LIVE MARKET CRUELTY LEGAL, SAYS JUDGE; JUST DUCKY, SAY POLITICIANS

From ANIMAL PEOPLE, September 1998:

SAN FRANCISCO––In effect
endorsing cruelty to animals as perceived by
much of the rest of America, albeit not by
blind justice, the San Francisco Board of
Supervisors on August 3 adopted a series of
resolutions commending Chinatown live markets
for their July 20 courtroom victory over
the Coalition for Healthy and Humane
Business Practices, organized by attorney
Baron Miller.
Miller had sued Never Ending
Quails and 11 other live markets in an attempt
to oblige city and state agencies to enforce a
variety of anti-cruelty and public health
statutes, which he held should have forbidden
the methods the live markets commonly use to
keep and slaughter a variety of birds, reptiles,
and amphibians.
He argued that if the live markets
can’t meet humane standards, they should not
be allowed to operate at all.”

“The supervisors made clear what
side they’re on,” wrote Rachel Gorden of the
San Francisco Examiner. “When Supervisor
Mabel Teng interrupted the regular calendar at
the board’s meeting to make the presentation
to the Chinatown merchants, her colleagues
scrambled to get a prime spot for photos by the
Chinese-language press. With five of the 11
supervisors up for election in November, and
others with their eyes on future races, their
behavior was no surprise. Recent elections
have shown Chinese Americans’ clout at the
ballot box is growing, and the Chinatown
business community has a reputation for generosity
with campaign donations.”
California Superior Court Judge
Carlos Bea’s “Tentative Opinion” opened
favorably toward Miller’s case. “Some time
and effort,” he wrote, “has been devoted by
defendants to justify their conduct on the basis
of their shared Chinese ‘culture’. This ‘culture’
argument is not only irrelevant, it is
bothersome and is rejected. Defendants’ markets
are in San Francisco, not China. The
laws which apply here are Californian, not
Chinese.”
Beyond that, however, Bea noted
contradictory expert testimony as to whether
the live market norms substantively differ
from the practices of current conventional
agricultural husbandry and slaughter, and concluded
that no precedent permits enforcement
against the live markets of the laws Miller
sought to apply.
Bea cited California Penal Code section
599(c), a portion of the state anti-cruelty
law which states that “No part of this title shall
be construed…to interfere with the right to kill
all animals used for food.”
Wrote Bea, “By making this the law
of California in 1905, and refusing to amend it
since then, the People have spoken: humans
have the right to kill all food animals. If they
can reasonably kill the animals with little or no
physical pain, they should choose that
method. However, if the slaughter involves
physical pain to the animal that is not reasonably
avoidable, food animals can still be killed
by people even though the animal suffers
physical pain.”
Concluded Bea, “This court must
apply the law as it is presently written.”
Commented Miller, “It is my intention
to attack this opinion in the trial court.
We will almost certainly fail, but we must do
so to preserve our rights. We can then appeal.
As said by another under circumstances considerably
more dire than our own
[Revolutionary War naval hero John Paul
Jones], ‘I have not yet begun to fight.’”

JOINT STATEMENT
Barring and pending a successful
appeal, Bea’s verdict left as the only instrument
protecting animals in the live markets a
Joint Statement of Principles and Guidelines
that representatives of all 12 live markets
signed with the San Francisco SPCA back on
March 31 and April 2.
Including no specific enforcement
mechanism, the Joint Statement was originally
drafted in mid-1997 at request of San
Francisco board of supervisors chair Barbara
Kaufman, but was not finalized then because,
Avanzino said, the SF/SPCA hoped that organizations
then negotiating independently with
the live markets, including Action for
Animals, the Fund for Animals, and the
Tortoise Trust, would strike a better bargain.
By March 1998, those negotiations
appeared to have irrevocably broken down.
With the Never Ending Quails court proceedings
ending, and the live marketers anxious
about the outcome, Avanzino told ANIMAL
PEOPLE at the time, the opportunity seemed
available to get at least some agreement to
improve conditions formalized on paper, so
that the markets would have at least a moral
mandate to reduce animal suffering regardless
of the verdict.
The key parts of the Joint Statement
agree “in principle” that animals are to be
killed humanely, though the term “humanely”
is not defined; that “no animal will be dismembered,
flayed, cut open, or have skin,
scales, feathers, or shell removed while
alive”; no injured or diseased animal will be
sold or offered for sale; no live animals will
be kept in a manner likely to cause starvation,
dehydration, or suffocation; no live animals
will be kept in a manner likely to cause them
to be crushed, attacked, or wounded by other
animals; and animals shall be able to lie
down, stand erect, change posture, and rest
in a normal manner for their species.
A separate letter dated March 28,
from Avanzino to Raymond Mah, president of
the Chinese Consolidated Benevolent
Association, stipulated a July 1 phase-in deadline
for the first three points, and a deadline of
October 1 for the rest.
However, attorney Paul Wartelle,
representing 11 live marketers including Never
Ending Quails, omitted the July 1 deadline
from the documents that they signed. A N IMAL
PEOPLE pointed this out immediately
to Avanzino, who insisted that despite the
omission, the July 1 deadline was definitely
still part of both the original deal with the
Chinese Consolidated Benevolent Association,
as endorsed by one group of live marketers
aligned as the Six Companies, and the 11 others,
for whom Wartelle spoke.
Several rounds of discussions about
implementing the Joint Statement f o l l o w e d
among live marketers, animal experts, and
humane organization representatives. On
April 28, however, Wartelle advised the Six
Companies that attending the meetings might
not be in their interests.
Discussion facilitator Pius Lee
attributed Wartelle’s advice to “Certain groups
who are encouraging the merchants to fight.”
Local media coverage indicated that
the Joint Statement had become a platform for
posturing by rival live market factions.
Avanzino repeatedly expressed optimism
that despite appearances to the contrary,
the live markets would meet the provisions of
the Joint Statement by July 1, showing good
faith in response to good faith.
On June 25, however, S a n
Francisco Examiner reporter Julie Chao
warned that, “Chinese merchants and their
representatives appear to be backpedaling.”
Avanzino had already written to
Wartelle the day before, hoping to hear that
the 11 live marketers he represented had proceeded
to make reforms unilaterally.

WARTELLE HAD FUN
“Boy, talk about a bad time to go on
a vacation,” Wartelle wrote back on July 2,
proceeding to explain that he had been away
for two weeks, and that in any event his
clients had never intended to change anything
by July 1.
Wartelle asked Avanzino to take the
heat by explaining to media that the July 1
deadline had never been accepted by his
clients. Avanzino on July 8 outlined his
understanding that it had been.
Wartelle didn’t respond to that until
after Bea’s verdict was in. When he did, he in
effect accused both Avanzino and SF/SPCA
ethical studies coordinator Pam Rockwell of
acting in bad faith by expecting good faith of
his clients, accused them of having negotiated
initially with the wrong faction, and said it
was their fault that the Joint Statement ended
up as “an empty agreement that nobody needed
to implement.”
He also gloated over the verdict,
which he said “vindicates my clients’ practices
on every count.
“Of course,” Wartelle concluded,
“we intend to continue to seek agreement with
the SF/SPCA. Our discussions only benefit
from the court’s careful reasoning.”