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mikey4400

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Practice
« on: December 11, 2006, 09:10:50 PM »
State of CA has enacted law banning sale or possession by individuals of monkeys and apes. Governor Greg, signing new law, announced, “Too many kids bitten by these wild animals in our state. They belong in the wild or zoo, not in homes.” A fed law authorizes Secretary of Interior to prohibit importation or sale of “dangerous animals,” and empowers her to adopt list of such animals. But official has declined to add monkeys to list. Your client, P, is arrested by State Police for harboring monkey in his home. This hypo about wild animals is confusing me. Does anyone know how I can challenge State law on constitutional grounds besides procedural due process?

J D

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Re: Practice
« Reply #1 on: December 11, 2006, 09:25:12 PM »
Perhaps one could try arguing that the state law is preempted.  But this seems weak to me: surely, there's no conflict between federal objectives and the state law, and although we'd have to know more, I sincerely doubt the federal law is intended to occupy the field.
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kmpnj

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Re: Practice
« Reply #2 on: December 11, 2006, 10:15:20 PM »
The thing to remember is that states can provide more protections than the Federal Government but not less.  So, under the guise of public safety, the state can further limit your client's access to monkeys.  If there were a constitutional right to own a monkey, then your client would have a shot.  Because of the 10th Amendment, I don't even see a viable due process violation.  Of course, I haven't had Con Law yet, so take it for what its worth.

J D

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Re: Practice
« Reply #3 on: December 11, 2006, 10:49:36 PM »
The thing to remember is that states can provide more protections than the Federal Government but not less.  So, under the guise of public safety, the state can further limit your client's access to monkeys.  If there were a constitutional right to own a monkey, then your client would have a shot.  Because of the 10th Amendment, I don't even see a viable due process violation.  Of course, I haven't had Con Law yet, so take it for what its worth.

Or maybe a statutory one under a (constitutionally valid) federal law, but I don't see it here. 
"I never think of the future.  It comes soon enough."--Albert Einstein

Jumboshrimps

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Re: Practice
« Reply #4 on: December 12, 2006, 10:22:32 AM »
There is an equal protection claim here. The state will need a rational basis for discriminating against monkey owners and not, for example, big dog owners. This overlaps a bit with another constitutional issue-- whether the law is arbitrary and capricious. Both causes of action will involve questions as to whether there are practically recognizable differences between the threat of monkeys to citizens, and the threat of other, non-banned species.

Lenny

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Re: Practice
« Reply #5 on: December 12, 2006, 10:57:51 AM »
There is also an interstate commerce argument.  Its a weak one, and probably a loser.  But its an argument nonetheless.