Did the Idaho AG approve a 2009 ballot initiative to ban dog ear cropping by anyone other than a licensed veterinarian?
Plain-English summary
A petitioner filed a proposed 2009 Idaho ballot initiative to amend Idaho Code § 25-3504, the general animal-cruelty statute, by adding a misdemeanor offense for performing or arranging an ear cropping on a dog by anyone other than a licensed veterinarian. Under Idaho Code § 34-1809, the Attorney General has to review every initiative petition for form, style, and matters of substantive import, and issue a Certificate of Review with advisory recommendations to the petitioner.
The AG's review flagged several drafting issues. First, the Initiative would have grafted a new prohibition directly into § 25-3504 rather than amending the definition of "cruel" in § 25-3502(5) (which is the section the rest of the cruelty statute depends on). That mismatch would have created confusion about what conduct counts as "cruel." Second, it labeled ear cropping a misdemeanor but then attached a civil penalty up to $5,000 instead of the standard misdemeanor fines, leaving readers to guess whether ear cropping was a crime, a civil violation, or both. The AG warned the resulting statute could be unconstitutionally vague under the Fourteenth Amendment and Article I, § 13 of the Idaho Constitution. Third, the proposed enforcement clause overlapped and conflicted with the existing enforcement provision in § 25-3501A. Fourth, the initiative referred to "district attorneys" prosecuting violations, but Idaho does not have district attorneys; it has county prosecuting attorneys. Finally, the AG reminded the sponsors that Article III, § 18 of the Idaho Constitution requires any amended statute be set out at full length in the petition.
The Certificate's recommendations were advisory only. The petitioner could accept or reject them in whole or in part, and the AG took no position on the underlying policy question of whether dog ear cropping should be prohibited.
Currency note
This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What is a Certificate of Review?
Under Idaho Code § 34-1809, every proposed initiative petition filed with the Idaho Secretary of State has to go through a 20-business-day legal review by the Attorney General before petition signatures can be circulated. The AG issues a Certificate of Review with recommendations on form, style, and any legal problems the petition would create if enacted. The recommendations are explicitly advisory; the petitioner can ignore them. The AG does not take a position on the underlying policy.
What did this initiative want to do?
It would have made it a misdemeanor for anyone other than a licensed veterinarian to "perform, or otherwise procure or arrange for the performance of, an ear cropping procedure on any dog within this state." It carved out exceptions for showing dogs with cropped ears in competition, owning or selling such dogs, and any procedure performed by a vet.
Why was the AG worried about a vague statute?
Idaho courts use the federal due-process vagueness doctrine: a statute is unconstitutionally vague if "persons of common intelligence must guess at its meaning and differ as to its application" (citing Lindstrom v. District Bd. of Health Panhandle Dist. I and Cowan v. Board of Com'rs of Fremont County). The proposed text declared the conduct a misdemeanor but attached a civil penalty inconsistent with misdemeanor procedure under Idaho Code §§ 18-113 and 25-3520A. A reader genuinely could not tell from the text whether they faced a criminal charge, a civil fine, or both.
Did the initiative go forward?
The Certificate of Review only addresses legal form. Whether the petitioner gathered enough signatures to qualify for the ballot, or whether the measure was redrafted, would need to be confirmed against Idaho election records.
What is the statutory difference between a "misdemeanor crime" and a "civil penalty"?
A misdemeanor is a criminal offense; conviction can carry up to six months in jail and a fine up to $1,000 under Idaho Code § 18-113, payable through the criminal-justice payment procedures of Idaho Code § 19-4705. A civil penalty is collected through a civil enforcement proceeding, typically with no jail exposure. The two carry different procedures, defenses, burdens of proof, and consequences. Mixing them in one statute, the AG warned, leaves both prosecutors and defendants without clear rules.
Background and statutory framework
Idaho's animal-cruelty statutes sit at chapter 35 of title 25 of the Idaho Code. The general prohibition lives in § 25-3504, which depends on the definition of "cruel" or "cruelty" in § 25-3502(5). Specific conduct (poisoning, dogfighting, cockfighting, denial of sustenance) is prohibited in standalone sections like §§ 25-3503, 25-3506, 25-3507, 25-3510, 25-3511, 25-3516, and 25-3518. Penalties run through §§ 25-3505 (poisoning) and 25-3520A (everything else).
The AG's analysis pointed to two existing Idaho statutes that handle a mixed civil-and-misdemeanor scheme correctly. Idaho Code § 25-3905 imposes a civil penalty up to $5,000 in subsection (1) and a separate misdemeanor with a fine of $100 to $5,000 in subsection (8), keeping the two clearly distinguished. Idaho Code § 25-3706 follows a similar separated structure. The proposed initiative's failure to mirror that drafting was the source of the vagueness concern.
The AG also reminded sponsors of the constitutional drafting requirement in Article III, § 18 of the Idaho Constitution, interpreted in Golconda Lead Mines v. Neill (1960), which says that no act may be revised or amended by mere reference to its title; the section as amended must be set forth and published at full length, with additions underscored and deletions struck through.
Citations
Idaho Constitution: art. III, § 18; art. V, § 18.
Idaho Code: §§ 18-113, 19-4705, 25-3501A, 25-3502, 25-3503, 25-3504, 25-3505, 25-3506, 25-3507, 25-3510, 25-3511, 25-3516, 25-3518, 25-3520A, 25-3520B, 25-3706, 25-3905, 31-2601 et seq., 34-1809, 73-113.
Cases: Cowan v. Board of Com'rs of Fremont County, 143 Idaho 501, 148 P.3d 1247 (2006); Lindstrom v. District Bd. of Health Panhandle Dist. I, 109 Idaho 956, 712 P.2d 657 (Ct. App. 1985); Golconda Lead Mines v. Neill, 82 Idaho 96, 350 P.2d 221 (1960).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C092909.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
September 29, 2009
The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL
Re: Certificate of Review - Proposed Initiative Related to Animal Cruelty
Dear Secretary of State Ysursa:
An initiative petition was filed with your office on August 31, 2009. Pursuant to Idaho Code
§ 34-1809, this office has reviewed the petition and has prepared the following advisory
comments. Given the strict statutory timeframe in which this office must respond to the
complex legal issues raised in this petition, our review only isolates areas of concern and
does not provide a detailed analysis of each issue that may present problems. Further,
under the review statute, the Attorney General's recommendations are "advisory only."
Petitioners are free to "accept or reject them in whole or in part." This office offers no
opinion with regard to the policy issues raised by the proposed initiative.
BALLOT TITLES
Following the filing of the proposed initiative, this office will prepare short and long ballot
titles. The ballot titles must impartially and succinctly state the purpose of the measure
without being argumentative and without creating prejudice for or against the measure.
While our office prepares titles for the initiative, petitioners may submit proposed titles for
consideration. Any proposed titles should be consistent with the standard set forth above.
MATTERS OF SUBSTANTIVE IMPORT
The proposed initiative ("Initiative") seeks to amend Idaho Code § 25-3504, Committing Cruelty
to Animals, "to make it a misdemeanor for any person to perform, or otherwise procure or
arrange for the performance of, an ear cropping procedure on any dog within this state, except
by a licensed veterinarian." Initiative at 1. The Initiative proposes adding the following
paragraphs to Idaho Code § 25-3504:
(a) Any person who performs, or otherwise procures or arranges for the
performance of, an ear cropping on any dog within the state is guilty of a
misdemeanor.
(b) (1) This section does not apply to a procedure performed by a licensed
veterinarian.
(2) Nothing in this section shall prohibit any of the following:
(A) Showing a dog with cropped ears in a dog show or competition.
(B) Owning or harboring a dog with cropped ears.
(C) Selling, buying or adopting a dog with cropped ears.
(c) A peace officer, officer of a humane society, or officer of an animal control
or animal regulation department of a public agency may enforce this chapter.
(d) (1) Any person who violates this section is subject to a civil penalty in an
amount not to exceed five thousand dollars ($5,000) for each violation.
(2) The civil penalty shall be payable to the local agency initiating the
proceeding to enforce this section to offset the costs to the agency related
to court proceedings.
(e) A person or entity that violates this section may be prosecuted by the
district attorney of the county in which the violation occurred, or by the city
attorney of the city in which the violation occurred.
(f) For the purpose of this section, the following term has the following
meaning: (1) "Ear cropping" means the surgical alteration, manipulation or
removal of any part of a dog's ear so that the ear then heals in a pointed, erect or
severed state.
A. The Initiative's Prohibitions are Not Consistent with the Statutory Scheme of the
Cruelty to Animals Statute.
The Initiative proposes to add language prohibiting ear cropping directly to § 25-3504. The
prohibition in § 25-3504 is dependent upon the definition of "cruel" or "cruelty" in § 25-3502(5).
Rather than amending the definition of "cruel" or "cruelty" to include ear cropping, the
Initiative proposes adding an ear cropping prohibition and a definition of ear cropping directly
to § 25-3504. The Initiative's approach could cause confusion regarding what conduct is "cruel"
and therefore prohibited under § 25-3504.
If the Initiative sponsors seek to prohibit ear cropping on dogs as an act of animal cruelty
under § 25-3504, the Initiative could amend the definition of "cruel" or "cruelty" in § 25-3502(5)
to include the term "ear cropping" (currently found in subsection (f) of the Initiative).
Alternatively, the Initiative sponsors could propose a new section specifically prohibiting ear
cropping on dogs, in the same manner other specific acts are prohibited under the Cruelty to
Animals Statute.
B. The Nature of the Penalty is Ambiguous and May Be Unconstitutionally Vague.
The Initiative proposes that "[a]ny person who performs, or otherwise procures or arranges for
the performance of, an ear cropping procedure on any dog within this state is guilty of a
misdemeanor." The Initiative, however, rather than incorporating the fines otherwise specified
in the Idaho Code for misdemeanors, provides that persons in violation of the ear cropping
section would be "subject to a civil penalty in an amount not to exceed five thousand dollars
($5,000) for each violation."
The nature of the proposed penalty in the Initiative is ambiguous. The Initiative provides a civil
penalty for what is declared to be a misdemeanor crime. "Statutes that are found to be
vague, indefinite or uncertain are in violation of the constitutional provisions found in the
Fourteenth Amendment to the United States Constitution or Article I, section 13 of the
Idaho Constitution." Cowan v. Board of Com'rs of Fremont County, 143 Idaho 501, 513,
148 P.3d 1247, 1259 (2006). A statute may be so vague as to violate constitutional due
process requirements "if it is found to contain terms so vague that persons of common
intelligence must guess at its meaning and differ as to its application." Lindstrom v.
District Bd. of Health Panhandle Dist. I, 109 Idaho 956, 960, 712 P.2d 657, 661 (Ct. App. 1985).
In contrast to penalty provisions in other laws, the penalty proposed in the Initiative does not
clearly identify the nature of the penalty.
C. The Enforcement Provision Conflicts with the Cruelty to Animals Statute and
Idaho law.
The Initiative's proposed language addressing enforcement conflicts with existing language in
the Cruelty to Animals Statute. The Initiative proposes amending § 25-3504 to state: "A peace
officer, officer of a humane society, or officer of an animal control or animal regulation
department of a public agency may enforce this chapter." However, the proposed language
would conflict with the enforcement section already in the Cruelty to Animals Statute: "Law
enforcement agencies and animal care and control agencies that provide law enforcement or
animal care and control services to a municipality or county, may enforce the provisions of this
chapter in that municipality or county." Idaho Code § 25-3501A(1).
We also note that subsection (e) of Initiative provides:
A person or entity that violates this section may be prosecuted by the district
attorney of the county in which the violation occurred, or by the city attorney of
the city in which the violation occurred.
Idaho has county prosecuting attorneys rather than district attorneys. See Idaho Cons. art. V, § 18,
and Idaho Code § 31-2601, et seq. Therefore, we recommend that the Initiative sponsors
change the language to identify prosecutors in a manner consistent with other Idaho Code
provisions.
D. Amendments Should Be Printed In Full.
Article III, § 18, of the Idaho Constitution prohibits any act from being "revised or amended
by mere reference to its title, but the section as amended shall be set forth and published
at full length." See Golconda Lead Mines v. Neill, 82 Idaho 96, 99-101, 350 P.2d 221, 222-23
(1960). We, therefore, recommend that the full text of Idaho Code § 25-3504, and any other
section amended by the Initiative, be reproduced in the proposed initiative, with amendments
indicated appropriately by underscoring for additions and strikeouts for deletions.
CONCLUSION
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and
matters of substantive import and that the recommendations set forth above have been
communicated to petitioner Talitha Neher by deposit in the U.S. Mail a copy of this Certificate
of Review.
LAWRENCE G. WASDEN
Attorney General
Analysis by:
Tyson K. Nelson
Deputy Attorney General