SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

                                                            WRIT DEPARTMENT            

TABLE OF CONTENTS

Amended Petition for Writ of Mandate                                                                               3 - 13

Memorandum of Points and Authorities                                                                              14

I.          Introduction and Statement of Facts                                                                             14

A.     Southern California Pet Owners Are Being Unnecessarily, Illegally And

Unconstitutionally Abused By the Members Of The Task Force.                          15

B.   Cockfighting And Lax Industry Biosecurity Are The Two Primary Causes

      Of The End Crisis, Not Private Pet Birds.                                                                        16

1.         Cockfighting Spreads END, Not Pet Birds In Backyards or Cages.                            17

2.               Lax Poultry Industry Biosecurity Allows the Transmission and Spread of END.       18

3.               While Pet Owners are being Reimbursed at Bargain Basement Prices, the

            True Culprits are Laughing all the way to the Bank                                                      18

II.               The Emergency Services Act Authorizes the Government to suspend any

     State Laws and Regulations but not the State Constitution, United States Constitution

     or the Bill of Rights                                                                                                            18

III        Constitutional Abuses are not Excused by the Emergency Services Act                    19

IV        Despite Emergency Powers, The State Is Required To Be Reasonable

     And Proper Under The Circumstances.                                                                              20

V.              While The Emergency May Subvert Normal Statutes And Regulations, The

     Task Force Is Required To Strictly Follow Its Own Protocols And Procedures.              20

VI.            The Activities Of The Task Force Are Sufficiently And Repeatedly

     Unconstitutional So As To Require Court Supervision.                                                     21

VII       Immunity From Liability Is Limited.                                                                            21

VII.      Request For Injunctive Relief                                                                                     21

VIII.     Request For Hearing                                                                                                   22

Vertification                                                                                                                            22

//

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

WRIT DEPARTMENT

            COMES NOW Petitioners, CHERYLYNN COSTNER, HILLARY CHICKEN MEMORIAL FUND, RANDY WALKER, TERESA MARQUEZ, SHAREEN MORRIS, JOE MORRIS, JEAN MALONEY, JANIS RIDGEWAY DAMIANI, EILEEN WATSON, STEVE BELLANGER, APOLINAR SANCHEZ, CINDY MARIE GEDDES, IRIS L. ROZIER, and MICHAEL FRAZER COWAN, WHOLESALE FEED AND SADDLERY, and ASSOCIATION OF VETERINARIANS FOR ANIMAL RIGHTS hereby submit this Petition for Writ of Mandate.

            Petitioner CHERYLYNN COSTNER is a citizen in the state of California, who owns, loves and cares for her families’ domesticated and exotic birds.    Ms. Costner is the founder of the Hillary Chicken Memorial Fund, Love Birds Educational Resources, and the Church of the Avian Ark of which she is an ordained minister known as Rev. Avina Costner.

Petitioner HILLARY CHICKEN MEMORIAL FUND, a not for profit organization in Beverly Hills, California dedicated to the safe relocation of unwanted or abandoned domesticated and exotic birds.

Petitioner RANDY WALKER is a citizen in the state of California who has fought the Task Force in an effort to preserve his right to own, love and care for his family’s numerous domesticated and exotic birds.

Petitioner TERESA MARQUEZ is a citizen in the state of California who owns, loves and cares for her deceased fathers’ domesticated birds, which have been threatened with a impromptu kill order.  Only her mother’s refusal to cooperate kept the disease free birds alive.

Petitioner SHAREEN MORRIS is a citizen with a heart medical condition in the state of California, co-owner of 14 endangered species Hawaiian Nene geese (federal endangered species permit PRT-838191, filed with Department of interior US Fish and Wildlife Services; California Fish and Game 2003 Domesticated Game Breeder class one license No. 701056-02) and previous co-owner of 468 of birds now dead because of the Task Force’s surprise invasion and massacre of her birds on the morning of December 31, 2002 and one bird killed on January 3, 2003.

Petitioner JOE MORRIS is a disabled citizen in the state of California and co-owner of 14 endangered species Hawaiian Nene geese, and previous co-owner of hundreds of birds now dead because of the Task Force’s surprise invasion and massacre of his birds on the morning of December 31, 2002.

Petitioner JEAN MALONEY is a citizen in the state of California and previous co-owner of five domesticated birds who are now dead because of the Task Force’s surprise invasion and slaughter of the family pets on February 28, 2003.

Petitioner JANIS RIDGEWAY DAMIANI is a citizen in the state of California who owns, loves and cares for her families’ domesticated birds.  After notice was improperly served on a neighbor on Saturday, March 15, 2003, Ms. Damiani’s residence was placed under quarantine based purely on location and without any specific medical or scientific basis.

Petitioner EILEEN WATSON is a 78 year old senior citizen in the state of California who owns, loves and finds comfort (lowers her blood pressure) her pet domesticated birds. Ms. Watson suffers from Uncontrollable Hypertension, and the doctors fear that the any major stress would cause a stroke and cost her possibly her own life.  Her daughter, Janis Ridgeway Damiani orally pleaded with the Task Force that she did not want her mother to die from shock due to the Task Force’s murder of her family’s pet bird friends. 

Sadly, the “Hearing” offered Petitioner Damiani was nothing more than a cruel charade to give an appearance of a hearing when the decision rendered by the Task Force was pre-determined.  Kangaroo Court style hearings fail to provide due process and any meaningful access to the courts and Justice for any citizen in the state of California.  Therefore, the Task Force intentionally, knowingly and willfully deprived petitioners of their right to due process and equal protection of the law.  Petitioners and their healthy pet birds were prevented from attaining Justice against the arbitrary quarantine at the mock hearing held by Mike Cleary, Hearing Officer, Department of Food and Agriculture, Division of Measurement Standards (Notice of Quarantine No. END 30371/NCA 23113, heard March 19, 2003).

Petitioner STEVE BELLANGER is a citizen in the state of California who owns, loves and cares for domesticated birds.  Mr. Bellanger wants to protect his racing pigeons.

Petitioner APOLINAR SANCHEZ is a citizen in the state of California, who owns, loves and cares for domesticated birds and who is fighting the Task Force’s stated intention to depopulate his flock of chickens. 

Petitioner CINDY MARIE GEDDES is a citizen of the state of California and previously owned, loved and cared for domesticated birds.  Ms. Geddes is a single mother who was ordered out of her house at 8:00 PM and terrorized by the Task Force, who blinded her with a police spotlight and refused to identify themselves as if they were the infamous Nazi Gestapo of World War II.  Without any form of notice, due process, testing for END or any other evidence of disease, valid search warrant, permission or acceptance of indemnity, and with reckless disregard for Ms. Geddes’ protests of the invasion of her home and pleaded in a desperate attempt to save the lives of her healthy beloved family pet animals/birds, the respondents proceeded to murder her every bird that night.  Ms. Geddes and her two children have been forced to endure the mental pain and suffering that has resulted from all of their health beloved family birds having been illegally tortured and murdered at the hands of the Task Force’s death squad.

            Petitioner IRIS L. ROZIER is a citizen of the state of California who has previously own, loved and cared for domestic and exotic birds.  The Task Force went to her house without notice or probable cause in January to depopulate every bird at her premises.  The Task Force managed to kill 8-10 birds before they were made to leave because of the fact that the family birds were all very healthy and thriving, none of the bird had been tested for the virus, and she had not been notified of depopulation by the Task Force.  About 2 weeks later in February the Task Force came back and without explanation to date secretly took at least one rare and expensive bird alive, a pure white peacock, and killed the rest of Ms. Rozier’s entire healthy flock without any evidence of the presence of any disease, notice or permission.  The Task Force chose to circumvent the family’s demand for due process, scientific fact, fair and adequate notice by depopulating her collection of rare and exotic domesticated pet birds while she was not at home.  Ms. Rozier, a 7^th Day Adventist, was at worship service at her Church the day the respondents massacred her birds.  Some of her peacocks were 22 yeas old and a goose was 20 years old and she loved all of her birds.  The mental pain and suffering has been extremely hard on her entire family causing them irreparable harm that they will have to endure for the rest of their lives.

            Petitioner MICHAEL FRAZER COWAN is a citizen of the state of California who suffers from cancer and completed his radiation therapy September 5, 2002.  On November 15, 2002 the Task Force posted notice of quarantine and notice of intent to test his birds for END within a couple of days.  On or about November 17, 2002 the task Force returned and demanded to kill all of the birds on the premises. 

Mr. Cowan pleaded that he was in a recovery condition from cancer and under doctors’ care at the UCLA Hospital and that the notice said testing and did not state killing.  His birds were an old flock he had started 25 years ago.  Many birds were 16, 17, and 18 years old and all birds were completely healthy. 

While waiting one Task Force member poked her finger at birds and rabbits to see them jump and scare them.  The alleged veterinarians replied that “no, we are not here to test, we are here to kill everything,” quoting RV Jack Morpenson.  Mr. Cowan cried as he begged for them not to kill his birds.  However he was told that they were the final word and he had no right to seek further evidence or to appeal their decision, and that he had to sign a consent or indemnity form or that they would bring in the Police to assist in gaining his consent. 

Terrified, confused and in weak medical condition he signed the form and then for that day and eight other days, the task Force killed his 210 healthy birds and several rabbits who died from fear and stress shock from the repeated gunshots.

            Petitioner WHOLESALE FEED AND SADDLERY is a business in the State of California who has been quarantined for over three months and whose business has suffered substantial financial loss.  The store is concerned about the birds’ safety at their premises and for their customers who own pet, companion and show birds.

Petitioner ASSOCIATION OF VETERINARIANS FOR ANIMAL RIGHTS is a non-profit foreign corporation operating in the state of California, its mission is to educate the public and the veterinary profession about issues of animal use by human society.

Respondent STATE OF CALIFORNIA has proclaimed a fraudulent state of emergency and irrational poultry eradication program against its citizens’ pets.

Respondent DEPARTMENT OF FOOD AND AGRICULTURE (CDFA) is a department of supervisory duties within the State of California to protect and regulate food safety and preserve public health.

            Respondent GOVERNOR GRAY DAVIS is citizen of the state of California elected to be the governor of the State of California and author of proclamation in question filed January 7, 2003.

Respondent EXOTIC NEWCASTLE DISEASE TASK FORCE (Task Force) is group of individuals pulled together to accomplish the goal of the eradication of exotic Newcastle Disease Virus headed by a joint command of the California Department of Food and Agriculture and the United States Department of Agriculture with state and federal participants including but limited to California Highway Patrol, County Sheriffs Departments, City Police Departments, Department of Forestry, Fire Departments, Animal Control Departments, California Conservation Core, the Department of Fish and Game and freelance workers.

Petitioners respectfully request that this Court order the Governor of the State of California Gray Davis, to rescind his January 7, 2003 Proclamation of the Governor of the State of California, and to further order the Governor, State of California, California Department of Food and Agriculture, Exotic Newcastle Disease Task Force and all other federal, state and local governmental agencies providing services to the Exotic Newcastle Disease Task Force to develop additional protocols and procedures that will protect Petitioners from having their personal civil and Constitutional rights violated under the color of legal authority and subsequently having their beloved companion, pet and show birds illegally seized, unnecessarily tortured and inhumanely murdered without cause in fact.

            This Petition is based upon the following facts:

1.               Without any supportive administrative records, on January 7, 2003 Governor Gray Davis arbitrarily proclaimed a state of emergency to protect the Poultry Industry against an alleged threat of exotic Newcastle Disease Virus (END) in the State, Proclamation of the Governor of the State of California, see exhibit 1.

2.               Based on the unsupported proclamation of Gov. Davis, the Task Force Co-Command United States Department of Agriculture Secretary Ann M. Veneman filed on January 9, 2003 a Declaration of Extraordinary Emergency because of Exotic Newcastle Disease.

3.               Prior to the Governor’s emergency proclamation the California Department of Food & Agriculture (CDFA) formed a Task Force to eradicate/depopulate birds to protect the economic interests of the industrial poultry industry.  United States Department of Agriculture (USDA) Task Force joined the Task Force upon the emergency status.

4.               In response to the emergency orders Petitioners Cherylynn Costner and Hillary Chicken Memorial Fund submitted a Public Comment, Exotic Newcastle Disease and the Interests of the People of California to Gov. Gray Davis, Secretary William J. Lyons, Secretary Ann M. Veneman, Mr. Steven Lyle, Mr. Howard McGwire which was received on February 6, 2003. 

5.               On February 6, 2003 Mr. William H. Dailey, attorney for petitioners sent a letter to Gov. Davis, care of the CDFA Legal Department, requesting administrative records for the preparation of a writ of mandate based on the public comment regarding the alleged “state of emergency”.

6.               On February 7, 2003 Mr. John Dyer, supervising attorney for the respondents, responded to Mr. Dailey’s letter stating that “there is no administrative records as such with a Governor’s Declaration,” see exhibit 2.  In addition, Mr. Dyer agreed to meet with Ms. Costner, members of Hillary Chicken Memorial Fund and other animal support groups to discuss our concerns.

7.               On February 13, 2003 the Humane Society of the United States of Washington D.C. provided the Water Front Room at the Marine Del Rey Hotel in Marine Del Rey for the state and federal representatives to meet with Mr. and Mrs. Costner, Hillary Chicken Memorial Fund, Humane Society of the United States, Fund for Animals, Last Chance for Animals, United Poultry Concerns, Humane Farming Association, Equus Sanctuary, America’s Freedom Foundation, Parrot Society of Los Angeles, Wilshire Animal Hospital, Bird Talk Magazine, The Daily Journal, Press Enterprise and victims from Riverside County, Randy Walker and his family and Mr. and Mrs. Mike and Sue Swallow.  

8.               The alleged emergency is based upon fabricated statistics.  No meaningful grounds exist for the depopulation of pet animals a) with the lack of testing; b) unnecessary speed of slaughter; c) failure to consider alternative and non-destructive remedies for sick birds including but not limited to, in-home quarantine and biosecurity, supportive health care and medical treatment and the right to use the personal veterinarian of the bird in question. The poultry industry is the primary financial beneficiary of the emergency order while the general public suffers the loss of their pets.  Furthermore, the industry and the government have actually spread END through their own acts and omissions by:

i.)              Failing to adequately quarantine the primary source of the infection, fighting chickens, including but not limited to securing the border of the United States and Mexico;

ii.)            The poultry industry willfully failed to protect itself and the public through properly vaccinating their birds, protecting the health of their flocks, undertaking adequate bio-security to keep the virus from contaminating their birds and protecting the public from disease spread by commercial chickens;

iii.)          Intentionally failing to prevent the transportation of fighting cocks from place to place for illegal cock fighting events or the sale of said birds to third parties, and;

iv.)           The government agents after eradication of factory farm facilities and private residences have carried the allegedly infected feces of chickens in open trucks thereby spreading contaminated matter and possibly the disease to privately owned pet birds.

9.               The agricultural departments and the special END Task Force members are systematically concealing and/or ignoring clinical studies regarding vaccines and treatment of END and the results of lab tests for current END crisis/depopulation and in the process depriving California citizens of their most fundamental Constitutional and civil rights.

10.            The unintentionally chaotic creation of the END Task Force has created the opportunity for any government employee, out-of-state veterinarian and temporary employee to have apparent authority and flaunt the law with impunity under the Emergency Services Act.  Thus, many of the Task Force Commanders and subordinates are:

a.      committing quasi-terrorist acts by using force, fear, violence or threat of the same to coerce citizens into surrendering their civil and constitutional rights and denying them to the right to have legal counsel and threatening them because they had gotten an attorney;

b.     illegally searching properties without search warrants, obtaining illegal search warrants, obtaining search warrants by false and inaccurate statements and without any proof that the property being searched had any infected birds at all, using search warrants that are un-Constitutionally broad in the extreme which is so extensive that they surpass the scope of search warrants in criminal cases for notorious and dangerous criminals;

c.      knowingly directly contacting and intimidating individuals represented by counsel,

d.     failing to follow proper legal procedure and violating due process and equal protection of the law;

e.      violating civil and Constitutional rights of citizens by unnecessarily murdering disease-free pet birds;

f.       removing expensive and rare bird(s) during a massacre of healthy pet birds without notifying owner of the bird(s) in what appears to have been an attempt to steal the bird(s) for the personal interests of the Task Force agent(s),

g.      violating civil and Constitutional rights of citizens first by failing to get a court order to determine whether or not the birds have been infected and secondly by failing to allowing personal veterinary treatment of infected or sick birds who have been proven to be ill with END;

h.      ignoring bio-security protocols and risking the further spread of END;

i.       obstruction of justice by withholding and suppression of prima facie lab test evidence and statements of victims of these police state actions and terror tactics;

j.       obstructing justice by theft of legal documents;

k.      violating Constitutional and statutory provisions for due process by failing to informed or lying to citizens about their rights and privileges;

l.       ignoring test results and current veterinary science;

m.    improperly threatening citizens with arrest and terror tactics/police state tactics; and

n.      generally misusing and abusing their authority and establishing a precedent and a policy that undermines the most fundamental Constitutional protections as well as the founding principals of this nation for which so many Americans have fight and died for in order to uphold.

11.            There are known treatments or supportive care for non-poultry birds and vaccines for END that make depopulation of even sick birds unnecessary, which are being ignored by the Task Force.

12.            The Task Force is indisputably committing mass murder of the People’s pets, companions and show birds.  Euthanasia is for a bird that is sick or in pain.  Murder is for those who are not sick or in pain.

13.            The Task Force claims that the public eradication program humanely euthanizes the birds when destroyed.  However, when a personal veterinarian administer euthanasia it is done through barbiturate injection.  The Task Force utilizes carbon dioxide, gun shots, and cervical dislocation, which is only humane if done properly according to the Report of the AVMA Panel of Euthanasia, published March 2001.  Other methods used, such as bludgeoning, suffocation and wood chippers are not considered humane death under any circumstance.

14.            The Task Force pretends that the fatality rate is 90 – 95% in unvaccinated birds.  In fact these are not disease related deaths, but rather depopulation statistics.  Only 2-5% of all depopulated birds thus far were infected or became sick from the exotic Newcastle Disease Virus,

15.            The Task Force labels a site as positive because a depopulation crew has murdered all of the birds on the premises.  This occurs even when there is no evidence of exotic Newcastle Disease Virus ever being on the premises or having been the cause of any illness.

16.            USDA veterinarian supervisors on the Task Force depopulation and other crews are not in fact or law California licensed veterinarians, or AVMA Board Certified Avian Veterinarians.

17.            Petitioner has no plain, speedy, and adequate remedy in the ordinary course of law, other than the relief sought in this petition, in that the emergency order was made effective immediately, without findings and without administrative recourse.

18.            Petitioners respectfully request injunctive relief from the application of the Proclamation of the Governor of the State of California filed January 7, 2003 and the Declaration of Extraordinary Emergency because of Extraordinary Emergency because of Exotic Newcastle Disease, Docket No. 03-001-01; Federal No. 03-495 filed 1-9-03.

This Petition is based upon this document, the Supplemental Record to be submitted, the Declarations of Petitioners and others, and such record as the Court deems appropriate to review.

Dated:  March 24, 2003                      ________________________________________

                                                            William H. Dailey, Esq.

                                                            Attorney for Petitioners

MEMORANDUM OF POINTS AND AUTHORITIES

I.                INTRODUCTION AND STATEMENT OF FACTS

Governor Gray Davis issued a state of emergency proclamation without supporting evidence to prove or demonstrate that there was in fact an epidemic of exotic Newcastle Disease Virus.  Citizen’s rights are being violated without a hearing or formal procedure required by principles of due process and equal protection.

Exotic Newcastle Disease Virus, END, is a tropical endemic disease.  Countries where this strain of virus is common, such as Venezuela and Columbia, have chickens as well as many other types of birds.  That these foreign countries still have plenty of chickens and other types of birds indicates that the virus alone does not pose the suggested mortality rate of 90 – 95 % of exposed birds as stated by CDFA and USDA.  Yet another misleading fact from the Task Force.

Petitioners are non-poultry pet, companion and show bird owners, non-profit organizations that work with birds and avian studies, and a commercial business that all have an interest in protecting, preserving and defending their civil and Constitutional rights including, but not limited to, the right to own and care for animals/birds without violence, fear, or intimidation.  As such, Petitioners have an interest that is directly affected by this proceeding. 

The eradication program is specifically a poultry program, see proclamation of emergency exhibit 1, that is being wrongfully applied to non-poultry pet, companion and show birds, in particular pet chickens, doves, pigeons, geese and ducks, and other domesticated birds, but also psitticines, ratites and other exotic birds, under the current direction of the Governor of the State of California, Gray Davis, the California Department of Food and Agriculture, and the United States Department of Agriculture.

In an unscientific effort to prevent the spreading of END, the Task Force kills all birds in an area where END has been allegedly located, regardless of the bird’s status as a healthy, disease-free bird.  Depopulated premises are considered positive when an individual wants to cash in on the indemnity program, even though no testing is done and there is no specific evidence of END to prove the existence of the virus in question.  In these instances the USDA veterinarians on the Task Force making the sue sponte medical diagnosis have poultry knowledge that specializes in large factory farm poultry units.  However, they are not licensed Veterinarians, and furthermore, they are not AVMA Board Certified Avian Veterinarians.  Furthermore, any birds in the immediate vicinity (one kilometer radius) are generally condemned as well for having “dangerous contacts.”  As defined by the Task Force, “Dangerous contact” is subjective and not scientific.

Respondent has abused its discretion by proclaiming that “Exotic Newcastle Disease threatens the existence of the poultry industry” without supportive documents or evidence to make such a finding, and by failing to update their “Best Guess Biology of the 1950’s” or antiquated 1970’s era eradication methods.  In light of research proving that different species of birds react differently to the virus and even within species general health, age, breed, quality of care change the factors in determining risk and susceptibility.  The CDFA and USDA appear to still be in the dark ages because their protocols do not adequately discriminate between types of birds.

A.

SOUTHERN CALIFORNIA PET OWNERS

ARE BEING UNNECESSARILY, ILLEGALLY

AND UNCONSTITUTIONALLY ABUSED

BY THE MEMBERS OF THE TASK FORCE.

            Task Force members employed by Respondents are directly responsible for repeated abuses of constitutional rights and cruelty toward citizens of the State of California and violations of animal anti-cruelty statutes.  Under the guise of disease eradication, various members of the END Task Force are guilty of criminal actions that constitute willful and intention violations of civil and Constitutional rights under the color of law while attempting to hide behind the emergency proclamation.  The release from liability encourages Police State and Scorched Earth Policies toward innocent People and their beloved pets, companions and show birds.

On February 28, 2003 petitioner Jean Maloney had her four healthy pet chickens and a duck murdered by laughing Task Force members supported by local law enforcement.  The birds were all healthy and had been quarantined for several months prior to the slaughter, a period sufficiently long to determine that the birds were healthy and not infected or contagious.

Petitioners Shareen and Joe Morris had 468 birds murdered on December 31, 2002.  They too suffered additional abuse by condescending, cruel laughter and jokes aimed at them by individual members of the Task Force. Deep emotional distress was inflicted on them by the unconstitutional use of a “kill” warrant without notice.  Their beloved birds were slaughtered prior to the Task Force’s receipt of the test results.  To this date the Task Force has suppressed the lab tests and refused to release the results to the owners of the deceased birds. 

In addition, when the USDA failed to release their Nene Geese on March 6, 2003 the quarantine unit was contacted and informed that the Morris’ are now represented by counsel and was requested that they put in writing the reason for the delay in releasing the geese and all other pertinent information to William Dailey.  An hour and a half later John Lightner from the Task Force telephoned Shareen Morris and complained about the fact of her legal representation and attempted to intimidate her for having an attorney.

Petitioners can and will document numerous situations in which Task Force members have ignored their own specific procedures and protocols, verbally abused citizens, brutally slaughtered healthy pet birds that were not a threat to the public health, safety and welfare, and generally acted contrary to law, ethics and morality.

B.

COCKFIGHTING AND LAX INDUSTRY BIOSECURITY

ARE THE TWO PRIMARY CAUSES OF THE END CRISIS,

NOT PRIVATE PET BIRDS.

The current Exotic Newcastle Disease crisis for the Poultry Industry, if true, could only be caused by two primary human controlled factors: the general refusal of law enforcement to enforce cockfighting statutes and the failure of the poultry industry to maintain proper biosecurity standards. 

1.         Cockfighting Spreads END, Not Pet Birds In Backyards or Cages.

It is indisputable that the only non-USDA inspected chickens that do much international traveling, especially between Mexico and California, are fighting cocks.  Reports indicate that diseased Mexican fighting cocks imported to California began this crisis.  The virus in question is genetically identical to the virus in Durango, Mexico which in the last couple of years has caused the depopulation of 10 – 13 million birds. 

Unfortunately, the illegal cockfighting industry has succeeded in terrorizing law enforcement and the END Task Force into partial submission.  Task Force members have informed petitioners that they will not actively investigate cockfighting because of threats of physical violence.  For example, guns have been drawn on Task Force members by fighting cock owners.  The result is that the primary means of spreading END, cockfighting, is largely being ignored by the Task Force in favor of terrorizing regular citizens, such as petitioners, who are innocent and law abiding and who the Task Force has preferred and vigorously gone after because these citizens do not pose a physical threat.

A more efficient method of stopping the risk of spreading END in the cock fight bird industry would be to provide free vaccination of all game birds, and possibly would be to make dubbing, the removal of the comb and wattle of male chickens, requiring a permit in the state of California, so that cock fighters cannot claim that their dubbed fighting cocks are “show birds.”

The reason why the combs and wattles are cut off of game cocks is because they bleed heavily for even small cuts on the comb and if the blood runs over the birds eyes he will stop fighting and try to hide or look for safety rather than fight.  Making it illegal to own a bird who has been clipped without some kind of permit, for at least the people who rescue and rehabilitate game cocks or are legitimately showing American Game or Old English Game birds, would be more effective in controlling the virus from being passed from bird to bird than the eradication poultry program.

2.         Lax Poultry Industry Biosecurity Allows the Transmission and Spread of END.

            Lax poultry industry biosecurity is the other primary cause of this current epidemic.  The poultry industry has been through this before and has known for years how to avoid it.  However, since proper biosecurity adds costs in time and money to the business, it has been ignored during the years in which no END was present.  Even after END was discovered, Petitioners can demonstrate that large poultry enterprises still ignored basic biosecurity protocols.

3.         while pet owners are being reimbursed at bargAin basement prices, the true culprits are laughing all the way to the bank.

Government funded buyout - $100 million and counting.  This is an outrageous and reckless expenditure of precious tax dollars, paying for the poultry industry’s mistakes.  Compounding the senselessness of this mess, the Task Force is reportedly rewarding the fighting cock criminals by paying top dollar, reportedly 350 – 1,500 dollars per birds of the illegal cock fighting industry, and minimal money for pets.  Victims have been paid only 5 – 20 dollars for uninfected pet chickens, 100 dollars for a bi-lingual cockatoo whose pet store market value would have been starting at 1,500 – 2,500 dollars.  A 23 year old beloved pet White Chinese goose was determined by the Task Force to be valued at only 20 dollars, while  a 15-17 year old Indian Blue Peacock who was a beloved pet was only valued as at 100 dollars.  

II.               THE EMERGENCY SERVICES ACT WHICH AUTHORIZES THE GOVERNOR TO SUSPEND ANY STATE LAWS AND REGULATIONS IS ILLEGAL ON ITS FACE AND IS A VIOLATION OF THE CALIFORNIA STATE CONSTITUTION AND THE UNITED STATES CONSTITUTION AND BILL OF RIGHTS.

            Due to the actions of at least part of the Task Force, this emergency act is being implemented in violation of the United States and the California State Constitutions.  The Task Force has assumed virtual police state powers allowing them to barge into citizens’ residences without notice or voluntary permission.  This allows the taking and/or destroying of private property, in this instance personal pets, without notice or due process.

            This abuse of civil authority is outrageous and totally contrary to Constitutional law. Even search warrants involving a paroled felon must not be this broad.  In fact, convicted violent and dangerous criminals who are on parole are provided a greater protection as to their privacy and security of their homes, persons and property than are private law abiding citizens including little children and senior citizens whose only fault is to love and care for birds.

In USA vs. Crawford (March 2003) 9^th Cir Case No. 01-50633.  The court ruled that even when a violent convicted criminal who had been released from prison on parole who had been required to sign a contract as a condition for his release from prison, stating that he would allow his person, property and residence to be indiscriminately searched 24 hours a day without notice, the 9^th Circuit Court of Appeals ruled that this convicted felon had a “right to expectancy of privacy in his place of residence” and the 4^th Amendment waiver was “unconstitutional.”  It is outrageous to suggest that known criminals should have Constitutional protections that are being denied to law abiding citizens whose only alleged offense would be that he or she legally own, love and care for companion, pet, and or show birds. 

Such abuse of discretion by the respondents to assume privileges under the Emergency Services Act and related emergency statutes to enable the to have carte-blank to conspire to deprive citizens of their most fundamental civil and Constitutional rights under the color of the law debases the integrity of the entire legal system and should not be tolerated in any civilized society, especially in the United States.

III.       CONSTITUTIONAL ABUSES ARE NOT EXCUSED BY THE EMERGENCY SERVICES ACT.

            The California Constitution and the United States Constitution requires equal protection of the law, fair notice, meaningful due process, proper search and seizure, a right to privacy and no arbitrary and capricious enforcement of laws.  While the ESA allows for the temporary suspension of statutes, rules and regulations, it specifically fails to suspend the Constitution.

IV.       DESPITE EMERGENCY POWERS, THE STATE IS REQUIRED TO BE REASONABLE AND PROPER UNDER THE CIRCUMSTANCES.

            One of the few cases addressing the Emergency Services Act is Adkins v. State (1996) 50 Cal.App.4^th 1802.  In Adkins the Court of Appeal, Second District, discussed notice and disclosure requirements for a Med fly eradication program.  Pages 1810 through 1818 bear close examination as the Court of Appeal’s opinion is set forth in great detail.  In particular, the Court stated that the State had a “mandatory obligation to provide complete and accurate information” and furthermore that “the exercise of the State’s police powers must be reasonable and proper under the circumstances.”  Adkins at 1816 quoting Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494, 501-502.

V.        WHILE THE EMERGENCY MAY SUBVERT NORMAL STATUTES AND REGULATIONS, THE TASK FORCE IS REQUIRED TO STRICTLY FOLLOW ITS OWN PROTOCOLS AND PROCEDURES.

            The Adkins court also wrote that “in exercising that [emergency] power in situations in which the State is also obligated to provide accurate information to the public in the context of an eradication program, there can be no reason for the State to purposefully withhold health and safety information from persons most likely to be injured.”  Adkins at 1817.

            Petitioners can evidence that on numerous occasions members of the Task Force bullied citizens into allowing their pets to be killed.  The most common method of bullying was a combination of threats and refusal to inform the targeted citizen of their legal rights as required by the Task Force protocols.

VI.       THE ACTIVITIES OF THE TASK FORCE ARE SUFFICIENTLY AND REPEATEDLY UNCONSTITUTIONAL SO AS TO REQUIRE COURT SUPERVISION.

            Despite previous efforts by Task Force leadership, it appears that certain of their subordinates are either not paying attention to their bosses or are willfully criminal in their actions.  See above for details of abuses.

VII.     IMMUNITY FROM LIABILITY IS LIMITED.

It is unconstitutional to deny People the right to redress government for grievances and the denial of the right to seek just compensation for damages would violate this principle.  Furthermore, the United States Congress has provided a statutory procedure for attaining redress and damages from government agencies and individual agents in their official as well as their personal capacity as per the Klu Klux Klan Act as codified under 42 USC 1983, 1985, et seq and related statutes.  See also Adkins, supra.

VIII.    REQUEST FOR INJUNCTIVE RELIEF

Petitioners respectfully request the Court compel the respondents to establish additional due process protections that will prevent them from arbitrarily and capriciously slaughtering pet, companion and or show birds.  An injunction is necessary as there is no economic means to repair the deprivation of liberty and property and the mental anguish of having deeply cherished pets murdered without cause, murdered in a torturous death in front of their own eyes while being mocked for their tears and sorrow of losing their beloved pets by the government executioners.  This is causing irreparable fear, mental pain and suffering of these victims and the public at large who hear of these atrocities never knowing when the other shoe will drop and they will be next.

IX.       REQUEST FOR HEARING

Petitioners hereby request an evidentiary hearing on the issues of this case.

WHEREFORE, Petitioners demands that Respondents:

1.               Resend the Petition of the Governor of the State of California and the Declaration of Extraordinary Emergency because of Exotic Newcastle Disease;

2.               Injunctive relief to prevent the government from further violating citizens’ civil and Constitutional rights;

3.               To compel the government to establish due process protections that will protect the People from arbitrarily and capriciously declaring uncalled for or fabricated emergencies;

4.               Comply with due process requirements;

5.               Immediately cease and desist all unconstitutional activities, including unwarranted search and seizure, unnoticed destruction of private property;

6.               Whereas government owned, controlled, and/or contracted laboratories are notorious in their carelessness, inaccurate, fabricated or contaminated results and willful falsification of laboratory results.  Therefore, petitioners demand that:

i.)              All allegedly infected birds must in fact be tested

ii.)            That the test were done in an reputable independent laboratory

iii.)          That a chain of custody has been preserved for evidence,

iv.)           That before any hearing, records of this evidence be provided to the person whose birds are in jeopardy,

v.)             The list of all Task Force members and other government agents at the scene directly or indirectly be preserved, and,

vi.)           Certification that the specimen was taken from specific birds;

7.               Pay Petitioner’s Costs and expenses of suit;

8.               Pay Petitioner’s Attorneys’ fees according to proof; and

9.               Thus, such and further relief as allowed by law and equity and the decisions of this honorable court.

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Date: March 24, 2003             _________________________

                                                            William H. Dailey

                                                            Attorney for Petitioners,