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Lawyers File Briefs While Awaiting Judge’s Decision on Idaho ‘Ag-Gag’ Case

Idaho Wants Case Dismissed

Idaho’s top federal judge has a reputation for enjoying “zealous advocacy” by smart lawyers. But it isn’t known whether U.S. District Court Judge B. Lynn Winmill views as all that helpful briefs filed after final oral arguments on an issue. After final oral arguments on June 26 in Boise over a state motion to dismiss the challenge by animal rights groups to Idaho’s new “ag-gag” law, Winmill promised that his “written decision is forthcoming.”

That was two weeks ago. Winmill, who told The Federal Lawyer in 2007 that he “suffers insomnia” if one of his written opinions is not clearly understood by attorneys and the public, has apparently not yet made a decision on whether or not to dismiss Animal Legal Defense Fund v. C.L. “Butch” Otter.

But, on July 7, the U.S. Court of Appeals for the Ninth Circuit did issue a ruling on an unrelated Arizona case that may impact Idaho’s new law. Whether it was enough to cause the judge to tear up any decision drafts is unclear.

(The Arizona case involved the state Department of Transportation not accepting employment authorization documents from the U.S. Department of Homeland Security under the federal Deferred Action for Childhood Arrivals (DACA) as proof of a driver’s license applicant’s lawful status in the  country. The appeals court ruled against the Arizona policy, stating that it was “separate and unsupported determination of who is authorized to be present in the U.S. under federal law.”)

Lawyers for Otter, the Republican governor of Idaho, and Idaho Attorney General Lawrence Wasden filed written briefs on the appeals court case at the federal courthouse in Boise the next day. Shortly thereafter, professor Justin Marceau from the University of Denver law school filed a competing brief for the animal rights side.

So why is the Ninth Circuit’s opinion in Arizona Dream Act Coalition v. Brewer playing a role in Idaho’s “ag-gag” dispute? It involves only a narrow part of the reasoning in the case.

Clay R. Smith and Carl J. Withroe, deputy Idaho attorneys general, state in their brief that the Arizona opinion addresses the likelihood of a plaintiff being successful in an equal protection claim under the Fourteenth Amendment. They say the case addresses where “animus against a politically unpopular group” is involved as a basis for a law.

The appeals court decision states that where animus is the “only plausible justification” for a law, it “fails rational basis review.” Meanwhile, Idaho argues that security of its multi-billion-dollar agricultural industry is the primary reason for the new law.

Marceau, the lead attorney for the Animal Legal Defense Fund, says that the new appeals court decision “confirms rather than undermines Plaintiffs’ contention that even under rational basis review there is a meaningful evaluation of the fit between the proffered rationales and the actual operation of the law in question.”

Marceau says that Idaho has to “show not only that the law would have passed without animus, but that there is an adequate fit between the law passed and the proffered justification for the law.” He says that the state must also show why its stated goals of protecting property “are uniquely served by criminalizing whistle-blowers in just one industry but not others.”

It remains to be seen what impact the briefs filed after arguments are having on Winmill, who was also depicted in The Federal Lawyer profile as a jurist who prefers trials to being a “sit-in-chambers-and-read-and-write” type of judge.

Idaho’s new law to protect animal agriculture facilities from outside interference took effect on Feb. 28 after it was passed by the state legislature and signed by Gov. Otter.

The state’s $2.4-billion dairy industry drafted the bill and gained enough support for its easy passage through both the Idaho Senate and House. Otter said the law was needed to ensure that Idaho’s farmers and ranchers are “secure in their property and their livelihood.”

Idaho and Utah are both being sued in federal court over their recently enacted agricultural protection laws that opponents call “ag-gag” measures because they make it illegal to lie on an employment application or surreptitiously record inside animal production facilities.

Animal-rights activists say the prohibitions are deliberately designed to silence, or “gag,” anyone attempting to collect evidence of animal mistreatment.

The next action on the Utah case is set for Aug. 8 when oral arguments will be held on whether or not that case should be dismissed.

In addition to Idaho and Utah, Iowa and Missouri have adopted “ag-gag” laws since 2012. Three other states, North Dakota, Montana and Kansas, adopted the first generation of such measures during the 1990-91 legislative seasons.

The motion to dismiss appears to be Winmill’s first decision involving Otter since the governor reportedly said back in February that the federal judge usually “doesn’t share all of the enthusiasm for the marketplace and freedom that we do in Idaho.”

Winmill, 61, is a fourth-generation Idahoan who grew up on a dairy and sugar beet farm near the Snake River at Blackfoot.

When the state’s media outlets sought an explanation for Otter’s statement about the judge, the governor’s spokesman said only: “As they say in court: Res ipsa loquitor.”

That’s Latin legalese for, “The thing speaks for itself.”

© Food Safety News
  • Marceau’s response to the motion for supplemental authority filed by Idaho was brilliant. And he made the superior legal argument.

    For those folks who want to read both, the state’s motion to file the supplemental authority is


    The Animal Legal Defense Fund response is at


    And I think there’s a saying in court about not pissing in the pond where you get your drinking water, or something like that. I wouldn’t want to say publicly adverse things about a judge when I’m a party in his or her court. Not unless you know your side is going to lose, and you’re just trying to set the stage.

    That, speaks volumes.

  • State_Insurance_North_Carolina

    Just want to make something clear here. The 1st Amendment protects virtually all speech and would be nearly worthless if someone who felt threaten by that speech could influence the political and legal system to make that speech illegal. Such is with whistle blowers coming forward and bringing information into the court of public opinion.

    We as citizens have no obligation to report wrong doing to our employers when and if we feel in doing so would result in them having time to engage in a coverup. In fact, doing so could put us in a future position of being part of a conspiracy under federal RICO statutes.

    We as citizens have more of a responsibility to report wrong doing to individuals in the legal system than we do some other citizen such as an employer. We as citizens also have the right to protect ourselves while whistle blowing by bringing public scrutiny upon ourselves in order to retard aggressive attempts to stop us from engaging in our protected free speech as has been done in the past toward previous whistle blowers thought out our history.

    The basis for any so called gag orders is non-enforceable due to constitutional protections much in the same way that national security gag orders are unenforceable. Even if placed in a position where you have to sign one of these odious contracts contract law does not supersede constitutional law and you cannot sign away your inalienable rights.

    If your local judges are not following rule of law, impeach them. If your federal judges are not following rule of law, have a grand jury nullify their ruling in your area.

    We have some judges making some crazy opinions lately and its up to the real government in this nation, that is “we the people” to ensure that both them and our elected governmental employees are following rule of law. It is also up to us to punish them if they do not as they have shown that they cannot effectively oversee their own actions any more so than a fox can be trusted to guard a hen house.

    I hate to sound preachy here but so few people in this nation know anything about not only their constitutional rights, but their responsibilities. The new government saying of “if you see something, say something” not only applies to telling law enforcement, but to your friends, family, and any damn one else you please!

    A link to this article and the full copy of my comment is going to facebook because of the moderation feature of this site. I will not be censored as there is nothing in this comment that should have triggered a moderation warning other than someone’s over zealous ideology filters!

  • birchbay

    Fox News can lie on the public airways to its audience because it’s free speech. But other journalists (yes, reporters reporting back on the activities of ag corporations and companies can be considered journalists) can’t report the truth. Does this make sense?