Idaho Attorney General Lawrence Wasden has asked the U.S. Court of Appeals for the Ninth Circuit in San Francisco to review a lower federal court’s opinion that the Gem State’s new “ag-gag” law is unconstitutional. Wasden filed a notice of appeal with the Ninth Circuit over the ruling in August by U.S. District Court Judge B. Lynn Winmill invalidating the 2014 Idaho law that makes it illegal for animal activists to take undercover videos of alleged animal abuse. Winmill, who is chief judge for the federal court district of Idaho, agreed with animal activists that the law, adopted in 2014, violates both the First Amendment and the Equal Protection Clause of the U.S. Constitution. Attorney for the plaintiffs, University of Denver Law Professor Justin Marceau, called Winmill’s ruling “a total victory on our two central constitutional claims.” Idaho became one of about a half-dozen states that have adopted similar laws designed to prevent activists from obtaining employment through identity fraud or making undercover videos. Winmill is the only federal judge, so far, to strike down such a state law. A notice of appeal is just that, a statement that an appeal is on its way so the appellate court can order transcripts of the lower court’s proceedings and collect fees for the case. Until Wasden and his deputies actually file an appeal, the approach they are taking won’t be known. The impetus for the Idaho lawsuit was the arrest of a local activist who prosecutors found was actually taking picture on public land, not private, and therefore the charges were dismissed. Various individual activists and organizations joined in as plaintiffs in the case. Utah’s “ag-gag” law is also being challenged in federal court, and those proceedings are headed for a trial sometime after next May. The Idaho Dairyman’s Association drafted the “ag-gag” bill in 2014 after the Bettencourt Dry Creek Dairy near Hansen, ID, became the target of an undercover animal rights investigation in 2012. The Idaho Legislature quickly passed the bill, and Idaho Gov. C.L. (“Butch”) Otter signed it into law. Under deadlines imposed by the Ninth Circuit, Idaho’s opening brief and excerpts of record as the appellant in the case will be due Monday, March 21, 2016. The answering brief will be due one month later.
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