, the CVMA sued the city, claiming the ordinance infringed on veterinarians' state-granted rights to practice within the scope of their licenses. Allowing each California municipality to set its own regulations for what veterinarians can and cannot do would create a confusing and chaotic situation for veterinarians as well as pet owners, the association added.

The California Department of Consumer Affairs, which regulates the state's veterinarians, sided with the CVMA, stating local governments are prohibited from enacting legislation in an area already regulated by a state agency.

That year, the L.A. Superior Court agreed and struck down the West Hollywood ordinance. But the city appealed to the state appeals court in Los Angeles, which on June 22 of this year overturned the trial court's ruling by a 2-1 majority. The court ruled that local governments can, in fact, regulate the manner in which state licensees operate with regard to their business or profession.

The Animal Legal Defense Fund, Association of Veterinarians for Animal Rights, and The Paws Project filed briefs supporting the West Hollywood ban. "By passing the ordinance, the citizens of West Hollywood joined a growing community around the world that considers declawing for nontherapeutic purposes to be cruel," wrote the ALDF in its brief.

The appellate court veered away from the city's description of declawing as a cruel and inhumane practice, however, and instead, based its decision on the question of whether a local government has the authority to prohibit licensed professionals from performing activities that fall within the parameters of their state-issued license.

Writing for the majority, Justice Dennis M. Perluss stated: "Although the CVMA asserts local regulation of veterinary practice could ultimately result in a chaotic situation in which licensed veterinarians struggle to know what procedures are legal in which jurisdictions, this speculative fear of 'fragmented localization' is, in our view, wholly insufficient to overcome West Hollywood's significant interest in exercising its police power to set minimum standards for the humane treatment of animals within its borders."

The ramifications of the court's decision cannot be overstated, according to Daniel L. Baxter, attorney for the CVMA. "By characterizing West Hollywood's ordinance as an incidental restriction on the manner in which veterinary medicine is practiced, the appellate court has declared open season for cities and counties to regulate veterinary medicine and other licensed professionals," Baxter explained in a statement to the state's veterinarians.

The CVMA filed an appeal with the state Supreme Court on July 31. The CVMA's Fenstermaker estimates the high court will likely decide by early December whether it will grant the petition to review the case.

The AVMA has been assisting the CVMA through the appeals process, and AVMA President Gregory S. Hammer recently wrote to encourage the California Supreme Court to review the case. The California Dental Association, California Optometric Association, and Department of Consumers of Affairs have also filed briefs supporting the CVMA position, seeing the decision as having implications for their professions as well.

If the appellate court's decision is allowed to stand, it would have a profound impact on the regulation of veterinary medicine in California as well as nationwide, according to Dr. Hammer. "If upheld, the West Hollywood declawing ordinance will become precedent for thousands of local government units to consider restricting not only cat declawing, but potentially a variety of other veterinary procedures as well," Dr. Hammer wrote. "State regulation of veterinary medicine ... will be undermined if cities, villages, and counties get a green light to chip away at the uniformity of state veterinary practice acts and the regulations issued by state veterinary medical boards, as authorized by those statutes."

In their response to the CVMA petition, attorneys for West Hollywood stated that, contrary to the association's claim, the verdict "is a straight-forward, narrowly-drawn application of existing authority that in no way sends a 'siren call for municipal prohibition/restriction of licensed practices.'" In addition, the ordinance does not substitute the city's judgment for that of veterinarians with respect to when a declawing operation has a therapeutic purpose and is, therefore, permissible.

"Veterinarians practicing in West Hollywood remain free to declaw any animal whenever they conclude, in the exercise of sound veterinary medical judgment, within the applicable standard of care, that declawing that animal is necessary to prevent, cure, or relieve a wound, fracture, injury, or disease. The ordinance only punishes those who declaw animals when no reasonable veterinarian would believe a valid medical reason exists to do so," the attorneys wrote. Considering the limitations on the scope of the appellate court's decision, there is no basis for the state Supreme Court to review the opinion, they added.

Baxter, the CVMA attorney, disagrees. The decision creates a situation in which only a statute or regulation specifically delineating permissible activities would suffice to preserve the ability of licensed persons to function. "This is an awkward and unwieldy solution, especially in health care-related professions where science and technology are dynamic and ever-changing," he said.