ORDER GRANTING IN PART AND DENYING IN PART JOANN MAGIDOW AND ANTHONY MAGIDOW AS ADMINISTRATOR WITH WILL ANNEXED OF THE ESTATE OF AARON MAGIDOW AKA ARNIE MAGIDOW'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING THE UNITED STATES' MOTION FOR PARTIAL SUMMARY JUDGMENT

VIRGINIA A. PHILLIPS, District Judge.

Defendants JoAnn Magidow and Anthony Magidow as Administrator with will Annexed of the Estate of Aaron Magidow, aka Arnie Magidow's Motion for Partial Summary Judgment came before the Court for hearing on April 22, 2013. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearing, the Court GRANTS IN PART and DENIES IN PART the Motion.

I. BACKGROUND

This case is brought under the False Claims Act ("FCA"), 31 U.S .C. §§ 3729, et. seq., and alleges several defendants falsely certified and represented in their technical proposals and bids to the United States Department of Agriculture that cattle processed at the facility in question were handled humanely and in accordance with federal rules and regulations. In addition to claims under the False Claims Act, the United States also alleges claims for: fraudulent concealment; negligent misrepresentation; payment by mistake; restitution; money had and received; and breach of contract. The allegations, procedural history, identity of the defendants, and general business relationship between the defendants are summarized in the Court's August 5, 2010 Order, and the Court need not recite them here, with limited exception.

On February 19, 2008, Relator the Humane Society of the United States ("HSUS") filed a federal False Claims Act ("FCA") complaint and demand for jury trial ("Original Complaint") under seal, pursuant to 31 U.S.C § 3720(b)(2). (Doc. No. 1.) As required under the FCA, HSUS provided to the Attorney General of the United States and the United States Attorney for the Central District of California a statement of all material evidence and information arising from HSUS's investigation, as well as material evidence establishing the existence of false claims submitted by the Defendants to the United States. (Original Compl. ¶ 7.) On April 20, 2009, the United States filed a notice of election to intervene and proceed with action ("Notice of Intervention") (Doc. No. 19), and an order regarding the notice of intervention was entered on April 28, 2009 (Doc. No. 20). On March 29, 2010, Plaintiffs United States of America ex rel. the Humane Society of the United States ("United States") filed the First Amended Complaint against Defendants Westland/Hallmark Meat Company ("Westland/Hallmark"), Hallmark Meat Packing Company ("Hallmark"), Westland Meat Company, Inc. ("Westland"), M & M Managment LLC ("M & M"), Cattleman's Choice, Inc. ("Cattleman"), Donald W. Hallmark ("Hallmark Senior"), Donald R. Hallmark ("Hallmark Junior"), Steve Mendell ("Mendell"), Anthony Magidow as administrator with will annexed of the Estate of Aaron Magidow A/K/A Arnie Magidow ("the Estate") and JoAnn Magidow ("Magidows"). (Doc. No. 43.)

Following the Court's ruling on various motions to dismiss, Plaintiffs filed their Second Amended Complaint ("SAC") on December 15, 2010. (Doc. No. 167.) In the SAC, Plaintiffs named as defendants Westland/Hallmark, Hallmark, Westland, M & M, Cattleman, Hallmark Senior, Hallmark Junior, Mendell, the Magidows, and Westland Meat Co.—J.V. ("Westland J.V.").(Id.)

The SAC alleges: (1) violations of 31 U.S.C. § 3729(a)(1) (1986) for "False or Fraudulent Claims ... (Fraudulent Inducement of Contracts, Which Made All Invoices [Submitted] Thereunder False—Inhumane Handling and Processing of Downer/Non–Ambulatory Disabled Cattle)" (against Westland/Hallmark); (2) violations of 31 U.S.C. § 3729(a)(1) (1986) for "False or Fraudulent Claims ... (False Certification of Compliance with Humane Handling/Downer/Non–Ambulatory Disabled Cattle Provisions)" (against Westland/Hallmark); (3) violations of 31 U.S.C. §§ 3729(a)(1)(B) (2009), (a)(2) (1986) for "False Statements Material to False or Fraudulent Claims ... (False Certification of Compliance With Humane Handling/Downer/Non–Ambulatory Disabled Cattle Provisions)" (against Westland/Hallmark); (4) violations of 31 U.S.C. § 3729(a) (1) (1986) for "False or Fraudulent Claims ... (Fraudulently Induced Contracts/False Invoices—Concealment of Aaron Magidow as Person Responsibly Connected with [the Facility] )" (against Westland/Hallmark, Westland, Hallmark, Hallmark Junior, Mendell, and Anthony Magidow); (5) violations of 31 U.S.C. §§ 3729(a)(1)(B) (2009), (a)(2) (1986) for "False Statements Material to False or Fraudulent Claims ... (False Applications for Inspection)" (against Westland/Hallmark, Westland, Hallmark, Hallmark Junior, Mendell, and Anthony Magidow); (6) "Fraudulent Concealment" (against Westland/Hallmark, Westland, and "Fraudulent Concealment" (against M & M "Fraudulent Concealment" (against "Negligent Misrepresentation" (against Westland/Hallmark, Westland, and Hallmark); (10) "Payment by Mistake" (against Westland/Hallmark, Westland, Cattleman, Hallmark, M & M, and Anthony Magidow); (11) "Restitution" (against Westland/Hallmark, Westland, Cattleman, Hallmark, M & M, and Anthony Magidow); (12) "Money Had and Received" (against Westland/Hallmark, Westland, Cattleman, Hallmark, M & M, and Anthony Magidow); (13) "Breach of Contract" (against Westland/Hallmark); (14) violations of California Corporations Code §§ 16306(a),16307(b) for "Joint and Several Liability for Judgment against [Westland/Hallmark]" (against Westland, Hallmark, M & M, Cattleman, Westland J.V.); (15) violations of California Corporations Code §§ 16306(a), 16307(b) for "Joint and Several Liability for Judgment against [Hallmark]" (against Hallmark Junior, Hallmark Senior, Mendell, and Anthony Magidow); (16) violations of California Corporations Code §§ 16306(a), 16307(b) for "Joint and Several Liability for Judgment against [Westland]" (against Westland and Cattleman); (17) violations of California Corporations Code §§ 16306(a), 16307(b) for "Joint and Several Liability for Judgment against Doe 1" (against Mendell and Anthony Magidow); (18) violations of California Corporations Code §§ 16306(a), 16307(b) for "Joint and Several Liability for Judgment against Doe 2" (against Hallmark); (19) violations of California Corporations Code §§ 16306(a), 16307(b)for "Joint and Several Liability for Judgment against Doe 3" (against Hallmark); (20) Alter Ego for "Joint and Several Liability for Judgment against [Cattleman]" (against Anthony Magidow); (21) Alter Ego for "Joint and Several Liability for Judgment against [M & M]" (against Mendell and Anthony Magidow); (22) violations of California Probate Code §§ 13550, 13551 for "Personal Liability for Judgment against [Anthony Magidow]" (against JoAnn Magidow). (See SAC.)

Plaintiffs make the following pertinent allegations, inter alia, against the Magidows in the SAC:

Anthony Magidow is a son of Aaron Magidow and the lawfully appointed administrator with will annexed of the Estate of Aaron Magidow. From on or about September 1, 1997 through August 6, 2006, Aaron Magidow was a partner in Hallmark Meat Packing. From August 7, 2006 through the present, the Estate of Aaron Magidow has been a partner in Hallmark Meat Packing. In the alternative, from on or about September 1, 1997 through August 6, 2006, Aaron Magidow was a partner in Doe 1; and, from August 7, 2006 through the present, the Estate of Aaron Magidow has been a partner in Doe 1. Since at least October 18, 2000, Anthony Magidow has been the general manager of [Westland/Hallmark Meat Company].... JoAnn Magidow is the surviving spouse of Aaron Magidow. On January 17, 2008, the Superior Court of the State of California for the County of Los Angeles overseeing the probate of the Estate of Aaron Magidow approved JoAnn Magidow's petition seeking confirmation of property belonging to the surviving spouse and/or determination of property passing to the surviving spouse without administration. Property from the Estate of Aaron Magidow, including community property, has been confirmed as belonging and/or has passed to JoAnn Magidow without probate administration.

(SAC at ¶¶ 16, 17 (internal quotations omitted).)

The United States' claims against Anthony Magidow as administrator with will annexed of the Estate of Aaron Magidow a/k/a Arnie Magidow ("the Estate") derive solely from the alleged actions of Aaron Magidow ("Arnie Magidow"). (See SAC at ¶¶ 96–104, 123–124, 142–143, 146–147, 152–158) The United States' claim against JoAnn Magidow derive solely from the United States' claims against the Estate. (See id. at ¶¶ 159–160.)

On February 1, 2013, the Magidows filed their Notice of Motion and Motion for Partial Summary Judgment, Memorandum of Points and Authorities, the Declaration of Amjad M. Khan ("Khan Decl.")^[1] with attached Exhibits A through RR^[2], Statement of Undisputed Facts ("SUF"), and proposed order. (See Doc. Nos. 403–404.)In its Motion, the Magidows argue, inter alia, the United States cannot prove the essential element of causation for its fraudulent concealment claims, cannot demonstrate there were any false claims submitted to the government because there is no evidence of inhumane acts during Arnie Magidow's lifetime, and the United States cannot prove Arnie Magidow was the alter ego of Cattleman's Choice, Inc. or M & M Managment LLC. Accordingly, the Magidows move for summary judgment as to the United States' claims 1–5, 15, 17, and 20–21.

On March 4, 2013, Plaintiff United States filed its Memorandum in Opposition to the Magidows' Motion, Memorandum of Points and Authorities in Opposition to the Motion, the Declaration of Amy Lewis ("Lewis Decl.") and attached Exhibit 1, the Declaration of Scott Safian ("Safian Decl.") and attached Exhibits 1–4, the Declaration of Duane Williams ("Williams Decl."), the Declaration of Jerald Udinski ("Udinski Decl.") and attached Exhibit 1, the Declaration of John E. Lee ("Lee Decl.") and attached Exhibits 1–36, the Declaration of Beverley Anderson, Statement of Genuine Issues^[3] ("SGI"), and Statement of Evidentiary Objections. (See Doc. Nos. 412–414.)Also on March 4, 2013, Relator HSUS filed its joinder to the United States' opposition to the Magidows' Motion. (See Doc. No. 418.) The Court accepts HSUS' joinder.

On April 4, 2013, Cattleman filed its Reply in support of its Motion along with the Supplemental Declaration of Amjad M. Khan ("Supp. Khan Decl.") and attached Exhibits 1–12, the Declaration of Ted P. Singer ("Singer Decl.") with attached Exhibits A and B, the Declaration of Martin S. Reed ("Reed Decl.") with attached Exhibit A, Statement of Genuine Issues in Reply to the United States' Statement of Undisputed Facts, Response to the United States' Evidentiary Objections, Evidentiary Objections to the Lee Declaration, Evidentiary Objections to Exhibits to the Lee Declaration, Evidentiary Objections to the Lewis Declaration, Evidentiary Objections to the Anderson Declaration, Evidentiary Objections to the Williams Declaration, Evidentiary Objections to the Udinsky Declaration, and Evidentiary Objections to the Safian Declaration. (See Doc. No. 433.)

II. LEGAL STANDARD

A court shall grant a motion for summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict."Anderson, 477 U.S. at 250.

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998) (citing Anderson, 477 U.S. at 256–57); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Where the moving party has the burden at trial, "that party must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial." Celotex, 477 U.S. at 331. The burden then shifts to the non-moving party "and requires that party ... to produce evidentiary materials that demonstrate the existence of a 'genuine issue' for trial."Id.; Anderson, 477 U.S. at 256; Fed.R.Civ.P. 56(a).

Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id. The burden then shifts to the non-moving party to show that there is a genuine dispute of material fact that must be resolved at trial. Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 324;Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144.

A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 380 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir.1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630–31 (9th Cir.1987).

III. UNCONTROVERTED FACTS

The following material facts are supported adequately by admissible evidence and uncontroverted. They are "admitted to exist without controversy" for the purposes of this Motion. See Local Rule 56–3.

In 1974 and 1983, Arnie Magidow was convicted of felonies for bribing federal meat inspectors and for his participation in fraudulent meat purchasing practices. (SUF ¶¶ 7, 8.)

In 1989, Donald R. Hallmark ("Donnie Jr.") and his father Donald W. Hallmark ("Donnie Sr.") formed a 50/50 partnership to establish a meat packing business, Hallmark Meat Packing Company ("Hallmark").(Id. at ¶ 9.) Hallmark's business operation purchased cattle, slaughtered them, and then sold the meat to a company that would process the meat; Hallmark did not process the meat as part of its business. (Id. at ¶¶ 11, 12.)Hallmark operated continuously from 1989 to 2008 at a facility located at 13677 Yorba Avenue in Chino, California ("the Facility").(Id. at ¶¶ 13, 14.)The Facility is also known as "Establishment 336." (Id. at ¶¶ 23, 31.)

In 1991, Steven Mendell incorporated Westland Meat Company ("Westland") and he was the sole owner and corporate officer of Westland for the entire period of its existence. (Id. at ¶¶ 15–17.)Westland processed slaughtered meat for consumption and sold the processed meat to consumers. (Id. at ¶ 18.)Between 2000 and 2003, Westland began operating at the Facility. (Id. at ¶ 21.)

In approximately 1990, Hallmark began selling its meat to Westland for processing. (Id. at ¶ 19.)

In May 1992, Westland signed an Agreement with Cattleman's Choice, Inc. ("Cattleman") to establish a relationship between the two companies. (Id. at ¶ 102; GSUF at ¶ 1.) Under the Agreement, the two companies agreed to "combine the two operations," with Cattleman agreeing to pay for all operational costs, employ all the employees, and own the accounts receivable, inventory, and equipment purchased and paid for by Cattleman while Westland agreed to manage and operate the boning operation. (GSUF at ¶ 2.)

In 1997, Steve Mendell and Arnie Magidow incorporated M & M Management, LLC ("M & M") and they were the only two members of M & M from the date of incorporation until Arnie Magidow's death in August 2006. (Id. at ¶ 95.)As of 2000, M & M owned the Facility. (Id.at ¶ 100.)Arnie Magidow and Steve Mendell executed agreements on behalf of M & M. (Id. at ¶ 116.)A 2006 appraisal of the members' equity of M & M estimated the equity as exceeding $1.5 million. (Id. at ¶ 118.)A 2006 appraisal of the Facility valued the property as exceeding $4.5 million. (Id. at ¶ 119.)

In August 1997, Hallmark executed a Management Agreement with M & M. (Id. at ¶ 92; GSUF at ¶ 6.) Donnie Jr. and Donnie Sr. signed the Agreement on behalf of Hallmark. (SUF at ¶ 93.) Steve Mendell and Arnie Magidow signed the Agreement on behalf of M & M. (Id. at ¶ 94.)Pursuant to the Agreement, Steve Mendell "and/or" Arnie Magidow agreed, on behalf of M & M, to manage the "day to day" operations of Hallmark, including purchasing cattle, purchasing supplies, overseeing production, and dealing with USDA compliance matters.(Id. at ¶ 96; GSUF at ¶¶ 8–10.) From the execution of the Agreement in 1997 until January 2008, Steve Mendell managed the "day to day" operations of Hallmark. (Id. at ¶ 98.)

In 1997, Steve Mendell signed letters bearing Hallmark's letterhead. (GSUF at ¶ 16.)

In March 1998, Westland and Cattleman signed another Agreement, amending their May 1992 Agreement to allow the equal sharing of profits and losses of the boning operation. (SUF at ¶ 103; GSUF at ¶ 3.) From December 1997 to August 7, 2006, Arnie Magidow was the sole shareholder of Cattleman. (SUF at ¶ 106; GSUF at ¶ 4.) As the owner of Cattleman, Arnie Magidow executed agreements on behalf of Cattleman. (SUF at ¶ 110.)

In 1999, Cattleman obtained workers' compensation insurance for Cattleman and Westland. (GSUF at ¶ 17.)

In 2000, Hallmark executed a lease with M & M to lease the slaughtering side of the Facility. (Id. at ¶ 101.)

The Federal Meat Inspection Act ("FMIA") requires meat slaughtering and processing facilities to operate under a USDA Grant of Inspection. (Id. at ¶ 24; GSUF at ¶ 28.) USDA regulations require that, "each person conducting operations at an establishment subject to the [FMIA], whether tenant, subsidiary, or landlord, shall make application therefor to the Administrator ...." and the regulations define "person" as "[a]ny individual, firm, or corporation." 9 C.F.R. §§ 304.1(a), 301.2. Moreover, the USDA's form applications for Grants of Inspection, requires that the applicant list each person "responsibly connected" to the facility. (SUF at ¶¶ 25, 26.) If persons with felony convictions are identified as "responsibly connected" to the facility, then that is a basis for the government to deny the application.(Id.)

In October 2000, Donnie Jr. signed an application for Grant of Inspection on behalf of Hallmark, which Anthony Magidow alone completed. (Id. at ¶¶ 27, 32, 37.)On the application, Westland was listed as a "dba" and the following persons were listed as "responsibly connected" to the operations at the Facility/Establishment 336: Donnie Jr. (Partner), Donnie Sr. (Partner), Steve Mendell (President), Anthony Magidow (General Manager), Antonio Rodriguez (Shipping Foreman), and Stan Mendell (Plant Manager).(Id. at ¶¶ 28, 31; GSUF at ¶ 29.) Anthony Magidow testified that he only spoke to Steve Mendell when filling out the 2000 application and they did not discuss whether to identify Arnie Magidow on the application. (SUF at ¶¶ 33–35.) Donnie Jr. testified he did not have any conversations with anyone regarding who should be listed as responsibly connected on the 2000 application. (Id. at ¶ 38.)Steve Mendell testified he did not have any conversations with Arnie Magidow or anyone else about who should be listed as "responsibly connected" to the Facility/Establishment 336 on the 2000 application. (Id. at ¶¶ 59, 60.)The USDA granted the Facility/Establishment 336's application for Grant of Inspection on February 5, 2001. (Id. at ¶ 40.)

On March 22, 2002, Donnie Jr. signed another application for Grant of Inspection on behalf of the Facility/Establishment 336, which Anthony Magidow filled out entirely. (Id. at ¶¶ 41, 46, 51.)The 2002 application listed "Regal Brand" as a dba and listed the following persons as "responsibly connected" to the operations at the Facility/Establishment 336: Donnie Jr. (Partner), Donnie Sr. (Partner), Steve Mendell (President), Anthony Magidow (General Manager), Pablo Salas (Plant Manager), Stan Mendell (Plant Manager).(Id. at ¶¶ 42, 45; GSUF at ¶ 30.) Anthony Magidow testified that he only spoke to Steve Mendell when completing the 2002 application and they did not discuss whether to identify Arnie Magidow on the application. (SUF at ¶¶ 47–49.) Donnie Jr. testified he did not have any conversations with anyone regarding who should be listed as responsibly connected on the 2002 application. (Id. at ¶ 52.)Steve Mendell testified he did not have any conversations with Arnie Magidow or anyone else about who should be listed as "responsibly connected" to the Facility/Establishment 336 on the 2002 application. (Id. at ¶¶ 61, 62.)The USDA granted the Facility/Establishment 336's application for Grant of Inspection on April 16, 2002. (Id. at ¶ 54.)

No application for a Grant of Inspection at the Facility was submitted to FSIS by Arnie Magidow, Cattleman, or M & M and none of them were disclosed on any application for Grant of Inspection at the Facility. (GSUF at ¶¶ 31, 32.)

Beginning on August 8, 2003, Westland bid for a total of 140 contracts for the USDA's National School Lunch Program and other federal food programs, and Westland was awarded contracts under these federal programs from August 8, 2003 to January 30, 2008. (SUF at ¶¶ 63, 64.) The Agricultural Marketing Service ("AMS") within the USDA was responsible for awarding Westland contracts.(Id.at ¶¶ 65, 79.)

USDA's Food Safety and Inspection Service ("FSIS") stationed eight inspectors at the Facility. (Id. at ¶ 84.)From August 2003 through January 2008, FSIS inspectors issued one noncompliance report for inhumane handling of cattle at the Facility. (Id. at ¶¶ 86–88.)In 2005, AMS awarded Westland the Livestock and Seed Program's Supplier of the Year. (Id. at ¶ 81.)

Arnie Magidow died on August 7, 2006. (Id. at ¶ 5.)

In 2007, Cattleman and Westland entered into another Agreement, with JoAnn Magidow and Anthony Magidow signing for Cattleman. (GSUF at ¶¶ 25–27.)

For approximately two months in 2007, a HSUS employee worked at the Facility and videotaped the work undertaken. (SUF at ¶¶ 120, 121.) In January, 2008, the HSUS released the video of material recorded by its employee at the Facility, on its website. (Id. at ¶ 122.)

IV. DISCUSSION^[4]

A. Causation Under the False Claims Act^[5]

The Magidows move for summary judgment on the United States' fourth and fifth claims for violations of the FCA because, they argue, the United States cannot meet its burden to prove that Arnie Magidow caused anyone to present a false claim or make false statements to the government. (See Mot. at 9–17; Reply at 3–8.)

As an initial matter, the parties dispute which causation standard should be applied here. Thus, the Court first turns to the appropriate FCA causation standard, and then will turn to whether or not there remains a triable issue of fact on this issue.

The False Claims Act states: "any person who (a)(1) knowingly presents, or causes to be presented, to an officer or employee of the United States ... a false or fraudulent claim for payment or approval; [or] (a)(2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government ... is liable to the United States Government ...." 31 U.S.C. § 3729(a)(1), (a) (2) (1986).

The parties dispute the appropriate legal standard for causation to apply, in light of the FCA's phrases "causes to be presented" and "causes to be made or used."The Magidows urge the Court to apply the "proximate cause" standard for assessing causation under the FCA, also arguing "mere 'acquiescence' and generalized 'support in business activities' do not constitute proximate causation under the FCA."(Mot. at 11.) The Magidows contend that even under the "substantial factor" test for causation, the United States cannot raise a triable issue of fact because there is no evidence that Arnie Magidow caused any of the defendants to present a false claim to the government. (See Mot. at 9–17; Reply at 3–8; SUF ¶¶ 66–78.) In Opposition, the United States argues the appropriate causation standard is not necessarily "proximate cause" or "substantial factor" but that the Court should look to the reasonably foreseeable consequences of Arnie Magidow's failure to disclose his involvement with the Facility's operations to determine the requisite causal connection for FCA liability. (See Opp'n at 12–22.)

The Court must interpret the FCA to determine the causation standard. In this analysis, the Court starts by analyzing the plain language of the statute. Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.2001) (en banc) ("We look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress."(citation and quotes omitted)); Chubb Customs Ins. Co. v. Space Systems/Loral, Inc., 710 F.3d 946, 2013 WL 1093071 at *5 (9th Cir.2013);Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 n. 9 (1984)."If the statutory language is ambiguous, then [the court must] consult legislative history." Washington v. Chimei Innolux Corp., 659 F.3d 842, 848 (9th Cir.2011) (citing Washington v. Daas, 198 F.3d 1167, 1174 (9th Cir.1999). In its analysis the Court should consider "the purpose and context of the statute, and consult[ ] any precedents or authorities that inform the analysis." Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). The Court may not interpret the FCA in a way that "would thwart the overall statutory scheme or lead to an absurd result." Chubb Customs Ins. Co., 2013 WL 1093071 at *5 (citing Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d 801, 804 (9th Cir.1989)).

Looking at the plain language of the statute, the FCA does not include a definition of the phrases "causes to be presented" or "causes to be made or used," nor is it apparent from the context of the statutory framework which causation standard to apply when interpreting the FCA. 31 U.S.C. §§ 3729, et seq. The absence of such language causes an ambiguity on this issue; thus, the Court must turn to the FCA's legislative history to interpret the statute in light of Congressional intent. Washington, 659 F.3d at 848; Dolan, 546 U.S. at 486. The legislative history behind the FCA is evidenced in the Congressional record. See, e.g., S.Rep. No. 96–615 (1980);S.Rep. No. 99–345 (1986); H. Rep. No. 99–660 (1986). The House and Senate Reports on the FCA, unfortunately, do not discuss the statute's causation language, nor do they indicate which test to implement when analyzing causation under the FCA.(Id.) Accordingly, the legislative history provides no assistance to the Court in interpreting the causation language in the FCA.

The Court now turns to other cases that have applied a causation standard for FCA claims to determine the appropriate standard to apply here. See Dolan, 546 U.S. at 486. The Magidows rely on several cases to support their argument that the Court should apply a proximate causation standard. (See Mot. at 10–12 (citing, inter alia, United States v. Hibbs, 568 F.2d 347, 349 (3d Cir.1977), United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 714 (10th Cir.2006), and United States ex rel. Shaver v. Lucas Western Corp., 237 F.3d 932, 933 (8th Cir.2001)).) The United States argues a broader standard for causation should be applied here, consistent with the binding precedent of, inter alia, several Supreme Court and Ninth Circuit cases. (See Opp'n at 13–14 (citing United States ex rel. Marcus v. Hess, 317 U.S. 537, 544–45 (1943), Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662, 672 (2008), United States v. McLeod, 721 F.2d 282, 284 (9th Cir.1983), United States v. Eghbal, 548 F.3d 1281, 1284 (9th Cir.2008), and United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1174 (9th Cir.2006)).)

The Court has reviewed all the authorities cited by the parties and finds none definitively answer the question of whether to apply "but for" causation, proximate causation, or the looser standard sought by the United States. In addition, there are factual and procedural distinctions between them and the present case, and most do not address causation under the FCA; the Court will not discuss these cases further, with two exceptions.

First, the Court is persuaded by the Tenth Circuit's decision in United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah,which discusses causation under the FCA, finding:

We agree that a standard requiring more than mere passive acquiescence is most consistent with the purposes of the FCA. Furthermore, such a standard strikes the appropriate balance between shielding from liability parties who merely fail to prevent the fraudulent acts of others, and ensuring that liability attaches for "affirmative acts" that do cause or assist the presentation of a fraudulent claim.

472 F.3d at 714–715. The Court agrees that causation under the FCA requires more than "mere passive acquiescence." Second, as the Court is compelled to follow binding precedent of this Circuit, the Court now applies both the "but for" and "proximate cause" tests to the facts at issue here, consistent with the Ninth Circuit's decision in United States v. Eghbal, upholding the district court's^[6] application of both tests to evaluate a FCA claim. 548 F.3d at 1284–1285 ("The parties disagree about the requisite causation the Government must prove in order to establish FCA liability—a narrower proximate causation versus a "but for" standard—but the district court found that the undisputed evidence would satisfy either standard. This court agrees.").

The Court now turns to whether or not there remains a triable issue of fact as to causation under the FCA.

The Magidows argue the Court should narrow its causation inquiry and, as supported by their admissible evidence, evaluate Arnie Magidow's lack of involvement in and failure to exert any influence over Donnie Jr., Steve Mendell, and Anthony Magidow, who were involved in filling out and submitting the applications for Grants of Inspection to the United States. (See Mot. at 9–18; SUF ¶¶ 66–78.) Without such influence or involvement in the creation or submission of the applications, the Magidows argue, Arnie Magidow did not cause any false claims to be presented to the United States. (Id.)

As the Magidows do not have the burden of proof on this issue at trial, the Magidows meet their burden on the Motion by pointing to the absence of evidence supporting the United States' position and exceed their burden by producing admissible evidence showing Arnie Magidow's lack of involvement in the submission of the claims at issue in this case. Celotex, 477 U.S. at 325. The burden now shifts to the United States to show there is a genuine dispute of material fact that must be resolved at trial. Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256.

In Opposition, the United States argues the Magidows attempt to limit the Court's inquiry unduly because, it argues, there is no requirement that Arnie Magidow personally submit the claims for liability to attach under the FCA. (See Opp'n at 13.) Specifically, the United States argues Arnie Magidow had a duty, and deliberately failed, to disclose his connection with the Facility on the applications for Grants of Inspection, thereby causing Westland/Hallmark to make a materially false statement on the applications, i.e., that Arnie Magidow was not "responsibly involved", upon which the United States relied in granting the applications. (See Opp'n at 12–22.)

The Court is not persuaded by the Magidows' arguments seeking to narrow the causation inquiry. According to the Supreme Court's decision in United States v. Bornstein, 423 U.S. 303 (1976) and the Ninth Circuit's decision in United States v. Mackby, 261 F.3d 821 (9th Cir.2001) ("Mackby I"), whether or not Arnie Magidow directed others to omit his name or influenced them directly to do so is not relevant for causation purposes under the FCA. Bornstein, 423 U.S. at 309 (false claim may be presented through an innocent, unknowing third party); Mackby I, 261 F.3d at 827. The Court now applies the causation standards, discussed supra.

Under the "but for" causation test, the Court evaluates whether or not the United States would have initially entered into or continued to engage in its contracts for meat products with the Facility, but for Arnie Magidow's concealment or omission of his involvement at the Facility. See Eghbal, 475 F.Supp.2d at 1014; Eghbal, 548 F.3d at 1284. Under the proximate causation test, the Court inquires whether Arnie Magidow's concealment or omission of his involvement at the Facility foreseeably caused the presentation of false claims to the United States. (Id.)

In Opposition, the United States offers admissible evidence in an attempt to raise a triable issue of fact. First, the United States offers evidence that Arnie Magidow was a convicted felon, barred from participating in the production of meat for human consumption, and that Arnie Magidow knew he could not have an inspection number in his name. The United States provides the 1999 deposition testimony of Arnie Magidow in a different case, where he testified under oath, as follows:

Q. Have you ever been convicted of a felony?

A. Yes, I have.

Q. When was that?

A. ′85.

Q. What was the felony that you were convicted of?

A. What was it? I don't know the—I don't remember the actual limitation. Fraud, I guess, mail order fraud and mail—what? Mail fraud. I don't remember.

Q. And was that in conjunction with some kind of a prosecution of you or your business entity?

A. Yeah.

Q. And that was in 1985?

A. I believe so.

Q. Was it the federal government or the state government?

A. No. Federal.

Q. And was there some kind of a court order that prohibited you, as a result of that conviction, from engaging in the or working in or having an ownership interest in any meat packing plant?

A. No. If you want to know the answer to the question, I will make it easy for you. I can't have an inspection number in my name. I can have any plant I want.

(Lee Decl., Ex. 1 at 61:20–62:18.) This testimony shows Arnie Magidow understood as of 1999 that his felony convictions affected his ability to participate in meat processing. Second, the United States also presents evidence that Arnie Magidow participated in the operation of Cattleman's Choice and M & M Management, both of which operated along with Westland/Hallmark in its meat production at the Facility, but that none identified themselves as participants on the applications for Grants of Inspection with the USDA, in violation of USDA regulations and requirements. (Opp'n at 3–7, 14–22; GSUF ¶¶ 1–4, 6, 8–10, 16, 17, 25–28, 31–32.)

Third, the United States offers evidence that it would never have approved the Grants of Inspection applications had Arnie Magidow been disclosed as "responsibly connected." Scott Safian, the Director of the Evaluation and Enforcement Division at the USDA, testifies in his declaration that he was aware of Arnie Magidow's federal convictions in 1974 and 1983 and states "[b]ased on Magidow's history of felony convictions, I would have initiated the necessary procedures to seek to refuse to provide or withdraw inspection service from any federally-inspected facility with which Magidow was responsibly connected."(Safian Decl. ¶ 5.) Likewise, Duane Williams, the Branch Chief of the Agricultural Marketing Service ("AMS"), testifies that he was unaware of Arnie Magidow's involvement in the Facility when the United States awarded contracts to the Facility and that every time Williams authorized payment of an invoice from the Facility, he was unaware of Magidow's involvement at the Facility. (Williams Decl. ¶¶ 8, 9.)

Despite its attempt to do so with admissible evidence, the United States cannot raise a triable issue of fact as to causation under either "but for" or proximate causation.^[7]Although, as stated above, the United States need not show that Arnie Magidow actually submitted the claims or coerced those who submitted the claims to demonstrate causation, the United States, nevertheless, does not present any admissible evidence that Arnie Magidow did anything to cause a false claim to be presented to the United States. To the contrary, all of the persons involved with the drafting and submission of the applications for Grants of Inspection testified that Arnie Magidow was not involved in, exerted no influence over, and had nothing to do with, the application process. (See SUF ¶¶ 27, 32–35, 37, 38, 41, 46–49, 51–52, 59–62.) There is simply no evidence of a nexus between any act of Arnie Magidow and the submission of purported false claims to the United States. See, e .g., Bornstein, 423 U.S. at 312–313 (finding the FCA "penalizes a person for his own acts, not for the acts of someone else"); United States ex rel. Bane v. Breathe Easy Pulmonary Servs., Inc., 597 F.Supp.2d 1280, 1292 (M.D.Fla.2009) (finding link between the defendant's conduct and the submission of the claims "is simply too attenuated to support liability under the causation element alone."); Sikkenga, 472 F.3d at 714 (finding the causation requirement of the FCA "separates the wheat from the chaff allowing FCA claims to proceed against parties who can fairly be said to have caused a claim to be presented to the government, while winnowing out those claims with only attenuated links between the defendants' specific actions and the presentation of the false claim.").

As causation is an essential element of the United States' FCA claims against the Magidow Defendants, for which the United States has the burden of proof at trial, the Court finds the United States cannot meet its burden and fails to raise a triable issue of fact. Celotex,477 U.S. at 322; Anderson, 477 U.S. at 252. Accordingly, the Court grants the Magidows' Motion as to the United States' Fourth and Fifth claims for violations of the FCA.

B. Inhumane Handling During Arnie Magidow's Lifetime

The Magidows move for summary judgment on the United States' first, second, third, fifteenth, and seventeenth claims because, they argue, the United States cannot meet its burden of proving that egregious inhumane handling occurred at the Facility in Arnie Magidow's lifetime and that the United States would not have entered into contracts with the Facility had it known of the acts.^[8] (See Mot. at 18–21; Reply at 9–10.) Specifically, in light of the United States' reliance only on the testimony of Ugarte Navarro to support its claim of inhumane treatment during Arnie Magidow's lifetime, the Magidows argue the testimony does not describe conduct that rises to the level of illegal inhumane handling. (See Reply at 9–10.)

As the Magidows do not have the burden of proof on this issue at trial, they meet their burden on the Motion by pointing to the absence of evidence supporting the United States' position. Celotex, 477 U.S. at 325. The burden now shifts to the United States to show there is a genuine dispute of material fact that must be resolved at trial. Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 324; Anderson,477 U.S. at 256.

In Opposition, the United States argues the testimony of Ugarte Navarro demonstrates that inhumane handling took place at the Facility during Arnie Magidow's lifetime. Ugarte Navarro testified he worked at the Facility for about 25 years, until the Facility shut down. (SeeSGI ¶ 91; Lee Decl., Ex. 10, Ugarte Navarro Dep. (hereinafter "Ugarte Navarro Dep.") at 11:23–24; 13:13–14.) He testified that the police showed him portions of the HSUS's undercover video of the Facility. (Ugarte Navarro Dep. at 55:20–56:11, 57:9–18.) He explained what he saw in the video accurately portrayed the workers'—and his own—treatment of cattle at the Facility while he worked there. (Id.) He specifically testified that he and other workers at the Facility slaughtered non-ambulatory cattle throughout his 25–year tenure, as well as frequently used forklifts and chains to move non-ambulatory cattle. (Id. at 60:4–13, 74:22–75:4, 75:7–76:4, 82:14–83:20, 111:18–112:23, 113:11–15, 113:23–114:5, 132:11–134:4.)He also testified that he and his co-workers used electric shocks, called a "Hot–Shot," on the cattle regularly during his 25–year tenure. (Id. at 85:2–12.)Also, he sprayed a water hose into the nostrils of the cattle to force the cattle to stand up. (Id. at 87:23–88:15.)Finally, he testified that he and his co-workers would use their cellular telephones to warn each other of the location of the government inspectors to evade detection of the inhumane treatment and slaughter of non-ambulatory cattle. (Id. at 120:13–124:13.)

The United States also offers the Williams Declaration to show that the inhumane treatment of the cattle at the Facility rendered the Facility ineligible to contract with the United States for provision of meat products as well as rendered the meat products themselves ineligible. (See Williams Decl.) Duane Williams is the Branch Chief of the United States Department of Agriculture, Agricultural Marketing Service Contracting Branch, who was responsible for awarding AMS contracts to Westland/Hallmark from June 2002 to January 2011. (Id. at ¶ 1–2.)Williams explains in his declaration the ordinary procurement process for the meat products at issue in this case, as well as eligibility requirements for contractors, e.g., the "contractors' establishments must be operating under a valid grant of inspection under the Federal Meat Inspection Act in order to be eligible to receive an award of contracts."(Id. at ¶ 5.) He also explains AMS's animal welfare provisions in its meat purchase contracts since 2000 and why those provisions were implemented: "solely to ensure the humane treatment of animals."(Id. at ¶¶ 12–13.)Finally, Williams states that AMS would not have entered into contracts with the Facility had AMS known of the inhumane treatment of the cattle and, even if AMS had learned of the inhumane treatment after contracting with the Facility, AMS would not have authorized future payment to the Facility and would have rejected the meat products and directed the Facility to "end production." (Id. at ¶ 14 .)

Given the testimony about the regular occurrence of inhumane treatment over the course of 25 years, the Court finds unavailing the Magidows' argument that the conduct explained by Ugarte Navarro is not sufficient to show "egregious inhumane treatment." The Court agrees with the Magidows that Ugarte Navarro did not testify specifically, inter alia, about "whether hot shots were used excessively."(Reply at 9–10 (citing 9 C.F.R. § 313.2.) According to 9 C.F.R. Section 313.2, there are limited circumstances under which electronic prods may be used and disabled or non-ambulatory animals may be dragged or moved with equipment. 9 C.F.R. § 313.2. Ugarte Navarro did, however, testify as to the frequent use of forklifts employed to move non-ambulatory cattle. (Ugarte Navarro Dep. at 60:4–13, 74:22–75:4, 75:7–76:4, 82:14–83:20, 111:18–112:23, 113:11–15, 113:23–114:5, 132:11–134:4.) Forklifts are not identified under the C.F.R as "equipment suitable for such a purpose; e.g., stone boats." 9 C.F.R. § 313.2(d)(3). In fact, forklifts could qualify as a "sharp or pointed objects" that should not be used "to drive livestock." 9 C.F.R. § 313.2(c). Moreover, shooting water into the nostrils of the animals to make them stand up is not identified as an appropriate treatment of animals under the C.F.R., but Ugarte Navarro testified doing this repeatedly. (Ugarte Navarro Dep. at 87:23–88:15.)

Finally, the Court points out the Magidows incorrectly asserted that Ugarte Navarro did not testify "whether chains were used to move live [animals]." (Reply at 9–10.) In fact, Ugarte Navarro testified that he and his co-workers frequently used chains to drag live cattle (Ugarte Navarro Dep. at 113:11–114:5) and that they would drag non-ambulatory cattle when the animals were unable to get off the trucks, which occurred for two or three animals per truckload (Id. at 112:2–15). His testimony on this point warrants a logical inference that the cattle the workers dragged with chains in these instances had not been stunned, in violation of 9 C.F.R. § 313.2(d)(2), and also clearly shows the cattle being dragged were alive. For these reasons, the Court finds the Ugarte Navarro deposition testimony sufficient evidence of unlawful inhumane treatment.

The Magidows next argue that, even if Ugarte Navarro's testimony demonstrates inhumane treatment of the cattle, the United States "admits that regulatory deviations alone do not constitute egregious acts of inhumane handling."(Reply at 10 (citing portions of the Dr. Engeljohn deposition transcript).) Dr. Engeljohn, the USDA FSIS Office of Field Operations' Federal Rule of Civil Procedure 30(b)(6) witness, testified at his deposition that some noncompliance issues at meat processing facilities, like the Facility, are more serious than others; he explained the difference by distinguishing food safety noncompliance from timekeeping noncompliance. (See Supp. Khan Decl., Ex. 2, Deposition of Dr. Engeljohn ("Engeljon Dep.") at 59:10–61:13.) He also discussed the 2005 noncompliance issue at the Facility where inhumane treatment was observed and documented. (Id. at 162:14–164:16.)During the deposition, counsel pointed to one aspect of the 2005 noncompliance report, specifically item number 7, and apparently read the following into the record: "Too much electronic prodding causing animals to get more excited while being driven towards the stunning box. Out of 100 animals observed, 33 were prodded, and out of the 33, 22 animals required multiple prodding to get them into the knocking box."(Id. at 163:18–25.)Counsel then asked Dr. Engeljohn, "Is it fair to say this was not considered to be egregious—egregious violation of policy?"(Id. at 164:12–14.)Dr. Englejohn answered "It is correct to say it's not an egregious violation."(Id. at 164: 15–16.)

Dr. Englejohn was answering questions based on one incident documented in 2005 of inhumane treatment of cattle at the Facility. The Magidows do not, however, designate any testimony of Dr. Englejohn admitting the inhumane treatment documented by the HSUS video and described by Ugarte Navarro in his deposition failed to demonstrate an egregious violation. Accordingly, the Court does not find the Dr. Englejohn deposition excerpts to be relevant to the Court's determination of whether or not the United States can raise a triable issue of fact as to inhumane treatment at the Facility during Arnie Magidow's lifetime.

Based on the foregoing, the Court finds the United States has met its burden to raise a triable issue of fact with the Ugarte Navarro deposition testimony of the inhumane treatment of the cattle at the Facility during Arnie Magidow's lifetime. The United States has also raised a triable issue of fact with the Williams Declaration that the United States would not have entered into contracts with the Facility had it known of the inhumane treatment. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. Accordingly, the Court denies the Magidows' Motion on the inhumane treatment claims.

C. Piercing the Corporate Veil

The Magidows move for summary judgment on the United States' twentieth and twenty-first claims because, they argue, the government cannot meet its burden to prove that Arnie Magidow was the alter ego of Cattleman's Choice or M & M Management. (SeeMot. at 21–23; Reply at 10–12.) Specifically, the Magidows argue "the evidence indisputably demonstrates that Arnie [Magidow] meticulously guarded and respected the separate corporate structure and assets of Cattleman's and M & M." (Mot. at 22 (citing SUF ¶¶ 107–116.)

As the Magidows do not have the burden of proof on this issue at trial, they meet their burden on the Motion by pointing to the absence of evidence supporting the United States' position and exceed their burden by producing admissible evidence to support their argument. Celotex, 477 U.S. at 325. The burden now shifts to the United States to show there is a genuine dispute of material fact that must be resolved at trial. Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256.

In Opposition, the United States argues its Declaration of Dr. Udinsky^[9], along with his Economic Rebuttal Report ("Udinsky report") attached thereto as Exhibit 1, meet its burden to raise a triable issue of fact that Arnie Magidow was the alter ego of Cattleman's Choice and M & M Management, to pierce the corporate veil and reach the individual assets of the Magidows. (See Opp'n at 23–24.)

The requirements to pierce the corporate veil are substantially similar between federal and California law. See, e.g., Ministry of Defense of the Islamic Republic of Iran v. Gould, Inc., 969 F.2d 794, 769 n. 3 (9th Cir.1992). Here, the Court applies California law to determine whether or not to pierce the corporate veil. SEC v. Hickey, 322 F.3d 1123, 1128 (9th Cir.2003) (citations omitted)."California law recognizes an alter ego relationship, such that a corporation's liabilities may be imposed on an individual, only when two conditions are met: (1) there is such a unity of interest and ownership that the individuality, or separateness, of the said person and corporation has ceased, and (2) an adherence to the fiction of the separate existence of the corporation would ... sanction a fraud or promote injustice."Id. (internal quotations omitted) (quoting Firstmark Capital Corp. v. Hempel Fin. Corp., 859 F.2d 92, 94 (9th Cir.1988) and Wood v. Elling Corp., 20 Cal.3d 353 (1977)).

The Udinsky report was prepared in rebuttal to the Tucker expert report on the issue of alter ego liability. (Udinsky Decl., Ex. 1, Udinsky report at 3.) Dr. Udinsky opines that Tucker failed to consider necessary factors when evaluating alter ego. (Id.) He also states that he reached opposite conclusions as to Arnie Magidow's commingling of assets with Cattleman and M & M and as to the undercapitalization of M & M, and points out Tucker failed to use Generally Accepted Accounting Principles when reaching his contrary conclusions. (Id.) Dr. Udinsky evaluated documentary evidence as well as deposition testimony when reaching his conclusions. Based on his analysis of the evidence, in light of industry standards and evaluation tools, Dr. Udinsky opines that "it would be reasonable to conclude that Cattleman's Choice, Inc., and M & M Management, LLC, were being run in a manner which made them alter egos of Aaron Magidow."(Id. at 24.)

Based on the Udinsky report, despite the sustained legal conclusion objections thereto, the Court finds the United States meets its burden to raise a triable issue of fact that Arnie Magidow was an alter ego of Cattleman's Choice and M & M, sufficient for the Court to pierce the corporate veil and hold the Magidows personally liable. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. Accordingly, the Court denies the Magidows' Motion on the alter ego claims.

D. Falsity Under the False Claims Act

In its Opposition, the United States requested entry of summary judgment as to the element of falsity under the False Claims Act. (See Opp'n at 24–25.) The United States has not moved via a cross-summary judgment motion but, rather, argues there is no material dispute of fact on this issue and the Magidows have been given "a full and fair opportunity to ventilate the issues involved in the motion."^[10](Id. at 24 (internal quotations omitted) (citing Cool Fuel, Inc. V. Connett, 685 F.2d 309, 312 (9th Cir.1982))). The United States argues "the evidence is indisputable that Cattleman's and M & M each "conducted operations" at the Facility. As such 9 C.F.R. § 304.1(a) required them to submit their own applications for inspection, or disclose themselves along with Westland on HMP's applications for inspection. They did neither."(Id. at 25.)

In their Reply, the Magidows materially dispute, with admissible evidence, nearly each fact that the United States argues is undisputed on the falsity issue. (See Reply at 13–15; Reply to SGI.) In particular, the Magidows produce admissible evidence that Cattleman's Choice did not have offices at the Facility and did nothing at the Facility, as well as evidence that Arnie Magidow had no management role in M & M Management. (Id. at 13–14 (citing Supp. Khan Decl. at Exs. 1, 5, 7; Khan Decl. at Exs. B, J, P, S, W, X, GG; see also Magidows' Reply to SGI.)

Based on the admissible evidence relied upon by the parties to support their respective positions on this issue, the Court finds this issue disputed. Accordingly, the Court must deny the United States' request for entry of summary judgment on the element of falsity. Cool Fuel, Inc. V. Connett, 685 F.2d at 311–312.

V. CONCLUSION

For the foregoing reasons, the Court GRANTS the Magidows' Motion for Partial Summary Judgment with respect to the United States' Fourth and Fifth claims for relief under the False Claims Act. The Court DENIES the Magidows' Motion with respect to the remaining claims, i.e., claims 1–3, 15, 17, and 20–21. The Court also DENIES the United States' Motion for Partial Summary Judgment.

[1] The Magidows failed to separate their exhibits to the Khan Declaration with tabs, in violation of Local Rule 11–5.3.

[2] The Magidows substituted several exhibits on April 2, 2013 to reflect necessary redactions of private information. (SeeDoc. No. 429.)

[3] The United States also submits undisputed facts within its SGI, to which the Court refers as "GSUF."

[4] The Court issues its evidentiary rulings in a separate order.

[5] The Court notes the Magidows do not move for summary judgment on the issue of whether or not Arnie Magidow was "responsibly connected" to or "conduct[ed] operations" at the Facility, which affects the Court's determination of the ultimate issue of whether or not there were false claims presented to the United States in this case. (See Mot.; Reply.) For the purposes of the Court's analysis of causation under the FCA, although in no way conceded by the Magidows, the Court must assume that Arnie Magidow was "responsibly involved" with and "conducted business" at the Facility and should have, at the least, been disclosed to the United States on the Facility's applications for Grants of Inspection.

[6] The district court in United States v. Eghbal found as follows:

The FCA's causation requirement is satisfied if the defendant caused a claim to be submitted to the government, even if he or she did not personally submit the claim. The FCA requires a causal rather than a temporal connection between fraud and payment. [¶] A demonstration that the government would not have guaranteed the loan but for the false statement is sufficient to establish the causal relationship between the false claim and the government's damages necessary to permit recovery under the False Claims Act. [¶] Moreover, where a defendant's false statements concern the buyer's financial qualifications for a HUD-insured home mortgage loan, the false statements are more than a but-for cause of any damages that the government sustains as a result of the borrower's default. In Spicer, the Court found that while it was undoubtedly true that in each case other factors also caused the buyer's default ... as long as [the] misrepresentations were a material and proximate cause, they need not have been the sole factor causing HUD's losses. [¶] Defendants have admitted that HUD would not have insured the 27 loans if it knew that they had paid, or caused to be paid, the down payments, and it would not have insured the 27 loans if the HUD–1 Addendum, containing Defendants' false statements, had not been signed. Additionally, the uncontroverted evidence establishes that HUD would not have issued mortgage insurance without the HUD–1 Addendum. Accordingly, there is no dispute that but for Defendants' false statements HUD would not have [i]nsured the 27 home mortgage loans at issue and after the buyers' defaulted it would not have been obligated to pay the lender's claims. Therefore, the evidence establishes that Defendants' false statements caused the Government to pay out money.

United States v. Eghbal, 475 F.Supp.2d 1008, 1014–1016 (C.D.Cal.2007) (citations, internal quotations, footnotes omitted).

[7] The evidence the United States presents on this issue would be persuasive if the United States were demonstrating that Arnie Magidow was "responsibly connected" to the Facility. Here, however, the United States must show that Arnie Magidow personally did something that caused the submission of the claims at issue; whether or not Arnie Magidow was "responsibly connected" to the Facility is not necessarily relevant to this inquiry.

[8] The Magidows argue their liability is limited to the period of August 8, 2003, when Westland entered into its first contract with the United States, and August 7, 2006, when Arnie Magidow died. (See Mot. at 19 (citing SUF ¶¶ 5, 64). The United States does not address this argument in its Opposition papers. (See Opp'n.) Accordingly, the Court finds the United States has conceded this point.

[9] The Court notes the Magidows object to the Udinsky Declaration and his expert report on a number of bases, which the Court has sustained in part and overruled in part, as discussed in the Court's separate evidentiary rulings.

[10] The Court hereinafter refers to the United States' request for entry of summary judgment on the falsity element as the United States' Motion for Partial Summary Judgment.

53 Cal.App.4th 1405 (1997)

[1408] COUNSEL

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Clayton S. Tanaka and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DAVIS, J.

This case lies in the dark shadows of 101 DALMATIANS. The prosecution initially charged the defendant with 27 counts of felony animal [1409] cruelty (Pen. Code, § 597, subd. (b) [undesignated section references will be to this code]) and 228 counts of misdemeanor animal neglect (§ 597f, subd. (a)). Ultimately, the jury convicted her of eight counts of felony animal cruelty (making the specific finding she subjected the victims to unnecessary suffering [§ 599b]) and one count of misdemeanor animal neglect. Following a hearing, the court ordered her to reimburse the costs of impounding her animals in the amount of $265,000 (rounded). (§ 597, subd. (f).) The trial court sentenced the unrepentant defendant to state prison for the middle term of two years on one felony count and ran the sentences for the subordinate felonies concurrently; the court deemed her consecutive misdemeanor sentence satisfied out of her presentence custody. On appeal, she complains section 597 is unconstitutionally vague, her trial violated double jeopardy, the instructions were erroneous, and she should not be subject to reimbursing the full costs of the consequences of her misconduct. Except for an error with no significant effect on the structure of defendant's sentence, we shall affirm.

FACTS

The issues raised in the defendant's appeal renders the deplorable circumstances under which her animals lived largely irrelevant. We will accordingly confine ourselves to an abbreviated summary of this lengthy record.

Animal control officers seized two hundred poodles, one cat, and three horses from the defendant's property in July 1993. These were not all of the dogs present on her property, because the defendant attempted to interfere with the collection process (releasing some and shooing them into the woods) and others evaded capture.^[1] Her freezer contained both food and the frozen corpses of two mature dogs and five puppies, which the defendant claimed were part of an unspecified experiment. The county's director of public health, who came to the property at the request of the officers, testified that in his 35 years of medical experience "in the United States and overseas, I have not seen anything that was as unsanitary and filthy as what I saw on the 27th of July, 1993." The defendant's own veterinarian testified that in his 26 years of experience he had never seen an animal-care facility in worse condition.

Neither food nor water appeared to be readily available to the dogs. While trying to capture dogs in the defendant's trailer, the officers knocked the gelatinous contents of a cup of spoiled milk onto the feces-encrusted floor, at which point "[i]t was like a Pirhana feeding frenzy that you see. They were [1410] jumping on one another, growling, trying to get to that milk to eat it." When the defendant began to fill small water dishes inside and out, large numbers of dogs would form a knot in straining to drink from the dishes.

The animals were brought to the Northwest Society for the Prevention of Cruelty to Animals (NWSPCA). Two veterinarians who examined the dogs seized in July testified the poodles generally had excessive matting of their fur (some mats containing maggots), fleas, eye and ear problems, ear mites, intestinal parasites, rotted teeth, and mouth disease, and they were underweight, anemic, and malnourished. A veterinarian who examined a number of the dogs seized in November testified to similar findings.

In essence, the defendant claimed she took good care of her animals. In her view any health problems occurred only after the NWSPCA had custody of them.

Thirty-four of the dogs died or required euthanasia. The NWSPCA found homes for 119,^[2] and transferred 78 to other humane society shelters for adoption by December 1993.^[3] The burden of returning this massive number of dogs to an adoptable state nearly bankrupted the private facility and left it with little or no capability of caring for other animals. In addition, the NWSPCA was forced to defend seven lawsuits filed by the defendant, and its employees were threatened by the defendant's relatives.

In the second amended complaint filed in January 1995, the prosecutor based the eight counts of felony animal cruelty on the condition of eight different dogs, all of which required being put down because of their irremediably poor state of health. The prosecutor based the count of misdemeanor animal neglect on the failure to trim a pony's "grossly overgrown" front hooves, which had reached the point where they had split and peeled, making it difficult for the pony to walk without pain. (The NWSPCA was able to trim the feet properly once it had the pony in custody, allowing it to walk normally.)

DISCUSSION

I

(1a) The defendant contends she was convicted of violating an unconstitutionally vague statute. Specifically, she claims the prohibitions against [1411] depriving an animal of "necessary" sustenance, drink, or shelter; subjecting an animal to "needless suffering"; or failing to provide an animal with "proper" food or drink (§ 597, subd. (b)) are so general that a person of common intelligence must necessarily guess at what course of conduct it is lawful to pursue.^[4] She also maintains that a scienter of criminal negligence subjects the statute to varying interpretations. We disagree.

(2) "Although a particular statute is somewhat vague or general in its language because of difficulty in defining the subject matter with precision, it will be upheld if its meaning is reasonably ascertainable." (People v. Deskin (1992) 10 Cal. App.4th 1397, 1400 [13 Cal. Rptr.2d 391].) "It is not necessary that a statute furnish detailed plans and specifications of the acts or conduct prohibited. The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas [with] adequate interpretation in common usage and understanding." (Smith v. Peterson (1955) 131 Cal. App.2d 241, 246, 250 [280 P.2d 522, 49 A.L.R.2d 1194] [upholding ban on mufflers emitting "excessive" or "unusual" noise].) So long as the language embodies an objective concept, it is constitutionally concrete. (People v. Curtiss (1931) 116 Cal. App. Supp. 771, 779 [statute banning infliction of "unjustifiable" pain constitutional].) (1b) There are an infinite number of ways in which the callously indifferent can subject animals in their care to conditions which make the humane cringe. It is thus impossible for the Legislature to catalogue every act which violates the statute. Nonetheless, the terms "necessary," "needless," and "proper" all give fair notice of an objective standard of reasonableness in the provision of sustenance, drink, and shelter, and in the avoidance of infliction of suffering. The notice component of due process does not require any more. (Ibid.)

As for her subsidiary argument regarding the "varying interpretations" which can be given to criminal negligence, this measure of scienter is nonetheless premised on the objective standard of reasonableness as well. (People v. Rippberger (1991) 231 Cal. App.3d 1667, 1682 [283 Cal. Rptr. [1412] 111].) (3) The fact a defendant must assess "the point at which [a] course of conduct becomes criminally negligent" does not violate due process. (Walker v. Superior Court (1988) 47 Cal.3d 112, 142 [253 Cal. Rptr. 1, 763 P.2d 852]; People v. Deskin, supra, 10 Cal. App.4th at p. 1403.)

II

(4) The defendant contends the trial court erred when it denied her motion to dismiss the complaint on the ground of double jeopardy. (U.S. Const., 5th Amend.) She claims she was "punished" by the confiscation of her animals for treatment and placement, and thus filing a criminal complaint afterward amounted to an effort to punish her twice for the same conduct.

The argument is without merit. As the People properly point out, her reasoning leads to the abhorrent result that parents could not be criminally punished for abusing their children after the juvenile court places them in a different home or terminates parental rights. Moreover, even were we to consider the animals mere chattel and the confiscation no more than a "forfeiture," the United States Supreme Court concluded (after the defendant filed her opening brief) that "civil forfeitures ... do not constitute `punishment' for purposes of the Double Jeopardy Clause." (United States v. Ursery (1996) 518 U.S. ___, ___ [116 S.Ct. 2135, 2138, 135 L.Ed.2d 549, 557].)

III

A

In connection with the offense of animal cruelty, the court instructed the jury:

"Defendant is accused in Counts 1 though 8 of the information of Cruelty to an Animal, in violation of Penal Code section 597(b), a felony.

"Every person who causes an animal to be deprived of necessary sustenance, drink or shelter, or, who, having care or custody of an animal, subjects the animal to needless suffering or fails to provide the animal with proper food, drink, or shelter, in a grossly negligent manner, is guilty of felony cruelty to an animal.

"Deprivation of necessary sustenance, drink, or shelter is unlawful when a person commits an act or omission inherently dangerous to animal life or safety or ... which would inherently produce danger to an animal's life.

[1413] "Subjecting an animal to needless suffering and failure to provide an animal with proper food, drink or shelter are both unlawful when a person ... commits an act or omission which would inherently produce danger to an animal's life.

"In order to prove such a crime, each of the following elements must be proved:

"(1) That a person has custody or is responsible for providing care to an animal

"(2) That person committed a grossly negligent act or omission

"(3) That act or omission caused danger to an animal's life."

(5) Engaging in the proscribed hypertechnical parsing of instructions (People v. Beardslee (1991) 53 Cal.3d 68, 89 [279 Cal. Rptr. 276, 806 P.2d 1311]; People v. Warren (1988) 45 Cal.3d 471, 488 [247 Cal. Rptr. 172, 754 P.2d 218]) rather than determining the reasonably likely interpretation given them by reasonable jurors (People v. Payton (1992) 3 Cal.4th 1050, 1072 [13 Cal. Rptr.2d 526, 839 P.2d 1035]), the defendant contends these instructions allowed the jury to convict her of animal cruelty "if she committed a grossly negligent act that caused danger to an animal's life. Thus, [she argues,] the instruction did not require the jury to find that [she] committed any of the acts prohibited by section 597, subdivision (b) before returning a guilty verdict."

We do not agree. The second paragraph connects the standard of gross negligence with the acts or omissions proscribed by the statute.^[5] A reasonable juror necessarily will correlate the final paragraph listing the elements with the second paragraph, so the juror will understand that the reference to "act or omission" in the final paragraph is a reference to the acts and omissions proscribed by the statute. Thus, as written, the instruction is correct. To the extent the defendant wished the concept she now argues to be explained at greater length, it was her obligation at trial to request this amplification. (People v. McNeill (1980) 112 Cal. App.3d 330, 340 [169 Cal. Rptr. 313].) Having failed to do so, she cannot complain on appeal.

B

In connection with the offense of animal neglect, the court instructed the jury:

[1414] "Defendant is accused in Count[] 9 ... of the information of Animal Neglect, in violation of Penal Code section 597f, a misdemeanor.

"Every owner or possessor of any animal who permits the animal to be ... without proper care and attention is guilty of misdemeanor neglect of an animal.

"In order to prove such a crime, each of the following elements must be proved:

"(1) The owner or possessor of an animal

"(2) committed a negligent act or omission

"(3) which ... would foreseeably cause harm to an animal."

"In the crime[] charged in Count[] 9 ..., there must exist:

"(1) A union or joint operation of the act or omission and negligence.

"(2) In order to find negligence, you must find that the defendant was conscious, acting voluntarily, and that a reasonable person in the defendant's position would have foreseen that harm to the animal would result from the care that the defendant was giving it...."

The defendant again engages in hypertechnical parsing of the instruction, asserting the resulting incomplete definition of the offense is the interpretation given it by the jury to her prejudice. (6) We need not unravel the defendant's reasoning in this respect in light of an independent flaw in these instructions also cited by the defendant.

In People v. Untiedt (1974) 42 Cal. App.3d 550 [116 Cal. Rptr. 899], the court discussed sua sponte the sufficiency of the instructions defining a violation of section 597f.^[6] (42 Cal. App.3d at p. 554.) The court concluded civil negligence was the appropriate mental state without any consideration of section 20.^[7] (42 Cal. App.3d at p. 555.) The instructions under review here cite Untiedt as authority.

[1415] However, in People v. Brian (1980) 110 Cal. App.3d Supp. 1, 4 [168 Cal. Rptr. 105], the court concluded a violation of section 597, subdivision (b), required criminal negligence. (110 Cal. App.3d at pp. Supp. 3-4.) Brian pointed out (id. at p. Supp. 4) that a holding to the contrary in People v. Farley (1973) 33 Cal. App.3d Supp. 1 [109 Cal. Rptr. 59] was premised on an analogy to child-endangerment cases, the reasoning in which had been refuted (citing People v. Peabody (1975) 46 Cal. App.3d 43, 46 & fn. 1 [119 Cal. Rptr. 780] [section 20 required at least criminal negligence for crimes except for "regulatory offenses," which do not include child endangerment because of then potential maximum sentence of 10 years]).

We cannot conceive of a credible basis for concluding section 597f is distinguishable from section 597 as interpreted by Brian, which considered the proper principles in connection with the necessary mental state. The People assert only that section 597f protects the public health and has a relatively light (six-month) punishment, so it should come within the regulatory-offense exception to section 20. Even if we assume a threat to the well-being of animals is a threat to public health or safety with a small penalty, the People ignore additional criteria. As the Supreme Court recently recounted, these regulatory offenses must also not involve "`grave damage to an offender's reputation'" or conduct which is "malum in se." (People v. Simon (1995) 9 Cal.4th 493, 519, 520 [37 Cal. Rptr.2d 278, 886 P.2d 1271].) Moreover, any expansion of the category of regulatory offenses is disfavored. (Id. at p. 520.) In our society, those who mistreat animals are the deserved object of obloquy, and their conduct is wrongful of itself and not just as a matter of legislative declaration. Consequently, we believe Untiedt is wrongly decided and a conviction of section 597f requires proof of criminal negligence. The court's failure to instruct the jury on this requirement means we must reverse this misdemeanor conviction. (1 Witkin & Epstein, Cal. Criminal Law, supra, Elements of Crime, § 113, p. 134.) However, as we do not believe this minor modification would make it reasonably likely that the trial court would restructure the remaining counts differently, there is no need to remand for resentencing.

IV

With respect to each of the counts of a violation of section 597, the information alleged the defendant "did unlawfully cause an animal to be deprived of necessary sustenance and drink, and having charge and custody of an animal, did fail to provide that animal with proper food, drink and [1416] shelter, and did subject that animal to needless suffering...." Section 597f provides in pertinent part, "(a) Every owner ... or possessor of any animal, who permits the animal to be ... without proper care and attention, shall, on conviction, be deemed guilty of a misdemeanor."

(7) The defendant argues the pleading describes the felony in such a way that, if committed in the manner alleged, the misdemeanor is necessarily committed as well. She therefore contends the trial court erred in failing to instruct sua sponte that the jury could convict her of the misdemeanor as a lesser included offense of each of the felony counts, because there was substantial evidence that the mental element distinguishing the two offenses was absent. (People v. Barton (1995) 12 Cal.4th 186, 194-195 [47 Cal. Rptr.2d 569, 906 P.2d 531]; People v. Moses (1996) 43 Cal. App.4th 462, 469-470 [50 Cal. Rptr.2d 665].) The People do not address the scienter argument, assume arguendo that the felony allegations necessarily include the misdemeanor offense, and maintain that the evidence at trial presented an all-or-nothing choice for the jury rather than a greater-lesser spectrum of culpability, which absolves the trial court of the duty to instruct sua sponte. (Barton, supra, 12 Cal.4th at p. 195.)

In People v. Untiedt, supra, 42 Cal. App.3d 550, the court rejected a claim that the phrase "without proper care and attention" in section 597f was unconstitutionally vague. In light of "the clear legislative purpose," the court construed the statute to prohibit inadequate care that was reasonably likely to result in the infliction of unjustifiable pain or suffering. (42 Cal. App.3d at p. 554.) As the present information alleged inadequate provision of shelter, food, drink, and sustenance (all of which are aspects of care) and the infliction of "needless" suffering (which does not appear to be anything other than a synonym for "unjustified"), the acts alleged as constituting the section 597 felony are identical to the acts which constitute the section 597f misdemeanor.

However, we have just accepted the defendant's argument that the mental state for the two offenses is also identical. Thus, as in the analogous case of People v. Hill (1992) 6 Cal. App.4th 33 [8 Cal. Rptr.2d 123] (which involved a lesser-related offense), "the misdemeanor ... offense for which [the defendant] sought instruction was `lesser' only in terms of penalty." (Id. at p. 44.) As a result, regardless of whether the jury credited the version of the facts presented by the prosecution or the defendant, the choice was not between a greater and a lesser offense. "If [the defendant] was guilty of the lesser, on these facts, [she] was also guilty of the greater. Denying the lesser-offense instruction therefore did not offend [People v.] Geiger [(1984) 35 Cal.3d 510 [199 Cal. Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055]]. The [1417] same rationale applies to lesser included offenses...." (Id. at p. 45.) Consequently, the trial court did not violate its duty to instruct sua sponte on lesser included offenses.

V

Subdivision (f) of section 597 provides in pertinent part: "Upon the conviction of a person charged with a violation of this section by causing or permitting an act of cruelty, as defined in Section 599b, all animals lawfully seized and impounded with respect to the violation ... shall be adjudged by the court to be forfeited and shall thereupon be awarded to the impounding officer for proper disposition. A person convicted of a violation of this section by causing or permitting an act of cruelty, as defined in Section 599b, shall be liable to the impounding officer for all costs of impoundment from the time of seizure to the time of proper disposition."

The defendant never disputed the NWSPCA's calculations of its impoundment costs. Instead, she disputes the statutory authorization for the NWSPCA to recover its costs for all the impounded animals or to recover any costs after the court transferred custody of the animals seized in July to the NWSPCA. She also makes an unseemly "mitigation of damages" argument that the NWSPCA should have been quicker to put her animals to death rather than continuing to care for them until new owners could be found to care for these physically and mentally maimed animals. We treat these in turn.

A

(8) The defendant's initial argument claims the second part of the statute is ambiguous about which "costs of impoundment" may be recovered by the impounding officer upon her conviction. She thus argues we must apply the interpretation which most favors her, namely limiting the obligation for reimbursement to the eight animals on which her convictions for felony cruelty specifically rest who died within a month.

The phrase "costs of impoundment" in the second part of the statute refers necessarily to "all animals lawfully seized and impounded with respect to the violation" (§ 597, subd. (f), italics added) in the first part of the statute. "With respect to" is a general phrase requiring only a logical or causal connection in a general transactional sense with the violation, as opposed to a limited phrase such as "for," "from," or "as a result of" the violation (which would require a direct connection). (Cf. Moallem v. Coldwell Banker Com. Group, Inc. (1994) 25 Cal. App.4th 1827, 1831 [31 Cal. Rptr.2d 253]; [1418] Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal. App.4th 1338, 1344 [5 Cal. Rptr.2d 154] [phrases "relate to" or "arising from" contract more general than "on" contract].) The general connection is further reflected in the use of the plural "all animals" (rather than "the animal"), while also using the singular "the violation" (which itself rests on cruelty to the singular "any animal"). Thus, on its face, an impoundment officer may recover costs for animals other than the direct victims of a defendant's violation of the statute.

Even if "with respect to" could be considered ambiguous, we do not find the language reasonably susceptible of the interpretation which the defendant gives it. In the panoply of statutes from section 596 through 599f, the Legislature has manifested an unmistakable intent to prevent cruelty to animals (cf. People v. Untiedt, supra, 42 Cal. App.3d at p. 554) and to provide for the removal of animals from the custody of those not fit to keep them. We thus interpret the present statute as allowing the removal of all animals in the keeping of a defendant found to be capable of cruelty, regardless of whether the other animals have been victims of a violation of the statute, as a rational means of ensuring the safety of the other animals. To limit the impoundment power under the statute (as the defendant would interpret it) would have the result of requiring an unwieldy prosecution of a separate count for every animal (much like the initial 70-odd page information in this matter) in order to remove them from abusive conditions. We reject the proffered interpretation.

B

On August 12, 1993, the trial court granted the motion of the NWSPCA to deem "abandoned" the animals seized in July 1993 because they "require[d] veterinary care and the humane society ... [was] not assured ... that the owner [would] provide the necessary care...." (§ 597.1, subd. (i).) The defendant argues the animals were no longer her property after this point, so she could not be required to reimburse the NWSPCA for the costs of impoundment of these dogs.^[8] She disregards the express language of section 597, subdivision (f), which subjects her to reimbursement for all impoundment costs from the time of seizure "to the time of proper disposition." This language is not conditioned on her continued ownership interest in the animals. We consequently reject the argument.

C

We quote the defendant's final argument, which is a reflection of the lack of concern for her animals as living sentient creatures, in its entirety. [1419] "[F]rom the point that the animals were transferred to the [NW]SPCA, they [sic] certainly had an obligation to dispose of these animals. However, they [sic] kept them at their [sic] offices at a cost ranging from $8,000 to $20,000 per month. They [sic] held these animals for over 20 months, and then submitted a bill to the court asking for reimbursement of $244,000. It was entirely inappropriate for the [NW]SPCA to retain these animals and then ask [the defendant] to reimburse them [sic] for the costs associated with their care." The defendant does not cite any authority for this assertion of a duty to euthanize to mitigate the repercussion of her cruel behavior. We will not provide any and, accordingly, reject the argument.

DISPOSITION

The conviction for animal neglect (§ 597f) is reversed. The judgment is otherwise affirmed in all respects.

Sims, Acting P.J., and Morrison, J., concurred.

A petition for a rehearing was denied April 24, 1997, and appellant's petition for review by the Supreme Court was denied July 9, 1997.

[1] As a violation of a condition of the defendant's release on her own recognizance, officers seized 57 more dogs on her property in November 1993.

[2] Several of the new owners of these dogs wrote to the trial court in connection with the defendant's sentencing, detailing lingering behavioral disorders.

[3] At least 25 of these dogs found homes.

[4] Section 597, subdivision (b), provides: "Except as otherwise provided in subdivision (a) or (c), every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal, or causes or procures any animal to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, drink, shelter, or to be cruelly beaten, mutilated, or cruelly killed; and whoever, having the charge or custody of any animal, either as owner or otherwise, subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor, is, for every such offense, guilty of a crime punishable as a misdemeanor or as a felony or alternatively punishable as a misdemeanor or a felony and by a fine of not more than twenty thousand dollars ($20,000)."

[5] In a tangentially related argument, the defendant claims this paragraph is "confusing" because it states the acts must be committed in a grossly negligent manner rather than states the acts were the result of gross negligence. We find no distinction between these formulations.

[6] Section 597f provides in pertinent part: "(a) Every owner, driver, or possessor of any animal, who permits the animal to be in any building, enclosure, lane, street, square, or lot, or any city, city and county, or judicial district, without proper care and attention, shall, on conviction, be deemed guilty of a misdemeanor...."

[7] Section 20 provides, "In every crime of public offense there must exist a union, or joint operation of act and intent, or criminal negligence." (Italics added.) Criminal negligence requires conduct more egregious than mere civil negligence; a defendant's dereliction must be such a gross departure from the reasonably prudent that it amounts to reckless indifference with actual or imputed knowledge of the consequences. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 113, p. 134.)

[8] In her reply brief, she first argues that once the prosecution filed the amended information in January 1995 limiting the charges to eight counts of felony animal cruelty, she was not obliged to pay the impoundment costs of any additional animals. We disregard this argument. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 496, p. 484.)

765 N.W.2d 619 (2009)
282 Mich. App. 307

[621] Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Henry C. Zavislak, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

Dungan, Kirkpatrick & Dungan, P.L.L.C. (by Michael Dungan), and Richard B. Ginsberg for James E. Henderson, Jr. State Appellate Defender (by Susan M. Meinberg) for Matthew P. Mercier.

Amici Curiae: Mary Chartier and Rose Stern for the Animal Law Section of the State Bar of Michigan.

Alice Anna Phillips for the American Humane Association.

Robert K. Gaecke, Jr., Jackson, for Leelanau Horse Rescue, Inc., and Laura Steenrod.

[622] Before: MARK J. CAVANAGH, P.J., and JANSEN and METER, JJ.

CAVANAGH, P.J.

The prosecution appeals by leave granted the circuit court's reversal of the district court's order binding over defendants on three felony counts of animal torture, MCL 750.50b(2). We reverse and reinstate the charges against both defendants. The prosecution also appeals by leave granted the circuit court's reversal of the district court's forfeiture order that was entered pursuant to MCL 750.50(3). We reverse that order as well.

Between January 1, 2007, and March 20, 2007, defendant James Edward Henderson, Jr., owned most, if not all, of the 69 horses that were on the Turn Three Ranch located in Grass Lake Township. Defendant Matthew Patrick Mercier was the primary caretaker of the horses, while Henderson primarily paid the bills associated with the horses and the horse farm. On March 13, 2007, when some of the horses were found outside the farm, as had happened several times in the past, Jackson County Animal Control was contacted. After animal control conducted a limited inspection of the farm, a detailed investigation followed. Thereafter, the farm was seized. Three felony charges of animal torture, MCL 750.50b(2), and one misdemeanor charge of failing to provide adequate care to the horses, MCL 750.50(2)(a), were filed against both defendants. A civil forfeiture action was also filed against Henderson.

Extensive testimony regarding the general condition of the land, barn, buildings, fences, horse shelters, hay, water tanks, and the horses was presented at the preliminary examination. Three horses were the subject of the felony charges: Ice, also known as Wire; Moose (a grulla mare); and Lucky Seven, also known as Elvis. Ice had a severely infected leg wound caused by having wire embedded in her leg for three weeks or more. Moose was severely emaciated and heavily invested with parasites. Lucky Seven was severely emaciated, had severe lice, was rendered significantly lame by an extremely painful degenerative arthritic condition, and was ultimately euthanized. The testimony also included that many, if not all, of the horses at the farm had lice, worms, parasites, hair loss, and long hooves. Many were significantly underweight. There was also testimony that there was inadequate food, water, shelter, and veterinary care, as well as unsanitary conditions. At the conclusion of the seven-day preliminary examination, defendants were bound over on all the charges and the district court entered an order of forfeiture pursuant to MCL 750.50(3).

The forfeiture order was subsequently appealed to the circuit court. The circuit court reversed the order, holding that the evidence did not establish that Henderson had charge or custody of the animals. In fact, the court held, Henderson was an innocent owner under the circumstances. Defendants also filed a motion to quash the information in the circuit court. The circuit court granted defendants' motion with regard to the three felony counts, but denied the motion with respect to the misdemeanor counts. The court held that the district court's findings suggested negligence, as opposed to an intent to cause harm. Citing People v. Fennell, 260 Mich. App. 261, 677 N.W.2d 66 (2004), the court noted "[t]he elements from Fennell require that the Defendant knew that his actions were wrong at the time he intended to commit the crime and intended to cause physical or mental harm to an animal." The court also concluded that Henderson's mere ownership of the horses or farm did not make him responsible for animal torture and that his presence on [623] the farm was not sufficient to establish that he was aware of the horses' condition.

After the proper orders were entered, the prosecution sought leave to file interlocutory appeals regarding the order granting defendants' motion to quash the felony counts and the order reversing the forfeiture order. We granted these applications for leave to appeal and consolidated the appeals. We also granted motions to file amicus curiae briefs on behalf of the (1) the Animal Law Section of the State Bar of Michigan, (2) the American Humane Association, and (3) Leelanau Horse Rescue, Inc., and Laura Steenrod.

Felony Counts, Docket Nos. 285677 and 285678

First, the prosecution argues that, in light of the evidence, the district court did not abuse its discretion by finding probable cause to believe that defendants "willfully, maliciously and without just cause or excuse" tortured three horses in violation of MCL 750.50b(2). Specifically, the prosecution argues that the circuit court misread Fennell, supra, and ignored People v. Iehl, 100 Mich.App. 277, 280, 299 N.W.2d 46 (1980), which require only a showing of probable cause that defendants acted with conscious disregard of the known risks, and not that they acted with an intent to cause harm. We agree.

The primary function of the preliminary examination is to determine whether a crime has been committed and, if so, whether there is probable cause to believe that the defendant committed it. People v. Glass (After Remand), 464 Mich. 266, 277, 627 N.W.2d 261 (2001). Probable cause that the defendant has committed a crime is established by evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the defendant's guilt. People v. Yost, 468 Mich. 122, 126, 659 N.W.2d 604 (2003). To establish that a crime has been committed, a prosecutor need not prove each element beyond a reasonable doubt, but must present some evidence of each element. Id. Circumstantial evidence and reasonable inferences from the evidence can be sufficient. People v. Greene, 255 Mich.App. 426, 444, 661 N.W.2d 616 (2003). If the evidence conflicts or raises a reasonable doubt, the defendant should be bound over for trial where the questions can be resolved by the trier of fact. Yost, supra at 128, 659 N.W.2d 604.

A district court's ruling that alleged conduct falls within the scope of a criminal law is a question of law that is reviewed de novo for error, but a decision to bind over a defendant based on the factual sufficiency of the evidence is reviewed for an abuse of discretion. People v. Perkins, 468 Mich. 448, 452, 662 N.W.2d 727 (2003); People v. Hotrum, 244 Mich. App. 189, 191, 624 N.W.2d 469 (2000). In reviewing the bindover decision, a circuit court must consider the entire record of the preliminary examination and may not substitute its judgment for that of the district court. People v. McKinley, 255 Mich.App. 20, 25, 661 N.W.2d 599 (2003). The decision to bind over a defendant may only be reversed if it appears on the record that the district court abused its discretion. Id. This Court also reviews the bindover decision de novo to determine whether the district court abused its discretion. People v. Libbett, 251 Mich.App. 353, 357, 650 N.W.2d 407 (2002). Thus, this Court gives no deference to the circuit court's decision. People v. Harlan, 258 Mich.App. 137, 145, 669 N.W.2d 872 (2003).

MCL 750.50b(2) provides that "[a] person who willfully, maliciously and without just cause or excuse kills, tortures, mutilates, maims, or disfigures an animal ... is guilty of a felony...."

[624] Here, defendants were charged under the torture provision of MCL 750.50b(2). Thus, defendants were charged with three counts of willfully, maliciously, and without just cause or excuse torturing three horses, i.e., Ice, Moose, and Lucky Seven. The statutory requirements were examined in Fennell, supra. All the parties rely on Fennell, but offer different interpretations of its holding and the "intent" required under the statute. The prosecution argues that in order to show that defendants willfully and maliciously tortured an animal, it is sufficient to show that defendants acted with conscious disregard of the known risks. Defendants argue that the prosecution must prove that defendants intended to harm the animals.

In Fennell, supra, the defendant threw a firecracker into a horse stable, causing the stable to burn to the ground and killing 19 horses. Fennell, supra at 263-264, 677 N.W.2d 66. The defendant was convicted of 19 counts of willfully and maliciously torturing or killing animals, MCL 750.50b(2). Fennell, supra at 262, 677 N.W.2d 66. At issue in that case was the degree of intent required under the animal torture statute. Id. The trial court instructed the jury that to convict the defendant, it must find that he "(1) killed or tortured an animal or did anything that resulted in such an outcome; (2) knew that his actions were wrong at the time he committed this crime; (3) intended to cause physical or mental harm to an animal; and (4) had no just cause or excuse for his actions." Id. at 269, 677 N.W.2d 66.

The defendant in Fennell argued on appeal that the trial court erred by refusing to instruct the jury that the prosecution was required to show that he specifically intended to kill or torture the horses. Id. at 264, 677 N.W.2d 66. This Court interpreted the "willfully" and "maliciously" requirements of the statute and considered whether they connoted a specific intent crime. On the "willfulness" element, the defendant argued that the Legislature's use of the term "willfully" meant that the crime required a criminal intent beyond merely an intent to do the act. Id. at 266, 677 N.W.2d 66. This Court disagreed, first explaining that "[a] crime requiring a particular criminal intent beyond the act done is generally considered a specific intent crime; whereas, a general intent crime merely requires `the intent to perform the physical act itself.'" Id. (citations omitted).

Then, because the statute does not define "willfully," the Fennell Court examined several sources for guidance, including its dictionary definition that described an action that is: "`[v]oluntary and intentional, but not necessarily malicious.'" Id. at 267, 677 N.W.2d 66, quoting Black's Law Dictionary (7th ed). The Fennell Court also considered the statute's language in light of its predecessor statute and subsequent developments. Fennell, supra at 268, 677 N.W.2d 66. Specifically, MCL 750.377<sup>[1]</sup> made it a crime for any person to "`willfully and maliciously kill, maim, or disfigure any horses, cattle, or other beasts of another[.]'" Fennell, supra at 268, 677 N.W.2d 66. The similarity to the language of MCL 750.50b(2) was deemed significant:

This language is almost identical to that used in MCL 750.50b(2). This is noteworthy because several cases discussing MCL 750.377 have held that it only required a showing of general malice. In determining that malice need not be directed toward the animal or the animal owner, the Court in People v. Tessmer noted that the requisite malice [625] required was the general malice of the law of crime. Further, in Culp, this Court specifically distinguished the statutory crime of willfully and maliciously killing an animal from the specific intent crime of malicious destruction of property. [Fennell, supra at 268, 677 N.W.2d 66, citing People v. Tessmer, 171 Mich. 522, 526-527, 137 N.W. 214 (1912), and People v. Culp, 108 Mich.App. 452, 457-458, 310 N.W.2d 421 (1981).]

The Court concluded that the portion of MCL 750.50b(2) relating to killing or torturing an animal is a general intent crime. Fennell, supra at 263, 269, 677 N.W.2d 66.^[2] Accordingly, the jury was not required to find that the defendant intended to kill or torture the animals in order to find that he acted willfully, i.e., the jury was properly instructed that the defendant could be convicted of this crime if he "`killed and/or tortured an animal or did anything that resulted in the killing or torturing of an animal.'" Id. at 269, 677 N.W.2d 66.

Then the Fennell Court turned to the malice element of MCL 750.50b(2) and adopted a definition of malice from Iehl, supra, an animal torture case under the predecessor statute, MCL 750.377. The Fennell Court held:

Malice has been described an essential element in a conviction for animal cruelty.... [I]n People v. Iehl, this Court held that the element of malice under MCL 750.377, "requires only that the jury find that defendant 1) committed the act, 2) while knowing it to be wrong, 3) without just cause or excuse, and 4) did it intentionally or 5) with a conscious disregard of known risks to the property of another." Considered as a whole, we find that the trial court's instructions properly conveyed the element of malice to the jury. [Fennell, supra at 269-270, 677 N.W.2d 66, citing Iehl, supra at 280, 299 N.W.2d 46 (emphasis added).]

In this case, defendants argue that an intent to harm the animal is required on the basis of the Fennell Court's holding that the jury instructions given in that case, which did not include the "conscious disregard of known risks" language, were deemed sufficient. But, as the amicus curiae brief of the Animal Law Section of the State Bar of Michigan aptly points out, the facts in the Fennell case were that the defendant intentionally threw a firecracker into a barn full of horses. Id. at 263-264, 677 N.W.2d 66. The "conscious disregard" instruction was not warranted by the facts of that case. Nevertheless, the Fennell Court clearly recognized that malice can be established by showing that the defendant acted either intentionally or with conscious disregard of known risks. Obviously, if the statute requires a showing that the defendant acted with either an intent to harm or a conscious disregard of known risks, and the Fennell jury convicted the defendant on the basis of an instruction that included only an intent to harm, then no instructional error occurred. Therefore, defendants' and the circuit court's interpretation of Fennell is incorrect. The prosecution need not prove that defendants intended to harm the animals.

Next, we consider whether the district court abused its discretion in finding probable cause to bind defendants over on the felony counts. The testimony in this case was extensive. There was a plethora of evidence regarding (1) the poor, unsanitary, or hazardous conditions of the land, barn, horse stalls, buildings, fences, [626] and horse shelters, (2) the lack of quality hay or food for the horses for a lengthy period, and (3) the lack of quality water for the horses, including that the horses were likely drinking from a county drainage ditch that was contaminated with E. coli. Defendant Mercier, who was the primary caretaker of the horses, lived with a friend about 45 minutes of driving time to the farm during the relevant period. There was also abundant evidence regarding the condition of the horses. Several veterinarians and animal control officers with extensive experience with horses testified that at least 11 horses were considered severely emaciated, most of the others were considered very thin, and only some were found to be in fair condition. The horses had long hooves and were heavily infested with parasites, both externally with lice causing hair loss, and internally with worms.

The felony charges against defendants pertain to three horses. First, we consider Ice. The evidence showed that wire, likely from the extensive debris strewn about the farm, had been wrapped completely around her leg and had formed a knot. The wire was embedded in her leg for at least three weeks and had cut through to the bone. The wire was protruding about 1 ½ inches from the open wound and the wound was obviously severely infected. Ice also was emaciated and had a large lump on the back of her right leg, a very large hernia, and a cut on her forehead. Defendants did not have Ice treated by a veterinarian. Dr. Richard Hammer, a veterinarian for 19 years who practiced primarily equine medicine, testified that "[i]t is very unusual to deal with a wound that's that neglected." The evidence also showed that defendants had extensive experience with horses and were aware of the wire injury to Ice. And Dr. James Irving, a veterinarian, testified that Mercier contacted him about Ice on March 16 seeking to bring Ice in for treatment, two days after animal control became involved in this matter.

Second, we consider Moose, a four-to five-year-old grulla mare. The evidence indicated that Moose was severely emaciated and heavily infested with parasites. An animal control officer described her as a walking skeleton. Dr. Hammer testified that Moose was severely emaciated to the point that you could see all the bones in her body and no fat whatsoever. She should have weighed 1,100 pounds but weighed 685 pounds. Dr. Hammer also testified that Moose had no medical problems that would have caused her to be in that condition. In fact, he testified that about 30 days after he first saw her, Moose had shown marked improvement with only a parasite control program and feeding initiated by animal control. Mercier admitted to an animal control officer that he "dropped the ball" with regard to Moose, which, in December of 2006, "had lost a little weight" supposedly from gas colic. Although there was no evidence of any medical condition, defendants' veterinarian, Dr. Robert Sray, testified that Moose was "probably thin" because of "sickness." According to Dr. Sray, none of the horses, including this 685 pound horse, looked starved.

Third, we consider Lucky Seven, a paint. The evidence included that he was severely emaciated, heavily infested with parasites, and significantly lame because of an extremely painful degenerative arthritic condition. He ultimately had to be euthanized. When animal control became involved in this matter, an officer noticed that Lucky Seven could not bear weight on one leg and was dragging it. Dr. Hammer testified that Lucky Seven was severely emaciated, severely lame on the right rear leg, had an enlarged stifle joint, and was very tender in the hips. Dr. Hammer also [627] testified that the pathology report indicated a severely starved, chronic condition, with basically bone to bone contact in the hip, stifle, and hock joints, which would be extremely painful. The pathology report also showed heavy damage to Lucky Seven's intestinal tract because of parasites and that it would have affected his body's ability to absorb nutrients. Dr. Judith Marteniuk, a veterinarian for 32 years, testified that she treated Lucky Seven at the Michigan State University veterinary large animal clinic and that he was about a year old. He had one of the worst cases of lice she had ever seen and she took pictures of it for teaching purposes. Dr. Marteniuk testified that Lucky Seven had severe degenerative arthritis of the right hip and that it was a longstanding condition—probably months—and would have been extremely painful. Nevertheless, defendants' veterinarian, Dr. Sray, testified that, although he saw that Lucky Seven was "sore in the hip," he was not very concerned about him. And Dr. Kurt Williams, who performed the necropsy on Lucky Seven, testified that Lucky Seven would have been severely lame from his condition.

When this extensive evidence is considered as a whole, it is clear that the prosecution established that a crime was committed and that probable cause exists to believe that defendants committed it. See Glass (After Remand), supra. To establish that a crime has been committed, the prosecution only had to present some evidence of each element. Yost, supra. Circumstantial evidence and reasonable inferences from the evidence can be sufficient. Greene, supra. Under the portion of MCL 750.50b(2) at issue here, the prosecution needed to establish probable cause to believe that defendants willfully (i.e., did something that resulted in torture to the animal), maliciously (i.e., knowing it to be wrong, acted either intentionally or with conscious disregard of known risks), and without just cause or excuse tortured the three horses. See Fennell, supra at 268-270, 677 N.W.2d 66.

Here, at a minimum and as charged in the information, the evidence established probable cause to believe that defendants willfully failed to seek necessary veterinary care and treatment for these three horses, despite defendants' extensive experience with horses, the longstanding and obvious nature of the horses' problems, the defendant's knowledge that the horses were not healthy in conscious disregard of the known risk that they would continue to decline in health to the point of having to be euthanized, and that without just cause or excuse, defendants caused them to suffer "torture," which the district court defined as "severe physical or mental pain, agony or anguish." Dr. Hammer testified that these three horses were "tortured," i.e., suffered severe physical or mental pain, agony, or anguish. And Dr. Marteniuk testified that Lucky Seven suffered torture, i.e., agony of body or mind, as a result of his condition. The testimony was consistent—the abhorrent conditions at the farm, as well as the unhealthy conditions of the horses, existed for several months.

Defendant Henderson argues on appeal that because he had no responsibility for the day-to-day care of the horses, the felony charges against him were not supported by probable cause. We disagree. Henderson relies on the case of People v. Johnson, 104 Mich.App. 629, 305 N.W.2d 560 (1981), in support of his "innocent or absentee owner" defense. The circuit court did as well. However, Henderson fails to note in his argument that the statute under which the Johnson Court held that "an innocent or absentee owner cannot be held criminally liable for mistreatment of a horse that he owns but that is [628] cared for by someone else" is clearly distinguishable from MCL 750.50b(2), the statute at issue in this case. And the statute in the Johnson case, MCL 752.21, has been repealed. Suffice it to say that we are not persuaded by this argument. And although we are not persuaded that an "innocent or absentee owner" defense exists, if it did exist, it would not be applicable under the facts of this case.

Throughout his arguments, Henderson refers us to, and relies on, his and Mercier's preliminary examination testimony in support of his argument that dismissal of the felony charges against him was proper. But, as was noted during closing arguments and by the district court, MCL 750.50(3) provides that the testimony of a person at a forfeiture proceeding is generally not admissible against him in a criminal proceeding and does not waive the person's constitutional right against self-incrimination. Because the preliminary examination and the forfeiture proceeding were combined in this case, we have not considered either defendants' testimony with regard to our resolution of this criminal matter.

The record evidence showed that Henderson had a significant investment in this farm and the 69 horses, most of which he owned. He leased the property on which the farm was situated and paid the bills associated with the farm and the horses. The property, barn, buildings, shelters, and fences had been in a severe state of disrepair—to the point of being hazardous-for a long time. Although the amount of hay that would be required to feed 69 horses daily is significant—typically 25 to 30 pounds of hay for each horse according to Dr. Vicki Chickering, a field veterinarian on the staff of the Department of Agriculture who had been a veterinarian for 31 years—there was no stockpile of hay in the barn. Thus, Henderson would have had to purchase hay regularly. According to Perry Haag, defendants' witness, a round bale of hay, weighing between 1,000 and 1,500 pounds, costs $30 to $40. There was no evidence of regular hay purchases except for the testimony of Haag and Arthur Feldkamp, both of whom claimed to have sold hay on occasion to Mercier. The thin and emaciated, as well as severe parasitic, condition of the horses were several months in duration. And there was testimony from three witnesses to the effect that Henderson was seen at the farm in December 2006, as well as multiple times in January, February, and March 2007. One witness testified that he had seen Henderson drive up Maute Road, in the direction where the farm was located, two to three times a week from January through March 2007.

In summary, there was significant evidence of Henderson's involvement in this farm, as well as the longstanding nature of the poor condition of both the farm and the horses. He was the primary source of funding for the farm and for the care, including veterinary care, of the horses. Caring for and feeding the horses was costly. He was seen at the farm during the relevant months. Circumstantial evidence and reasonable inferences from the evidence establish probable cause to believe that Henderson willfully failed to seek necessary veterinary care and treatment for these three horses, despite his extensive experience with horses, the longstanding and obvious nature of the horses' problems, and his knowledge that the horses were in unhealthy conditions, in conscious disregard of the known risk that they would continue to decline in health to the point of having to be euthanized, and that without just cause or excuse, he caused them to suffer "torture," which was defined by the district court as "severe physical or mental pain, agony or anguish." See Fennell, supra at 270-271, 677 N.W.2d [629] 66 ("Minimal circumstantial evidence is sufficient to prove an actor's state of mind."); see, also, People v. McRunels, 237 Mich.App. 168, 181, 603 N.W.2d 95 (1999). Were we to consider defendants' preliminary examination testimony, as both defendants urge, we would find that our conclusions are bolstered by that testimony. Further, any conflicts in the evidence must be resolved by the trier of fact. Yost, supra at 128, 659 N.W.2d 604.

Accordingly, the district court properly bound both defendants over on all three felony counts. See Libbett, supra. That defendants did not intend to violate MCL 750.50b(2) or that they did not intend to cause these three horses to suffer torture is of no consequence. Thus, the circuit court's reversal of the bindover decisions, which was premised on an erroneous interpretation of MCL 750.50b(2), is reversed.

Because additional proceedings will follow for the felony counts, we find it necessary to address defendants' repeated claims in their briefs on appeal that the district court's definition of "torture" was erroneous, even though they had not previously challenged this definition. The Fennell Court did not define the statutory term "torture." Referenced in the Fennell opinion is the jury instruction given by the trial court to the Fennell jury, which defined "torture" as "`severe physical or mental pain, and agony or anguish.'" Fennell, supra at 266, 677 N.W.2d 66. It is unclear how this definition was derived, but it was not an issue on appeal. The district court in this case adopted that definition for purposes of this preliminary examination.

The statutory term "torture" is not defined in our animal cruelty statutes. We are mindful of the directives that statutory language should be construed reasonably and that the fair and natural import of the terms employed, in view of the subject matter of the law, governs. People v. Green, 260 Mich.App. 710, 715, 680 N.W.2d 477 (2004); People v. Spann, 250 Mich. App. 527, 530, 655 N.W.2d 251 (2002). Turning to the dictionary in this instance is of little assistance. Meanings similar to the jury instruction definition discussed above can be found. Considering the subject matter at issue—animals—a determination of "severe physical or mental pain, and agony or anguish" may be confusing or arduous.

Turning to the law of our sister states for guidance, we find that many have provisions specifically defining "torture" as the term relates to their animal offense statutes. See Glass v. Goeckel, 473 Mich. 667, 674 n. 4, 703 N.W.2d 58 (2005). After considered review, we note that the term "torture" is commonly defined to include every act or omission that causes or permits an animal to suffer unjustifiable or unreasonable pain, suffering, or death. See, e.g., People v. Sitors, 12 Misc.3d 928, 931, 815 N.Y.S.2d 393 (2006), citing N.Y. Agriculture and Markets Law 350(2); People v. Thomason, 84 Cal.App.4th 1064, 1067, 101 Cal.Rptr.2d 247 (2000), citing Cal Penal Code 599b; State v. Howell, 137 Ohio App.3d 804, 817, 739 N.E.2d 1219 (2000), citing Ohio Rev Code Ann 1717.01(B); In re William G, 52 Md.App. 131, 132, 447 A.2d 493 (1982), citing § 62 of art 27, MD Code Ann (1982 Repl Vol); see, also, SD Codified Laws 40-1-2.2; Tenn Code Ann XX-XX-XXX(4). We are persuaded that this definition is an appropriate and reasonable construction of the term "torture," as it uniquely pertains to animals, and accomplishes the statute's purpose; namely, to ensure that animals are treated humanely. See MCL 750.49 et seq.; People v. Adair, 452 Mich. 473, 479-480, 550 N.W.2d 505 (1996).

In this case, whether "torture" was defined for purposes of the preliminary examination [630] as "severe physical or mental pain, and agony or anguish" or as "every act or omission that causes or permits an animal to suffer unjustifiable or unreasonable pain, suffering, or death," the evidence supported a finding that these three horses suffered torture under MCL 750.50b(2). Thus, the definition of "torture" relied on by the district court does not warrant appellate relief. Accordingly, the three felony counts against both defendants are reinstated for further proceedings consistent with this opinion.

Forfeiture Action, Docket No. 285773

Next, the prosecution argues that the circuit court erred by reversing the district court's order of forfeiture of 69 horses under MCL 750.50(3). We agree. This Court reviews questions of statutory interpretation de novo. People v. Herrick, 277 Mich.App. 255, 256-257, 744 N.W.2d 370 (2007).

MCL 750.50(3) establishes a procedure by which forfeiture of animals may occur before the disposition of criminal charges of animal cruelty or animal torture under MCL 750.50(2) or MCL 750.50b(2). In a civil forfeiture action, the prosecution must prove its case by a preponderance of the evidence. MCL 750.50(3). The misdemeanor charge that underlies the instant forfeiture action was an alleged violation of MCL 750.50(2)(a), which provides:

An owner, possessor, or person having the charge or custody of an animal shall not do any of the following:

(a) Fail to provide an animal with adequate care.

Adequate care is "the provision of sufficient food, water, shelter, sanitary conditions, exercise, and veterinary medical attention in order to maintain an animal in a state of good health." MCL 750.50(1)(a). "`Sanitary conditions' means space free from health hazards including excessive animal waste, overcrowding of animals, or other conditions that endanger the animal's health." MCL 750.50(1)(i).

The district court held that, on the basis of all the evidence previously discussed, the prosecution established the misdemeanor count of inadequate care by a preponderance of the evidence to support the forfeiture of the horses. The court stated that "there was not sufficient provision, sufficient food, water, shelter, sanitary conditions, exercise, veterinary medical condition [sic] in order to maintain the animals in a state of good health." The district court rejected defendant Henderson's claim that he was an innocent owner on the ground that the evidence placed him on the farm. The circuit court disagreed, holding that there was insufficient evidence of Henderson's presence on the farm. Specifically, the court held: "It's clear that Mr. Mercier was the caretaker and the one in charge of the horses and therefore I do find that Mr. Henderson not [sic] have charge or custody of the animals and is in fact an innocent owner in these circumstances based on the record even taking everything in the light most favorable to the prosecution."

The dispute here is the proper interpretation of MCL 750.50(2). The statute prohibits "[a]n owner, possessor, or person having the charge or custody of an animal" from failing to provide adequate care. The prosecution argues that as the owner of the horses, Henderson is liable for failure to provide adequate care, regardless of whether the horses were in his charge or custody. The prosecution urges an interpretation of the statute that identifies three separate statuses, i.e., (1) owner, (2) possessor, or (3) person having charge or custody. Under this construction, the phrase "having charge or custody" pertains only to "person," distinct from an owner or possessor of the animal.

[631] In contrast, Henderson argues that, although he owned the horses, he did not have charge or custody of them. He maintains that ownership alone is insufficient for liability. The horses were in Mercier's care and custody, and Mercier was the person responsible for them in Henderson's absence. In essence, Henderson reads the statutory phrase "having the charge or custody" as describing all three preceding statuses, i.e., owner, possessor, or other person, so that he must be an owner having charge or custody of the horses in order to be liable for failure to provide adequate care.

In support of his position Henderson, again, relies on Johnson, supra, a case in which this Court construed an earlier version of the animal cruelty statute, MCL 752.21, repealed by 1994 PA 126, § 2, which prohibited cruelty to an animal by a person "having the charge or custody of any animal, either as owner or otherwise[.]" In that case, this Court reversed a defendant's conviction that was solely based on his co-ownership of a mistreated horse, because the other owners had assumed responsibility for the horse's care. Johnson, supra at 633-634, 305 N.W.2d 560. The prosecution was required to present evidence that the horse was in that defendant's charge or custody. Id. at 632-633, 305 N.W.2d 560. This Court explained that the statutory phrase "`as owner or otherwise' refers to the fact that a person having charge or custody of an abused animal may be held liable without regard to ownership." Id. at 633, 305 N.W.2d 560. However, the Legislature repealed MCL 752.21 in 1994. The statutory language construed in Johnson, supra, which applied to a person "having the charge or custody of any animal, either as owner or otherwise," made ownership irrelevant to the "having the charge or custody" requirement. The present animal cruelty statute, MCL 750.50(2), is worded differently; it applies to "[a]n owner, possessor, or person having the charge or custody of an animal...."

The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. People v. Williams, 475 Mich. 245, 250, 716 N.W.2d 208 (2006). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Spann, supra. We are also guided by several rules of construction. Relevant to this case is the tenet that, when a statute is repealed and another statute is enacted that covers the same subject area, a change in wording is presumed to reflect a legislative intent to change the statute's meaning. Williams v. Auto Club Group Ins. Co. (On Remand), 224 Mich.App. 313, 319, 569 N.W.2d 403 (1997). In this case, the change in the statutory language appears to be an effort to make owners of an animal legally responsible for their failure to provide adequate care to the animal. The repealed statute made the fact of ownership irrelevant. Under the present statute, the owner of an animal cannot just give that animal to someone to care for it without the attendant responsibility to ensure that the animal receives adequate care. If a person does not want to be bothered with the detail of ensuring that his animal receives adequate care, he should not own the animal.

Another rule of statutory construction relevant here is the rule of the last antecedent, as the amicus curiae brief of Leelanau Horse Rescue and Laura Steenrod sets forth. Generally, a modifying clause will be construed to modify only the last antecedent, unless something in the subject matter or dominant purpose requires a different interpretation. Dessart v. Burak, 470 Mich. 37, 41, 678 N.W.2d 615 (2004). Here, the last antecedent [632] to the modifying clause "having the charge or custody of an animal" is "person." There is nothing in the subject matter or grammatical construction that leads us to conclude that the rule does not apply here. If the modifying clause applied to, for example, "possessor" the resulting clause would be redundant because a "possessor" in this instance is a person who has possession of an animal. Further, the Legislature is presumed to have known the rules of grammar. People v. Beardsley, 263 Mich.App. 408, 412-413, 688 N.W.2d 304 (2004). Thus, if the modifying clause was meant to be applied to an owner, possessor, or person, the clause would have been set off by a punctuation mark so that the provision would read "[a]n owner, possessor, or person, having the charge or custody of an animal, shall not...." See, e.g., Cameron v. Auto Club Ins. Ass'n, 476 Mich. 55, 71, 718 N.W.2d 784 (2006). There is no such punctuation. Accordingly, we conclude that MCL 750.50(2) prohibits an owner of an animal from failing to provide that animal with adequate care.

In this case, it is undisputed that Henderson was the owner of the horses that were the subject of the forfeiture order. Thus, we turn to whether he failed to provide those horses with adequate care. As discussed above, Henderson leased the property on which the horses were located and he was responsible for paying for their care. As discussed above, extensive evidence was presented at the hearing. The evidence included that there were poor, unsanitary, or hazardous conditions on the land, in the barn, in the horse stalls, and in the buildings. For example, debris including wire, nails, boards, steel siding, and hoses cluttered the pastures and fields on which the horses roamed. The barn also contained significant debris and the horse stalls, most of which had inappropriate gates, were overcrowded and were filled with several inches of urine and manure to the extent that there were no dry spots for the horses to stand or lie. The fences were in disrepair and inadequate, allowing the horses to repeatedly leave the farm and cross major roads. Because of a lack of water, the horses were allowed, or forced, to drink water from an E. coli contaminated county ditch that ran at the bottom of a steep hill. The horse shelters were abysmal. There was insufficient or poor quality hay.

Further, several veterinarians and animal control officers with extensive experience with horses testified that many of the horses were severely emaciated and only a few were in fair condition. The horses had long hooves—some of which were split, and all the horses were heavily infested with parasites both externally with lice causing hair loss and internally with worms. Many were injured and did not receive veterinary care. Clearly, the prosecution established by a preponderance of the evidence that Henderson failed to provide every horse on this farm with adequate care during the relevant period. That Mercier was supposed to take care of the horses is of no consequence because he did not. Accordingly, the circuit court's order reversing the forfeiture of the 69 horses under MCL 750.50(3) is reversed.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

[1] MCL 750.377 was repealed by 1994 PA 126, effective March 30, 1995.

[2] As the American Humane Association's amicus curiae brief explains in great detail, this conclusion that the statute is a general intent crime is consistent with animal cruelty laws across the nation.

508 U.S. 520 (1993)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

[521] [522] Kennedy, J., delivered the opinion of the Court with respect to Parts I, III, and IV, in which Rehnquist, C. J., and White, Stevens, Scalia, Souter, and Thomas, JJ., joined, the opinion of the Court with respect to Part II—B, in which Rehnquist, C. J., and White, Stevens, Scalia, and Thomas, JJ., joined, the opinion of the Court with respect to Parts II—A-1 and II—A-3, in which Rehnquist, C. J., and Stevens, Scalia, and Thomas, JJ., joined, and an opinion with respect to Part II—A-2, in which Stevens, J., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Rehnquist, C. J., joined, post, p. 557. Souter, J., filed an opinion concurring in part and concurring in the judgment, post, p. 559. Blackmun, J., filed an opinion concurring in the judgment, in which O'Connor, J., joined, post, p. 577.

[523] Douglas Laycock argued the cause for petitioners. With him on the briefs were Jeanne Baker, Steven R. Shapiro, and Jorge A. Duarte.

Richard G. Garrett argued the cause for respondent. With him on the brief were Stuart H. Singer and Steven M. Goldsmith.^[1]

Justice Kennedy delivered the opinion of the Court, except as to Part II—A-2.^[2]

The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions. Cf. McDaniel v. Paty, 435 U. S. 618 (1978); Fowler v. Rhode Island, 345 U. S. 67 (1953). Concerned that this fundamental nonpersecution principle of the First Amendment was implicated here, however, we granted certiorari. 503 U. S. 935 (1992).

[524] Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation's essential commitment to religious freedom. The challenged laws had an impermissible object; and in all events the principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs. We invalidate the challenged enactments and reverse the judgment of the Court of Appeals.

I

A

This case involves practices of the Santeria religion, which originated in the 19th century. When hundreds of thousands of members of the Yoruba people were brought as slaves from western Africa to Cuba, their traditional African religion absorbed significant elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, "the way of the saints." The Cuban Yoruba express their devotion to spirits, called orishas, through the iconography of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments. 723 F. Supp. 1467, 1469-1470 (SD Fla. 1989); 13 Encyclopedia of Religion 66 (M. Eliade ed. 1987); 1 Encyclopedia of the American Religious Experience 183 (C. Lippy & P. Williams eds. 1988).

The Santeria faith teaches that every individual has a destiny from God, a destiny fulfilled with the aid and energy of the or is has. The basis of the Santeria religion is the nurture of a personal relation with the or is has, and one of the principal forms of devotion is an animal sacrifice. 13 Encyclopedia of Religion, supra, at 66. The sacrifice of animals as part of religious rituals has ancient roots. See generally 12 id., at 554-556. Animal sacrifice is mentioned throughout the Old Testament, see 14 Encyclopedia Judaica 600, 600— [525] 605 (1971), and it played an important role in the practice of Judaism before destruction of the second Temple in Jerusalem, see id., at 605-612. In modern Islam, there is an annual sacrifice commemorating Abraham's sacrifice of a ram in the stead of his son. See C. Glass, Concise Encyclopedia of Islam 178 (1989); 7 Encyclopedia of Religion, supra, at 456.

According to Santeria teaching, the or is has are powerful but not immortal. They depend for survival on the sacrifice. Sacrifices are performed at birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during an annual celebration. Animals sacrificed in Santeria rituals include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles. The animals are killed by the cutting of the carotid arteries in the neck. The sacrificed animal is cooked and eaten, except after healing and death rituals. See 723 F. Supp., at 1471-1472; 13 Encyclopedia of Religion, supra, at 66; M. Gonzlez-Wippler, The Santeria Experience 105 (1982).

Santeria adherents faced widespread persecution in Cuba, so the religion and its rituals were practiced in secret. The open practice of Santeria and its rites remains infrequent. See 723 F. Supp., at 1470; 13 Encyclopedia of Religion, supra, Gonzlez-Wippler, The at 67; M. Santeria: Religion 3-4 (1989). The religion was brought to this Nation most often by exiles from the Cuban revolution. The District Court estimated that there are at least 50,000 practitioners in South Florida today. See 723 F. Supp., at 1470.

B

Petitioner Church of the Lukumi Babalu Aye, Inc. (Church), is a not-for-profit corporation organized under Florida law in 1973. The Church and its congregants practice the Santeria religion. The president of the Church is petitioner Ernesto Pichardo, who is also the Church's priest and holds the religious title of Italero, the second highest in the Santeria faith. In April 1987, the Church leased land in [526] the city of Hialeah, Florida, and announced plans to establish a house of worship as well as a school, cultural center, and museum. Pichardo indicated that the Church's goal was to bring the practice of the Santeria faith, including its ritual of animal sacrifice, into the open. The Church began the process of obtaining utility service and receiving the necessary licensing, inspection, and zoning approvals. Although the Church's efforts at obtaining the necessary licenses and permits were far from smooth, see 723 F. Supp., at 1477-1478, it appears that it received all needed approvals by early August 1987.

The prospect of a Santeria church in their midst was distressing to many members of the Hialeah community, and the announcement of the plans to open a Santeria church in Hialeah prompted the city council to hold an emergency public session on June 9, 1987. The resolutions and ordinances passed at that and later meetings are set forth in the Appendix following this opinion.

A summary suffices here, beginning with the enactments passed at the June 9 meeting. First, the city council adopted Resolution 87-66, which noted the "concern" expressed by residents of the city "that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety," and declared that "[t]he City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety." Next, the council approved an emergency ordinance, Ordinance 87-40, which incorporated in full, except as to penalty, Florida's animal cruelty laws. Fla. Stat. ch. 828 (1987). Among other things, the incorporated state law subjected to criminal punishment "[w]hoever . . . unnecessarily or cruelly . . . kills any animal." § 828.12.

The city council desired to undertake further legislative action, but Florida law prohibited a municipality from enacting legislation relating to animal cruelty that conflicted with [527] state law. § 828.27(4). To obtain clarification, Hialeah's city attorney requested an opinion from the attorney general of Florida as to whether § 828.12 prohibited "a religious group from sacrificing an animal in a religious ritual or practice" and whether the city could enact ordinances "making religious animal sacrifice unlawful." The attorney general responded in mid-July. He concluded that the "ritual sacrifice of animals for purposes other than food consumption" was not a "necessary" killing and so was prohibited by § 828.12. Fla. Op. Atty. Gen. 87-56, Annual Report of the Atty. Gen. 146, 147, 149 (1988). The attorney general appeared to define "unnecessary" as "done without any useful motive, in a spirit of wanton cruelty or for the mere pleasure of destruction without being in any sense beneficial or useful to the person killing the animal." Id., at 149, n. 11. He advised that religious animal sacrifice was against state law, so that a city ordinance prohibiting it would not be in conflict. Id., at 151.

The city council responded at first with a hortatory enactment, Resolution 87-90, that noted its residents' "great concern regarding the possibility of public ritualistic animal sacrifices" and the state-law prohibition. The resolution declared the city policy "to oppose the ritual sacrifices of animals" within Hialeah and announced that any person or organization practicing animal sacrifice "will be prosecuted."

In September 1987, the city council adopted three substantive ordinances addressing the issue of religious animal sacrifice. Ordinance 87-52 defined "sacrifice" as "to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption," and prohibited owning or possessing an animal "intending to use such animal for food purposes." It restricted application of this prohibition, however, to any individual or group that "kills, slaughters or sacrifices animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be consumed." The ordinance [528] contained an exemption for slaughtering by "licensed establishment[s]" of animals "specifically raised for food purposes." Declaring, moreover, that the city council "has determined that the sacrificing of animals within the city limits is contrary to the public health, safety, welfare and morals of the community," the city council adopted Ordinance 87-71. That ordinance defined "sacrifice" as had Ordinance 87-52, and then provided that "[i]t shall be unlawful for any person, persons, corporations or associations to sacrifice any animal within the corporate limits of the City of Hialeah, Florida." The final Ordinance, 87-72, defined "slaughter" as "the killing of animals for food" and prohibited slaughter outside of areas zoned for slaughterhouse use. The ordinance provided an exemption, however, for the slaughter or processing for sale of "small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law." All ordinances and resolutions passed the city council by unanimous vote. Violations of each of the four ordinances were punishable by fines not exceeding $500 or imprisonment not exceeding 60 days, or both.

Following enactment of these ordinances, the Church and Pichardo filed this action pursuant to 42 U. S. C. § 1983 in the United States District Court for the Southern District of Florida. Named as defendants were the city of Hialeah and its mayor and members of its city council in their individual capacities. Alleging violations of petitioners' rights under, inter alia, the Free Exercise Clause, the complaint sought a declaratory judgment and injunctive and monetary relief. The District Court granted summary judgment to the individual defendants, finding that they had absolute immunity for their legislative acts and that the ordinances and resolutions adopted by the council did not constitute an official policy of harassment, as alleged by petitioners. 688 F. Supp. 1522 (SD Fla. 1988).

After a 9-day bench trial on the remaining claims, the District Court ruled for the city, finding no violation of petitioners' [529] rights under the Free Exercise Clause. 723 F. Supp. 1467 (SD Fla. 1989). (The court rejected as well petitioners' other claims, which are not at issue here.) Although acknowledging that "the ordinances are not religiously neutral," id., at 1476, and that the city's concern about animal sacrifice was "prompted" by the establishment of the Church in the city, id., at 1479, the District Court concluded that the purpose of the ordinances was not to exclude the Church from the city but to end the practice of animal sacrifice, for whatever reason practiced, id., at 1479, 1483. The court also found that the ordinances did not target religious conduct "on their face," though it noted that in any event "specifically regulating [religious] conduct" does not violate the First Amendment "when [the conduct] is deemed inconsistent with public health and welfare." Id., at 1483-1484. Thus, the court concluded that, at most, the ordinances' effect on petitioners' religious conduct was "incidental to [their] secular purpose and effect." Id., at 1484.

The District Court proceeded to determine whether the governmental interests underlying the ordinances were compelling and, if so, to balance the "governmental and religious interests." The court noted that "[t]his `balance depends upon the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity.'" Ibid., quoting Grosz v. City of Miami Beach, 721 F. 2d 729, 734 (CA11 1983), cert. denied, 469 U. S. 827 (1984). The court found four compelling interests. First, the court found that animal sacrifices present a substantial health risk, both to participants and the general public. According to the court, animals that are to be sacrificed are often kept in unsanitary conditions and are uninspected, and animal remains are found in public places. 723 F. Supp., at 1474-1475, 1485. Second, the court found emotional injury to children who witness the sacrifice of animals. Id., at 1475-1476, 1485-1486. Third, the court found compelling the city's interest [530] in protecting animals from cruel and unnecessary killing. The court determined that the method of killing used in Santeria sacrifice was "unreliable and not humane, and that the animals, before being sacrificed, are often kept in conditions that produce a great deal of fear and stress in the animal." Id., at 1472-1473, 1486. Fourth, the District Court found compelling the city's interest in restricting the slaughter or sacrifice of animals to areas zoned for slaughterhouse use. Id., at 1486. This legal determination was not accompanied by factual findings.

Balancing the competing governmental and religious interests, the District Court concluded the compelling governmental interests "fully justify the absolute prohibition on ritual sacrifice" accomplished by the ordinances. Id., at 1487. The court also concluded that an exception to the sacrifice prohibition for religious conduct would "`unduly interfere with fulfillment of the governmental interest'" because any more narrow restrictions—e. g., regulation of disposal of animal carcasses—would be unenforceable as a result of the secret nature of the Santeria religion. Id., at 1486-1487, and nn. 57-59. A religious exemption from the city's ordinances, concluded the court, would defeat the city's compelling interests in enforcing the prohibition. Id., at 1487.

The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam opinion. Judgt. order reported at 936 F. 2d 586 (1991). Choosing not to rely on the District Court's recitation of a compelling interest in promoting the welfare of children, the Court of Appeals stated simply that it concluded the ordinances were consistent with the Constitution. App. to Pet. for Cert. A2. It declined to address the effect of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), decided after the District Court's opinion, because the District Court "employed an arguably stricter standard" than that applied in Smith. App. to Pet. for Cert. A2, n. 1.

[531] II

The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U. S. 296, 303 (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." (Emphasis added.) The city does not argue that Santeria is not a "religion" within the meaning of the First Amendment. Nor could it. Although the practice of animal sacrifice may seem abhorrent to some, "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 714 (1981). Given the historical association between animal sacrifice and religious worship, see supra, at 524-525, petitioners' assertion that animal sacrifice is an integral part of their religion "cannot be deemed bizarre or incredible." Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829, 834, n. 2 (1989). Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners' professed desire to conduct animal sacrifices for religious reasons. We must consider petitioners' First Amendment claim.

In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. Employment Div., Dept. of Human Resources of Ore. v. Smith, supra. Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance [532] that interest. These ordinances fail to satisfy the Smith requirements. We begin by discussing neutrality.

A

In our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general. See, e. g., Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 248 (1990) (plurality opinion); School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 389 (1985); Wallace v. Jaffree, 472 U. S. 38, 56 (1985); Epperson v. Arkansas, 393 U. S. 97, 106-107 (1968); School Dist. of Abington v. Schempp, 374 U. S. 203, 225 (1963); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947). These cases, however, for the most part have addressed governmental efforts to benefit religion or particular religions, and so have dealt with a question different, at least in its formulation and emphasis, from the issue here. Petitioners allege an attempt to disfavor their religion because of the religious ceremonies it commands, and the Free Exercise Clause is dispositive in our analysis.

At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. See, e. g., Braunfeld v. Brown, 366 U. S. 599, 607 (1961) (plurality opinion); Fowler v. Rhode Island, 345 U. S., at 69-70. Indeed, it was "historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause." Bowen v. Roy, 476 U. S. 693, 703 (1986) (opinion of Burger, C. J.). See J. Story, Commentaries on the Constitution of the United States §§ 991-992 (abridged ed. 1833) (reprint 1987); T. Cooley, Constitutional Limitations 467 (1868) (reprint 1972); McGowan v. Maryland, 366 U. S. 420, 464, and n. 2 (1961) (opinion of Frankfurter, J.); Douglas v. Jeannette, 319 U. S. 157, 179 (1943) (Jackson, J., concurring in result); [533] Davis v. Beason, 133 U. S. 333, 342 (1890). These principles, though not often at issue in our Free Exercise Clause cases, have played a role in some. In McDaniel v. Paty, 435 U. S. 618 (1978), for example, we invalidated a state law that disqualified members of the clergy from holding certain public offices, because it"impose[d] special disabilities on the basis of . . . religious status," Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 877. On the same principle, in Fowler v. Rhode Island, supra, we found that a municipal ordinance was applied in an unconstitutional manner when interpreted to prohibit preaching in a public park by a Jehovah's Witness but to permit preaching during the course of a Catholic mass or Protestant church service. See also Niemotko v. Maryland, 340 U. S. 268, 272-273 (1951). Cf. Larson v. Valente, 456 U. S. 228 (1982) (state statute that treated some religious denominations more favorably than others violated the Establishment Clause).

1

Although a law targeting religious beliefs as such is never permissible, McDaniel v. Paty, supra, at 626 (plurality opinion); Cantwell v. Connecticut, supra, at 303-304, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, see Employment Div., Dept. of Human Resources of Ore. v. Smith, supra, at 878-879; and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context. Petitioners contend that three of the ordinances fail this test of facial neutrality because they use the words [534] "sacrifice" and "ritual," words with strong religious connotations. Brief for Petitioners 16-17. We agree that these words are consistent with the claim of facial discrimination, but the argument is not conclusive. The words "sacrifice" and "ritual" have a religious origin, but current use admits also of secular meanings. See Webster's Third New International Dictionary 1961, 1996 (1971). See also 12 Encyclopedia of Religion, at 556 ("[T]he word sacrifice ultimately became very much a secular term in common usage"). The ordinances, furthermore, define "sacrifice" in secular terms, without referring to religious practices.

We reject the contention advanced by the city, see Brief for Respondent 15, that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause "forbids subtle departures from neutrality," Gillette v. United States, 401 U. S. 437, 452 (1971), and "covert suppression of particular religious beliefs," Bowen v. Roy, supra, at 703 (opinion of Burger, C. J.). Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt. "The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders." Walz v. Tax Comm'n of New York City, 397 U. S. 664, 696 (1970) (Harlan, J., concurring).

The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances. First, though use of the words "sacrifice" and "ritual" does not compel a finding of improper targeting of the Santeria religion, the choice of these words is support for our conclusion. There are further respects in which the text of the city council's enactments discloses the improper attempt to target Santeria. [535] Resolution 87-66, adopted June 9, 1987, recited that "residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety," and "reiterate[d]" the city's commitment to prohibit "any and all [such] acts of any and all religious groups." No one suggests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santeria.

It becomes evident that these ordinances target Santeria sacrifice when the ordinances' operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object. To be sure, adverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. McGowan v. Maryland, 366 U. S., at 442. See, e. g., Reynolds v. United States, 98 U. S. 145 (1879); Davis v. Beason, 133 U. S. 333 (1890). See also Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205, 1319 (1970). The subject at hand does implicate, of course, multiple concerns unrelated to religious animosity, for example, the suffering or mistreatment visited upon the sacrificed animals and health hazards from improper disposal. But the ordinances when considered together disclose an object remote from these legitimate concerns. The design of these laws accomplishes instead a "religious gerrymander," Walz v. Tax Comm'n of New York City, supra, at 696 (Harlan, J., concurring), an impermissible attempt to target petitioners and their religious practices.

It is a necessary conclusion that almost the only conduct subject to Ordinances 87-40, 87-52, and 87-71 is the religious exercise of Santeria church members. The texts show that they were drafted in tandem to achieve this result. We begin with Ordinance 87-71. It prohibits the sacrifice of animals, but defines sacrifice as "to unnecessarily kill . . . an animal in a public or private ritual or ceremony not for the [536] primary purpose of food consumption." The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting kosher slaughter, see 723 F. Supp., at 1480. We need not discuss whether this differential treatment of two religions is itself an independent constitutional violation. Cf. Larsonv. Valente, 456 U. S., at 244-246. It suffices to recite this feature of the law as support for our conclusion that Santeria alone was the exclusive legislative concern. The net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice, which is proscribed because it occurs during a ritual or ceremony and its primary purpose is to make an offering to the orishas, not food consumption. Indeed, careful drafting ensured that, although Santeria sacrifice is prohibited, killings that are no more necessary or humane in almost all other circumstances are unpunished.

Operating in similar fashion is Ordinance 87-52, which prohibits the "possess[ion], sacrifice, or slaughter" of an animal with the "inten[t] to use such animal for food purposes." This prohibition, extending to the keeping of an animal as well as the killing itself, applies if the animal is killed in "any type of ritual" and there is an intent to use the animal for food, whether or not it is in fact consumed for food. The ordinance exempts, however, "any licensed [food] establishment" with regard to "any animals which are specifically raised for food purposes," if the activity is permitted by zoning and other laws. This exception, too, seems intended to cover kosher slaughter. Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others: If the killing is—unlike most Santeria sacrifices—unaccompanied by the intent to use the animal for food, then it is not prohibited by Ordinance 87-52; if the killing is specifically for food but does not occur during the course of "any type of ritual," it again falls outside the prohibition; and if [537] the killing is for food and occurs during the course of a ritual, it is still exempted if it occurs in a properly zoned and licensed establishment and involves animals "specifically raised for food purposes." A pattern of exemptions parallels the pattern of narrow prohibitions. Each contributes to the gerrymander.

Ordinance 87-40 incorporates the Florida animal cruelty statute, Fla. Stat. § 828.12 (1987). Its prohibition is broad on its face, punishing "[w]hoever . . . unnecessarily . . . kills any animal." The city claims that this ordinance is the epitome of a neutral prohibition. Brief for Respondent 13-14. The problem, however, is the interpretation given to the ordinance by respondent and the Florida attorney general. Killings for religious reasons are deemed unnecessary, whereas most other killings fall outside the prohibition. The city, on what seems to be a per se basis, deems hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia as necessary. See id., at 22. There is no indication in the record that respondent has concluded that hunting or fishing for sport is unnecessary. Indeed, one of the few reported Florida cases decided under § 828.12 concludes that the use of live rabbits to train greyhounds is not unnecessary. See Kiper v. State, 310 So. 2d 42 (Fla. App.), cert. denied, 328 So. 2d 845 (Fla. 1975). Further, because it requires an evaluation of the particular justification for the killing, this ordinance represents a system of "individualized governmental assessment of the reasons for the relevant conduct," Employment Div., Dept. of Human Resources of Ore.v. Smith, 494 U. S., at 884. As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government "may not refuse to extend that system to cases of `religious hardship' without compelling reason." Ibid., quoting Bowen v. Roy, 476 U. S., at 708 (opinion of Burger, C. J.). Respondent's application of the ordinance's test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonreligious [538] reasons. Thus, religious practice is being singled out for discriminatory treatment. Id., at 722, and n. 17 (Stevens, J., concurring in part and concurring in result); id., at 708 (opinion of Burger, C. J.); United States v. Lee, 455 U. S. 252, 264, n. 3 (1982) (Stevens, J., concurring in judgment).

We also find significant evidence of the ordinances' improper targeting of Santeria sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends. It is not unreasonable to infer, at least when there are no persuasive indications to the contrary, that a law which visits "gratuitous restrictions" on religious conduct, McGowan v. Maryland, 366 U. S., at 520 (opinion of Frankfurter, J.), seeks not to effectuate the stated governmental interests, but to suppress the conduct because of its religious motivation.

The legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice.^[3] If improper disposal, not the sacrifice itself, is the harm to be prevented, the city could have imposed a general regulation on the disposal of organic garbage. It did not do so. Indeed, counsel for the city conceded at oral argument that, under the ordinances, Santeria sacrifices would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses. Tr. of Oral Arg. 45. See also id., at 42, 48. Thus, these broad ordinances prohibit Santeria sacrifice even when it does not threaten the city's [539] interest in the public health. The District Court accepted the argument that narrower regulation would be unenforceable because of the secrecy in the Santeria rituals and the lack of any central religious authority to require compliance with secular disposal regulations. See 723 F. Supp., at 1486-1487, and nn. 58-59. It is difficult to understand, however, how a prohibition of the sacrifices themselves, which occur in private, is enforceable if a ban on improper disposal, which occurs in public, is not. The neutrality of a law is suspect if First Amendment freedoms are curtailed to prevent isolated collateral harms not themselves prohibited by direct regulation. See, e. g., Schneider v. State, 308 U. S. 147, 162 (1939).

Under similar analysis, narrower regulation would achieve the city's interest in preventing cruelty to animals. With regard to the city's interest in ensuring the adequate care of animals, regulation of conditions and treatment, regardless of why an animal is kept, is the logical response to the city's concern, not a prohibition on possession for the purpose of sacrifice. The same is true for the city's interest in prohibiting cruel methods of killing. Under federal and Florida law and Ordinance 87-40, which incorporates Florida law in this regard, killing an animal by the "simultaneous and instantaneous severance of the carotid arteries with a sharp instrument"—the method used in kosher slaughter—is approved as humane. See 7 U. S. C. § 1902(b); Fla. Stat. § 828.23(7)(b) (1991); Ordinance 87-40, § 1. The District Court found that, though Santeria sacrifice also results in severance of the carotid arteries, the method used during sacrifice is less reliable and therefore not humane. See 723 F. Supp., at 1472— 1473. If the city has a real concern that other methods are less humane, however, the subject of the regulation should be the method of slaughter itself, not a religious classification that is said to bear some general relation to it.

Ordinance 87-72—unlike the three other ordinances— does appear to apply to substantial nonreligious conduct and [540] not to be overbroad. For our purposes here, however, the four substantive ordinances may be treated as a group for neutrality purposes. Ordinance 87-72 was passed the same day as Ordinance 87-71 and was enacted, as were the three others, in direct response to the opening of the Church. It would be implausible to suggest that the three other ordinances, but not Ordinance 87-72, had as their object the suppression of religion. We need not decide whether Ordinance 87-72 could survive constitutional scrutiny if it existed separately; it must be invalidated because it functions, with the rest of the enactments in question, to suppress Santeria religious worship.

2

In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases. As Justice Harlan noted in the related context of the Establishment Clause, "[n]eutrality in its application requires an equal protection mode of analysis." Walz v. Tax Comm'n of New York City, 397 U. S., at 696 (concurring opinion). Here, as in equal protection cases, we may determine the city council's object from both direct and circumstantial evidence. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body. Id., at 267-268. These objective factors bear on the question of discriminatory object. Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279, n. 24 (1979).

That the ordinances were enacted "`because of,' not merely `in spite of,'" their suppression of Santeria religious practice, id., at 279, is revealed by the events preceding their enactment. Although respondent claimed at oral argument [541] that it had experienced significant problems resulting from the sacrifice of animals within the city before the announced opening of the Church, Tr. of Oral Arg. 27, 46, the city council made no attempt to address the supposed problem before its meeting in June 1987, just weeks after the Church announced plans to open. The minutes and taped excerpts of the June 9 session, both of which are in the record, evidence significant hostility exhibited by residents, members of the city council, and other city officials toward the Santeria religion and its practice of animal sacrifice. The public crowd that attended the June 9 meetings interrupted statements by council members critical of Santeria with cheers and the brief comments of Pichardo with taunts. When Councilman Martinez, a supporter of the ordinances, stated that in prerevolution Cuba "people were put in jail for practicing this religion," the audience applauded. Taped excerpts of Hialeah City Council Meeting, June 9, 1987.

Other statements by members of the city council were in a similar vein. For example, Councilman Martinez, after noting his belief that Santeria was outlawed in Cuba, questioned: "[I]f we could not practice this [religion] in our homeland [Cuba], why bring it to this country?" Councilman Cardoso said that Santeria devotees at the Church "are in violation of everything this country stands for." Councilman Mejides indicated that he was "totally against the sacrificing of animals" and distinguished kosher slaughter because it had a "real purpose." The "Bible says we are allowed to sacrifice an animal for consumption," he continued, "but for any other purposes, I don't believe that the Bible allows that." The president of the city council, Councilman Echevarria, asked: "What can we do to prevent the Church from opening?"

Various Hialeah city officials made comparable comments. The chaplain of the Hialeah Police Department told the city council that Santeria was a sin, "foolishness," "an abomination to the Lord," and the worship of "demons." He advised [542] the city council: "We need to be helping people and sharing with them the truth that is found in Jesus Christ." He concluded: "I would exhort you . . . not to permit this Church to exist." The city attorney commented that Resolution 87-66 indicated: "This community will not tolerate religious practices which are abhorrent to its citizens . . . ." Ibid. Similar comments were made by the deputy city attorney. This history discloses the object of the ordinances to target animal sacrifice by Santeria worshippers because of its religious motivation.

3

In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion. The pattern we have recited discloses animosity to Santeria adherents and their religious practices; the ordinances by their own terms target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense. These ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion.

B

We turn next to a second requirement of the Free Exercise Clause, the rule that laws burdening religious practice must be of general applicability. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 879-881. All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice. The Free Exercise Clause "protect[s] religious observers against unequal treatment," Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 148 (1987) (Stevens, J., concurring in judgment), and inequality results when a legislature decides that [543] the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.

The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause. The principle underlying the general applicability requirement has parallels in our First Amendment jurisprudence. See, e. g., Cohen v. Cowles Media Co., 501 U. S. 663, 669-670 (1991); University of Pennsylvania v. EEOC, 493 U. S. 182, 201 (1990); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575, 585 (1983); Larson v. Valente, 456 U. S., at 245-246; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 449 (1969). In this case we need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.

Respondent claims that Ordinances 87-40, 87-52, and 87-71 advance two interests: protecting the public health and preventing cruelty to animals. The ordinances are underinclusive for those ends. They fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does. The underinclusion is substantial, not inconsequential. Despite the city's proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice. Many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision. For example, fishing—which occurs in Hialeah, see A. Khedouri & F. Khedouri, South Florida Inside Out 57 (1991)—is legal. Extermination of mice and rats within a home is also permitted. Florida law incorporated by Ordinance 87-40 sanctions [544] euthanasia of "stray, neglected, abandoned, or unwanted animals," Fla. Stat. § 828.058 (1987); destruction of animals judicially removed from their owners "for humanitarian reasons" or when the animal "is of no commercial value," § 828.073(4)(c)(2); the infliction of pain or suffering "in the interest of medical science," § 828.02; the placing of poison in one's yard or enclosure, § 828.08; and the use of a live animal "to pursue or take wildlife or to participate in any hunting," § 828.122(6)(b), and "to hunt wild hogs," § 828.122(6)(e).

The city concedes that "neither the State of Florida nor the City has enacted a generally applicable ban on the killing of animals." Brief for Respondent 21. It asserts, however, that animal sacrifice is "different" from the animal killings that are permitted by law. Ibid. According to the city, it is "self-evident" that killing animals for food is "important"; the eradication of insects and pests is "obviously justified"; and the euthanasia of excess animals "makes sense." Id., at 22. These ipse dixits do not explain why religion alone must bear the burden of the ordinances, when many of these secular killings fall within the city's interest in preventing the cruel treatment of animals.

The ordinances are also underinclusive with regard to the city's interest in public health, which is threatened by the disposal of animal carcasses in open public places and the consumption of uninspected meat, see Brief for Respondent 32, citing 723 F. Supp., at 1474-1475, 1485. Neither interest is pursued by respondent with regard to conduct that is not motivated by religious conviction. The health risks posed by the improper disposal of animal carcasses are the same whether Santeria sacrifice or some nonreligious killing preceded it. The city does not, however, prohibit hunters from bringing their kill to their houses, nor does it regulate disposal after their activity. Despite substantial testimony at trial that the same public health hazards result from improper disposal of garbage by restaurants, see 11 Record 566, [545] 590-591, restaurants are outside the scope of the ordinances. Improper disposal is a general problem that causes substantial health risks, 723 F. Supp., at 1485, but which respondent addresses only when it results from religious exercise.

The ordinances are underinclusive as well with regard to the health risk posed by consumption of uninspected meat. Under the city's ordinances, hunters may eat their kill and fishermen may eat their catch without undergoing governmental inspection. Likewise, state law requires inspection of meat that is sold but exempts meat from animals raised for the use of the owner and "members of his household and nonpaying guests and employees." Fla. Stat. § 585.88(1)(a) (1991). The asserted interest in inspected meat is not pursued in contexts similar to that of religious animal sacrifice.

Ordinance 87-72, which prohibits the slaughter of animals outside of areas zoned for slaughterhouses, is underinclusive on its face. The ordinance includes an exemption for "any person, group, or organization" that "slaughters or processes for sale, small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law." See Fla. Stat. § 828.24(3) (1991). Respondent has not explained why commercial operations that slaughter "small numbers" of hogs and cattle do not implicate its professed desire to prevent cruelty to animals and preserve the public health. Although the city has classified Santeria sacrifice as slaughter, subjecting it to this ordinance, it does not regulate other killings for food in like manner.

We conclude, in sum, that each of Hialeah's ordinances pursues the city's governmental interests only against conduct motivated by religious belief. The ordinances "ha[ve] every appearance of a prohibition that society is prepared to impose upon [Santeria worshippers] but not upon itself." Florida Star v. B. J. F., 491 U. S. 524, 542 (1989) (Scalia, J., concurring in part and concurring in judgment). This [546] precise evil is what the requirement of general applicability is designed to prevent.

III

A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance "`interests of the highest order'" and must be narrowly tailored in pursuit of those interests. McDaniel v. Paty, 435 U. S., at 628, quoting Wisconsin v. Yoder, 406 U. S. 205, 215 (1972). The compelling interest standard that we apply once a law fails to meet the Smith requirements is not "water[ed] . . . down" but "really means what it says." Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 888. A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases. It follows from what we have already said that these ordinances cannot withstand this scrutiny.

First, even were the governmental interests compelling, the ordinances are not drawn in narrow terms to accomplish those interests. As we have discussed, see supra, at 538-540, 543-546, all four ordinances are overbroad or underinclusive in substantial respects. The proffered objectives are not pursued with respect to analogous nonreligious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. The absence of narrow tailoring suffices to establish the invalidity of the ordinances. See Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 232 (1987).

Respondent has not demonstrated, moreover, that, in the context of these ordinances, its governmental interests are compelling. Where government restricts only conduct protected by the First Amendment and fails to enact feasible [547] measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. It is established in our strict scrutiny jurisprudence that "a law cannot be regarded as protecting an interest `of the highest order'. . . when it leaves appreciable damage to that supposedly vital interest unprohibited." Florida Star v. B. J. F., supra, at 541-542 (Scalia, J., concurring in part and concurring in judgment) (citation omitted). See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 119-120 (1991). Cf. Florida Star v. B. J. F., supra, at 540— 541; Smith v. Daily Mail Publishing Co., 443 U. S. 97, 104— 105 (1979); id., at 110 (Rehnquist, J., concurring in judgment). As we show above, see supra, at 543-546, the ordinances are underinclusive to a substantial extent with respect to each of the interests that respondent has asserted, and it is only conduct motivated by religious conviction that bears the weight of the governmental restrictions. There can be no serious claim that those interests justify the ordinances.

IV

The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.

Reversed.

[548] APPENDIX TO OPINION OF THE COURT

City of Hialeah, Florida, Resolution No. 87-66, adopted June 9, 1987, provides:

"WHEREAS, residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety, and

"WHEREAS, the Florida Constitution, Article I, Declaration of Rights, Section 3, Religious Freedom, specifically states that religious freedom shall not justify practices inconsistent with public morals, peace or safety.

"NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:

"1. The City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety."

City of Hialeah, Florida, Ordinance No. 87-40, adopted June 9, 1987, provides:

"WHEREAS, the citizens of the City of Hialeah, Florida, have expressed great concern over the potential for animal sacrifices being conducted in the City of Hialeah; and

"WHEREAS, Section 828.27, Florida Statutes, provides that `nothing contained in this section shall prevent any county or municipality from enacting any ordinance relating to animal control or cruelty to animals which is identical to the provisions of this Chapter . . . except as to penalty.'

"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:

[549] "Section 1. The Mayor and City Council of the City of Hialeah, Florida, hereby adopt Florida Statute, Chapter 828—'Cruelty to Animals' (copy attached hereto and made a part hereof), in its entirety (relating to animal control or cruelty to animals), except as to penalty.

"Section 2. Repeal of Ordinances in Conflict.

"All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict.

"Section 3. Penalties.

"Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court.

"Section 4. Inclusion in Code.

"The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code.

"Section 5. Severability Clause.

"If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judge or decree of a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this ordinance.

"Section 6. Effective Date.

"This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah."

City of Hialeah Resolution No. 87-90, adopted August 11, 1987, provides:

"WHEREAS, the residents and citizens of the City of Hialeah, Florida, have expressed great concern regarding [550] the possibility of public ritualistic animal sacrifices in the City of Hialeah, Florida; and

"WHEREAS, the City of Hialeah, Florida, has received an opinion from the Attorney General of the State of Florida, concluding that public ritualistic animal sacrifices is [sic] a violation of the Florida State Statute on Cruelty to Animals; and

"WHEREAS, the Attorney General further held that the sacrificial killing of animals other than for the primary purpose of food consumption is prohibited under state law; and

"WHEREAS, the City of Hialeah, Florida, has enacted an ordinance mirroring state law prohibiting cruelty to animals.

"NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:

"Section 1. It is the policy of the Mayor and City Council of the City of Hialeah, Florida, to oppose the ritual sacrifices of animals within the City of Hialeah, Florida [sic]. Any individual or organization that seeks to practice animal sacrifice in violation of state and local law will be prosecuted."

City of Hialeah, Florida, Ordinance No. 87-52, adopted September 8, 1987, provides:

"WHEREAS, the residents and citizens of the City of Hialeah, Florida, have expressed great concern regarding the possibility of public ritualistic animal sacrifices within the City of Hialeah, Florida; and

"WHEREAS, the City of Hialeah, Florida, has received an opinion from the Attorney General of the State of Florida, concluding that public ritualistic animal sacrifice, other than for the primary purpose of food consumption, is a violation of state law; and

[551] "WHEREAS, the City of Hialeah, Florida, has enacted an ordinance (Ordinance No. 87-40), mirroring the state law prohibiting cruelty to animals.

"WHEREAS, the City of Hialeah, Florida, now wishes to specifically prohibit the possession of animals for slaughter or sacrifice within the City of Hialeah, Florida.

"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:

"Section 1. Chapter 6 of the Code of Ordinances of the City of Hialeah, Florida, is hereby amended by adding thereto two (2) new Sections 6-8 `Definitions' and 6-9 `Prohibition Against Possession Of Animals For Slaughter Or Sacrifice', which is to read as follows:

"Section 6-8. Definitions

"1. Animal—any living dumb creature.

"2. Sacrifice—to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.

"3. Slaughter—the killing of animals for food.

"Section 6-9. Prohibition Against Possession of Animals for Slaughter Or Sacrifice.

"1. No person shall own, keep or otherwise possess, sacrifice, or slaughter any sheep, goat, pig, cow or the young of such species, poultry, rabbit, dog, cat, or any other animal, intending to use such animal for food purposes.

"2. This section is applicable to any group or individual that kills, slaughters or sacrifices animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be consumed.

"3. Nothing in this ordinance is to be interpreted as prohibiting any licensed establishment from slaughtering for food purposes any animals which are specifically [552] raised for food purposes where such activity is properly zoned and/or permitted under state and local law and under rules promulgated by the Florida Department of Agriculture.

"Section 2. Repeal of Ordinance in Conflict.

"All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict.

"Section 3. Penalties.

"Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court.

"Section 4. Inclusion in Code.

"The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code.

"Section 5. Severability Clause.

"If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judgement or decree of a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this ordinance.

"Section 6. Effective Date.

"This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah."

City of Hialeah, Florida, Ordinance No. 87-71, adopted September 22, 1987, provides:

"WHEREAS, the City Council of the City of Hialeah, Florida, has determined that the sacrificing of animals [553] within the city limits is contrary to the public health, safety, welfare and morals of the community; and

"WHEREAS, the City Council of the City of Hialeah, Florida, desires to have qualified societies or corporations organized under the laws of the State of Florida, to be authorized to investigate and prosecute any violation(s) of the ordinance herein after set forth, and for the registration of the agents of said societies.

"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:

"Section 1. For the purpose of this ordinance, the word sacrifice shall mean: to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.

"Section 2. For the purpose of this ordinance, the word animal shall mean: any living dumb creature.

"Section 3. It shall be unlawful for any person, persons, corporations or associations to sacrifice any animal within the corporate limits of the City of Hialeah, Florida.

"Section 4. All societies or associations for the prevention of cruelty to animals organized under the laws of the State of Florida, seeking to register with the City of Hialeah for purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, shall apply to the City Council for authorization to so register and shall be registered with the Office of the Mayor of the City of Hialeah, Florida, following approval by the City Council at a public hearing in accordance with rules and regulations (i. e., criteria) established by the City Council by resolution, and shall thereafter, be empowered to assist in the prosection of any violation of this Ordinance.

[554] "Section 5. Any society or association for the prevention of cruelty to animals registered with the Mayor of the City of Hialeah, Florida, in accordance with the provisions of Section 4 hereinabove, may appoint agents for the purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, or any other laws of the City of Hialeah, Florida, for the purpose of protecting animals and preventing any act prohibited hereunder.

"Section 6. Repeal of Ordinances in Conflict.

"All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict.

"Section 7. Penalties.

"Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court.

"Section 8. Inclusion in Code.

"The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code.

"Section 9. Severability Clause.

"If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judgment or decree of a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Ordinance.

"Section 10. Effective Date.

"This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah."

[555] City of Hialeah, Florida, Ordinance No. 87-72, adopted September 22, 1987, provides:

"WHEREAS, the City Council of the City of Hialeah, Florida, has determined that the slaughtering of animals on the premises other than those properly zoned as a slaughter house, is contrary to the public health, safety and welfare of the citizens of Hialeah, Florida.

"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:

"Section 1. For the purpose of this Ordinance, the word slaughter shall mean: the killing of animals for food.

"Section 2. For the purpose of this Ordinance, the word animal shall mean: any living dumb creature.

"Section 3. It shall be unlawful for any person, persons, corporations or associations to slaughter any animal on any premises in the City of Hialeah, Florida, except those properly zoned as a slaughter house, and meeting all the health, safety and sanitation codes prescribed by the City for the operation of a slaughter house.

"Section 4. All societies or associations for the prevention of cruelty to animals organized under the laws of the State of Florida, seeking to register with the City of Hialeah for purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, shall apply to the City Council for authorization to so register and shall be registered with the Office of the Mayor of the City of Hialeah, Florida, following approval by the City Council at a public hearing in accordance with rules and regulations (i. e., criteria) established by the City Council by resolution, and shall thereafter, be empowered to assist in the prosection of any violations of this Ordinance.

[556] "Section 5. Any society or association for the prevention of cruelty to animals registered with the Mayor of the City of Hialeah, Florida, in accordance with the provisions of Section 4 hereinabove, may appoint agents for the purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, or any other laws of the City of Hialeah, Florida, for the purpose of protecting animals and preventing any act prohibited hereunder.

"Section 6. This Ordinance shall not apply to any person, group, or organization that slaughters, or processes for sale, small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law.

"Section 7. Repeal of Ordinances in Conflict.

"All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict.

"Section 8. Penalties.

"Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court.

"Section 9. Inclusion in Code.

"The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code.

"Section 10. Severability Clause.

"If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judgment or decree of a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this ordinance.

[557] "Section 11. Effective Date.

"This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah."

Justice Scalia, with whom The Chief Justice joins, concurring in part and concurring in the judgment.

The Court analyzes the "neutrality" and the "general applicability" of the Hialeah ordinances in separate sections (Parts II—A and II—B, respectively), and allocates various invalidating factors to one or the other of those sections. If it were necessary to make a clear distinction between the two terms, I would draw a line somewhat different from the Court's. But I think it is not necessary, and would frankly acknowledge that the terms are not only "interrelated," ante, at 531, but substantially overlap.

The terms "neutrality" and "general applicability" are not to be found within the First Amendment itself, of course, but are used in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), and earlier cases to describe those characteristics which cause a law that prohibits an activity a particular individual wishes to engage in for religious reasons nonetheless not to constitute a "law . . . prohibiting the free exercise" of religion within the meaning of the First Amendment. In my view, the defect of lack of neutrality applies primarily to those laws that by their terms impose disabilities on the basis of religion (e. g., a law excluding members of a certain sect from public benefits, cf. McDaniel v. Paty, 435 U. S. 618 (1978)), see Bowen v. Roy, 476 U. S. 693, 703-704 (1986) (opinion of Burger, C. J.); whereas the defect of lack of general applicability applies primarily to those laws which, though neutral in their terms, through their design, construction, or enforcement target the practices of a particular religion for discriminatory treatment, see Fowler v. Rhode Island, 345 U. S. 67 (1953). But certainly a law that is not of general applicability (in the sense [558] I have described) can be considered "nonneutral"; and certainly no law that is nonneutral (in the relevant sense) can be thought to be of general applicability. Because I agree with most of the invalidating factors set forth in Part II of the Court's opinion, and because it seems to me a matter of no consequence under which rubric ("neutrality," Part II—A, or "general applicability," Part II—B) each invalidating factor is discussed, I join the judgment of the Court and all of its opinion except section 2 of Part II—A.

I do not join that section because it departs from the opinion's general focus on the object of the laws at issue to consider the subjective motivation of the lawmakers, i. e., whether the Hialeah City Council actually intended to disfavor the religion of Santeria. As I have noted elsewhere, it is virtually impossible to determine the singular "motive" of a collective legislative body, see, e. g., Edwards v. Aguillard, 482 U. S. 578, 636-639 (1987) (dissenting opinion), and this Court has a long tradition of refraining from such inquiries, see, e. g., Fletcher v. Peck, 6 Cranch 87, 130-131 (1810) (Marshall, C. J.); United States v. O'Brien, 391 U. S. 367, 383-384 (1968).

Perhaps there are contexts in which determination of legislative motive must be undertaken. See, e. g., United States v. Lovett, 328 U. S. 303 (1946). But I do not think that is true of analysis under the First Amendment (or the Fourteenth, to the extent it incorporates the First). See Edwards v. Aguillard, supra, at 639 (Scalia, J., dissenting). The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted: "Congress shall make no law . . . prohibiting the free exercise [of religion] . . . ." This does not put us in the business of invalidating laws by reason of the evil motives of their authors. Had the Hialeah City Council set out resolutely to suppress the practices of Santeria, but ineptly adopted ordinances that failed to do so, I do not see how those laws could be said to "prohibi[t] the free exercise" of [559] religion. Nor, in my view, does it matter that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens. Had the ordinances here been passed with no motive on the part of any councilman except the ardent desire to prevent cruelty to animals (as might in fact have been the case), they would nonetheless be invalid.

Justice Souter, concurring in part and concurring in the judgment.

This case turns on a principle about which there is no disagreement, that the Free Exercise Clause bars government action aimed at suppressing religious belief or practice. The Court holds that Hialeah's animal-sacrifice laws violate that principle, and I concur in that holding without reservation.

Because prohibiting religious exercise is the object of the laws at hand, this case does not present the more difficult issue addressed in our last free-exercise case, Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), which announced the rule that a "neutral, generally applicable" law does not run afoul of the Free Exercise Clause even when it prohibits religious exercise in effect. The Court today refers to that rule in dicta, and despite my general agreement with the Court's opinion I do not join Part II, where the dicta appear, for I have doubts about whether the Smith rule merits adherence. I write separately to explain why the Smith rule is not germane to this case and to express my view that, in a case presenting the issue, the Court should reexamine the rule Smith declared.

I

According to Smith, if prohibiting the exercise of religion results from enforcing a "neutral, generally applicable" law, the Free Exercise Clause has not been offended. Id., at 878-880. I call this the Smith rule to distinguish it from the noncontroversial principle, also expressed in Smith though [560] established long before, that the Free Exercise Clause is offended when prohibiting religious exercise results from a law that is not neutral or generally applicable. It is this noncontroversial principle, that the Free Exercise Clause requires neutrality and general applicability, that is at issue here. But before turning to the relationship of Smith to this case, it will help to get the terms in order, for the significance of the Smith rule is not only in its statement that the Free Exercise Clause requires no more than "neutrality" and "general applicability," but also in its adoption of a particular, narrow conception of free-exercise neutrality.

That the Free Exercise Clause contains a "requirement for governmental neutrality," Wisconsin v. Yoder, 406 U. S. 205, 220 (1972), is hardly a novel proposition; though the term does not appear in the First Amendment, our cases have used it as shorthand to describe, at least in part, what the Clause commands. See, e. g., Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U. S. 378, 384 (1990); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 717 (1981); Yoder, supra, at 220; Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 792-793 (1973); School Dist. of Abington v. Schempp, 374 U. S. 203, 222 (1963); see also McDaniel v. Paty, 435 U. S. 618, 627-629 (1978) (plurality opinion) (invalidating a nonneutral law without using the term). Nor is there anything unusual about the notion that the Free Exercise Clause requires general applicability, though the Court, until today, has not used exactly that term in stating a reason for invalidation. See Fowler v. Rhode Island, 345 U. S. 67 (1953); cf. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575, 585 (1983); Larson v. Valente, 456 U. S. 228, 245-246 (1982).^[4]

[561] While general applicability is, for the most part, selfexplanatory, free-exercise neutrality is not self-revealing. Cf. Lee v. Weisman, 505 U. S. 577, 627 (1992) (Souter, J., concurring) (considering Establishment Clause neutrality). A law that is religion neutral on its face or in its purpose may lack neutrality in its effect by forbidding something that religion requires or requiring something that religion forbids. Cf. McConnell & Posner, An Economic Approach to Issues of Religious Freedom, 56 U. Chi. L. Rev. 1, 35 (1989) ("[A] regulation is not neutral in an economic sense if, whatever its normal scope or its intentions, it arbitrarily imposes greater costs on religious than on comparable nonreligious activities"). A secular law, applicable to all, that prohibits consumption of alcohol, for example, will affect members of religions that require the use of wine differently from members of other religions and nonbelievers, disproportionately burdening the practice of, say, Catholicism or Judaism. Without an exemption for sacramental wine, Prohibition may fail the test of religion neutrality.^[5]

It does not necessarily follow from that observation, of course, that the First Amendment requires an exemption from Prohibition; that depends on the meaning of neutrality as the Free Exercise Clause embraces it. The point here is the unremarkable one that our common notion of neutrality is broad enough to cover not merely what might be called formal neutrality, which as a free-exercise requirement [562] would only bar laws with an object to discriminate against religion, but also what might be called substantive neutrality, which, in addition to demanding a secular object, would generally require government to accommodate religious differences by exempting religious practices from formally neutral laws. See generally Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990). If the Free Exercise Clause secures only protection against deliberate discrimination, a formal requirement will exhaust the Clause's neutrality command; if the Free Exercise Clause, rather, safeguards a right to engage in religious activity free from unnecessary governmental interference, the Clause requires substantive, as well as formal, neutrality.^[6]

Though Smith used the term "neutrality" without a modifier, the rule it announced plainly assumes that free-exercise neutrality is of the formal sort. Distinguishing between laws whose "object" is to prohibit religious exercise and those that prohibit religious exercise as an "incidental effect," Smith placed only the former within the reaches of the Free Exercise Clause; the latter, laws that satisfy formal neutrality, Smith would subject to no free-exercise scrutiny at all, even when they prohibit religious exercise in application. 494 U. S., at 878. The four Justices who rejected the Smith rule, by contrast, read the Free Exercise Clause as embracing what I have termed substantive neutrality. The enforcement of a law "neutral on its face," they said, may "nonetheless offend [the Free Exercise Clause's] requirement [563] for government neutrality if it unduly burdens the free exercise of religion." Id., at 896 (opinion of O'Connor, J., joined by Brennan, Marshall, and Blackmun, JJ.) (internal quotation marks and citations omitted). The rule these Justices saw as flowing from free-exercise neutrality, in contrast to the Smith rule, "requir[es] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest." Id., at 894 (emphasis added).

The proposition for which the Smith rule stands, then, is that formal neutrality, along with general applicability, are sufficient conditions for constitutionality under the Free Exercise Clause. That proposition is not at issue in this case, however, for Hialeah's animal-sacrifice ordinances are not neutral under any definition, any more than they are generally applicable. This case, rather, involves the noncontroversial principle repeated in Smith, that formal neutrality and general applicability are necessary conditions for freeexercise constitutionality. It is only "this fundamental nonpersecution principle of the First Amendment [that is] implicated here," ante, at 523, and it is to that principle that the Court adverts when it holds that Hialeah's ordinances "fail to satisfy the Smith requirements," ante, at 532. In applying that principle the Court does not tread on troublesome ground.

In considering, for example, whether Hialeah's animalsacrifice laws violate free-exercise neutrality, the Court rightly observes that "[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons," ibid., and correctly finds Hialeah's laws to fail those standards. The question whether the protections of the Free Exercise Clause also pertain if the law at issue, though nondiscriminatory in its object, has the effect nonetheless of placing a burden on religious exercise is not before the Court [564] today, and the Court's intimations on the matter are therefore dicta.

The Court also rightly finds Hialeah's laws to fail the test of general applicability, and as the Court "need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights," ante, at 543, it need not discuss the rules that apply to prohibitions found to be generally applicable. The question whether "there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability," Yoder, 406 U. S., at 220, is not before the Court in this case, and, again, suggestions on that score are dicta.

II

In being so readily susceptible to resolution by applying the Free Exercise Clause's "fundamental nonpersecution principle," ante, at 523, this is far from a representative freeexercise case. While, as the Court observes, the Hialeah City Council has provided a rare example of a law actually aimed at suppressing religious exercise, ante, at 523-524, Smith was typical of our free-exercise cases, involving as it did a formally neutral, generally applicable law. The rule Smith announced, however, was decidedly untypical of the cases involving the same type of law. Because Smith left those prior cases standing, we are left with a free-exercise jurisprudence in tension with itself, a tension that should be addressed, and that may legitimately be addressed, by reexamining the Smith rule in the next case that would turn upon its application.

A

In developing standards to judge the enforceability of formally neutral, generally applicable laws against the mandates of the Free Exercise Clause, the Court has addressed [565] the concepts of neutrality and general applicability by indicating, in language hard to read as not foreclosing the Smithrule, that the Free Exercise Clause embraces more than mere formal neutrality, and that formal neutrality and general applicability are not sufficient conditions for freeexercise constitutionality:

"In a variety of ways we have said that `[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.'" Thomas, 450 U. S., at 717 (quoting Yoder, supra, at 220).

"[T]o agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability." 450 U. S., at 717.

Not long before the Smith decision, indeed, the Court specifically rejected the argument that "neutral and uniform" requirements for governmental benefits need satisfy only a reasonableness standard, in part because "[s]uch a test has no basis in precedent." Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 141 (1987) (internal quotation marks omitted). Rather, we have said, "[o]ur cases have established that `[t]he free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.'" Swaggart Ministries, 493 U. S., at 384-385 (quoting Hernandez v. Commissioner, 490 U. S. 680, 699 (1989)).

Thus we have applied the same rigorous scrutiny to burdens on religious exercise resulting from the enforcement of formally neutral, generally applicable laws as we have applied to burdens caused by laws that single out religious exercise: [566] "`only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.'" McDaniel v. Paty, 435 U. S., at 628 (plurality opinion) (quoting Yoder, supra, at 215). Compare McDaniel, supra, at 628-629 (plurality opinion) (applying that test to a law aimed at religious conduct) with Yoder, supra, at 215-229 (applying that test to a formally neutral, general law). Other cases in which the Court has applied heightened scrutiny to the enforcement of formally neutral, generally applicable laws that burden religious exercise include Hernandez v. Commissioner, supra, at 699; Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829, 835 (1989); Hobbie v. Unemployment Appeals Comm'n, supra, at 141; Bob Jones Univ. v. United States, 461 U. S. 574, 604 (1983); United States v.Lee, 455 U. S. 252, 257-258 (1982); Thomas, supra, at 718; Sherbert v. Verner, 374 U. S. 398, 403 (1963); and Cantwell v. Connecticut, 310 U. S. 296, 304-307 (1940).

Though Smith sought to distinguish the free-exercise cases in which the Court mandated exemptions from secular laws of general application, see 494 U. S., at 881-885, I am not persuaded. Wisconsin v. Yoder, and Cantwell v. Connecticut, according to Smith, were not true free-exercise cases but "hybrid[s]" involving "the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents. . . to direct the education of their children." Smith, supra, at 881, 882. Neither opinion, however, leaves any doubt that "fundamental claims of religious freedom [were] at stake." Yoder, supra, at 221; see also Cantwell, supra, at 303-307.^[7] [567] And the distinction Smith draws strikes me as ultimately untenable. If a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule, and, indeed, the hybrid exception would cover the situation exemplified by Smith, since free speech and associational rights are certainly implicated in the peyote ritual. But if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in what Smith calls the hybrid cases to have mentioned the Free Exercise Clause at all.

Smith sought to confine the remaining free-exercise exemption victories, which involved unemployment compensation [568] systems, see Frazee, supra; Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); and Sherbert, supra, as "stand[ing] for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of `religious hardship' without compelling reason." 494 U. S., at 884. But prior to Smith the Court had already refused to accept that explanation of the unemployment compensation cases. See Hobbie, supra, at 142, n. 7; Bowen v. Roy, 476 U. S. 693, 715-716 (1986) (opinion of Blackmun, J.); id., at 727-732 (opinion of O'Connor, J., joined by Brennan and Marshall, JJ.); id., at 733 (White, J., dissenting). And, again, the distinction fails to exclude Smith: "If Smith is viewed as an unemployment compensation case, the distinction is obviously spurious. If Smith is viewed as a hypothetical criminal prosecution for peyote use, there would be an individual governmental assessment of the defendants' motives and actions in the form of a criminal trial." McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1124 (1990). Smith also distinguished the unemployment compensation cases on the ground that they did not involve "an across-the-board criminal prohibition on a particular form of conduct." 494 U. S., at 884. But even Chief Justice Burger's plurality opinion in Bowen v. Roy, on which Smith drew for its analysis of the unemployment compensation cases, would have applied its reasonableness test only to "denial of government benefits" and not to "governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons," Bowen v. Roy, supra, at 706 (opinion of Burger, C. J., joined by Powell and Rehnquist, JJ.); to the latter category of governmental action, it would have applied the test employed in Yoder, which involved an across-the-board criminal prohibition and which Chief Justice Burger's opinion treated as an ordinary freeexercise [569] case. See Bowen v. Roy, 476 U. S., at 706-707; id., at 705, n. 15; Yoder, 406 U. S., at 218; see also McDaniel v. Paty, 435 U. S., at 628, n. 8 (noting cases in which courts considered claims for exemptions from general criminal prohibitions, cases the Court thought were "illustrative of the general nature of free-exercise protections and the delicate balancing required by our decisions in [Sherbert and Yoder, ] when an important state interest is shown").

As for the cases on which Smith primarily relied as establishing the rule it embraced, Reynolds v. United States, 98 U. S. 145 (1879), and Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940), see Smith, supra, at 879, their subsequent treatment by the Court would seem to require rejection of the Smith rule. Reynolds, which in upholding the polygamy conviction of a Mormon stressed the evils it saw as associated with polygamy, see 98 U. S., at 166 ("polygamy leads to the patriarchal principle, and . . . fetters the people in stationary despotism"); id., at 165, 168, has been read as consistent with the principle that religious conduct may be regulated by general or targeting law only if the conduct "pose[s] some substantial threat to public safety, peace or order." Sherbert v. Verner, 374 U. S., at 403; see also United States v. Lee, 455 U. S., at 257-258; Bob Jones University, 461 U. S., at 603; Yoder, supra, at 230. And Gobitis, after three Justices who originally joined the opinion renounced it for disregarding the government's constitutional obligation "to accommodate itself to the religious views of minorities," Jones v. Opelika, 316 U. S. 584, 624 (1942) (opinion of Black, Douglas, and Murphy, JJ.), was explicitly overruled in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943); see also id., at 643-644 (Black and Douglas, JJ., concurring).

Since holding in 1940 that the Free Exercise Clause applies to the States, see Cantwell v. Connecticut, 310 U. S. 296, the Court repeatedly has stated that the Clause sets strict limits on the government's power to burden religious exercise, whether it is a law's object to do so or its unanticipated [570] effect. Smith responded to these statements by suggesting that the Court did not really mean what it said, detecting in at least the most recent opinions a lack of commitment to the compelling-interest test in the context of formally neutral laws. Smith, supra, at 884-885. But even if the Court's commitment were that palid, it would argue only for moderating the language of the test, not for eliminating constitutional scrutiny altogether. In any event, I would have trouble concluding that the Court has not meant what it has said in more than a dozen cases over several decades, particularly when in the same period it repeatedly applied the compelling-interest test to require exemptions, even in a case decided the year before Smith. See Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 (1989).^[8] In sum, it seems to me difficult to escape the conclusion [571] that, whatever Smith `s virtues, they do not include a comfortable fit with settled law.

B

The Smith rule, in my view, may be reexamined consistently with principles of stare decisis. To begin with, the Smith rule was not subject to "full-dress argument" prior to its announcement. Mapp v. Ohio, 367 U. S. 643, 676-677 (1961) (Harlan, J., dissenting). The State of Oregon in Smith contended that its refusal to exempt religious peyote use survived the strict scrutiny required by "settled free exercise principles," inasmuch as the State had "a compelling interest in regulating" the practice of peyote use and could not "accommodate the religious practice without compromising [572] its interest." Brief for Petitioners in Smith, O. T. 1989, No. 88-1213, p. 5; see also id., at 5-36; Reply Brief for Petitioners in Smith, pp. 6-20. Respondents joined issue on the outcome of strict scrutiny on the facts before the Court, see Brief for Respondents in Smith, pp. 14-41, and neither party squarely addressed the proposition the Court was to embrace, that the Free Exercise Clause was irrelevant to the dispute. Sound judicial decisionmaking requires "both a vigorous prosecution and a vigorous defense" of the issues in dispute, Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 419 (1978), and a constitutional rule announced sua sponte is entitled to less deference than one addressed on full briefing and argument. Cf. Ladner v. United States, 358 U. S. 169, 173 (1958) (declining to address "an important and complex" issue concerning the scope of collateral attack upon criminal sentences because it had received "only meagre argument" from the parties, and the Court thought it "should have the benefit of a full argument before dealing with the question").

The Smith rule's vitality as precedent is limited further by the seeming want of any need of it in resolving the question presented in that case. Justice O'Connor reached the same result as the majority by applying, as the parties had requested, "our established free exercise jurisprudence," 494 U. S., at 903, and the majority never determined that the case could not be resolved on the narrower ground, going instead straight to the broader constitutional rule. But the Court's better practice, one supported by the same principles of restraint that underlie the rule of stare decisis, is not to "`formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885)). While I am not suggesting that the Smith Court lacked the power to announce its rule, I think a rule of law unnecessary to the outcome of a case, especially one not put [573] into play by the parties, approaches without more the sort of "dicta . . . which may be followed if sufficiently persuasive but which are not controlling." Humphrey's Executor v. United States, 295 U. S. 602, 627 (1935); see also Kastigar v. United States, 406 U. S. 441, 454-455 (1972).

I do not, of course, mean to imply that a broad constitutional rule announced without full briefing and argument necessarily lacks precedential weight. Over time, such a decision may become "part of the tissue of the law," Radovich v. National Football League, 352 U. S. 445, 455 (1957) (Frankfurter, J., dissenting), and may be subject to reliance in a way that new and unexpected decisions are not. Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854-855 (1992). Smith, however, is not such a case. By the same token, by pointing out Smith `s recent vintage I do not mean to suggest that novelty alone is enough to justify reconsideration. "[S]tare decisis, " as Justice Frankfurter wrote, "is a principle of policy and not a mechanical formula," Helvering v. Hallock, 309 U. S. 106, 119 (1940), and the decision whether to adhere to a prior decision, particularly a constitutional decision, is a complex and difficult one that does not lend itself to resolution by application of simple, categorical rules, but that must account for a variety of often competing considerations.

The considerations of full briefing, necessity, and novelty thus do not exhaust the legitimate reasons for reexamining prior decisions, or even for reexamining the Smith rule. One important further consideration warrants mention here, however, because it demands the reexamination I have in mind. Smith presents not the usual question of whether to follow a constitutional rule, but the question of which constitutional rule to follow, for Smith refrained from overruling prior free-exercise cases that contain a free-exercise rule fundamentally at odds with the rule Smith declared. Smith, indeed, announced its rule by relying squarely upon [574] the precedent of prior cases. See 494 U. S., at 878 ("Our decisions reveal that the . . . reading" of the Free Exercise Clause contained in the Smith rule "is the correct one"). Since that precedent is nonetheless at odds with the Smith rule, as I have discussed above, the result is an intolerable tension in free-exercise law which may be resolved, consistently with principles of stare decisis, in a case in which the tension is presented and its resolution pivotal.

While the tension on which I rely exists within the body of our extant case law, a rereading of that case law will not, of course, mark the limits of any enquiry directed to reexamining the Smith rule, which should be reviewed in light not only of the precedent on which it was rested but also of the text of the Free Exercise Clause and its origins. As for text, Smith did not assert that the plain language of the Free Exercise Clause compelled its rule, but only that the rule was "a permissible reading" of the Clause. Ibid. Suffice it to say that a respectable argument may be made that the pre-Smith law comes closer to fulfilling the language of the Free Exercise Clause than the rule Smith announced. "[T]he Free Exercise Clause . . . , by its terms, gives special protection to the exercise of religion," Thomas, 450 U. S., at 713, specifying an activity and then flatly protecting it against government prohibition. The Clause draws no distinction between laws whose object is to prohibit religious exercise and laws with that effect, on its face seemingly applying to both.

Nor did Smith consider the original meaning of the Free Exercise Clause, though overlooking the opportunity was no unique transgression. Save in a handful of passing remarks, the Court has not explored the history of the Clause since its early attempts in 1879 and 1890, see Reynolds v. United States, 98 U. S., at 162-166, and Davis v. Beason, 133 U. S. 333, 342 (1890), attempts that recent scholarship makes clear were incomplete. See generally McConnell, The Origins and Historical Understanding of Free Exercise of Religion, [575] 103 Harv. L. Rev. 1409 (1990).^[9] The curious absence of history from our free-exercise decisions creates a stark contrast with our cases under the Establishment Clause, where historical analysis has been so prominent.^[10]

This is not the place to explore the history that a century of free-exercise opinions have overlooked, and it is enough to note that, when the opportunity to reexamine Smith presents itself, we may consider recent scholarship raising serious questions about the Smith rule's consonance with the original understanding and purpose of the Free Exercise Clause. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, supra; Durham, Religious Liberty and the Call of Conscience, 42 DePaul L. Rev. 71, 79-85 (1992); see also Office of Legal Policy, U. S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 38-42 (1986) (predating Smith ). There appears to be a strong argument from the [576] Clause's development in the First Congress, from its origins in the post-Revolution state constitutions and pre-Revolution colonial charters, and from the philosophy of rights to which the Framers adhered, that the Clause was originally understood to preserve a right to engage in activities necessary to fulfill one's duty to one's God, unless those activities threatened the rights of others or the serious needs of the State. If, as this scholarship suggests, the Free Exercise Clause's original "purpose [was] to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority," School Dist. of Abington v. Schempp, 374 U. S., at 223, then there would be powerful reason to interpret the Clause to accord with its natural reading, as applying to all laws prohibiting religious exercise in fact, not just those aimed at its prohibition, and to hold the neutrality needed to implement such a purpose to be the substantive neutrality of our pre-Smith cases, not the formal neutrality sufficient for constitutionality under Smith.^[11]

[577] The scholarship on the original understanding of the Free Exercise Clause is, to be sure, not uniform. See, e. g., Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992); Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L. Rev. 245 (1991). And there are differences of opinion as to the weight appropriately accorded original meaning. But whether or not one considers the original designs of the Clause binding, the interpretive significance of those designs surely ranks in the hierarchy of issues to be explored in resolving the tension inherent in free-exercise law as it stands today.

III

The extent to which the Free Exercise Clause requires government to refrain from impeding religious exercise defines nothing less than the respective relationships in our constitutional democracy of the individual to government and to God. "Neutral, generally applicable" laws, drafted as they are from the perspective of the nonadherent, have the unavoidable potential of putting the believer to a choice between God and government. Our cases now present competing answers to the question when government, while pursuing secular ends, may compel disobedience to what one believes religion commands. The case before us is rightly decided without resolving the existing tension, which remains for another day when it may be squarely faced.

Justice Blackmun, with whom Justice O'Connor joins, concurring in the judgment.

The Court holds today that the city of Hialeah violated the First and Fourteenth Amendments when it passed a set of restrictive ordinances explicitly directed at petitioners' religious practice. With this holding I agree. I write separately to emphasize that the First Amendment's protection of religion extends beyond those rare occasions on which the government explicitly targets religion (or a particular religion) [578] for disfavored treatment, as is done in this case. In my view, a statute that burdens the free exercise of religion "may stand only if the law in general, and the State's refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means." Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 907 (1990) (dissenting opinion). The Court, however, applies a different test. It applies the test announced in Smith, under which "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Ante, at 531. I continue to believe that Smith was wrongly decided, because it ignored the value of religious freedom as an affirmative individual liberty and treated the Free Exercise Clause as no more than an antidiscrimination principle. See 494 U. S., at 908-909. Thus, while I agree with the result the Court reaches in this case, I arrive at that result by a different route.

When the State enacts legislation that intentionally or unintentionally places a burden upon religiously motivated practice, it must justify that burden by "showing that it is the least restrictive means of achieving some compelling state interest." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 718 (1981). See also Wisconsin v. Yoder, 406 U. S. 205, 215 (1972). A State may no more create an underinclusive statute, one that fails truly to promote its purported compelling interest, than it may create an over inclusive statute, one that encompasses more protected conduct than necessary to achieve its goal. In the latter circumstance, the broad scope of the statute is unnecessary to serve the interest, and the statute fails for that reason. In the former situation, the fact that allegedly harmful conduct falls outside the statute's scope belies a governmental assertion that it has genuinely pursued an interest "of the highest order." Ibid. If the State's goal is important enough to prohibit religiously motivated activity, it [579] will not and must not stop at religiously motivated activity. Cf. Zablocki v. Redhail, 434 U. S. 374, 390 (1978) (invalidating certain restrictions on marriage as "grossly underinclusive with respect to [their] purpose"); Supreme Court of N. H. v. Piper, 470 U. S. 274, 285, n. 19 (1985) (a rule excluding nonresidents from the bar of New Hampshire "is underinclusive . . . because it permits lawyers who move away from the State to retain their membership in the bar").

In this case, the ordinances at issue are both over inclusive and underinclusive in relation to the state interests they purportedly serve. They are over inclusive, as the majority correctly explains, because the "legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice." Ante, at 538. They are underinclusive as well, because "[d]espite the city's proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice." Ante, at 543. Moreover, the "ordinances are also underinclusive with regard to the city's interest in public health . . . ." Ante, at 544.

When a law discriminates against religion as such, as do the ordinances in this case, it automatically will fail strict scrutiny under Sherbert v. Verner, 374 U. S. 398, 402-403, 407 (1963) (holding that governmental regulation that imposes a burden upon religious practice must be narrowly tailored to advance a compelling state interest). This is true because a law that targets religious practice for disfavored treatment both burdens the free exercise of religion and, by definition, is not precisely tailored to a compelling governmental interest.

Thus, unlike the majority, I do not believe that "[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny." Ante, at 546. In my view, regulation that targets religion in this way, ipso facto, fails strict scrutiny. It is for this reason [580] that a statute that explicitly restricts religious practices violates the First Amendment. Otherwise, however, "[t]he First Amendment . . . does not distinguish between laws that are generally applicable and laws that target particular religious practices." Smith, 494 U. S., at 894 (opinion concurring in judgment).

It is only in the rare case that a state or local legislature will enact a law directly burdening religious practice as such. See ibid. Because respondent here does single out religion in this way, the present case is an easy one to decide.

A harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law. The result in the case before the Court today, and the fact that every Member of the Court concurs in that result, does not necessarily reflect this Court's views of the strength of a State's interest in prohibiting cruelty to animals. This case does not present, and I therefore decline to reach, the question whether the Free Exercise Clause would require a religious exemption from a law that sincerely pursued the goal of protecting animals from cruel treatment. The number of organizations that have filed amicus briefs on behalf of this interest,^[12] however, demonstrates that it is not a concern to be treated lightly.

[1] Briefs of amici curiae urging reversal were filed for Americans United for Separation of Church and State et al. by Edward McGlynn Gaffney, Jr., Steven T. McFarland, Bradley P. Jacob, and Michael W. McConnell; for the Council on Religious Freedom by Lee Boothby, Robert W. Nixon, Walter E. Carson, and Rolland Truman; and for the Rutherford Institute by John W. Whitehead.

Briefs of amici curiae urging affirmance were filed for the International Society for Animal Rights et al. by Henry Mark Holzer; for People for the Ethical Treatment of Animals et al. by Gary L. Francione; and for the Washington Humane Society by E. Edward Bruce.

Briefs of amici curiae were filed for the United States Catholic Conference by Mark E. Chopko and John A. Liekweg; for the Humane Society of the United States et al. by Peter Buscemi, Maureen Beyers, Roger A. Kindler, and Eugene Underwood, Jr.; for the Institute for Animal Rights Law et al. by Henry Mark Holzer; and for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps.

[2] The Chief Justice, Justice Scalia, and Justice Thomas join all but Part II—A-2 of this opinion. Justice White joins all but Part II—A of this opinion. Justice Souter joins only Parts I, III, and IV of this opinion.

[3] Respondent advances the additional governmental interest in prohibiting the slaughter or sacrifice of animals in areas of the city not zoned for slaughterhouses, see Brief for Respondent 28-31, and the District Court found this interest to be compelling, see 723 F. Supp. 1467, 1486 (SD Fla. 1989). This interest cannot justify Ordinances 87-40, 87-52, and 87-71, for they apply to conduct without regard to where it occurs. Ordinance 87-72 does impose a locational restriction, but this asserted governmental interest is a mere restatement of the prohibition itself, not a justification for it. In our discussion, therefore, we put aside this asserted interest.

[4] A law that is not generally applicable according to the Court's definition (one that "selective[ly] impose[s] burdens only on conduct motivated by religious belief," ante, at 543) would, it seems to me, fail almost any test for neutrality. Accordingly, the cases stating that the Free Exercise Clause requires neutrality are also fairly read for the proposition that the Clause requires general applicability.

[5] Our cases make clear, to look at this from a different perspective, that an exemption for sacramental wine use would not deprive Prohibition of neutrality. Rather, "[s]uch an accommodation [would] `reflec[t] nothing more than the governmental obligation of neutrality in the face of religious differences.'" Wisconsin v. Yoder, 406 U. S. 205, 235, n. 22 (1972) (quoting Sherbert v. Verner, 374 U. S. 398, 409 (1963)); see also Lee v. Weisman, 505 U. S. 577, 627 (1992) (Souter, J.,concurring). The prohibition law in place earlier this century did in fact exempt "wine for sacramental purposes." National Prohibition Act, Title II, § 3, 41 Stat. 308.

[6] One might further distinguish between formal neutrality and facial neutrality. While facial neutrality would permit discovery of a law's object or purpose only by analysis of the law's words, structure, and operation, formal neutrality would permit enquiry also into the intentions of those who enacted the law. Compare ante, at 540-542 (opinion of Kennedy, J.,joined by Stevens, J.) with ante, p. 557 (opinion of Scalia, J., joined by Rehnquist, C. J.). For present purposes, the distinction between formal and facial neutrality is less important than the distinction between those conceptions of neutrality and substantive neutrality.

[7] Yoder, which involved a challenge by Amish parents to the enforcement against them of a compulsory school attendance law, mentioned the parental rights recognized in Pierce v.Society of Sisters, 268 U. S. 510 (1925), as Smith pointed out. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 881, n. 1 (citing Yoder, 406 U. S., at 233). But Yoder did so only to distinguish Pierce, which involved a substantive due process challenge to a compulsory school attendance law and which required merely a showing of "`reasonable[ness].'" 406 U. S., at 233 (quoting Pierce, supra, at 535). Where parents make a "free exercise claim," the Yoder Court said, the Pierce reasonableness test is inapplicable and the State's action must be measured by a stricter test, the test developed under the Free Exercise Clause and discussed at length earlier in the opinion. See 406 U. S., at 233; id., at 213-229. Quickly after the reference to parental rights, the Yoder opinion makes clear that the case involves "the central values underlying the Religion Clauses." Id., at 234. The Yoders raised only a free-exercise defense to their prosecution under the school-attendance law, id., at 209, and n. 4; certiorari was granted only on the free-exercise issue, id., at 207; and the Court plainly understood the case to involve "conduct protected by the Free Exercise Clause" even against enforcement of a "regulatio[n] of general applicability," id., at 220.

As for Cantwell, Smith pointed out that the case explicitly mentions freedom of speech. See 494 U. S., at 881, n. 1 (citing Cantwell v. Connecticut, 310 U. S., at 307). But the quote to which Smith refers occurs in a portion of the Cantwell opinion (titled: "[s]econd, " and dealing with a breach-of-peace conviction for playing phonograph records, see 310 U. S., at 307) that discusses an entirely different issue from the section of Cantwell that Smith cites as involving a "neutral, generally applicable law" (titled: "[f]irst, " and dealing with a licensing system for solicitations, see Cantwell, supra, at 303-307). See Smith, supra, at 881.

[8] Though Smith implied that the Court, in considering claims for exemptions from formally neutral, generally applicable laws, has applied a "water[ed] down" version of strict scrutiny, 494 U. S., at 888, that appraisal confuses the cases in which we purported to apply strict scrutiny with the cases in which we did not. We did not purport to apply strict scrutiny in several cases involving discrete categories of governmental action in which there are special reasons to defer to the judgment of the political branches, and the opinions in those cases said in no uncertain terms that traditional heightened scrutiny applies outside those categories. See O'Lone v. Estate of Shabazz, 482 U. S. 342, 349 (1987) ("[P]rison regulations. . . are judged under a `reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights"); Goldman v. Weinberger, 475 U. S. 503, 507 (1986) ("Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society"); see also Johnson v. Robison, 415 U. S. 361, 385-386 (1974); Gillette v. United States, 401 U. S. 437, 462 (1971). We also did not purport to apply strict scrutiny in several cases in which the claimants failed to establish a constitutionally cognizable burden on religious exercise, and again the opinions in those cases left no doubt that heightened scrutiny applies to the enforcement of formally neutral, general laws that do burden free exercise. See Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U. S. 378, 384-385 (1990) ("Our cases have established that [t]he free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden") (internal quotation marks and citation omitted); Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 450 (1988) ("[T]his Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to [the] scrutiny" employed in Sherbert v. Verner, 374 U. S. 398 (1963); see also Braunfeld v. Brown, 366 U. S. 599, 606-607 (1961) (plurality opinion). Among the cases in which we have purported to apply strict scrutiny, we have required free-exercise exemptions more often than we have denied them. Compare Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 (1989); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U. S. 205 (1972); Cantwell v. Connecticut, 310 U. S. 296 (1940), with Hernandez v. Commissioner, 490 U. S. 680 (1989); Bob Jones Univ. v. United States, 461 U. S. 574 (1983); United States v. Lee, 455 U. S. 252 (1982). And of the three cases in which we found that denial of an exemption survived strict scrutiny (all tax cases), one involved the government's "fundamental, overriding interest in eradicating racial discrimination in education," Bob Jones University, supra, at 604; in a second the Court "doubt[ed] whether the alleged burden . . . [was] a substantial one," Hernandez, supra, at 699; and the Court seemed to be of the same view in the third, see Lee, supra, at 261, n. 12. These cases, I think, provide slim grounds for concluding that the Court has not been true to its word.

[9] Reynolds denied the free-exercise claim of a Mormon convicted of polygamy, and Davis v. Beason upheld against a free-exercise challenge a law denying the right to vote or hold public office to members of organizations that practice or encourage polygamy. Exactly what the two cases took from the Free Exercise Clause's origins is unclear. The cases are open to the reading that the Clause sometimes protects religious conduct from enforcement of generally applicable laws, see supra, at 569 (citing cases); that the Clause never protects religious conduct from the enforcement of generally applicable laws, see Smith, 494 U. S., at 879; or that the Clause does not protect religious conduct at all, see Yoder, 406 U. S., at 247 (Douglas, J., dissenting in part); McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1488, and n. 404 (1990).

[10] See Engel v. Vitale, 370 U. S. 421, 425-436 (1962); McGowan v. Maryland, 366 U. S. 420, 431-443 (1961); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 8-16 (1947); see also Lee v. Weisman, 505 U. S. 577, 612-616, 622— 626 (1992) (Souter, J., concurring); Wallace v. Jaffree, 472 U. S. 38, 91-107 (1985) (Rehnquist, J., dissenting); School Dist. of Abington v. Schempp, 374 U. S. 203, 232-239 (1963) (Brennan, J., concurring); McGowan v. Maryland, supra, at 459-495 (Frankfurter, J., concurring); Everson, supra, at 31-43 (Rutledge, J., dissenting).

[11] The Court today observes that "historical instances of religious persecution and intolerance . . . gave concern to those who drafted the Free Exercise Clause." Ante, at 532 (internal quotation marks and citations omitted). That is no doubt true, and of course it supports the proposition for which it was summoned, that the Free Exercise Clause forbids religious persecution. But the Court's remark merits this observation: the fact that the Framers were concerned about victims of religious persecution by no means demonstrates that the Framers intended the Free Exercise Clause to forbid only persecution, the inference the Smith rule requires. On the contrary, the eradication of persecution would mean precious little to a member of a formerly persecuted sect who was nevertheless prevented from practicing his religion by the enforcement of "neutral, generally applicable" laws. If what drove the Framers was a desire to protect an activity they deemed special, and if "the [Framers] were well aware of potential conflicts between religious conviction and social duties," A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty 61 (1990), they may well have hoped to bar not only prohibitions of religious exercise fueled by the hostility of the majority, but prohibitions flowing from the indifference or ignorance of the majority as well.

[12] See Brief for Washington Humane Society in support of Respondent; Brief for People for the Ethical Treatment of Animals, New Jersey Animal Rights Alliance, and Foundation for Animal Rights Advocacy in support of Respondent; Brief for Humane Society of the United States, American Humane Association, American Society for the Prevention of Cruelty to Animals, Animal Legal Defense Fund, Inc., and Massachusetts Society for the Prevention of Cruelty to Animals in support of Respondent; Brief for the International Society for Animal Rights, Citizens for Animals, Farm Animal Reform Movement, In Defense of Animals, Performing Animal Welfare Society, and Student Action Corps for Animals in support of Respondent; and Brief for the Institute for Animal Rights Law, American Fund for Alternatives to Animal Research, Farm Sanctuary, Jews for Animal Rights, United Animal Nations, and United Poultry Concerns in support of Respondent.

334 P.3d 437 (2014)
355 Or. 777

David J. Celuch, argued the cause and filed the brief for petitioner on review.

Jamie K. Contreras, Assistant Attorney General, argued the cause and filed the brief for respondent on review.

Before BALMER, Chief Justice, and KISTLER, WALTERS, LINDER, LANDAU, and BALDWIN, Justices.^[1]

[438] LANDAU, J.

In this criminal case, defendant was found guilty of 20 counts of second-degree animal neglect. ORS 167.325 (2009).^[2] Oregon's "anti-merger" statute, ORS 161.067, provides that, when the same conduct or criminal episode violates only one statute, but involves more than one "victim," there are "as many separately punishable offenses as there are victims." The issue in this case is whether defendant is guilty of 20 separately punishable offenses, which turns on the question whether animals are "victims" for the purposes of the anti-merger statute. The trial court concluded that, because only people can be victims within the meaning of that statute, defendant had committed only one punishable offense. The court merged the 20 counts into a single conviction for second-degree animal neglect. On appeal, the Court of Appeals concluded that animals can be victims within the meaning of the anti-merger statute and, accordingly, reversed and remanded for entry of a judgment of conviction on each of the 20 counts and for resentencing. State v. Nix, 251 Or.App. 449, 283 P.3d 442 (2012). We agree with the Court of Appeals and affirm.

The undisputed facts are aptly summarized by the Court of Appeals:

"Acting on a tip, police officers entered defendant's farm and found dozens of emaciated animals, mostly horses and goats, and several animal carcasses in various states of decay. Defendant owned those animals. Defendant was indicted on 23 counts of first-degree animal neglect, ORS 167.330, and 70 counts of second-degree animal neglect, ORS 167.325. Each separate count identified a different animal and charged conduct by defendant toward that animal. All of the separate counts were alleged to have occurred within the same span of time. A jury convicted defendant of 20 counts of second-degree animal [neglect].

"At defendant's sentencing hearing, the state asked the trial court to impose 20 separate convictions because the jury had found defendant guilty of neglecting 20 different animals. Accordingly, the state argued, the convictions `do not merge based on [ORS 161.067](1), (2) and (3).'" The trial court disagreed and merged the guilty verdicts into a single conviction, explaining that

"`[ORS 161.067(2)] talks about — although violating only one statutory provision, it involves two or more victims. In this case, I agree with the defendant's position that the animals are not victims, as defined by the statute; by the ORS 161.067(2).

"`* * * I don't think that [ORS 161.067(3) ] applies because the animals are not victims under the definition of the statute requiring that to be persons.'

"Defendant was sentenced to 90 days in jail and three years of bench probation; the trial court suspended imposition of the jail sentence, and the state appealed."

Nix, 251 Or.App. at 451-52, 283 P.3d 442.

The state appealed, assigning error to the trial court's merger of the 20 counts of second-degree animal neglect. The state argued that, under State v. Glaspey, 337 Or. 558, 563, 100 P.3d 730 (2004), the term "victim" in the anti-merger statute draws its meaning from the underlying substantive criminal statute that defendant violated. In this case, the state argued, the text, context, and legislative history of the second-degree animal neglect statute make clear that the legislature intended the neglected animals as the victims of the offense.

Defendant argued that the ordinary meaning of the term "victim" does not include non-humans. Animals, he argued, are treated by Oregon law as the property of their owners. [439] In defendant's view, because no statute expressly defines the word to include animals, only persons can be victims under the anti-merger statute.

The Court of Appeals reversed. In brief, the court reasoned that, following this court's instruction in Glaspey, the meaning of the term "victim" as it is used in the anti-merger statute is determined by reference to the underlying substantive criminal statute that defendant violated. 251 Or.App. at 457-58, 283 P.3d 442. The court explained that the substantive criminal statute at issue in this case, ORS 167.325, evinces a legislative concern with the well-being of animals. Reviewing the text and history of the statute, the court concluded that, although animals are usually considered the property of persons, ORS 167.325 reflects a broader public interest in "protect[ing] individual animals as sentient beings" by ensuring that such animals receive minimum care and are not abused or neglected. Id. at 460-61, 283 P.3d 442.

On review before this court, defendant renews his argument that "the ordinary meaning of the word `victim' means a `person,'" not an animal. According to defendant, "[a]nimals are defined as property under Oregon law," and "[t]here is no statute that allows property to be seen as a victim" of a criminal offense. In defendant's view, the victim of an animal neglect case is either the public at large or the owner of the animal.

The state responds that the ordinary meaning of the word "victim" is not as narrow as defendant contends and that, to the contrary, it commonly is used to refer both to animals and to human beings. Moreover, because individual animals directly suffer the harm that is central to the crime of animal neglect, as set out in ORS 167.325, they are the "victims" of that crime. According to the state, the text and history of the statute make clear that the legislature was concerned with the capacity of animals to suffer abuse and neglect. Indeed, the state argues, the legislature expressly structured the animal neglect statutes "such that the degree of the crime corresponds to the extent of the animal's suffering." Thus, in the state's view, the statutes evince a concern to protect more than a general public interest in animal welfare; rather, those statutes reflect the legislature's intention to protect individual animals from suffering.

The issue before us is one of statutory construction, which we resolve by applying the familiar principles set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993), and State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009). Our goal is to ascertain the meaning of the statute that the legislature most likely intended. Halperin v. Pitts, 352 Or. 482, 486, 287 P.3d 1069 (2012).

We begin with the text of the statute, in context. Oregon's anti-merger statute provides that, when a defendant is found guilty of committing multiple crimes during a single criminal episode, those guilty verdicts "merge" into a single conviction, unless they are subject to one of a series of exceptions. One of those exceptions is ORS 161.067(2), which provides that, "[w]hen the same conduct or criminal episode, though violating only one statutory provision[,] involves two or more victims, there are as many separately punishable offenses as there are victims." At issue in this case is the meaning of the word "victims" as it is used in that statute.

In the absence of evidence to the contrary, we assume that the legislature intended that the wording of an enactment to be given its ordinary meaning. State v. Murray, 340 Or. 599, 604, 136 P.3d 10 (2006). The ordinary meaning of the word "victim" reflected in a dictionary of common usage is:

"1: a living being sacrificed to some deity or in the performance of a religious rite 2: someone put to death, tortured, or mulcted by another: a person subjected to oppression, deprivation, or suffering 3: someone who suffers death, loss, or injury in an undertaking of his own 4: someone tricked, duped, or subjected to hardship: someone badly used or taken advantage of

[440] "syn PREY, QUARRY: VICTIM applies to anyone who suffers either as a result of ruthless design or incidentally or accidentally * * *."

Webster's Third New Int'l Dictionary 2550 (unabridged ed. 1983).^[3]

In that light, it can be seen that defendant's contention that the "plain meaning" of the word "victim" refers only to persons, and not to animals, is predicated on a selective reading of the dictionary definitions. The first sense listed in the definition, for example, refers broadly to "a living being," not solely to human beings. And the synonymy gives as an example of the word "victim" the sacrifice of animals. The ordinary meaning of the word "victim," then, is capable of referring either to human beings, animals, or both.^[4]

Illustrative examples of the plain meaning of "victim" to refer to animals are not difficult to locate. Especially in the context of animal cruelty, it is common to refer to animals as "victims." As far back as the mid-nineteenth century, John Stuart Mill referred to the "unfortunate slaves and victims of the most brutal part of mankind; the lower animals." John Stuart Mill, 2 Principles of Political Economy: With Some of Their Applications to Social Philosophy 579 (1864). Rachel Carson complained of cruelty to all, "whether its victim is human or animal." Letter from Rachel Carson to Oxford University Press, (undated) (on file with Yale University Library). A headline from an early New York Times article referred to "Animal Victims of Railroad Trains." N.Y. Times, Oct. 11, 1914, at 77. A more recent article from 1982 on a series of hunting photographs from India mentioned pictures of "animal victims." Images of India, N.Y. Times, April 25, 1982. A 1992 article from the Chicago Tribune similarly is headlined, "Pair Heading to Bosnia to Aid Animal Victims of War." Chi. Trib., Oct. 6, 1992. Closer to home, an article in the Oregon State Bar Bulletin reported that, "[t]he Oregon Legislature has repeatedly and consistently articulated a strong public policy favoring the aggressive prosecution of animal cruelty cases by enacting statutes requiring police officers to make arrests in cases of animal abuse and to pay for and provide care to victim animals." Full-Time Prosecutor to Litigate Animal Cruelty Cases Statewide, Or. State Bar Bulletin, May 2013.

[441] Having established the common, ordinary meaning of the term "victim," the question is whether anything in the statute at issue suggests that the legislature meant something different. Certainly nothing in the wording of ORS 161.067(2) suggests that the word "victim" cannot refer to animals. If anything, the phrasing of the statute — which refers to the violation of another statutory provision — suggests that the meaning of the word "victim" will depend on the underlying substantive statute that the defendant violated.

The legislative history sheds no light on the matter. The wording of ORS 161.067(2) can be traced to 1985, when Senate Bill 257 was introduced at the request of the Oregon Department of Justice on behalf of the Oregon District Attorneys Association. The bill was intended

"to address two related problems which have caused criminal law practitioners and the courts consternation for quite some time. The first issue is how many judgments of conviction a court may enter when a criminal defendant has, during an episode, violated several statutes, injured several victims or violated the same statute against the same victim several times. The second issue concerns the question of when a court may sentence a defendant convicted of multiple crimes to consecutive sentences."

Staff Measure Analysis, Senate Judiciary Committee, SB 257, 1985. Up to that time, no statute existed to guide the courts about how to enter judgments when a single criminal episode might provide grounds for multiple convictions and sentences. See generally State v. Cloutier, 286 Or. 579, 582-85, 596 P.2d 1278 (1971) (noting incomplete legislative direction regarding possible "multiple consequences" of a "single criminal act"). SB 257 was proposed to provide the courts that needed direction. State v. Crotsley, 308 Or. 272, 276-78, 779 P.2d 600 (1989) (discussing legislative history of former ORS 161.062). The House voted in favor an amended version of SB 257, which the legislature ultimately adopted and codified at former ORS 161.062(2). Id. As enacted, the new law provided in part that, "when the same conduct or criminal episode violates only one statutory provision, but involves two or more victims, there are as many separately punishable offenses as there are victims." Or. Laws 1985, ch. 722, § 4(2). Nothing in the legislative history mentions any concern with the definition of the word "victim," however.

The following year, a "crime victims' bill of rights" was adopted by initiative as Ballot Measure 10 (1986). The measure recognized the rights of crime victims at trial, at sentencing, and after sentencing. For example, Measure 10 amended ORS Chapter 136 to require the trial court to take the victim into account in setting a trial date; it amended ORS 40.385 to provide that trial courts are not authorized to exclude victims from the court; it amended ORS 136.060 to require the trial court to take into consideration the crime victim's interest in determining whether to try jointly charged defendants together; it amended ORS Chapter 137 to recognize a crime victim's right to appear at sentencing; it amended ORS 137.101 to require courts to liberally construe restitution statutes in favor of victims; it amended ORS 144.120 to require the Parole Board to attempt to notify the crime victim in advance of any parole hearings and to recognize a right of the victim to appear at such hearings; and it amended ORS 144.260 to require the Parole Board to provide the victim advance notice of any release decision. Or. Laws 1987, ch. 2.

Significantly for our purposes, Measure 10 also added the anti-merger provision to ORS Chapter 161 that is now ORS 161.067(2): "When the same conduct or criminal episode, though violating only one statutory provision[,] involves two or more victims, there are as many separately punishable offenses as there are victims." Id. § 13. That provision is nearly identical to what the legislature had just enacted the year before as former ORS 161.062(2). In fact, the source of the wording of the ballot measure provision was SB 257 (1985). Crotsley, 308 Or. at 276 n. 3, 779 P.2d 600 (noting that both ORS 161.062 and ORS 161.067 "derived from a common [442] source").^[5]

Ordinarily, when legislation has been essentially reenacted with no material change, we assume — in the absence of evidence to the contrary — that no change in meaning was intended. See, e.g., Carter v. U.S. National Bank, 304 Or. 538, 544, 747 P.2d 980 (1987) ("[t]here is no indication that the legislature intended any substantive change when it repealed former ORS 17.605 and reenacted it as ORCP 64A"), overruled on other grounds by Assoc. Unit Owners of Timbercrest Condo. v. Warren, 352 Or. 583, 288 P.3d 958 (2012); Kingery v. Dept. of Revenue, 276 Or. 241, 247, 554 P.2d 471 (1976) ("[t]here is no evidence that the legislature intended any change in its prior statutory direction * * * by its substitution of the words `true cash value' for the words `full and true value' when it reenacted" the statute). In this case, nothing in that history of Measure 10 suggests that the duplicate provision was intended to have a meaning different from what the legislature had just enacted.

To be sure, other provisions of Measure 10 appear to assume that "victim" refers to persons. After all, provisions relating to the rights of victims to appear in court, to obtain restitution, and to be heard at sentencing and Parole Board hearings would be difficult to apply were "victims" to include non-human animals. The measure itself provides a definition of "victim" as "the person or persons who have suffered financial, social, psychological or physical harm as a result of a crime." Or. Laws 1987, ch. 2, § 17 (emphasis added.)

But that definition expressly applies only to certain provisions in the measure, specifically, those that amended "ORS 40.385 and * * * ORS Chapters 136, 137, and 144." Id. The definition of "victim" as a person does not apply to the anti-merger statute. Consequently, just as with former ORS 161.062(2), the otherwise undefined reference to "victim" in ORS 161.067(2) must draw its meaning from some other source.

Two of this court's decisions interpreting ORS 161.067(2) hold precisely that. The first is Glaspey. In that case, the defendant was found guilty of two counts of felony assault in the fourth degree, based on the fact that he had assaulted his wife in the presence of his two children. 337 Or. at 560, 100 P.3d 730. Under ORS 163.160(3), the offense of fourth-degree assault, ordinarily a misdemeanor, is categorized a Class C felony if it is committed in the presence of, among other things, "the victim's minor child." The state argued that, because minor children who witness assaults suffer a variety of harms, each of the two children who witnessed defendant assaulting his wife were "victims," thus justifying separate convictions under ORS 161.067(2).

This court rejected that argument. The court explained that, regardless of whether the children might have been "victims" in some sense, what counts for the purposes of ORS 161.067(2) is whether they were victims under the substantive criminal statute that the defendant violated:

"When the statute speaks of criminal conduct that `violate[s] only one statutory provision,' it necessarily refers to, and depends upon, some statute other than itself. That is, it refers to the substantive criminal laws that define particular criminal offenses. It follows that the statutory reference to `victims' in the phrase `[w]hen the same conduct * * * involves two or more victims' also must refer to victims within the meaning of the substantive statute that defines the relevant crime."

Id. at 563, 100 P.3d 730. The court then turned its attention to "whether the child witnesses described in ORS 163.160(3)(c) are victims of the crimes that that statute defines." Id. The court noted that, ordinarily, a "victim" is one "who suffers harm that is an [443] element of the offense." Id. at 565, 100 P.3d 730. The underlying substantive statute may use the term "victim," but, even then, that is regarded as "context" for the purposes of determining the controlling question of legislative intent. Id. at 566, 100 P.3d 730. In that particular case, the court explained, the wording of the statute in context compelled the conclusion that the legislature considered the "victim" to be the person who is physically assaulted, not the children. Id. at 565, 100 P.3d 730.

The second case is State v. Hamilton, 348 Or. 371, 233 P.3d 432 (2010). In that case, the defendant was found guilty of seven counts of first- and second-degree robbery, based on an incident in which the defendant robbed a bar at gunpoint in the presence of the owner, two employees, and four customers. Id. at 373-74, 233 P.3d 432. The defendant argued that the multiple robbery counts should have merged into a single conviction, because he committed only a single robbery against the bar owner. Id. The state argued that each of the witnesses to the robbery was a victim and, as a result, separate convictions were appropriate under ORS 161.067(2). Hamilton, 348 Or. at 376, 233 P.3d 432.

This court agreed with the state. Citing Glaspey, the court began by stating that, "[i]n analyzing whether a crime involves `two or more victims' within the meaning of ORS 161.067(2), this court determines who qualifies as a `victim' by interpreting the substantive statute defining the relevant crime." Hamilton, 348 Or. at 376, 233 P.3d 432. Turning to the text, context, and legislative history of the robbery statutes, the court concluded that the "victim" of a robbery includes any person against whom a defendant uses or threatens violence in the course of committing a theft, not only the owner of the property. Id. at 377-79, 233 P.3d 432.

To summarize our analysis so far: The ordinary meaning of the word "victim" as it is used in ORS 161.067(2) can include both human and non-human animals, and nothing in the text, context, or legislative history of the statute necessarily precludes an animal from being regarded as such. This court's cases construing the term "victim" as it is used in that statute hold that, in fact, the meaning of the term is not to be found in an analysis of ORS 161.067(2) itself, but rather, it derives from the underlying substantive criminal statute that defendant has been found to have violated.

Whether each of the animals that defendant neglected was a "victim" for the purposes of the anti-merger statute, then, depends on whether the legislature regarded them as such for the purposes of the substantive offense of second-degree animal neglect. More particularly, it depends on "who suffers harm that is an element of the offense." Glaspey, 337 Or. at 565, 100 P.3d 730. We turn to that issue.

ORS 167.325 (2009) provides:

"A person commits the crime of animal neglect in the second degree if, except as otherwise authorized by law, the person intentionally, knowingly, recklessly or with criminal negligence fails to provide minimum care for an animal in such person's custody or control."

An "animal" means "any nonhuman mammal, bird, reptile, amphibian or fish." ORS 167.310(1) (2009). "Minimum care" refers to "care sufficient to preserve the health and well-being of an animal and, except for emergencies or circumstances beyond the reasonable control of the owner, includes, but is not limited to," such requirements as food, water, shelter, and reasonably necessary veterinary care. ORS 167.310(7) (2009). For domesticated animals, "minimum care" also includes access to adequate shelter, continuous access to an area that is adequate for "exercise necessary for the health of the animal," being kept at a "temperature suitable for the animal," and being "[k]ept reasonably clean and free from excess waste or other contaminants that could affect the animal's health." Id.

The phrasing of the offense reveals that the legislature's focus was the treatment of individual animals, not harm to the public generally or harm to the owners of the animals. The offense is committed by failing to provide required care to "an animal," regardless of who owns it. The required care includes the minimum necessary "to preserve the health and well-being" of that animal. It is the individual animal that "suffers harm [444] that is an element of the offense." Glaspey, 337 Or. at 565, 100 P.3d 730.

The larger context of the statutory offense confirms that the legislature's focus is on the treatment of individual animals. Second-degree animal neglect is a component of a more comprehensive set of offenses concerning the care of animals, offenses that are structured to correspond to the extent of an animal's suffering. The statutes begin with animal neglect in the second degree, which, as we have noted, is committed when a person fails to provide minimum care. When the person's failure to provide minimum care "results in serious physical injury or death to the animal," that person commits animal neglect in the first degree. ORS 167.330. When a person "intentionally, knowingly, or recklessly causes physical injury to an animal," that person commits the offense of animal abuse in the second degree. ORS 167.315. And when a person intentionally, knowingly, or recklessly causes "serious physical injury" or "[c]ruelly causes the death of an animal," that person commits animal abuse in the first degree. ORS 167.320. Finally, when a person "[m]aliciously kills an animal" or "[i]ntentionally or knowingly tortures an animal," that person commits the offense of aggravated animal abuse in the first degree, a Class C felony. ORS 167.322.

In each instance, the offense is committed against "an animal," and the relative seriousness of the offense is gauged in accordance with the relative degree of harm to or suffering of that animal. If the animal suffers a lack of minimum care, the offense is second-degree animal neglect. But if the animal is subjected to torture, the offense is felony aggravated animal abuse. In any reasonable sense of the word, the "victim" of those offenses is the individual animal that suffers the neglect, injury, cruelty, torture, or death.

Other aspects of the larger statutory scheme similarly confirm the legislature's focus on the suffering of individual animals. ORS 167.350, for example, provides that, in addition to other penalties that a court may impose for violations of the animal cruelty laws, the court may order the forfeiture of a defendant's rights in the animal. ORS 167.350(1). The same statute provides that, if a court orders such a forfeiture, it may further order "that the rights be given over to an appropriate person or agency demonstrating a willingness to accept and care for the animal." ORS 167.350(2). The statute also provides that a court may also require the owner to repay the reasonable costs incurred by any person or agency caring for the animal during the pendency of the charges. In each instance, again, the focus is on the care of the animal who has suffered the harm of neglect or abuse. ORS 167.350(3)

The legislative history of ORS 167.325, particularly in the larger context of the history of animal cruelty legislation, confirms what our textual analysis so strongly suggests. At common law, cruelty to animals did not constitute an offense. See State v. Bruner, 111 Ind. 98, 12 N.E. 103, 104 (1887) ("There is a well-defined difference between the offense of malicious or mischievous injury to property, and that of cruelty to animals. The former constituted an indictable offense at common law, while the latter did not."); State v. Beekman, 27 N.J.L. 124, 125 (1858) ("The general rule is that no injuries of a private nature [including wounding an animal], unless they some way concern the king or affect the public, are indictable at common law.").

The first animal cruelty legislation on this continent can be traced to the Puritan "Body of Liberties" from the Massachusetts Bay Colony, which prohibited cruelty to "any bruite [sic] Creature which are usuallie [sic] kept for man's use." Massachusetts Body of Liberties § 92 (Ward 1641); Thomas G. Kelch, A Short History of (Mostly) Western Animal Law: Part II, 19 Animal L. 347, 350 (2013) (quoting Body of Liberties). By its terms, the law protected the animals only as property of their owners, and even then, only as to commercially valuable animals that were "usuallie kept for man's use."

That view of animals as the property of their owners, and subject to protection only as such, is reflected in animal cruelty legislation adopted by the states throughout the next several centuries. See generally David Favre & Vivian Tsang, The Development of [445] Anti-Cruelty Laws During the 1800s, 1 Det. C. L. Rev. 1 (1993); Deborah J. Challener, Protecting Cats and Dogs in Order to Protect Humans: Making the Case for a Felony Companion Animal Statute in Mississippi, 29 Miss. C. L. Rev. 499, 501 (2010) ("Although these laws afforded some protection to certain kinds of animals, their primary focus was not animal welfare. Instead, animal cruelty was criminalized in order to (1) protect the property rights of those who owned commercially valuable animals, such as cows, horses and oxen; and (2) prevent harm to human beings.").

In the nineteenth through the twentieth centuries, some states began to pass anti-cruelty laws that were intended to deter immoral conduct; the emphasis still was not on protecting the animals themselves. See, e.g., Johnson v. District of Columbia, 30 App DC 520, 522 (DC 1908) (prevention of animal cruelty "is in the interest of peace and order and conducive to the morals and general welfare of the community"); see also Gary L. Francione, Animals, Property and Legal Welfarism: "Unnecessary" Suffering and the "Humane" Treatment of Animals, 46 Rutgers L. Rev. 721, 754 (1994) ("the purpose of the statutes is to improve human character not to protect animals"). The 1962 Model Penal Code provision on animal cruelty, for example, provided:

"A person commits a petty misdemeanor if he purposely or recklessly:

"(1) subjects any animal to cruel mistreatment; or

"(2) subjects any animal in his custody to cruel neglect; or

"(3) kills or injures any animal belonging to another without legal privilege or consent of the owner.

"Subsections (1) and (2) shall not be deemed applicable to accepted veterinary practices and activities carried on for scientific research."

Model Penal Code § 250.11 (1962). According to the commentary to that provision, "[c]ruelty to animals is another class of behavior widely penalized because of outrage to the feelings of substantial groups in the population." Model Penal Code and Commentaries (Tentative Draft No. 13), American Law Institute 40, § 250.6 (1962).

Other states, however, enacted legislation targeting cruelty to animals for the sake of preventing the animals themselves from suffering, not merely as property to be protected or as a way of improving public morality. New York's 1867 animal cruelty law, adopted "for the more effectual prevention of cruelty to animals," is often credited with being the first such statute. See generally Laurie Serafino, No Walk in the Park: Drafting Animal Cruelty Statutes to Resolve Double Jeopardy Concerns and Eliminate Unfettered Prosecutorial Discretion, 78 Tenn. L. Rev. 1119, 1123-27 (2011) (discussing the historical foundation of modern anti-cruelty statutes); Luis E. Chiesa, Why Is It a Crime to Stomp on a Goldfish? — Harm, Victimhood and the Structure of Anti-Cruelty Offenses, 78 Miss. L.J. 1 (2008). The law provided that,

"[i]f any person shall over-drive, over-load, torture, torment, deprive of necessary sustenance, or unnecessarily cruelly beat, or needlessly mutilate or kill, or cause or procure to be over-driven, over-loaded, tortured, tormented or deprived of necessary sustenance, or to be unnecessarily or cruelly beaten, or needlessly mutilated, or killed as aforesaid any living creature, every such offender shall, for every such offense, be guilty of a misdemeanor."

1867 Gen. Stats. N.Y., ch. 375, § 1.

New York's animal cruelty statute became a model for many other states, which adopted animal cruelty laws in the late-nineteenth and early twentieth centuries. See, e.g., Mass. Gen. L., ch. 344 (1869); 1869 Ill. Laws 3; N.J. Rev. Stat. 64-82 (1873); 1878 N.H. Laws 281; 1900 Cal. Stat. § 597; 14 Pa. Stat. § 7772 (1920); Mich. Comp. Laws ch. 285 § 1 (1929). Oregon was one of the states that followed the New York model of animal cruelty legislation. Adopted in 1885, Oregon's statute provided:

"Whoever overdrives, or overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates, or cruelly kills, or causes or procures to be so overdriven or overloaded, driven when overloaded, overworked, [446] tortured, tormented, deprived of necessary sustenance, cruelly beaten, mutilated or cruelly killed, any animal; and whoever having the charge of or custody of any animal, either as owner or otherwise, inflicts cruelty upon the same, shall, for every such offense be punished by imprisonment in the county jail not exceeding sixty days, or by fine not exceeding one hundred dollars, or by both fine and imprisonment."

Lord's Oregon Laws § 2103 (1885). The courts recognized that the focus of the statute was the treatment of the animals themselves, with no mention of proof of economic loss to the owner or harm to the public. In State v. Goodall, 90 Or. 485, 175 P. 857 (1918), for example, this court held that evidence that the defendant rode a horse while it had a deep ulcerated sore on its back and that the defendant had supplied it with insufficient food was enough to establish violation of animal cruelty statute. Id. at 488-89, 175 P. 857. In the court's view, "[i]t is clear that the act of riding a horse in such condition * * * constitutes the crime of `torturing and tormenting an animal,' as is also the act of depriving the animal of necessary sustenance." Id. at 489, 175 P. 857.

In 1971, the legislature adopted the new Oregon Criminal Code. In that new code, the legislature retained the nearly century-old animal cruelty statute, codified at ORS 167.860 (1971). But it added a provision based on the Model Penal Code (or, more precisely, based on a Michigan statute that was, in turn, based on the Model Penal Code). Criminal Law Revision Commission, Proposed Criminal Code, Final Draft and Report § 226 (July 1970). The new law, codified at ORS 167.850 (1971), provided in part:

"(1) A person commits the crime of cruelty to animals if, except as authorized by law, he intentionally or recklessly:

"(a) Subjects any animal under human custody or control to cruel mistreatment; or

"(b) Subjects any animal under his custody or control to cruel neglect; or

"(c) Kills without legal privilege any animal under the custody or control of another."

The legislature later overhauled the state's animal cruelty laws in 1985 with the enactment of Senate Bill 508, which now constitutes, with amendments not pertinent to this case, the state's current animal cruelty statute. The staff measure summary described the bill's purpose in the following terms:

"In some respects the public's attitude regarding animals has undergone substantial change. Many people feel that animals should be given greater protection from cruel treatment and neglect. The traditional statutes relating to cruel treatment of animals are seen as inadequate in that they only prohibit extreme conduct and do not differentiate between abuse and neglect. This bill addresses those concerns."

Staff Measure Analysis, Senate Judiciary Committee, SB 508, Mar 14 1985, 1. Senate Bill 508 repealed both the old animal cruelty statute and the newer provision adopted in 1971 and replaced them with a comprehensive set of offenses, ranging from animal abandonment to animal neglect in the first and second degrees and to animal abuse in the first and second degrees. The bill also established detailed criteria for determining what constitutes the "minimum care" to which animals are entitled. Id.

The bill was proposed by the Humane Society of the Willamette Valley, which had developed the proposal after consultation with the State Police, the Farm Bureau, the livestock association, and other humane societies. Tim Greyhavens, the Executive Director of the society, explained to the Senate Judiciary Committee that the purpose of the bill was to provide clarity about what constitutes actionable cruelty to animals and to expand the law to include an offense of animal abandonment. He said that current law was too vague about what constituted mistreatment and cruelty. Minutes, Senate Judiciary Committee, SB 508, Mar. 14, 1985, at 4 (testimony of Tim Greyhavens). He explained that the bill was intended to separate and define specific offenses against animals, with the difference between those offenses [447] being "the extent of the harm" to the animals. Id. at 5.

Greyhavens similarly testified before the House Committee on Judiciary that the bill was needed because current law was too vague about what constitutes cruelty to animals and that the law needed to be broadened to cover animal abandonment. Minutes, House Committee on Judiciary, SB 508, June 12, 1985, at 18 (testimony of Tim Greyhavens). He offered a statement from a dozen other humane societies representing more than 10,000 members around the state urging support of the bill. "By enacting Senate Bill 508," the statement declared, "you will be preventing needless suffering" and saving thousands of dollars related to the care of stray and abandoned pets. Statement, House Judiciary Committee, HB 508, June 12, 1985, Ex. F, 1 (Humane Society of the Willamette Valley).

Marion County Reserve Deputy Sheriff David Hemphill also testified in support of the bill. He explained that, as an animal cruelty investigator,

"I see dozens of cases of animal abandonment, abuse and neglect that I can't take action against because of the inadequacy of our current law. Much of this law was written * * * when there were different problems with the care of animals. This leaves us with a law that now contains many vague or archaic terms. For example, our current law prohibits many acts that happened during those times when animals were used primarily for work purposes, such as `overloading' or `overworking' a horse or `works an animal when unfit for labor.'"

Testimony, House Judiciary Committee, HB 508, June 12, 1985, Ex. E, 1 (statement of David Hemphill). Hemphill explained that our highly mobile society is resulting in "an epidemic of animal abandonment and neglect." Id. at 1. "If there were a strong law that prohibited any type of animal abandonment," he argued, "many animals' lives could be saved." Id. Hemphill urged the committee to recommend passage of the bill "on behalf of all responsible pet owners and the animals as well, so that we can continue to make our state a better place for every living being." Id. at 3.

The preceding history confirms that the principal purpose of adopting the legislation that became ORS 167.325 was to prevent the suffering of animals. Although early animal cruelty legislation may have been directed at protecting animals as property of their owners or as a means of promoting public morality, Oregon's animal cruelty laws have been rooted — for nearly a century — in a different legislative tradition of protecting individual animals themselves from suffering. Indeed, the modern animal cruelty statute was designed to broaden the state's earlier law to encompass abandonment, as well as neglect and abuse, and to graduate punishment in accordance with the severity of the harm to the animals.

We therefore conclude that defendant is incorrect that the real "victim" of the crime of second-degree animal neglect is either the public or the animal owner. It is true that, for a brief period of time — from 1971 to 1985 — Oregon's statutes included an additional provision that reflected the Model Penal Code's concern that animal cruelty is a matter of public morality. But that provision reflected an additional layer of legislative policy on top of the longstanding concern with protecting animals from suffering for the sake of the animals themselves. In any event, that provision was repealed in 1985, replaced by the comprehensive scheme of animal cruelty laws that we have described, all of which are predicated on preventing the suffering of animals. Moreover, Glaspey makes clear that the "victim," for the purposes of ORS 161.067(2), is the one that "suffers harm that is an element of the offense." Glaspey, 337 Or. at 565, 100 P.3d 730. Public harm is not an element of the offense of second-degree animal neglect. Harm to the individual animal is.

Nor is there in any indication that the legislature regarded the "victim" of animal neglect to be the owner of the animal. To be sure, Oregon law regards animals as the property of their owners. See generally State v. Fessenden/Dicke, 355 Or. 759, 767, 333 P.3d 278, 283, 2014 WL 3867689 (2014) (so noting, citing relevant statutes). But it [448] does not necessarily follow from that fact that owners of abused or neglected animals are the victims of the offense. Indeed, it would be anomalous to conclude that the "victim" of animal neglect is the owner of the animal when it is the owner who is charged with having committed the offense.^[6] What is more, ORS 167.325 provides that, in the event of a conviction for animal neglect or animal cruelty, a court may order that the defendant forfeit any rights he or she had in the animal that has been neglected or abused — an odd consequence if the real victim of the offense is the animal's owner.

In concluding that animals are "victims" for the purposes of ORS 161.067(2), we emphasize that our decision is not one of policy about whether animals are deserving of such treatment under the law. That is a matter for the legislature. Our decision is based on precedent and on a careful evaluation of the legislature's intentions as expressed in statutory enactments. Our prior decisions hold that the meaning of the word "victim" for the purposes of ORS 161.067(2) necessarily depends on what the legislature intended in adopting the underlying substantive criminal statute that the defendant violated. In this case, the underlying substantive criminal statute, ORS 167.325, protects individual animals from suffering from neglect. In adopting that statute, the legislature regarded those animals as the "victims" of the offense. It necessarily follows that the trial court in this case erred in merging the 20 counts of second-degree animal neglect into a single conviction.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded for entry of separate convictions on each guilty verdict for a violation of ORS 167.325 and for resentencing.

[1] Brewer, J., did not participate in the consideration or decision of this case.

[2] ORS 167.325 was amended in 2013. Or. Laws 2013, ch. 719. The new law includes findings that "[a]nimals are sentient beings capable of experiencing pain, stress and fear" and that "[a]nimals should be cared for in ways that minimize pain, stress, fear and suffering." Id. § 1. It also increases the penalty for second-degree animal neglect if, among other things, "the offense was part of a criminal episode involving 11 or more animals." Id. § 4(3)(b). The amendments do not apply to this case, and we refer to the 2009 version of the law — the law that applied when defendant committed the offenses — throughout this opinion. We also express no opinion about the effect of the 2013 amendments on the issue presented in this case.

[3] Other dictionaries offer similar definitions. The Oxford dictionary, for example, defines "victim" as, among other things, "[a] living creature killed and offered as a sacrifice" and "[o]ne who is reduced or destined to suffer under some oppressive or destructive agency" and includes as an example of the latter sense a literary quotation that refers to an animal as a victim: "We... even went to the length of fixing upon one useless, toothless old fellow [sc a dog] as a victim to our appetites, in case of extremity." XIX Oxford English Dictionary 607 (2d ed. 1989) (alternation in original; internal quotation marks and citation omitted). See also The American Heritage Dictionary 1990 (3d ed. 1992) ("One who is harmed or killed by another * * * A living creature slain and offered as a sacrifice"). The definition of "one," it should be noted, is not limited to human beings. See, e.g., Webster's at 1575 ("a single unit or entire being or thing"); X Oxford at 805 ("[a] person or being whose identity is left undefined").

[4] The idea of animals being regarded as "victims" is not a new one. Animals as Offenders and Victims, 21 Alb LJ 265, 266 (1880) (recounting the history of animal welfare laws in Europe and noting that eventually legislation prohibited cruelty to animals "not out of regard to the owner, but in mercy to the creature itself"). In a related vein, there are records of legal proceedings being brought against animals as named parties to legal proceedings as early as the Middle Ages in Europe and as recently as the twentieth century in this country, which reflect that animals often have been treated, as least for some purposes, as persons. See generally Jen Girgen, The Historical and Contemporary Prosecution and Punishment of Animals, 9 Animal L. 97 (2003) (recounting criminal prosecutions of pigs, cows, bulls, horses, mules, oxen, goats, sheep, and dogs, among others, dating at least from the thirteenth century); see also Edward P. Evans, The Criminal Prosecution and Capital Punishment of Animals (1987); Paul Schiff Berman, Rats, Pigs, and Statues on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and Inanimate Objects, 69 NYU L. Rev. 288 (1994).

[5] As this court explained in Crotsley, 308 Or. at 276, 779 P.2d 600, the same anti-merger statute, in effect, "was enacted twice," first by the legislature and second by initiative. Both provisions remained in the Oregon Revised Statutes for the next 13 years, during which time courts referred to the two statutes as being essentially interchangeable. In 1999, the legislature repealed former ORS 161.062, Or. Laws 1999, ch. 136, § 1, on the recommendation of the Oregon Law Commission, which explained that the enactment of ORS 161.067, with its nearly identical wording, had rendered the older statute obsolete. Tape Recording, Senate Committee on Judiciary, HB 2277, Feb. 1, 1999, Tape 20, Side A (Statement of Rep. Lane Shetterly).

[6] Of course, animal cruelty offenses may be committed by persons other than the owner of the animal. We do not need to address whether, in those circumstances, the owner — in addition to the animal — may be regarded as a victim of the offense, and we express no opinion on that issue.