Rapid Review:  Window Closing on Legal Challenges to California’s Proposition 12

On July 28, 2021, the United States Circuit Court of Appeals for the Ninth Circuit issued a decision in Nat’l Pork Producers Council, et al v. Karen Ross, et al, No. 20-55631, holding that California’s 2018 Proposition 12 swine confinement requirements for in-state production, and in-state sales restriction for pork products not produced in accordance with them, do not violate the United States Constitution’s Commerce Clause.  Proposition 12 prohibits the sale of pork in California from hogs: (a) born of a sow that cannot lie down, stand up, fully extend its limbs, or turn around without touching the side of its stall or another animal; or (b) raised in a pen no less than 24 square feet per pig.  Oral argument was held before the Court on April 14, 2021 and the decision has been anticipated for several weeks.  In upholding Proposition 12’s constitutionality in this appeal, the Court affirmed the lower court decision upholding Proposition 12 issued by the United States District Court for the Southern District of California on April 27, 2020.

This latest ruling leaves in place the January 1, 2022, Proposition 12 effective date for swine production and appears to be the last viable presently pending legal appeal capable of preventing Proposition 12 from taking effect in approximately five months.  The Plaintiffs pursuing the case, National Pork Producers Council and American Farm Bureau Federation, have made no formal statements about their intent to appeal this decision, to continue to seek invalidation of Proposition 12, or to delay its effective date.

The decision in the case can be appealed in several ways but to delay the effective date the next step would require applying and being granted an accompanying stay which prevents judgment being entered that upholds Proposition 12 and its effective date.  First, the Plaintiffs could file requests with the Ninth Circuit Court for a rehearing by the same panel of three judges or by the full “en banc” panel of Ninth Circuit judges.  This requires proof that a “material point of fact or law was overlooked” and such requests are not routinely granted.  Either request must be filed by the close of business on Wednesday, August 11, 2021.  Plaintiffs have never requested a stay to date from the Ninth Circuit in this case.  The other appeal option is to file a “petition for writ of certiorari” with the United States Supreme Court asking to be granted an appeal.  Barring a rehearing request, such a petition would be due on October 26, 2021. A stay could be requested from the U.S. Supreme Court by an application accompanying the petition. Such a stay request is only entertained in “extraordinary circumstances” if, as in this case, a stay was not previously requested from the lower court.

Without a stay, if the U.S. Supreme Court granted a petition for appeal in this case, standard scheduling procedures for the Supreme Court’s decision-making would not enable a decision to be rendered by Proposition 12’s effective date.  Therefore, the only foreseeable prospect of avoiding Proposition 12’s January 1, 2022, requirements for pork production may well be an extraordinary action by California state government’s Legislative or Executive branch that limits enforcement of Proposition 12.

Written by:
Audry Thompson – Research Assistant
Brook Duer – Staff Attorney