What is the status of the retail pet sale ordinances being challenged in the courts? There have been a lot of changes and moving parts, so here is a comprehensive update.
The bottom line is that in the world of retail pet sale ordinances, the mill dogs have been winning unanimously in the courts. Every ordinance challenged has been upheld. The cities passing these ordinances are 6 for 6 (or 8 or 8) depending on how you count it.
In the latter part of 2015, we saw several significant legal decisions upholding retail pet sale bans that seek to prevent pet stores from selling dogs from puppy mills. The number of ordinances is growing nearly every week, with over 100 municipalities in the United States and Canada passing retail pet sale ordinances and several others considering them. Retail pet sale ordinances place restrictions on the type of animals that can be sold at pet stores, limiting pet stores to selling dogs and cats (and often rabbits) sourced from shelters and rescues instead of commercial breeders, commonly known as puppy mills.
Pet stores and the puppy mill industry have vigorously fought these ordinances by filing lawsuits across the country.
What’s going on with all of these lawsuits?
Here is a summary with what you need to know about the current status of these ordinances that have been challenged. There have been seven lawsuits brought in federal courts that raise claims under the United States Constitution and one lawsuit brought in state court in Florida. Every single lawsuit challenging a retail pet sale ordinance has been decided in favor of the cities that have passed the ordinances and courts have upheld the ordinances as constitutional.
East Providence, Rhode Island – Ordinance upheld; affirmed on appeal (First Circuit)
Cook County, Illinois – Ordinance upheld; appeal pending (7th Circuit)
Sunrise, Florida – Ordinance upheld; no appeal
Phoenix, Arizona – Ordinance upheld; appeal pending (9th Circuit)
Chicago, Illinois – Ordinance upheld; appeal pending (7th Circuit)
New York City, New York – Ordinance upheld; appeal pending (2nd Circuit)
San Diego, California – Lawsuit dismissed; no decision on merits of ordinance
How does this work? What is the appeals process?
In federal court, a party must file their initial lawsuit in the appropriate district court. Then, the losing parties have the right to appeal the district court’s decision to their local court of appeals. During the appeal, the parties will submit a total of three briefs arguing their cases, and then will likely argue their cases orally before a panel of judges. These appeals often take several months. If the pet stores lose on appeal, it will in all likelihood be the last word on the matter and a definitive ruling. The parties will have the option of petitioning the United States Supreme Court for review, but it is extremely unlikely that the Supreme Court would agree to hear any of these cases as the Supreme Court agrees to hear a very small percentage (less than one percent by many estimates) of the cases petitioned for review.
When will all of this be final?
It is hard to say, but based on the current schedules (which can change), a reasonable estimate is that most of these appeals should have a decision around summer to fall of 2016. It is important to note that the decision in a federal court of appeals is not binding on the cases that are outside of its circuit – there are 13 different federal court of appeals circuits. For example, the federal appeals court in Chicago (7th Circuit) will still make its own determination on the appeals for the Cook County and Chicago ordinances and will not be required to follow the decisions on appeal in Phoenix and New York because they are in a different circuit.
Can these ordinances be enforced?
That depends on the jurisdiction. In Cook County, the ordinance is partially stayed pending the appeal, and is enforceable in all other parts of Cook County other than the cities that have opted out (listed above). In Chicago, the ordinance is now enforceable and city officials are preparing to enforce it. Whether an ordinance is enforceable pending appeal depends on if the losing parties have asked the courts to stay/delay enforcement pending appeal, whether the courts have granted that request, and how/whether the city has decided to enforce its ordinance.