What did the Idaho AG say about a 2010 ballot initiative listing veterinary procedures (ear cropping, debarking, docking, Caesarian sections) as animal cruelty?
Plain-English summary
A second initiative petition from the same sponsor surfaced in late 2009. This one took a structurally cleaner approach than the September 2009 ear-cropping petition: instead of grafting a new prohibition into Idaho Code § 25-3504, it would have amended the definition of "cruel" or "cruelty" in § 25-3502(5) by adding a new paragraph treating ear cropping, debarking, tail docking, surgically birthing or performing a Caesarian section, and removing dewclaws (when done on a dog above certain ages by anyone other than a licensed veterinarian) as acts of animal cruelty.
The AG's Certificate of Review concluded the amendment was "consistent with the statutory scheme" because the cruelty prohibitions in chapter 35 of title 25 of the Idaho Code all key off the § 25-3502(5) definition. Adding to that definition would have automatically extended the existing penalty structure to the listed procedures.
But the AG flagged two corrections sponsors should make. First, the petition contained a citation error: it said it was amending the definition of "animal" at § 25-3502(2) when the sponsors plainly meant the definition of "cruel" or "cruelty" at § 25-3502(5). Second, the proposal used a string of veterinary medical terms ("cropping," "debarking," "docking," "surgically birthing," "Caesarian section") without defining them. Under Idaho Code § 73-113, technical terms in a statute are construed according to their technical meaning if any, but ordinary readers (and the dog owners who would be subject to the law) might not know what those medical terms mean. The AG recommended adding definitions to remove that ambiguity.
The Certificate also reminded sponsors of the Article III, § 18 drafting requirement: an amended statute must be set forth at full length, with additions underscored and deletions struck through. As always, the AG took no position on the underlying policy.
Currency note
This opinion was issued in 2010. 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
Why was the AG more comfortable with this drafting than the earlier ear-cropping initiative?
Because this version added the prohibited procedures to the central definition of "cruel" or "cruelty" in § 25-3502(5), which is the definition the rest of chapter 35 already uses. That meant the ordinary penalty structure (misdemeanor, with the existing fines and procedural rules) flowed automatically. The earlier ear-cropping initiative had grafted a stand-alone misdemeanor and conflicting civil penalty into § 25-3504, which created vagueness and conflict-of-laws problems.
What veterinary procedures would have been classified as cruelty?
For "any person other than a licensed veterinarian," the petition listed cropping, trimming, or cutting off a dog's ear; debarking by cutting or injuring the vocal cords; docking or cutting off the tail of a dog over five days of age; surgically birthing or performing a Caesarian section on a dog; and removing dewclaws from a dog over five days of age.
Why did the AG want the medical terms defined?
Because Idaho Code § 73-113 says common words are construed in their popular sense unless they have a technical meaning, in which case the technical meaning controls. "Debarking" or "Caesarian section" arguably have technical meanings within veterinary medicine, but the law applies to dog owners, not to vets. A pet owner reading the statute might not know what counts as "debarking" or where "docking" ends and a routine grooming clip begins. Without definitions, enforcement risks vary depending on how a court interprets ordinary versus technical usage. Filer Mut. Telephone Co. v. Idaho State Tax Comm'n confirms that words assumed to have ordinary meaning in a statute will be read in their popular sense unless they have acquired a technical meaning.
Did the AG approve the policy of treating these procedures as cruelty?
No. The AG repeated that the office "offers no opinion with regard to the policy issues raised by the proposed initiative." The Certificate is purely about legal form, statutory consistency, and constitutional drafting requirements.
Background and statutory framework
Idaho Code § 34-1809 sends every initiative petition to the Attorney General's office for an advisory legal review before signature gathering can start. The Certificate of Review focuses on three things: form (citation errors, definitional gaps, conflicts with existing law), style (clarity, internal consistency), and matters of substantive import (constitutional problems, preemption, conflicts with state policy). The office then issues a written certificate stating its concerns; recommendations are explicitly advisory.
The current animal-cruelty definition lives at Idaho Code § 25-3502(5) and lists five categories of conduct, including malicious infliction of pain, deprivation of necessary sustenance, and negligent confinement in unsanitary conditions. The general prohibition in § 25-3504 makes it a misdemeanor to be cruel to any animal as defined in § 25-3502(5), with penalties under § 25-3520A. Because all of the prohibitions key off the definition, expanding the definition expands the prohibition.
The constitutional drafting rule comes from Article III, § 18 of the Idaho Constitution and Golconda Lead Mines v. Neill (1960). It requires any amended statute to be set out at full length in the bill or initiative, with additions underscored and deletions shown by strikeout. The AG repeats this in nearly every Certificate of Review because it is one of the most common drafting failures in citizen-drafted initiatives.
Citations
Idaho Constitution: art. III, § 18.
Idaho Code: §§ 25-3502, 25-3504, 25-3505, 34-1809, 73-113.
Cases: Purco Fleet Services, Inc. v. Idaho State Dept. of Finance, 140 Idaho 121, 90 P.3d 346 (2004); Filer Mut. Telephone Co. v. Idaho State Tax Comm'n, 76 Idaho 256, 281 P.2d 478 (1955); 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/C011410.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
January 14, 2010
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 December 15, 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 within which this
office must review the petition, our review can only isolate areas of concern and cannot
provide in-depth analysis of each issue that may present problems. Further, under the
review statute, the Attorney General's recommendations are "advisory only." The
petitioners are free to "accept or reject them in whole or in part." The opinions
expressed in this review are only those that may affect the legality of the initiative. 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.
MATTERS OF SUBSTANTIVE IMPORT
A. Amendment is Consistent With the Statute
The proposed initiative ("Initiative") seeks to amend the definition of animal cruelty in
chapter 35, title 25, Idaho Code. At the outset, I note that there is a citation error in the
Initiative. While the intent of the Initiative sponsor is to amend the definition of "cruel" or
"cruelty" in Idaho Code § 25-3502(5), the citation in the Initiative is to the definition of
"animal" in Idaho Code § 25-3502(2). The sponsors should correct this citation.
Chapter 35, title 25, Idaho Code, currently defines "cruel" or "cruelty" as:
(a) The intentional and malicious infliction of pain, physical suffering,
injury or death upon an animal;
(b) To maliciously kill, maim, wound, overdrive, overload, drive when
overloaded, overwork, torture, torment, deprive of necessary sustenance,
drink or shelter, cruelly beat, mutilate or cruelly kill an animal;
(c) To subject an animal to needless suffering, inflict unnecessary cruelty,
drive, ride or otherwise use an animal when same is unfit;
(d) To abandon an animal;
(e) To negligently confine an animal in unsanitary conditions or to
negligently house an animal in inadequate facilities; to negligently fail to
provide sustenance, water or shelter to an animal.
Idaho Code § 25-3502(5) (Supp. 2009). The Initiative proposes amending the
definition of "cruel" or "cruelty" by the addition of a new paragraph:
(f) For any person other than a licensed veterinarian to perform the following
medical procedures: Cropping, trimming or cutting off the ear of a dog;
Debarking by cutting or injuring the vocal cords of a dog; Docking or cutting off
the tail of a dog over five days of age; Surgically birthing or performing a
Caesarian section on a dog; and Removing the dewclaws from a dog over
five days of age.
The amendment to the definition of cruel or cruelty is consistent with the statutory
scheme in chapter 35, title 25, Idaho Code. The statute's prohibitions on animal cruelty are
dependent on the definition of cruel or cruelty in the statute. By amending the definition of
cruel or cruelty to include other prohibited conduct, the Initiative does not conflict with the
statutory scheme.
B. Technical Terms Should Be Defined
The Initiative seeks to amend the definition of "cruel" or "cruelty" by reference to
several "medical procedures," including, "cropping," "debarking," "docking," "surgically
birthing," and "Caesarian section." However, the Initiative does not define the meaning of
the medical procedures.
Idaho Code § 73-113 governs the construction of words and phrases in statutes, and
provides in part:
Words and phrases are construed according to the context and the approved
usage of the language, but technical words and phrases, and such others as
have acquired a peculiar and appropriate meaning in the law, . . . are to be
construed according to such peculiar and appropriate meaning or definition.
If a statute is unambiguous, a court will give the language of a statute its plain
meaning. Purco Fleet Services, Inc. v. Idaho State Dept. of Finance, 140 Idaho 121,
124, 90 P.3d 346, 349 (2004). Common words are given "the same meaning in a statute
as they have among the people who rely on and uphold the statute." Moreover, when
interpreting a statute "words and phrases are to be assumed to have been used in their
popular sense, if they have not acquired a technical meaning." Filer Mut. Telephone Co.
v. Idaho State Tax Comm'n, 76 Idaho 256, 261, 281 P.2d 478, 480-481 (1955).
The medical procedures set forth in the Initiative may be common terms in the field of
veterinary science, but the procedures may not be common terms "among the people who
rely on and uphold" the provisions of chapter 35, title 25, Idaho Code. In other words, a
dog owner may not know the meaning of the medical procedures addressed in the Initiative.
Since the medical procedures likely have a technical meaning that may not be commonly
known, the Initiative sponsors should consider defining the medical terms to eliminate any
ambiguity in the Initiative.
C. Amendment Should Be Printed In Full
Article III, Section 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 § 25-3502 be reproduced in the proposed Initiative, with amendments
indicated appropriately by underscoring for additions and strikeouts for deletions.
CERTIFICATION
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style,
and matters of substantive import. The recommendations set forth above have been
communicated to petitioner via a copy of this Certificate of Review, deposited in the U.S.
Mail to Talitha Neher, 11322 W. Hinsdale Ct., Boise, ID 83713.
Sincerely,
LAWRENCE G. WASDEN
Attorney General
Analysis by:
TYSON K. NELSON
Deputy Attorney General