Sample Exam Question - Review Question
2 -
Preemption Issue
The suggested time to answer this question is 45 minutes.
Kris Kane is the owner and operator of Kane's Exotic Animal Service in
New Albany, Indiana. Kane is engaged in the business of buying,
raising, and selling exotic animals to customers throughout the United
States. Last year Kris Kane earned $500,000 from his business.
Nationwide, dealers in exotic animals generate $10,000,000 in income
each year.
The Federal Animal Welfare Act regulates the transportation, purchase,
sale, handling, and treatment of animals. The purpose of
the Act is to foster humane treatment in the handling, care, and
transportation of animals by animal dealers engaged in interstate
commerce. Section 2145 of the Animal Welfare Act declares: "The
Secretary of Agriculture is authorized to cooperate with officials of
the various States or political subdivisions thereof in carrying out
the purposes of this Act. State, and local legislation on the same
subject is permissible so long as it is consistent with the provisions
and purposes of this Act."
Pursuant to its authority under the Animal Welfare Act, the United
States Department of Agriculture issues Class B Licenses to dealers
whose business includes the purchase, sale and shipment of exotic
animals in interstate commerce. An exotic animal is defined by federal
law as "any animal that is not native to the United States or was
introduced from abroad." This term includes lions, tigers, leopards,
elephants, camels, antelopes, anteaters, and kangaroos.
Kris Kane is licensed by the Department of Agriculture as a Class B
Licensee. As required by his federal license, Kris Kane complies with
all federal regulations concerning the transportation, purchase,
sale, handling, and treatment of the animals in his possession.
Moreover, during the
18 years Kane has operated his business in New Albany, no person has
been injured by
any of the animals in his possession.
In March, 2012 the Town of New Albany, Indiana passed an Animal Control
Ordinance in order to protect the public's health and safety. The
ordinance was enacted after a small child was critically injured as the
result of being attacked by a dog. The ordinance provides:
It shall be unlawful to keep, maintain
or possess within the Town of New Albany, Indiana any animal which is
capable of inflicting serious physical harm or death to human beings.
As a result of the enactment of the Animal Control Ordinance, Kris Kane
will no longer be able to operate his business in the Town of New
Albany since many of his animals are "capable of inflicting serious
physical harm or death." Kane has filed suit against New Albany
challenging the ordinance's constitutionality on the ground that it is
preempted by the Federal Animal Welfare Act.
You are a law clerk to the judge assigned to consider Kris Kane's
challenge. The judge has asked you to write an analysis describing the
preemption arguments that Kane can make in challenging
the Animal Control Ordinance as well as the arguments that can be made
by New Albany to defend against Kane’s preemption challenge.