S:\Townsend\MOSKOV~1\Con Law 1

CONSTITUTIONAL LAW I

Professor Moskovitz

FINAL EXAM - December 16, 1998

To: My law clerk
From: I. Sue Peeple, Esq.

A couple of new clients - Paula Pinto and Manny Mustang - came in to see me this morning. They are concerned about a statute which was recently enacted by the California Legislature, called "The No Horsemeat Act of 1998." This is the first time any state has enacted such a law. It provides as follows:

§ 1. The Legislature finds that the horse is a noble beast, which should not be killed to be eaten.

§2. It shall be a misdemeanor for any person to eat horsemeat. The district attorney of each county shall prosecute all violations of this section, at a trial wherein the defendant shall have all rights accorded by the California Penal Code (right to counsel, trial by jury, etc.)

§3. No person shall sell any horsemeat to the public, even if the horse was killed before the effective date of this Act.

§4. The California Department of Consumer Affairs shall enforce §3. If the Department receives information that any person is violating §3, the Department shall notify that person of such evidence and give that person 10 days to respond in writing. If, after reviewing such response, the Department determines that the person is violating §3, the Department shall order that person's business establishment closed. Failure to comply with the Department's order shall be a misdemeanor.

The San Francisco District Attorney doesn't like the Act. He recently said, "I have better things to do than prosecute people who like ponyburgers better than hamburgers."

Manny and Paula don't like it either. Manny comes from a country where people eat horsemeat on a regular basis, and he grew up eating it. He, his wife, and his 4 kids eat it on a regular basis. He said, "Horsemeat is very nutritious, safe, and inexpensive. My family and I can't afford expensive meat. The government shouldn't be telling us what we can put in our own bodies."

Paula has a grocery store in a neighborhood where Manny shops. She said, "I sell canned horsemeat, and I'll lose a lot of money if I can't keep selling it. I agree with Manny, and if I can't sell it, he can't eat it. The government shouldn't be telling me what I can and can't sell, to anyone I want. Also, I have about 1,000 cans of horsemeat in my inventory, all from horses killed before the Act was enacted. They cost me $10,000, and I could sell them at retail for $15,000 if it weren't for this Act. That $5,000 is about 10% of my annual profit. Selling those cans won't cause any horses to be killed for horsemeat, so it's unfair that I should be stuck with cans I can't sell."

Manny and Paula want to sue for an injunction to prevent enforcement of the Act. From what little I remember from my Constitutional Law class in law school, I think we might have some arguments based on the Due Process Clause of the 14th Amendment.

Please tell me what my strongest arguments are. Also, tell me how the State Attorney General is likely to defend the action. And since I need to advise Manny and Paula whether the likelihood of success is high enough to be worth the money they would spend on a suit, please tell me about that too.

have a nice holiday