I respectfully dissent. If I were in the majority I would hold that the trial court did not err in finding the City of West Hollywood ordinance enacted into law on April 21, 2003, preempted by State of California legislation and therefore invalid under the California Constitution.
An analysis of the preemption question should begin with an examination of any expression by the California Supreme Court on the issues being examined. Fortunately, we do have a decision by the California Supreme Court for our guidance inCalifornia Fed. Savings Loan Assn. v. City of LosAngeles (1991) 54 Cal.3d 1 [283 Cal.Rptr. 569,812 P.2d 916]. The decision of our high court gives an indepth analysis of the "home rule" provision of the California Constitution as it pertains to "municipal" vis a vis "statewide" concerns. For this reason California Federal is quoted extensively hereafter. In summary, the decision involved a refund of taxes claim by the plaintiff on the ground that the defendant City of Los Angeles tax statute was a question of "statewide" concern and not a municipal affair thereby invoking state preemption entitling plaintiff to a refund of any local taxes paid. The trial court ruled in favor of the plaintiff association finding that California Constitution, article XI, section 5, subdivision (a) (municipal home rule for *Page 563 charter cities) was not a bar to plaintiff's recovery because the claim was a matter of "statewide concern" and held in favor of plaintiff. The case was reversed by the Court of Appeal, which was in turn reversed by our high court resulting in reinstatement of the decision of the trial court.
Our high court stated that it granted review to decipher the meaning of the "municipal affairs" clause, albeit within the context of conflicting claims of the Legislature and a charter city to levy taxes on a financial corporation. I find the decision strongly applicable to the facts of this case regardless of the obvious distinguishing feature that the subject matter of the decision dealt with a provision of the Revenue and Taxation Code and of lesser import the fact that the City of West Hollywood is not a charter city. In footnote 1 of its opinion the Supreme Court repeats the content of the "home rule" provision as follows:
"`It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith.'" (California Fed. Savings Loan Assn. v. City of Los Angeles, supra,54 Cal.3d at p. 6, fn. 1.) I note that the provision makes no reference to subject matter and by implication applies to any ordinance whether involving taxes, veterinarian medicine or any other endeavor sought to be locally regulated.
At pages 16 through 18, the court in California Fed.Savings Loan Assn. v. City of Los Angeles, supra,54 Cal.3d 1, further focused our attention by providing: "In broad outline, a court asked to resolve a putative conflict between a state statute and a charter city measure initially must satisfy itself that the case presents an actual conflict between the two. If it does not, a choice between the conclusions `municipal affair' and `statewide concern' is not required. . . . To the extent difficult choices between competing claims of municipal and state governments can be forestalled in this sensitive area of constitutional law, they ought to be; courts can avoid making such unnecessary choices by carefully insuring that the purported conflict is in fact a genuine one, unresolvable short of choosing between one enactment and the other.
"In those cases where the preliminary conditions are satisfied, that is, where the matter implicates a `municipal affair' and poses a genuine conflict with state law, the question of statewide concern is the bedrock inquiry through which the conflict between state and local interests is adjusted. . . . *Page 564
"The phrase `statewide concern' is thus nothing more than a conceptual formula employed in aid of the judicial mediation of jurisdictional disputes between charter cities and the Legislature, one that facially discloses a focus on extramunicipal concerns as the starting point for analysis. By requiring, as a condition of state legislative supremacy, a dimension demonstrably transcending identifiable municipal interests, the phrase resists the invasion of areas which are of intramural concern only, preserving core values of charter city government. As applied to state and charter city enactments in actual conflict, `municipal affair' and `statewide concern' represent, Janus-like, ultimate legal conclusions rather than factual descriptions. Their inherent ambiguity masks the difficult but inescapable duty of the court to, in the words of one authoritative commentator, `allocate the governmental powers under consideration in the most sensible and appropriate fashion as between local and state legislative bodies.' (Van Alstyne, Background Study Relating to Article XI, Local Government, Cal. Const. Revision Com., Proposed Revision (1966) p. 239.)
"In performing that constitutional task, courts should avoid the error of `compartmentalization,' that is, of cordoning off an entire area of governmental activity as either a `municipal affair' or one of statewide concern. Beginning with the observation in Pac. Tel. Tel. Co. v. City and Countyof S. F. [(1959)] 51 Cal.2d [766,] 771 [336 P.3d 514], that `the constitutional concept of municipal affairs is not a fixed or static quantity . . . [but one that] changes with the changing conditions upon which it is to operate,' our cases display a growing recognition that `home rule' is a means of adjusting the political relationship between state and local governments in discrete areas of conflict. When a court invalidates a charter city measure in favor of a conflicting state statute, the result does not necessarily rest on the conclusion that the subject matter of the former is not appropriate for municipal regulation. It means, rather, that under the historical circumstances presented, the state has a more substantial interest in the subject than the charter city.
"A corollary of that proposition is that every decision sustaining a state statute over a charter city measure does not mean that if the former were repealed, charter cities would remain incompetent to legislate in the area. Nor does a decision favoring a charter city measure preclude superseding state legislation in a later case if the fact-bound justification — the statewide dimension — is subsequently demonstrated. To approach the dichotomy of `municipal affairs/statewide concern' as one signifying reciprocally exclusive and compartmented domains would, as one commentator has observed, `ultimately all but destroy municipal home rule.'
"In cases presenting a true conflict between a charter city measure — whether tax or regulatory — and a state statute, therefore, the hinge of the *Page 565 decision is the identification of a convincing basis for legislative action originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations." (California Fed. Savings Loan Assn. v. City of Los Angeles, supra,54 Cal.3d at pp. 16-18, fn. omitted, italics added.)
Our initial charge under California Federal is to satisfy ourselves "that the case presents an actual conflict" between the city's ordinance and state law. This requires a careful comparison between the purportedly conflicting provisions. On April 21, 2003, city, through its council, adopted ordinance No. 03-656, adding chapter 9.49 to West Hollywood's Municipal Code. The ordinance was entitled "Ban on Onychectomy (Declawing)" and provided as follows:
"9.49.010 Findings.
"a. There is a widespread misunderstanding in the community regarding a commonly performed surgical procedure known as onychectomy, or `declawing.' Contrary to most people's understanding, declawing consists of amputating not just the claws but the whole phalanx (up to the joint), including bones, ligaments, and tendons.
"b. Declawing is not a simple cosmetic procedure akin to a manicure or a pedicure. On the contrary, to remove a claw, the bone, nerve, joint capsule, collateral ligaments, and the extensor and flexor tendons must all be amputated. Thus, declawing is not a `simple,' single surgery but ten separate, painful amputations of the third phalanx up to the last joint of each toe. In human terms, this is akin to cutting off the last joint of each finger.
"c. Declawing robs an animal of an integral means of movement and defense. Because they cannot defend themselves adequately against attacks by other animals, declawed animals that are allowed outdoors are at increased risk of injury or death. Likewise, animals subjected to flexor tendonectomy, a procedure in which the animal's toes are cut so that the claws cannot be extended, are also robbed of an integral means of defense.
"d. Research has demonstrated that the rate of complication with onychectomy is relatively high compared to other procedures considered `routine.' Complications can include excruciating pain, damage to the radial nerve, hemorrhage, bone chips that prevent healing, painful re-growth of deformed claw inside of the paw which is not visible to the eye, necrosis, lameness, and chronic back and joint pain as shoulder, leg and back muscles weaken.
"e. Although there is a widespread belief that declawing makes cats more `house-friendly' and, therefore, less likely to be abandoned and subsequently *Page 566 euthanized, a survey conducted by Forgotten Felinesand Friends of Caddo Parish in Louisiana found that approximately seventy percent of cats surrendered to the city shelter were declawed.
"f. There are a number of alternatives to onychectomy (declawing) and flexor tendonectomy that involve no physical harm to the animal. Harmless alternatives include training the pet to use a scratchpost, use of deterrent pheromone sprays, covering furniture, restricting the pet's access to certain areas of the home, use of plastic nail covers, and more.
"g. Considering the wide array of alternatives, the City Council finds that the mere convenience of the onychectomy (declawing) and/or flexor tendonectomy procedures to the pet's guardian does not justify the unnecessary pain, anguish and permanent disability caused the animal.
"h. The City of West Hollywood enacts this ordinance pursuant to the authority vested in the city by Article XI, Section 7 of the California Constitution allowing a city to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.
"i. The State Legislature has not endeavored to regulate, or delegate to any specified agency the authority to regulate, the types of veterinary procedures that may be performed within the State of California. Until the Legislature chooses to regulate these procedures, local governments are free to limit the types of procedures that may be performed within their jurisdiction for the protection of the public health, safety and general welfare.
"(Ord. 03-656 § 1 (part), 2003)
"9.49.020 Onychectomy (Declawing) Prohibited.
"No person, licensed medical professional or otherwise, shall perform or cause to be performed an onychectomy (declawing) or flexor tendonectomy procedure by any means on any animal within the city, except when necessary for a therapeutic purpose. `Therapeutic purpose' means the necessity to address the medical condition of the animal, such as an existing or recurring illness, infection, disease, injury or abnormal condition in the claw that compromises the animal's health. `Therapeutic purpose' does not include cosmetic or aesthetic reasons or reasons of convenience in keeping or handling the animal. In the event that an onychectomy or flexor tendonectomy procedure is performed on any animal within the city in violation of this section, each of the following persons shall be guilty of a violation of this section: (1) the person or persons performing the procedure, (2) all *Page 567 persons assisting in the physical performance of the procedure, and (3) the animal guardian that ordered the procedure.
"(Ord. 03-656 § 1 (part), 2003)"
The purportedly conflicting state statute which CaliforniaFederal requires us to scrutinize to determine whether a genuine conflict exists is Business and Professions Code section 460. Section 460 provides generally that "No city or county shall prohibit a person, authorized by one of the agencies in the Department of Consumer Affairs by a license, certificate, or other such means to engage in a particular business, from engaging in that business, occupation, or profession or any portion thereof. Nothing in this section shall prohibit any city or county or city and county from levying a business license tax solely for revenue purposes nor any city or county from levying a license tax solely for the purpose of covering the cost of regulation."
Both parties to this litigation cite Business and Professions Code section 460 in support of their relative positions, but it is readily apparent that the mere generality of the section renders any assistance to either side somewhat problematical.
Following the dictates of our high court in CaliforniaFederal, I find that a municipal/statewide conflict is presented by the two competing provisions. The conflict is clear and needs very little elaboration. Ordinance No. 9.49.020 states, "No person, licensed medical professional or otherwise, shall perform or cause to be performed an onychectomy (declawing) or flexor tendonectomy procedure by any means on any animal within the city, except when necessary for a therapeutic purpose." Juxtaposition to the ordinance is Business and Professions Code section 460 which says that "No city or county shall prohibit a person, authorized by one of the agencies in the Department of Consumer Affairs by a license, certificate, or other such means to engage in a particular business, from engaging in that business, occupation, or profession or any portionthereof." (Italics added.) The conflict is patent and presents a genuine dispute as required by the analytical first step stated in California Federal, in my opinion.
Having concluded that a genuine conflict exists in this instance, I shift attention to the second phase of analysis required under California Federal, namely, the question of statewide concern as "the bedrock inquiry."
Initially, I am in agreement with most of the majority opinion pertaining to rules seeking to determine legislative intent in interpreting a statute which is not otherwise clear and unambiguous on its face. The relevant state statute in question is Business and Professions Code section 460. Section 460 is general *Page 568 in nature and does not address the subject matter of city's ordinance one way or another except by implication in its generality. Legislative history in turn fails to address the question of preemption by the state pertaining to the subject matter of the ordinance, but that does not mean we are clueless on legislative intent pertaining to nontherapeutic "declawing" of cats. We do have a history of legislative action on the subject from which intent on the part of the Legislature can be explored and reasonable assumptions made.
On page 551 of the majority opinion, at footnote 10, the majority refers to legislative history on the subject as follows:
"On February 14, 2003, several months prior to West Hollywood's adoption of ordinance No. 03-656 and a full year before he introduced Assembly Bill No. 1857 (2003-2004 Reg. Sess.), Assemblymember Koretz introduced Assembly Bill No. 395 (2003-2004 Reg. Sess.), which would have amended the [California Veterinary Medical Practice] Act by adding section 4826.5 to the Business and Professions Code to prohibit veterinary licensees from performing nontherapeutic surgical claw removal procedures on any cat. The bill was subsequently amended to limit its prohibition to nontherapeutic procedures performed on native, wild or exotic cats (Assem. Bill No. 395, as amended Jan. 5, 2004) and eventually died when it was not passed by the Assembly by January 31, 2004. (See Cal. Const., art. IV, § 10, subd. (c).) This initial attempt by Assemblymember Koretz to prohibit nontherapeutic declawing by licensed veterinarians, rather than his ultimately successful effort to add the prohibition as it relates to wild or exotic cats to the portion of the Penal Code dealing with animal cruelty, underscores the fact that at present the procedure is widely considered an acceptable part of the practice of veterinary medicine."
I come to the conclusion that the above mentioned history is a clear indication on the part of the state Legislature to address veterinarian "declawing" procedures as a matter of statewide concern. In recounting its actions on the matter by passage of legislation which eventually led to a dichotomy between "wild and exotic cats," and domestic cats, what inference is the court to draw other than the state Legislature has addressed a statewide concern and has decided that nontherapeutic "declawing" of wild or exotic cats is prohibited, but the procedure is permissible with respect to domestic or tame cats. It appears to this dissenting justice that the Legislature has addressed a statewide concern and the city's ordinance is preempted by state action.
A troubling aspect of the majority opinion lies in the lack of deference given to Department of Consumer Affairs (DCA) opinion No. 04-04 which comes to the conclusion that the ordinance in question is preempted by the California Veterinary Medical Practice Act (Bus. Prof. Code, § 4800 et seq.). The majority, I respectfully suggest, merely gives a slight tip of the *Page 569 hat in acknowledging the existence of the opinion, but little else. I agree with the majority that the opinion is not binding precedent that is entitled to stare decisis status, nevertheless I fail to see that the deference, or lack thereof, does justice to the opinion in this instance. I disagree with majority's statement on page 556 concluding that "Similarly absent in this case are factors suggesting the agency's interpretation is `"probably correct,"'" citing YamahaCorp. of America v. State Bd. of Equalization (1998)19 Cal.4th 1, 19 [78 Cal.Rptr.2d 1, 960 P.2d 1031]. To the contrary, factors exist in this matter suggesting that the DCA opinion is "probably correct" as discussed previously at length in this dissent. Additional factors militating in favor of "statewide concern" are accentuated by the DCA opinion. The DCA opinion states in part, "Such local regulation of veterinary practice in different jurisdictions would ultimately create a chaotic and confusing situation where it would be difficult for licensed veterinarians to know which veterinary procedures are legal or not depending on the jurisdiction. For local jurisdictions to regulate this aspect of veterinary practice is akin to local authorities imposing bans on physicians performing cosmetic surgery on people. Such a balkanization of professional practice ultimately would lead to different standards of practice throughout the state. Having different authorized and illegal veterinary medical practices throughout the state will inevitably make it very difficult for the Board to enforce the Veterinary Medicine Practice Act." (DCA Legal Opn. No. 04-04, Dec. 1, 2004, at pp. 4-5.)
The DCA opinion further states, "The city ordinance also does not accomplish its stated purpose of preventing the practice of onychetomy or flexor tendonectomy for non-medical reasons. Owners may freely go to a neighboring city and have the operation performed there and bring the cat back into the city. In this manner, the ordinance only adversely impacts the veterinarians in the City of West Hollywood. Whether the practice of performing an onychetory or flexor tendonectomy for non-medical reasons should be prohibited or not is ultimately a state policy question that should be addressed before the State Legislature." (DCA Legal Opn. No. 04-04, Dec. 1, 2004, at p. 5.)
I also note a comment in the DCA opinion stating, "Historically, surgical declawing is often necessary because of a severe medical or behavioral condition and has often been used as an alternative to abandonment or euthanasia" to be pertinent to counter the argument of the city that the ordinance is designed to prevent cruelty to animals. (DCA Legal Opn. No. 04-04, Dec. 1, 2004, at p. 4.) It appears to this dissenting justice that the syntax of the city's ordinance is constructed to elicit emotional reactions against the procedures in question by appealing to a practice purportedly involving animal cruelty, but in truth and in fact would lead to the propagation of animal cruelty in numerous instances as highlighted by the DCA opinion. *Page 570
As a final comment, I note that the ordinance roams into the criminal penal realm by making it a crime not only for the veterinarian who violates the ordinance, but also any other persons who perform the procedure or physically assist in the prohibited procedure and the guardian (presumably the owner) of the animal that orders the procedure. In my opinion this diversion into the criminal arena, if nothing more, relegates the ordinance to the status of statewide concern.
In conclusion, I would affirm the decision of the trial court.
Respondent's petition for review by the Supreme Court was denied October 10, 2007, S154899. Moreno, J., was of the opinion that the petition should be granted. *Page 571