DECLAWING THE LEGISLATURE: USING DIRECT INITIATIVE FOR THE BAN OR LIMITATION OF DECLAWING PRACTICES IN THE UNITED STATES BY: SAMANTHA PAYNE

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1 DECLAWING THE LEGISLATURE: USING DIRECT INITIATIVE FOR THE BAN OR LIMITATION OF DECLAWING PRACTICES IN THE UNITED STATES BY: SAMANTHA PAYNE TABLE OF CONTENTS INTRODUCTION...1 II. THE PRACTICE OF DECLAWING...2 A. Onychectomy...2 B. Flexor Tendonectomy...3 C. The Physical and Behavioral Impacts of Declawing... 3 III. INTERNATIONAL EFFORTS TO BAN DECLAWING...5 A. The European Convention for the Protection of Pet Animals...6 B. Animal Welfare Act of C. Federal Act on the Protection of Animals...7 IV. DOMESTIC EFFORTS TO BAN DECLAWING...7 A. United States Approach to Declawing Federal Laws and Policies on Declawing State Attempts to Ban or Limit Declawing...13 i. New York Proposal...13 ii. Hawaii Proposal...14 iii. Oregon Proposal...15 iv. California s Successful Ban and Pushback...17 a. The City of West Hollywood s Ban...18 b. California Veterinary Medical Association v. City of West Hollywood...18 V. RECOMMENDATIONS A. Use Direct Initiative to Ban or Limit the Practice of Declawing...23 B. A Model Ballot Initiative to Curtail the Practice of Declawing CONCLUSION...27

2 DECLAWING THE LEGISLATURE: USING DIRECT INITIATIVE FOR THE BAN OR LIMITATION OF DECLAWING PRACTICES IN THE UNITED STATES INTRODUCTION Over 22 million domestic cats in the United States have had their claws removed due to the performance of an elective surgical procedure commonly known as declawing. 1 Declawing and the related procedure flexor tendonectomy are painful procedures with the potential of causing numerous health complications and behavioral issues. 2 The procedures are most often performed for the owner s benefit because the owner wishes to protect their furniture or other household possessions. 3 However, there is a lack of scientific evidence showing the procedure has a therapeutic or health benefit for the cats to justify the pain and potential harms imposed. 4 The negative effects of the procedures have raised animal welfare and ethics concerns causing countries around the world to ban or significantly limit the practice, considering it a form of animal cruelty. 5 Despite bans in several other countries the practice still remains legal in all fifty U.S. states and ordinances banning the practice exist in only eight cities. 6 Section II of this article will explain the procedures used to declaw cats and examine the impacts of the procedures. Section III will examine international perspectives on the practice of declawing cats and the emerging international consensus that the practice is akin to mutilation, provides no therapeutic benefit, and should be banned or significantly limited. Section IV will address current United States policy on declawing, discuss recent state attempts to ban or limit the practice of declawing cats and explain why none have succeeded in promoting animal welfare. Section V will provide recommendations for action, calls for a more aggressive approach to address the practice of declawing, and provides a model ballot initiative that may be used to increase knowledge of the practice and to allow the voters, rather than special interest groups, to decide the merits of the practice of declawing cats. 1

3 II. THE PRACTICE OF DECLAWING Declawing is an elective and permanent surgical procedure performed by veterinarians most often to prevent what owners consider undesirable scratching behavior by cats. 7 The procedures employed either result in the removal of the claw entirely or the inability to control the function of the claw. 8 These procedures have the possibility of causing minor to severe complications in the cat s health and may also cause the manifestation of behavioral problems. 9 The type of complications that may arise may depend upon the procedure performed. 10 There are two surgical procedures a veterinarian may perform to declaw or alter the cat s ability to control the claw, onychectomy and flexor tendonectomy. 11 A. Onychectomy Unlike the nail of a human being, which grows from the skin, the claw of a feline grows from the third phalanx bones within the cat s paws. 12 Which means an onychectomy, commonly referred to as a declawing, is more than a removal of just a claw, but is actually an amputation of this bone. 13 In amputating the bone, [the] nerve, joint capsule, collateral ligaments, and the extensor and flexor tendons must all [also] be amputated. 14 An amputation that is performed not once, but ten times if the owner choses to have the procedure performed on only the front paws, as is most often the case. 15 However, the procedure may be performed on all four paws. 16 There are three methods that may be used to perform an onychectomy: laser, scalpel, or nail trimmer (also known as the guillotine method). 17 The laser method is performed using a carbon dioxide laser to amputate the third phalanx and cut the supporting soft tissues. 18 The scalpel method is performed using a blade to cut through the tendons and ligaments around the third phalanx to achieve the amputation. 19 The nail trimmer method is performed using a guillotine-type nail clipper which is placed on the 2

4 surface in between the second and third phalanx bones then clamped down to amputate the third phalanx from the toe. 20 B. Flexor Tendonectomy Flexor tendonectomy is an alternative elective surgical procedure, which may also be used to prevent unwanted scratching behavior by cats, but unlike the traditional declawing procedure tendonectomy does not involve the removal of the claw. A tendonectomy instead involves the severance and removal of a small section of the deep digital flexor tendon. 21 This severance and removal renders the cat incapable of flexing and extending the third phalanx which means the cat s claw[s] remain retracted. 22 Following a tendonectomy the cat s claws will continue to grow. 23 C. The Physical and Behavioral Impacts of Declawing The negative effects that can follow one of these procedures can be physical or behavioral and may be short-term or long-term. 24 According to a 2001 study, approximately eighty percent of cats that underwent an onychectomy experienced at least one medical complication after the procedure, and for cats that underwent a tendonectomy it was sixty-one percent. 25 In another study comparing the three onychectomy methods short term-complications were found to occur in approximately fifty percent of cases. 26 Short-term, physical complications following an onychectomy include: pain, lameness, hemorrhage, infection, lethargy, and [urinary infections]. 27 In regards to the complication of pain, declawing is considered a painful procedure however, due to a cat s stoic nature and relatively subtle behavioral indicators of pain the degree of pain experienced is difficult to determine. 28 Hemorrhage is the most commonly reported complication of declawing, with the complication being more severe in the 3

5 cases of older cats. 29 Long-term, physical complications following an onychectomy include: protrusion of the second phalanx, claw regrowth, lameness, chronic pain, sore paws, [and] flexor tendon contraction. 30 Claw regrowth within the paws can occur when bony remnants of the third phalanx have been left behind. 31 Physical complications that may arise following a flexor tendonectomy can be attributed to either the procedure itself or to the negligence of the owners in the cat s care. Due to the cat s inability to scratch, the cuticle of the claw will be difficult to remove so the aged cuticle often results in the claws being rough. 32 Additionally, due to the inability to scratch the claws can become excessively thick irritating the animals. 33 Other complications that can follow include long-term lameness and forelimb stiffness that appear[s] painful several years after surgery. 34 Negligence on the part of the owner can cause additional complications following the procedure, as the claws continue to grow following a flexor tendonectomy the cat s claws require regular trimming. 35 Failure to trim the cat s claws will allow them to overgrow and potentially curve around to grow in to the footpads, which will lead to pain and infection. 36 However, physical complications are not the only problems that may arise following these procedures. A 2001 study that sought to contact owners whose cats who had underwent onychectomy and tendonectomy at Cornell University found 1 in 3 cats that underwent an onychectomy experienced behavioral changes and for those cats that underwent tendonectomy the number was 1 in The behavioral problems that emerged after the procedures included, litter box avoidance and an increase in biting habits following the tendonectomy and an increase in biting habits or intensity of biting and failure to cover feces following the onychectomy. 38 Whether linked to subsequent behavioral problems that emerged is unclear, but a 4

6 survey, cited in the findings of ordinances banning the practice, found that approximately seventy percent of cats surrendered to the city shelter had been declawed. 39 In an article discussing onychectomy and flexor tendonectomy and ways to decrease complications, a veterinarian author stated that in her opinion, onychectomy is an appropriate surgery when performed correctly. 40 However, another veterinarian opined in a Denver Post article that it s so hard to do this procedure perfectly, and [y]ou can t predict a successful outcome, and if you can t predict a successful outcome, then you shouldn t do the procedure. 41 Dr. Jennifer Conrad, a veterinarian and outspoken advocate for a ban of declawing, pioneered a surgery that mitigates or reverses declawing and tendonectomies in big cats, but states that currently there is not a surgery [that] can reverse or clean up a botched onychectomy on a domestic cat. 42 Performing the procedure correctly to avoid the costly and permanent damage may be even more difficult to predict in the future. A 2014 survey of veterinary schools revealed that approximately fifty-four percent of the twenty-six schools that responded did not include in their core curriculum a lecture or surgical laboratory providing instruction in the onychectomy procedure. 43 Which in light of the number of veterinary schools in the United States, amounts to a little less than half of the U.S. veterinary schools including mandatory instruction in the performance of the procedure. 44 This lack of instruction in the United States only increases the chances of complications and serves as an indication the practices should be discontinued. However, despite the risk of complications and lack of medical necessity of the practices the United States has not taken any major steps toward protecting animal welfare on the issue. This lack of action has left the United States trailing behind the protective efforts of other nations. III. INTERNATIONAL EFFORTS TO BAN DECLAWING 5

7 While the United States continually fails to protect domestic cats from the potential harms associated with these declawing procedures, internationally there is an emerging consensus in favor of banning or significantly restricting the practice. The practice of declawing has been banned or restricted in over twenty countries, including: the United Kingdom, Switzerland, Australia, Scotland, Ireland, Brazil, Israel, Portugal, Finland, Denmark, Austria, and Malta. 45 A. The European Convention for the Protection of Pet Animals The Council of Europe is an international organization comprised of forty-seven European countries, which was set up to promote democracy and protect human rights and the rule of law in Europe. 46 In 1992, the European Convention for the Protection of Pet Animals ( Convention ), a treaty created by the Council of Europe, became effective with the goal of promoting the welfare of pet animals. 47 Under Article 10 in the Convention, certain surgical operations performed on a pet for the purpose of modifying [their] appearance or for other non-curative purposes are prohibited. 48 The article specifically lists declawing as a prohibited surgical operation, however it permits an exception if a veterinarian considers the procedure necessary for medical purposes or for the benefit of any particular animal. 49 The Convention is open to signature and ratification by Council of Europe member states, and accession by nonmember states. As of April 2015, the Convention has been signed by twenty-four countries and ratified by twenty-three. 50 B. Animal Welfare Act of 2006 While the United Kingdom has not signed or ratified the European Convention for the Protection of Pet Animals it has enacted its own statutory scheme for the protection of animal welfare. In 2006, the Animal Welfare Act ( United Kingdom AWA ), described as an overhaul 6

8 of pet abuse laws, was enacted by the United Kingdom. 51 Under the United Kingdom AWA, declawing or the removal of a cat s claw is not specifically mentioned. Instead of listing specific procedures, acts such as declawing fall under a section titled Mutilation. Under this section, a person must not carry out or cause to be carried out a prohibited procedure upon an animal. 52 A prohibited procedure is defined as the carrying out of a procedure which involves interference with the sensitive tissues or bone structure of the animal, otherwise than for the purpose of its medical treatment. 53 As both onychectomy and flexor tendonectomy involve interference with the sensitive tissues and bone structures in the cat s paws those procedures would be prohibited. The classification of declawing as a mutilation is further supported by the British Veterinary Associations, which referred to declawing as an unnecessary mutilation. 54 C. Federal Act on the Protection of Animals Austria s Animal Protection Act ( APA ) contains a section listing certain Prohibited interventions performed on animals. 55 Declawing, among many other elective surgical procedures, is listed as being prohibited unless carried out for [a] therapeutic or diagnostic purpose. 56 IV. DOMESTIC EFFORTS TO BAN DECLAWING Countries around the world are taking steps to protect the welfare of domestic cats through the passage of laws and the ratification of treaties banning the practices of declawing and tendonectomy. In recognition of the potential complications and the lack of medical benefit, internationally the practices have been classified as mutilation and prohibited. In contrast, the United States has made little progress to adequately address declawing and meet this animal welfare standard that is emerging globally. A. United States Approach to Declawing 7

9 In the United States, the declawing of exotic or non-domestic cats has been addressed under both federal and some state law. 57 However, attempts to ban or limit the declawing of domestic cats have yet to find footing. Endeavors to ban the practice of declawing domestic cats are made at the state level, as the matter generally falls within the scope of the state s policing power. 1. Federal Laws and Policies on Declawing While the push to ban declawing, and its similar counterpart tendonectomy, is a battle that must be mostly fought at the state level there is a policy of note adopted by the United States Department of Agriculture ( USDA ) in regards to its enforcement of the Animal Welfare Act ( AWA ). Under the AWA, certain standards for humane care and treatment have been established for animals that are: used in research; placed on exhibit; bred for commercial sale; or transported in interstate or foreign commerce. 58 In 2006, the USDA adopted a new policy under the AWA banning AWA licensees and registrants from declawing wild or exotic carnivores, except where medically necessary for the individual paw. The USDA took the position that declawing for handling or husbandry purposes is unacceptable due to the considerable pain and discomfort caused to the animals and potential chronic health problems that they may suffer later in life. 59 While this policy applies only to exotic cats covered under the AWA and not domestic, it is worth noting for two reasons: (1) the USDA has condemned declawing in recognition of the procedure s health ramifications for the animals; and (2) the USDA has stated their policy is consistent with the current position statement of the American Veterinary Medical Association ( AVMA ). 60 The recognition by an agency of the federal government of the procedure s negative effects on exotic cats strengthens the argument to extend the same protections to the 8

10 domestic cats in our homes. Additionally, by stating the USDA policy is consistent with the AVMA s position it indicates the potential persuasion veterinary associations have on the efforts to ban declawing. Unfortunately, the AVMA and other veterinary associations have conflicting views regarding the performance of declawing procedures on exotic cats versus domestic cats. Veterinary medical associations are the main source of opposition to a ban of domestic cat declawing in the United States. A surprising source when presented with the description of the procedures, their negative effects, and the numerous countries that have taken steps to ban the practices of onychectomy and tendonectomy. Despite this the state veterinary medical associations are the most outspoken opponents to declaw bans when they are proposed. While veterinarians themselves are split on the issue of declawing, those in support of its continued practice advance several justifications and arguments against a blanket ban. 61 One justification offered is that declawing may be necessary to protect the health of those owners who are diabetic or immunocompromised. 62 However, health organizations such as the Center for Disease Control ( CDC ) and National Institutes of Health ( NIH ) do not recommend declawing as a preventative or control measure to avoid the risk of disease. 63 If you are immunocompromised and have a cat, NIH advises keeping the cat s claws clipped short and avoiding rough play with your cat, as well as any situation where you could get scratched. 64 Additionally, a recent study released in the Canadian Medical Association Journal regarding the transmission of disease from animals to humans, listed suggestions for high risk patients including a similar tip to NIH s and expressly states, declawing is not recommended. 65 Another justification for the continued practice is if an owner requests the procedure and is denied the owner will relinquish the cat to a shelter where it will likely be euthanized. 66 Declawing procedures are thus seen as an alternative to keep the cat in a home and prevent 9

11 threatened owner relinquishment. With this argument opponents seek to justify a known painful and permanent alteration of the cat s anatomy that has no medical benefit for the animal by stating it will avoid an uncertain future harm. Additionally, even if the declawing procedures are performed it is still uncertain whether the animal will be kept out of a shelter as the potential development of behavioral issues could lead to their relinquishment anyways. Opponents also justify the continued practice by arguing studies on the effects of declawing procedures do not support a high probability of complications or behavioral issues. 67 However, the AVMA has stated the scientific evidence of the implications of declawing is limited and neither support[s] nor refute[s] claims regarding those implications. 68 Further the AVMA has stated additional investigation is needed for an accurate determination of the longterm behavioral effects, age-related effects, and complications rates. 69 Given this it would appear erring on the side of caution would be a better course of action rather than performing a permanent procedure, which has no medical benefits. Another justification advanced is that the decision of whether to declaw a cat is a private matter between the owner and the veterinarian, and as such should be free from regulation. 70 The prevention of unnecessary harm and mutilation of animals is however a matter of public concern. As animals are unable to speak for themselves it falls upon us to be their voice and to change practices that endanger their welfare. Something veterinarians and their respective associations should be in line with. Every new member entering the veterinary profession swears to a Veterinarian s Oath, an examination of this oath gives the impression these veterinarians are on the wrong side of the debate. 71 The Veterinarian s Oath reads: Being admitted to the profession of veterinary medicine, I solemnly swear to use my scientific knowledge and skills for the benefit of society through the protection of animal health and 10

12 welfare, the prevention and relief of animal suffering, the conservation of animal resources, the promotion of public health, and the advancement of medical knowledge. I will practice my profession conscientiously, with dignity, and in keeping with the principles of veterinary medical ethics. I accept as a lifelong obligation the continual improvement of my professional knowledge and competence. 72 The oath, which was drafted by the AVMA, was even amended in 2010 to include a commitment to animal welfare and added a proactive approach to the profession. 73 The amendment was recommended by the AVMA s Animal Welfare Committee, which believed it to be in line with the AVMA s goal to be a leading advocate for, and an authoritative science-based resource on, animal welfare. 74 In the Animal Welfare Committee s review of the oath the committee reviewed oaths from other countries, many of which include animal welfare. 75 AVMA defines animal welfare as how an animal is coping with the conditions in which it lives. 76 Further stating that an animal is in a good state of welfare if (as indicated by scientific evidence) it is healthy, comfortable, well nourished, safe, able to express innate behavior, and not suffering from unpleasant states such as pain, fear, and distress. 77 Additionally, the AVMA lists several AVMA Animal Welfare Principles. 78 Two of note include: (A) Decisions regarding animal care, use, and welfare shall be made by balancing scientific knowledge and professional judgment with consideration of ethical and societal values; and (B) The veterinary profession shall continually strive to improve animal health and welfare through scientific research, education, collaboration, advocacy, and the development of legislation and regulations. 79 However, considering the oath, the animal welfare addition, and the animal welfare principles discussed in light of previous actions and current policies it would seem the AVMA and other veterinary associations are not quite fulfilling those words. 11

13 While the AVMA has not officially entered the legislative battle to voice its opinion, the association s policies regarding domestic cat declawing are similar to those of state veterinary associations that have. 80 Additionally, the AVMA s policies are likely to have persuasive power as it asserts itself as a voice for the veterinary profession and seems to be so in the eyes of many states, as AVMA s accreditation of veterinary medical schools is necessary for post-graduation licensing and credentialing educational requirements. 81 AVMA s policy on the declawing of domestic cats mirrors the arguments advanced by opponents. While the policy was recently amended in 2014 to define declawing as an amputation and to include information regarding the alternatives to the procedure, the policy still suggests declawing may be appropriate in certain instances such as those discussed above that are advanced in arguments against bans. 82 The policy stands in contrast to AVMA s commitment to animal welfare and prevention of animal suffering. Despite its commitment to animal welfare and the continued improvement of it through scientific research and education, the AVMA continues to rely upon the limited scientific evidence to support or refute [the] claims about the implications of declawing in its justifications for its domestic cat declaw policy. 83 Additionally, the AVMA has somewhat contradictory policies concerning domestic cat declaws and declaws of captive exotic and wild indigenous cats. Under its policy for the captive exotic cats the AVMA condemns declawing, but still supports the performance of the procedure on domestic cats, animals within the same family. 84 The AVMA s condemning of the procedure for exotic cats was adopted in consideration of [c]oncerns that pain and suffering associated with declawing may be exacerbated in wild and exotic felines. 85 However, by recognizing these problems associated with the procedures when performed upon exotic cats the AVMA should be able to trace the harms of the procedures upon domestic cats as well. Domestic cats and most exotic cats share 12

14 similar anatomy in their paws and claws, so similar suffering due to these procedures should be implied State Attempts to Ban or Limit Declawing As stated, the regulation of declawing is a matter of state concern. Activists against the practice have attempted to pass statewide bans on declawing and flexor tendonectomy, but have been unsuccessful. These unsuccessful attempts include efforts in California and Connecticut. 87 In 2003, endeavors in California to ban veterinarians from performing the procedures except when necessary for a therapeutic purpose were unsuccessful. 88 The proposal failed to muster enough votes in the legislature and was met with opposition from the California Veterinary Medical Association. 89 California was successful however, in passing a statute making it a misdemeanor for anyone to perform an onychectomy or tendonectomy on an exotic or native wild cat, for a purpose other than a therapeutic one. 90 An unsuccessful, 2008 attempt in Connecticut to ban the procedures sought to revoke the licenses of those that violated the statute and only allowed an exception for those procedures performed for a therapeutic purpose. 91 Like the California proposal, the state s veterinary medical association, the Connecticut Veterinary Medical Association, also opposed this bill. 92 The bill was referred to the Joint Committee on Environment and a public hearing was held, however it is there the bill s history ends. 93 Despite these failures animal advocates have persisted in their efforts to advance animal welfare in the United States by introducing similar legislation in other states. Within the past few months, bills have been introduced in New York and Hawaii seeking to ban the declawing of domestic cats, and recently accepted amendments to a bill in Oregon have added another state to the list. 94 i. New York Proposal 13

15 In January 2015, Linda Rosenthal, an assemblywoman in Manhattan, introduced a bill which would prohibit the performance of both onychectomy and flexor tendonectomy procedures on a cat or on any other animal. 95 The proposed law would exempt those procedures if performed for a therapeutic purpose. 96 Therapeutic purpose is defined to mean necessary to address the medical condition of the animal, such as an existing or recurring illness, infection, disease, injury or abnormal condition in the claw that compromises the animal s health. 97 The proposed statute also has a rather encompassing list of those persons that would be held guilty if an onychectomy or flexor tendonectomy were to be performed in violation of the statute. Those that would be held guilty include: (A) the person or persons performing the procedure, (B) all persons assisting in the physical performance of the procedure and (C) all persons or entities that procured the procedure, including but not limited to the owner or person having custody or control over the animal or any other person or entity that ordered, requested or paid for the procedure. 98 As of April 2015, no votes on the bill had been conducted and it had been referred to the Committee on Agriculture. 99 Additionally, an identical bill was submitted to the New York Senate, that bill currently has no votes and was referred to agriculture on April 10, ii. Hawaii Proposal A bill was also introduced in the Hawaii House of Representatives in January 2015 seeking to ban declawing as animal cruelty. 101 The proposed statute, titled Cruelty to animals by declawing, states that a person commits the offense if they intentionally, knowingly, or recklessly: (a) perform surgical claw removal, declawing, onychectomy, or tendonectomy on any domesticated cat; or (b) assist another in doing so. 102 The law would exempt those procedures performed for the purpose of addressing the medical condition of the cat such as an existing or 14

16 recurring illness, infection, disease, injury, or abnormal condition in the claw [that] compromises the animal s health. 103 The bill passed its first reading and was referred to the Committee on House Consumer Protection and Commerce, however the bill was deferred by the committee on February 4, 2014, and no other action has taken place. 104 iii. Oregon Proposal Currently making its way through the Oregon State Legislature is a bill, which was originally introduced to prevent requirements of declawing and devocalization of animals by a landlord of potential tenants or tenants, if the animal would otherwise be allowed; or to advertise in a way to discourage potential tenants with animals that have not had those procedures performed. 105 However, recently accepted amendments to the bill have made it a potential blanket ban on all declawing, onychectomy and tendonectomy, in the state. 106 The amendments make the newly proposed statute the most unique proposed ban on declawing procedures in the United States. The proposal expressly states that a declaw of a cat must not be performed, declaw being defined to include both onychectomy and tendonectomy. 107 However, then the proposal states certain requirements that must be met in order for a declaw to be lawful. 108 The declaw must be performed by a licensed veterinarian. 109 It is also required that the cat be given anesthesia for the procedure. 110 The declaw must also be done for one of three purposes: (A) The procedure is medically necessary to treat or relieve an illness, disease or injury or to correct a congenital abnormality that is causing or will cause the animal physical harm or pain; (B) Attempts to prevent the animal from destructively using its claws have failed; or (C) The animal s destructive use of its claws present a serious health risk to the animal or its owner. 111 However, if the declaw is performed either due to failed attempts to prevent the behavior or because of serious health risks posed to the cat or its owner then the statute would impose upon 15

17 the veterinarian performing the procedure a duty to inform the cat s owner of the potential complications resulting from the procedure. 112 The last requirement for a legal declaw would also require [t]he veterinarian performing the procedure [to] provide the owner written documentation attesting compliance with the statute. 113 The accepted amendments could potentially make Oregon the first state to pass a statute banning the practice, although it might not be the statute animal welfare advocates had hoped for. The statute would essentially still allow veterinarians to perform declawing procedures in most instances, given the difficulties of verifying whether attempts to prevent the destructive behavior have truly failed. The imposition of the duty to inform the owner of the potential complications in those instances and the written attestation by the veterinarian of compliance may redeem the statute. However, the practical effect of the proposed statute if enacted is that it will likely do little to change the availability of declaw and tendonectomy procedures. What further may increase the Oregon s odds to be the first state to pass a ban is the approval of the amendments by the Oregon Veterinary Medical Association. 114 Included in document testimony to the bill is a letter from Glenn Kolb, the Executive Director of the Oregon Veterinary Association, to the Committee on Human Services and Housing stating that the then proposed -1 amendment is representative of the positions of the American Veterinary Medical Association ( AVMA ) and the Oregon Veterinary Medical Association. 115 A promising, single sentence given that most other state declawing ban proposals and the city ordinances adopted in California were met with opposition from their state veterinary medical associations. What sets the potential Oregon statute apart from the others, garnering the approval of the veterinary medical associations is that it is allowing those additional exceptions with the veterinarian s duty 16

18 to educate the cat owner and the language it has incorporated aligns with AVMA s declawing of domestic cats policy. 116 AVMA s declaw policy for domestic cats states that declawing should be considered only after attempts have been made to prevent the cat from using its claws destructively or when its clawing presents an above normal health risk for its owner(s). 117 The potential Oregon statute has almost entirely taken AVMA s language and incorporated it as excepted reasons for performance of a declaw in addition to the standard medical or therapeutic purpose. Additionally, AVMA s declaw policy includes that it strongly encourages client education prior and that [i]t is the obligation of the veterinarian to provide cat owners with a complete education with regard to the normal scratching behavior of cats, the procedure itself, as well as potential risks. 118 While Oregon s statute imposes a requirement the pet owner be informed about the procedure and its potentially negative consequences, and the AVMA declaw policy only strongly encourages such education prior to a declaw procedure the two still align. An objection by AVMA or even a suggestion that client education should not be required would reflect poorly upon them. By weaving in the AVMA language the proposed Oregon statute stands most likely to pass out of the three current state ban proposals. However, as stated earlier by providing the exceptions animal welfare advocates may not be satisfied which could lead to a push for a stricter statute similar to New York or Hawaii s proposals that could have dire consequences for the statute s passage ability. iv. California s Successful Ban and Pushback Currently in the United States the only successful bans in effect are those in a few California cities. 119 Concerns regarding the complications and negative effects led the City of 17

19 West Hollywood to become the first to pass a city ordinance banning the practice as animal cruelty. 120 Following the passage of the ordinance, the California Veterinary Medical Association ( CVMA ) challenged it in court as being out of the city s regulatory reach. 121 After losing at the appellate level, the CVMA sought and was granted a legislative remedy to prevent other cities from regulating the practice of declawing. 122 Through the immediate use of the legislature to effectively close the statutory gap, which had allowed the City of West Hollywood to pass its declawing ban, the CVMA and the California legislature limited the impact of the very first ban of these procedures in the United States. 123 a. The City of West Hollywood s Ban In 2003, the City of West Hollywood became the first city to ban both onychectomy and flexor tendonectomy procedures. 124 The ordinance exempted procedures done for a therapeutic purpose, which it defined as necessary to address the medical condition of the animal, such as an existing or recurring illness, infection, disease, injury or abnormal condition in the claw that compromises the animal s health. 125 Under the ordinance those who would be found guilty if a declaw was performed included: (1) the person or persons performing the procedure, (2) all persons assisting in the physical performance of the procedure, and (3) the animal guardian that ordered the procedure. 126 However, the ordinance was met with opposition from the CVMA and was challenged in court. 127 b. California Veterinary Medical Association v. City of West Hollywood CVMA challenged the ordinance, asserting the City of West Hollywood was preempted from enacting the ban of the procedures by both the California Veterinary Medical Practice Act ( CVMPA ) and section 460 of the Business and Professions Code ( section 460 ). 128 The trial court ruled in favor of CVMA finding the ordinance was preempted by section 460, but 18

20 declined to rule on the issue of preemption under the VMPA deeming it unnecessary. 129 The City of West Hollywood s appeal of that decision resulted in the only case in the United States dealing with a ban of the declawing of domestic cats, California Veterinary Medical Association v. City of West Hollywood. 130 In California Veterinary Medical Association v. City of West Hollywood, the City of West Hollywood contended that the trial court had erred in its finding of preemption, asserting that both section 460 and the CVMPA did not preempt the City of West Hollywood from enacting the ordinance. 131 The Court of Appeal of California for the Second Appellate District agreed that neither section 460 nor the CVMPA preempted the enactment of the ordinance and reversed the trial court s decision. 132 In its analysis the appellate court first examined section 460. The language of section 460 provided: No city of county shall prohibit a person, authorized by one of the agencies in the Department of Consumer Affairs by a license, certificate, or other such means to engage in a particular business, from engaging in that business, occupation, or profession or any portion thereof Nothing in this section shall prohibit any city or county or city and county from levying a business license tax solely for revenue purposes nor any city or county from levying a license tax solely for the purpose of covering the cost of regulation. 133 CVMA, relying upon an opinion obtained from the California Department of Consumer Affairs ( DCA ), advanced the argument that this language prohibited not only local legislation imposing separate and additional licensing requirements or other qualifications on individual licensees, but also regulations affecting the manner in which the licensed profession itself is practiced. 134 The appellate court however disagreed, finding this to be an overly broad interpretation. 135 The court reasoned that the language evidenced intent to preempt the licensing of professions, such as veterinary medicine, but because the statute provided for local taxation, anticipating (and thus permitting) local regulation of state-licensed businesses, it did not intend 19

21 to prohibit local regulation of the manner in which the licensed profession is practiced. 136 The language was interpreted by the court as not placing limits on the right of local governments to exercise their police powers to ensure the quality and character of the licensees work. 137 Which is what the court believed the City of West Hollywood was seeking to do with its declaw ordinance. 138 The court then turned its analysis toward the arguments advanced under the CVMPA. The CVMPA is responsible for the creation of the Veterinary Medical Board ( Board ) within the DCA, which handles licensing, regulatory, and disciplinary functions and protect[s] the public with respect to the practice of veterinary medicine in the state. 139 Under the CVMPA, the practice of veterinary medicine includes among other things performing a surgical operation upon an animal. 140 Additionally, the California Legislature has expressly preempted the field of enforcing the cleanliness and sanitary requirements imposed under the CVMPA. 141 However, the regulations only set a minimum standard of practice of veterinary medicine, which is the care be done in a competent and humane manner. 142 The court in examining the CVMPA found there to be no preemption of the City of West Hollywood s declaw ordinance, expressly or otherwise. 143 In its reasoning the court found that while the practice of performing declaw procedures, onychectomies and flexor tendonectomies, is a part of veterinary practice the procedures had not been mandate[d] or expressly approve[d] so the ordinance did not directly conflict with or contradict the VMPA. 144 Additionally, the court reasoned the Legislature s express preemption for the enforcement of sanitation and hygiene did not equate to an intention to fully occupy the field of regulating the practice of veterinary medicine

22 CVMA argued while it may not be expressly preempted, local regulation was preempted by implication because the practice of veterinary medicine is highly regulated by the state and as such, the ordinance impermissibly enter[ed] an area fully and completely occupied by general law. 146 The court rejected this argument, finding it misconstrued the ordinance and misunderstood the scope of the implied preemption doctrine. 147 The court reasoned the only standard of practice set under the CVMPA [was] the minimal requirement for care to be done in a competent and humane manner and consistent[ly] with current veterinary medical practice in [the] state. 148 Which did not constitute the extensive regulation needed to support a finding the matter was purely a state concern and local regulation like the City of West Hollywood s ordinance would not be tolerated. 149 Further since the Legislature expressly preempted regulation at the local level in regards to sanitation and hygiene, but did not speak similarly to the practice of veterinarian medicine itself, the court reasoned this was evidence the ordinance was allowed. 150 Additionally, the court rejected the argument that the enactment of the ordinance would create a problem for transient citizens of the state that would outweigh the local benefit. 151 Reasoning declawing procedures are generally not emergency procedures so any effect to transient citizens would be minimal if non-existent and the city had a significant interest in exercising its police power to set minimum standards for the humane treatment of animals within its borders. 152 The court then stated the CVMPA s full occupation of the field of regulating veterinary medicine whether true or not, would not be devastating to the validity of the ordinance because the purpose of the ordinance is to prevent animal cruelty not regulat[e] the practice of veterinary medicine. 153 Without preemption by section 460 nor by the CVMPA, the court reversed the trial court s ruling and found the City of West Hollywood s ordinance valid

23 Following the decision in California Veterinary Medical Association v. City of West Hollywood an amendment, California SB-762, to section 460 of the California Business and Professions Code was sought and passed. 155 The amendment to the statute made it so a city or county may not prohibit a healing arts professional which is licensed from engaging in any act or performing any procedure within the professionally recognized scope of that licensee. 156 The amendment had an effective date of January 1, 2010, which allowed cities to adopt an ordinance banning the practice within the time frame before. 157 In a race to beat the clock ordinances were adopted in an additional seven cities in California including: Los Angeles, Culver City, Berkley, Burbank, Beverly Hills, San Francisco, and Santa Monica. 158 The ordinances adopted in the other cities for the most part resembled or were identical to that passed in the City of West Hollywood. 159 Where a punishment for violation of the ordinance is given, the ordinances all state imprisonment for up to six months as either an additional punishment to a fine or without a fine. 160 However, the ordinances differ slightly in the maximum amount of the fine that would be imposed with the cities of Burbank, Berkley, and San Francisco setting a limit at $1,000, and the city of Santa Monica setting their maximum at $ V. RECOMMENDATIONS As statutory proposals banning declawing and flexor tendonectomy continue to fail, the United States continues to fall behind other countries in the promotion and protection of animal welfare. While other countries have taken steps to ban or restrict declawing and other elective procedures that are of no medical benefit to the animal, refusals by state legislatures in the United States to ban declawing procedures are unabated. Despite over ten years of persistence by animal advocates to utilize the typical legislative process in order to provide protection for 22

24 domestic cats from these procedures all attempts have fallen flat. Proposed statutes once in the hands of the legislature tend to disappear in to the depths of committees never to emerge again. While direct evidence of why the proposed statutes fail to make it out of these committees is lacking, it can be inferred that their fate is due to legislatures too reluctant to act on a controversial animal welfare topic and the taint of special interest groups, such as the veterinary medical associations. To remedy these issues there is need for a more direct process that avoids the hang-ups the proposals encounter in the legislature, the use of a direct ballot initiative would provide such an avenue. Animal advocates to improve animal welfare standards on factory farms have successfully utilized direct ballot initiatives. In 2002 Florida citizens voted on and passed an addition to the Florida Constitution that prohibits the confinement or tethering of pregnant sows in a way that impedes them from turning around freely. 162 The measure was placed on the ballot through the use of the state s ballot initiative process and passed with fifty-four percent of the vote. 163 In 2008 California citizens voted on and passed Proposition 2, which prohibits as animal cruelty the confinement or tethering of pregnant sows, calves raised for veal, and egglaying hens in a way that impedes them from (a) lying down, standing up, and fully extending [their] limbs; and (b) turning around freely. 164 The initiative passed with over sixty percent of the vote. 165 These ballot initiative successes for farmed animals indicate a likelihood that garnering support from citizens for a proposal that would benefit the welfare of a companion animal may be equally, if not more successful. A. Use Direct Initiative to Ban or Limit the Practice of Declawing An initiative is a tool that citizens of a state may use to introduce a statute or constitutional amendment that is placed on the ballot by petition. 166 The availability of the 23

25 initiative process is limited to roughly half of the United States, as only twenty-four states provide their citizens with the option. 167 Whether an initiative may propose a new statute or a new constitutional amendment also varies within those states, eighteen states allow initiatives to propose constitutional amendments and twenty-one states allow initiatives to propose statutes. 168 An initiative may be direct or indirect. 169 An indirect initiative allows a proposal to be introduced by the citizens, but it must first pass through the legislature before being placed on the ballot. 170 A direct initiative allows for the proposal to go straight to the ballot for voting. 171 The value of the direct initiative comes from its ability to bypass the typical legislative process. The direct initiative was developed as a way for citizens to combat the influence of special interest groups and their perceived corruption of the legislative process. 172 It provides ordinary people in grassroots groups with the ability to have their voices heard when attempts to have the legislature act on an issue have failed. The issues that may be addressed with a direct initiative and the process of approval may vary, as states may set forth certain requirements and parameters. 173 The use of a direct initiative may remedy the difficulties animal advocates have encountered in attempting to have a state ban on declawing passed. It will allow animal advocates to bypass the legislature, therefore avoiding the committees where bills typically disappear. A direct initiative will give a ban a fighting chance against special interest groups like the veterinary associations whose influence within the legislature may be a leading factor in their inability to make it out of those committees. Additionally, if the legislature is reluctant to act on a controversial animal welfare issue a direct initiative will allow the citizens, rather than the legislature to act on the issue. Collecting the necessary amount of votes for passage could be possible with education of voters on the issue. With education about the potential complications 24

26 and harms that follow a declaw or tendonectomy procedure as well as the numerous countries that already consider the practice to be an act of animal cruelty, a ban of declaw and tendonectomy through the ballot initiative process could be a reality. If such a direct initiative were attempted in Florida, the power for the people to do so would arise from Florida s Constitution. 174 Florida provides its citizens with a direct initiative process to propose amendments to the state s constitution. 175 Prior to placement on the ballot, initiatives are subject to review by the Florida Supreme Court. 176 The court does not address the merits or wisdom of the proposed amendment. 177 To pass constitutional scrutiny, the initiative must: (1) address a single-subject matter; and (2) the ballot title and summary [must] satisfy the requirements described in Florida Statute section (1). 178 The single-subject rule requires the amendment have a logical and natural oneness of purpose. 179 An amendment violates this rule if it engages in either: (a) logrolling; or (b) substantially altering or performing the functions of multiple branches of state government. 180 An amendment engages in logrolling if it includes unrelated provisions in an effort to garner votes for an otherwise unfavorable issue. 181 To satisfy the requirements under Florida Statute section (1), the ballot summary must: (1) be clear and unambiguous; (2) be styled in such a manner that a yes vote will indicate approval of the proposal and a no vote will indicate rejection; and (3) be no more than 75 words explaining the chief purpose of the measure. 182 Following these requirements for a direct ballot initiative in Florida, a model ballot initiative to limit the practice of declawing has been drafted below. B. A Model Ballot Initiative to Curtail the Practice of Declawing Ballot Title: Animal Cruelty Amendment: Limiting the Practice of Declawing Upon Domestic Cats 25