Sunday, April 15, 2012

Is CAPA Legal? - Collusion vs. Activism

As I've noted on previous posts, Delaware's CAPA is notorious for an atmosphere of multiple and never ending investigations.  Everything from simple custody issues to State Attorney General investigations, so maybe it's time for the rest of us to join the bandwagon and ask for an investigation. The ever increasing financial cost inflicted by the "No-Kill" movement and the negative effects it has had for the welfare of animals has been previously discussed, so maybe it's time to address the questionable legality of CAPA. Maybe it's time for those impacted by this ridiculous law (shelters performing animal control, city and county governments who purchase animal control services or perform them, and the taxpayers who ultimately pay for those services) to request an investigation into whether or not this law is a violation of antitrust / competition law.

The Sherman Antitrust Act

Anyone who's worked in the business world is aware of the laws that ensure that the marketplace remains competitive. The Sherman Antitrust act is a statute that prohibits business activities that reduce competition in the marketplace.  This act also prohibits collusion within an industry or the "conspiracy in restraint of trade or commerce ".  
"To protect the consumers by preventing arrangements designed, or which tend, to advance the cost of goods to the consumer". - Senator John Sherman
While most of us are familiar with Sherman in the context of for profit companies, non-profits industries are not exempt. Because shelters are also vendors for the municipalities and counties, laws like CAPA that place additional costs onto the consumer/taxpayer, or are used as a weapon to push another shelter out of the business of animal control, could possibly be violations of antitrust laws.

While it is perfectly acceptable to pass laws that create new standards or better standards, CAPA in fact did neither. Unlike animal welfare laws enacted in other states like North Carolina or Connecticut, CAPA did not include standards of care that ensure proper care of animals, or provide for an agency to perform inspections to ensure compliance. If you look at Delaware's Companion Animal Protection Act, you'll realize that other than one section, 8004(d), the "law" has no enforcement or civil remedy.  Keep in mind that most of 8004(d) was already on the books in Delaware, so essentially all the new sections added don't include enforcement of any kind.  So what exactly was the purpose of this "sweeping" and "progressive" new legislation if it can't be enforced?
"The Governor of Delaware just signed the most sweeping, progressive companion animal protection legislation in the United States. The law was modeled on the No Kill Advocacy Center's Companion Animal Protection Act and spearheaded by the non‐profit No Kill shelter Faithful Friends, in Wilmington, Delaware, and involved groups like Safe Haven Animal Sanctuary." - Statement by Nathan Winograd on No-Kill Delaware website
I think federal authorities need to question whether the legislation wasn't merely a "sham" which is used as a weapon to force Kent County SPCA out of the animal control business, or at the very least force them to require more funds for their services that activists want provided for their agenda.  By making Kent County SPCA jump through the hoops of this legislation, and the resulting investigations that ultimately have no effect other than costing KCSPCA money in time spent pulling documents and talking to regulators, there is no better example of a "sham" than this unenforceable law.  I use the term sham because it relates to a doctine under The Sherman Act called Noerr-Pennington Doctine.

Noerr-Pennington Doctrine
While I'm sure some of the attorneys in the "No-Kill" movement will argue that even if CAPA does restrain commerce, the "No-Kill" shelters are immune from collusion in working together to enact a governmental action such as CAPA.  They will claim protection established under the Noerr-Pennington Doctrine which provides immunity to balance the rights of entities to influence the passage of laws even if those laws do have an anticompetetive effect. 
"A fundamental goal of the Commission’s antitrust enforcement program is to prevent parties, acting either unilaterally or in concert, from improperly acquiring and exercising market power to the detriment of consumers. One of the most effective ways for parties to acquire or maintain market power is through the abuse of government processes. The cost to the party engaging in such abuse typically is minimal, while the anticompetitive effects resulting from such abuse often are significant and durable. Thus, the reach of the antitrust laws to conduct that abuses government processes for anticompetitive ends is of particular importance to the commission’s enforcement program." - FTC
The reason the word "sham" is so important is that it directly relates to an exception under the Noerr-Pennington Doctrine.  Federal authorities need to look at whether CAPA was in fact ever intended to create new "standards", or whether it was created for the sole purpose of harassing animal control agencies in Delaware, whether it be Kent County SPCA, the counties, or municipalities.  Below is a case that best discusses laws and regulatory actions that aren't provided immunity under Noerr-Pennington, and the fact that CAPA and the resulting complaints lack purpose in the ability to enforce is strikingly similar. 
"For example, in California Motor Transport v. Trucking Unlimited, 404 U.S. 508 (1972), the United States Supreme Court held that the Noerr-Pennington doctrine did not apply where defendants had sought to intervene in licensing proceedings for competitors, because the intervention was not based on a good-faith effort to enforce the law, but was solely for the purpose of harassing those competitors and driving up their costs of doing business. The sine qua non of a "sham" proceeding is not the purpose to harm a competitor, but rather the absence of any purpose to actually obtain government action. Thus, initiating an administrative proceeding that one actually hopes to win in order to harm one's competitors is within the ambit of the Noerr-Pennington doctrine, while initiating a similar proceeding that one does not meaningfully intend to win solely to delay one's business competitors is within the sham exception." - Noerr-Pennington - Wikipedia

I encourage those involved to contact the Department of Justice and request that they review this law and whether it violates the Sherman Act.  While anyone can make a complaint, I think the most effective means to have this law reviewed is for the complaints come from those directly affected.  Shelters impacted like Kent County SPCA can provide the costs and any correspondence related to ongoing investigations that might show a specific segment of people making the complaints.  The cities and counties that will have to bear the cost of this law should also consider requesting a federal review of this law.  And taxpayers in Delaware that will ultimately pay the price in their taxes should also ask for the law to be reviewed.  I also encourage those of you in other states, where similar legislation is proposed, to ask for a federal review to ensure that this weapon does not go on the books in your state.

Goverment of the People

The concern is the whether those that represent us in government are doing what best protects the interest of all their consituents, or whether laws are passed that represent their friends and connections.  When we see so many political connections listed on some of our shelters Leadership pages, it does make one wonder.  Especially when we see articles like Dead Mutts Walking that states the governor office was directly involved in helping a rescue obtain dogs under CAPA, and this is the same rescue that took the dog Neo shown on the homepage of No-Kill Delaware who was eventually a complainant in one of the many investigations under CAPA. 

It still comes back to the same questions.  If state legislators and the governor wanted to propose a "no-kill" law, why whitewash it by calling it shelter standards, and why did they wait until animal control became a county obligation?  Did they in fact know that this would be costly to the taxpayers and not want the responsibility to find the funding under their own budget?  Why not be up front with the "no-kill" agenda from the start?  Did legislators think taxpayers would be upset by the fact that you were asking them to fund their personal passions? 

While I do believe our animal control agencies are underfunded for their needs to cover everything from vaccinations to maintaining an adequate fleet of trucks to provide service to the community, I have to wonder whether our legislators knew that taxpayers wouldn't want to take on the costs that communities that the no-kill shelters like to cite as their examples.  In some cases those communities are paying 3-4 times what we are currently paying.  I certainly don't think taxpayers should be burdened with paying for 900 animals in foster care like Austin, or pay thousands of dollars for the cancer treatment of a shelter animal when they can't afford it for their own pet.  In my opinion that's just subsidized ownership for warehousing animals, and it's ridiculous to ask taxpayers to foot that bill.  Especially when so many of those taxpayers are already having a difficult time providing for the care of their own animals.

Was the inability to get taxpayers to support a "no-kill" initiative the reason legislators chose to enact a bill like CAPA that didn't have any enforcement ability?  Well maybe it's time for federal authorities to subpoena emails from everyone involved in the creation of CAPA  to find out what the true motives were.  Was the motive to enact a standards law, or was it to create a weapon of mass harassment?