28 Cal. App. 5th 975
Cal. Ct. App. 5th2018Background
- In 2015 California enacted Fish & Game Code §2022 (effective July 1, 2016), broadly prohibiting purchase, sale, possession with intent to sell, and import with intent to sell ivory and rhinoceros horn, with several specified exceptions.
- Ivory and rhinoceros horn are defined in §2022; relevant exceptions include items permitted by federal law, musical instruments with <20% ivory by volume (if provenance shows manufacture ≤1975), and bona fide antiques with <5% ivory by volume (if ≥100 years old and documented).
- Ivory Education Institute (Institute) sued the California Department of Fish and Wildlife challenging §2022 on multiple grounds; at trial the court limited the Institute to a facial vagueness challenge.
- The trial court granted the Department’s motion on the pleadings and entered judgment for the Department and intervenors; the Institute appealed but limited its argument on appeal to void-for-vagueness only.
- The Institute argued §2022 is facially vague because (1) the federal-law exemption is unclear given differing federal rules, and (2) percentage-by-volume exceptions (20% for instruments; 5% for antiques) lack measurement guidance.
- The Court of Appeal affirmed, holding §2022 is not facially vague: federal exemptions are ascertainable by reference to existing federal law, and percentage-by-volume measurements are sufficiently definite for a facial challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2022 is facially void-for-vagueness | §2022 fails to give fair notice and invites arbitrary enforcement; facial attack should succeed | Statute provides defined terms, objective standards, and can be clarified by reference to other laws; must be upheld unless clearly vague | Not void-for-vagueness; statute gives fair notice and adequate standards for public and enforcement |
| Clarity of federal-law exemption (§2022(c)(2)) | Conflict and variation among federal rules make it impossible to know what federal authorization covers | Federal exemptions and regulations are ascertainable; interested parties are under a duty of inquiry to consult federal law | Exception is not facially vague because meaning can be determined by consulting federal statutes/regulations; preemption issues are waived and not decided |
| Measurement of "percent by volume" exceptions (§2022(c)(3),(c)(4)) | Terms lack guidance — hypotheticals (e.g., small attached figures, pigments in paintings, instrument parts) show uncertainty | Volume is an ordinary concept (three-dimensional space) and can be measured; hypotheticals are speculative and unsuitable for facial vagueness challenge | Not vague on its face; percent-by-volume is a sufficiently definite, objective metric and hypothetical edge cases are for as-applied challenges |
| Scope of review / waived issues | (N/A on appeal) Institute attempted to raise preemption and policy arguments | Court limited appeal to vagueness; preemption and other challenges were waived | Court declined to decide preemption or broader policy claims because Institute expressly limited its appellate challenge to vagueness and waived other issues |
Key Cases Cited
- Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., 41 Cal.4th 929 (discusses prior California ivory prohibitions and statutory history)
- Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., 3 Cal.5th 1118 (facial challenge standards explained)
- People v. Hall, 2 Cal.5th 494 (void-for-vagueness principles; reasonable certainty standard)
- People v. Morgan, 42 Cal.4th 593 (criminal statutes must provide standards for public and enforcement; facial challenge framework)
- American Civil Liberties Union v. Board of Education, 59 Cal.2d 203 (statute not vague if it reasonably incorporates other definable laws by reference)
- Personal Watercraft Coalition v. Marin County Bd. of Supervisors, 100 Cal.App.4th 129 (duty to consult external sources to clarify statutory scope; facial challenge limits)
- Kolender v. Lawson, 461 U.S. 352 (statute unconstitutionally vague where it fails to give fair notice or invites arbitrary enforcement)
- Johnson v. United States, 135 S.Ct. 2551 (Supreme Court discussion on vagueness doctrine and limitations of "vague in all applications" language)