April 4, 2003
Disease (END) and the Mass Killing of Birds Petition
WILLIAM H. DAILEY, SB#125141
Attorney at Law
8749 Holloway Drive
West Hollywood, CA 90069
Attorney for Petitioners,
CHERYLYNN COSTNER, HILLARY CHICKEN MEMORIAL FUND, RANDY WALKER, TERESA
MARQUEZ, SHAREEN MORRIS, JOE MORRIS, JEAN MALONEY, EILLEN WATSON,
JANIS RIDGEWAY DAMIANI, STEVE BELLANGER, APOLINAR SANCHEZ, CINDY MARIE
GEDDES, IRIS L. ROZIER, MICHAEL FRAZER COWAN, WHOLESALE FEEDS AND
SADDLERY, and ASSOCIATION OF VETERINARIANS FOR ANIMAL RIGHTS.
COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
|CHERYLYNN COSTNER, HILLARY CHICKEN
MEMORIAL FUND, RANDY WALKER; TERESA MARQUEZ, SHAREEN MORRIS, JOE MORRIS,
JEAN MALONEY, JANIS RIDGEWAY DAMIANI, EILEEN WATSON, STEVE BELLANGER,
APOLINAR SANCHEZ, CINDY MARIE GEDDES, IRIS L. ROZIER, MICHAEL FRAZER
COWAN,WHOLESALE FEED AND SADDLERY, ASSOCIATION OF VETERINARIANS FOR
ANIMAL RIGHTS,Petitioners, v.STATE OF CALIFORNIA, DEPARTMENT OF FOOD
AND AGRICULTURE, GOVERNOR GRAY DAVIS, EXOTIC NEWCASTLE DISEASE TASK
FORCE and Does 1-10, inclusive,Respondents.
||CASE NO. BS O81649FIRST AMENDED PETITION
FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES AND REQUEST
FOR INJUNCTIVE RELIEF AND HEARINGHEARING DATE: None set.Department
|Amended Petition for
Writ of Mandate
Memorandum of Points and Authorities
I. Introduction and Statement of Facts
A. Southern California Pet Owners Are Being Unnecessarily, Illegally
Unconstitutionally Abused By the Members Of The Task Force.
B. Cockfighting And Lax Industry Biosecurity Are The Two Primary
Of The End Crisis, Not Private Pet Birds.
1. Cockfighting Spreads END, Not Pet Birds In Backyards or Cages.
2. Lax Poultry Industry Biosecurity Allows the Transmission and
Spread of END.
3. While Pet Owners are being Reimbursed at Bargain Basement
True Culprits are Laughing all the way to the Bank
II. The Emergency Services Act Authorizes the Government to suspend
State Laws and Regulations but not the State Constitution, United
or the Bill of Rights
III Constitutional Abuses are not Excused by the Emergency Services
IV Despite Emergency Powers, The State Is Required To Be Reasonable
And Proper Under The Circumstances.
V. While The Emergency May Subvert Normal Statutes And Regulations,
Task Force Is Required To Strictly Follow Its Own Protocols And
VI. The Activities Of The Task Force Are Sufficiently And Repeatedly
Unconstitutional So As To Require Court Supervision.
VII Immunity From Liability Is Limited.
VII. Request For Injunctive Relief
VIII. Request For Hearing
WILLIAM H. DAILEY, SB#125141
Attorney at Law
8749 Holloway Drive
West Hollywood, CA 90069
Attorney for Petitioners,
CHERYLYNN COSTNER, HILLARY CHICKEN MEMORIAL FUND, RANDY WALKER,
TERESA MARQUEZ, SHAREEN MORRIS, JOE MORRIS, JEAN MALONEY, EILLEN
WATSON, JANIS RIDGEWAY DAMIANI, STEVE BELLANGER, APOLINAR SANCHEZ,
CINDY MARIE GEDDES, IRIS L. ROZIER, MICHAEL FRAZER COWAN, WHOLESALE
FEEDS AND SADDLERY, and ASSOCIATION OF VETERINARIANS FOR ANIMAL
COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
CHERYLYNN COSTNER, HILLARY
CHICKEN MEMORIAL FUND, RANDY WALKER; TERESA MARQUEZ, SHAREEN MORRIS,
JOE MORRIS, JEAN MALONEY, JANIS RIDGEWAY DAMIANI, EILEEN WATSON,
STEVE BELLANGER, APOLINAR SANCHEZ, CINDY MARIE GEDDES, IRIS L. ROZIER,
MICHAEL FRAZER COWAN,WHOLESALE FEED AND SADDLERY, ASSOCIATION OF
VETERINARIANS FOR ANIMAL RIGHTS,
STATE OF CALIFORNIA, DEPARTMENT OF FOOD AND AGRICULTURE, GOVERNOR
GRAY DAVIS, EXOTIC NEWCASTLE DISEASE TASK FORCE and Does 1-10, inclusive,
CASE NO. BS O81649
FIRST AMENDED PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS
AND AUTHORITIES AND REQUEST FOR INJUNCTIVE RELIEF AND HEARING
HEARING DATE: None set.Department 85
NOW Petitioners, CHERYLYNN COSTNER, HILLARY CHICKEN MEMORIAL FUND,
RANDY WALKER, TERESA MARQUEZ, SHAREEN MORRIS, JOE MORRIS, JEAN MALONEY,
JANIS RIDGEWAY DAMIANI, EILEEN WATSON, STEVE BELLANGER, APOLINAR
SANCHEZ, CINDY MARIE GEDDES, IRIS L. ROZIER, and MICHAEL FRAZER
COWAN, WHOLESALE FEED AND SADDLERY, and ASSOCIATION OF VETERINARIANS
FOR ANIMAL RIGHTS hereby submit this Petition for Writ of Mandate.
COSTNER is a citizen in the state of California, who owns,
loves and cares for her families’ domesticated and exotic
birds. Ms. Costner is the founder of the Hillary Chicken Memorial
Fund, Love Birds Educational Resources, and the Church of the Avian
Ark of which she is an ordained minister known as Rev. Avina Costner.
Petitioner HILLARY CHICKEN MEMORIAL FUND, a not
for profit organization in Beverly Hills, California dedicated to
the safe relocation of unwanted or abandoned domesticated and exotic
Petitioner RANDY WALKER is a citizen in the state
of California who has fought the Task Force in an effort to preserve
his right to own, love and care for his family’s numerous
domesticated and exotic birds.
Petitioner TERESA MARQUEZ is a citizen in the
state of California who owns, loves and cares for her deceased fathers’
domesticated birds, which have been threatened with a impromptu
kill order. Only her mother’s refusal to cooperate kept the
disease free birds alive.
Petitioner SHAREEN MORRIS is a citizen with a
heart medical condition in the state of California, co-owner of
14 endangered species Hawaiian Nene geese (federal endangered species
permit PRT-838191, filed with Department of interior US Fish and
Wildlife Services; California Fish and Game 2003 Domesticated Game
Breeder class one license No. 701056-02) and previous co-owner of
468 of birds now dead because of the Task Force’s surprise
invasion and massacre of her birds on the morning of December 31,
2002 and one bird killed on January 3, 2003.
Petitioner JOE MORRIS is a disabled citizen in
the state of California and co-owner of 14 endangered species Hawaiian
Nene geese, and previous co-owner of hundreds of birds now dead
because of the Task Force’s surprise invasion and massacre
of his birds on the morning of December 31, 2002.
Petitioner JEAN MALONEY is a citizen in the state
of California and previous co-owner of five domesticated birds who
are now dead because of the Task Force’s surprise invasion
and slaughter of the family pets on February 28, 2003.
Petitioner JANIS RIDGEWAY DAMIANI is a citizen
in the state of California who owns, loves and cares for her families’
domesticated birds. After notice was improperly served on a neighbor
on Saturday, March 15, 2003, Ms. Damiani’s residence was placed
under quarantine based purely on location and without any specific
medical or scientific basis.
Petitioner EILEEN WATSON is a 78 year old senior
citizen in the state of California who owns, loves and finds comfort
(lowers her blood pressure) her pet domesticated birds. Ms. Watson
suffers from Uncontrollable Hypertension, and the doctors fear that
the any major stress would cause a stroke and cost her possibly
her own life. Her daughter, Janis Ridgeway Damiani orally pleaded
with the Task Force that she did not want her mother to die from
shock due to the Task Force’s murder of her family’s
pet bird friends.
Sadly, the “Hearing” offered Petitioner Damiani was
nothing more than a cruel charade to give an appearance of a hearing
when the decision rendered by the Task Force was pre-determined.
Kangaroo Court style hearings fail to provide due process and any
meaningful access to the courts and Justice for any citizen in the
state of California. Therefore, the Task Force intentionally, knowingly
and willfully deprived petitioners of their right to due process
and equal protection of the law. Petitioners and their healthy pet
birds were prevented from attaining Justice against the arbitrary
quarantine at the mock hearing held by Mike Cleary, Hearing
Officer, Department of Food and Agriculture, Division of Measurement
Standards (Notice of Quarantine No. END 30371/NCA 23113,
heard March 19, 2003).
Petitioner STEVE BELLANGER is a citizen in the
state of California who owns, loves and cares for domesticated birds.
Mr. Bellanger wants to protect his racing pigeons.
Petitioner APOLINAR SANCHEZ is a citizen in the
state of California, who owns, loves and cares for domesticated
birds and who is fighting the Task Force’s stated intention
to depopulate his flock of chickens.
Petitioner CINDY MARIE GEDDES is a citizen of
the state of California and previously owned, loved and cared for
domesticated birds. Ms. Geddes is a single mother who was ordered
out of her house at 8:00 PM and terrorized by the Task Force, who
blinded her with a police spotlight and refused to identify themselves
as if they were the infamous Nazi Gestapo of World War II. Without
any form of notice, due process, testing for END or any other evidence
of disease, valid search warrant, permission or acceptance of indemnity,
and with reckless disregard for Ms. Geddes’ protests of the
invasion of her home and pleaded in a desperate attempt to save
the lives of her healthy beloved family pet animals/birds, the respondents
proceeded to murder her every bird that night. Ms. Geddes and her
two children have been forced to endure the mental pain and suffering
that has resulted from all of their health beloved family birds
having been illegally tortured and murdered at the hands of the
Task Force’s death squad.
Petitioner IRIS L. ROZIER is a citizen of the
state of California who has previously own, loved and cared for
domestic and exotic birds. The Task Force went to her house without
notice or probable cause in January to depopulate every bird at
her premises. The Task Force managed to kill 8-10 birds before they
were made to leave because of the fact that the family birds were
all very healthy and thriving, none of the bird had been tested
for the virus, and she had not been notified of depopulation by
the Task Force. About 2 weeks later in February the Task Force came
back and without explanation to date secretly took at least one
rare and expensive bird alive, a pure white peacock, and killed
the rest of Ms. Rozier’s entire healthy flock without any
evidence of the presence of any disease, notice or permission. The
Task Force chose to circumvent the family’s demand for due
process, scientific fact, fair and adequate notice by depopulating
her collection of rare and exotic domesticated pet birds while she
was not at home. Ms. Rozier, a 7th Day Adventist, was at worship
service at her Church the day the respondents massacred her birds.
Some of her peacocks were 22 yeas old and a goose was 20 years old
and she loved all of her birds. The mental pain and suffering has
been extremely hard on her entire family causing them irreparable
harm that they will have to endure for the rest of their lives.
Petitioner MICHAEL FRAZER COWAN is a citizen of
the state of California who suffers from cancer and completed his
radiation therapy September 5, 2002. On November 15, 2002 the Task
Force posted notice of quarantine and notice of intent to test his
birds for END within a couple of days. On or about November 17,
2002 the task Force returned and demanded to kill all of the birds
on the premises.
Mr. Cowan pleaded that he was in a recovery condition from cancer
and under doctors’ care at the UCLA Hospital and that the
notice said testing and did not state killing. His birds were an
old flock he had started 25 years ago. Many birds were 16, 17, and
18 years old and all birds were completely healthy.
While waiting one Task Force member poked her finger at birds and
rabbits to see them jump and scare them. The alleged veterinarians
replied that “no, we are not here to test, we are here to
kill everything,” quoting RV Jack Morpenson. Mr. Cowan cried
as he begged for them not to kill his birds. However he was told
that they were the final word and he had no right to seek further
evidence or to appeal their decision, and that he had to sign a
consent or indemnity form or that they would bring in the Police
to assist in gaining his consent.
Terrified, confused and in weak medical condition he signed the
form and then for that day and eight other days, the task Force
killed his 210 healthy birds and several rabbits who died from fear
and stress shock from the repeated gunshots.
Petitioner WHOLESALE FEED AND SADDLERY is a business
in the State of California who has been quarantined for over three
months and whose business has suffered substantial financial loss.
The store is concerned about the birds’ safety at their premises
and for their customers who own pet, companion and show birds.
Petitioner ASSOCIATION OF VETERINARIANS FOR ANIMAL RIGHTS
is a non-profit foreign corporation operating in the state of California,
its mission is to educate the public and the veterinary profession
about issues of animal use by human society.
Respondent STATE OF CALIFORNIA has proclaimed
a fraudulent state of emergency and irrational poultry eradication
program against its citizens’ pets.
Respondent DEPARTMENT OF FOOD AND AGRICULTURE (CDFA)
is a department of supervisory duties within the State of California
to protect and regulate food safety and preserve public health.
Respondent GOVERNOR GRAY DAVIS is citizen of the
state of California elected to be the governor of the State of California
and author of proclamation in question filed January 7, 2003.
Respondent EXOTIC NEWCASTLE DISEASE TASK FORCE
(Task Force) is group of individuals pulled together to accomplish
the goal of the eradication of exotic Newcastle Disease Virus headed
by a joint command of the California Department of Food and Agriculture
and the United States Department of Agriculture with state and federal
participants including but limited to California Highway Patrol,
County Sheriffs Departments, City Police Departments, Department
of Forestry, Fire Departments, Animal Control Departments, California
Conservation Core, the Department of Fish and Game and freelance
Petitioners respectfully request that this Court order the Governor
of the State of California Gray Davis, to rescind his January 7,
2003 Proclamation of the Governor of the State of California, and
to further order the Governor, State of California, California Department
of Food and Agriculture, Exotic Newcastle Disease Task Force and
all other federal, state and local governmental agencies providing
services to the Exotic Newcastle Disease Task Force to develop additional
protocols and procedures that will protect Petitioners from having
their personal civil and Constitutional rights violated under the
color of legal authority and subsequently having their beloved companion,
pet and show birds illegally seized, unnecessarily tortured and
inhumanely murdered without cause in fact.
This Petition is based upon the following facts:
- Without any supportive administrative records, on January 7,
2003 Governor Gray Davis arbitrarily proclaimed a state of emergency
to protect the Poultry Industry against an alleged threat of exotic
Newcastle Disease Virus (END) in the State, Proclamation of the
Governor of the State of California, see exhibit 1.
- Based on the unsupported proclamation of Gov. Davis, the Task
Force Co-Command United States Department of Agriculture Secretary
Ann M. Veneman filed on January 9, 2003 a Declaration of Extraordinary
Emergency because of Exotic Newcastle Disease.
- Prior to the Governor’s emergency proclamation the California
Department of Food & Agriculture (CDFA) formed a Task Force
to eradicate/depopulate birds to protect the economic interests
of the industrial poultry industry. United States Department of
Agriculture (USDA) Task Force joined the Task Force upon the emergency
- In response to the emergency orders Petitioners Cherylynn Costner
and Hillary Chicken Memorial Fund submitted a Public Comment,
Exotic Newcastle Disease and the Interests of the People of California
to Gov. Gray Davis, Secretary William J. Lyons, Secretary Ann
M. Veneman, Mr. Steven Lyle, Mr. Howard McGwire which was received
on February 6, 2003.
- On February 6, 2003 Mr. William H. Dailey, attorney for petitioners
sent a letter to Gov. Davis, care of the CDFA Legal Department,
requesting administrative records for the preparation of a writ
of mandate based on the public comment regarding the alleged “state
- On February 7, 2003 Mr. John Dyer, supervising attorney for
the respondents, responded to Mr. Dailey’s letter stating
that “there is no administrative records as such with a
Governor’s Declaration,” see exhibit 2. In addition,
Mr. Dyer agreed to meet with Ms. Costner, members of Hillary Chicken
Memorial Fund and other animal support groups to discuss our concerns.
- On February 13, 2003 the Humane Society of the United States
of Washington D.C. provided the Water Front Room at the Marine
Del Rey Hotel in Marine Del Rey for the state and federal representatives
to meet with Mr. and Mrs. Costner, Hillary Chicken Memorial Fund,
Humane Society of the United States, Fund for Animals, Last Chance
for Animals, United Poultry Concerns, Humane Farming Association,
Equus Sanctuary, America’s Freedom Foundation, Parrot Society
of Los Angeles, Wilshire Animal Hospital, Bird Talk Magazine,
The Daily Journal, Press Enterprise and victims from Riverside
County, Randy Walker and his family and Mr. and Mrs. Mike and
- The alleged emergency is based upon fabricated statistics.
No meaningful grounds exist for the depopulation of pet animals
a) with the lack of testing; b) unnecessary speed of slaughter;
c) failure to consider alternative and non-destructive remedies
for sick birds including but not limited to, in-home quarantine
and biosecurity, supportive health care and medical treatment
and the right to use the personal veterinarian of the bird in
question. The poultry industry is the primary financial beneficiary
of the emergency order while the general public suffers the loss
of their pets. Furthermore, the industry and the government have
actually spread END through their own acts and omissions by:
- Failing to adequately quarantine the primary source
of the infection, fighting chickens, including but not limited
to securing the border of the United States and Mexico;
- The poultry industry willfully failed to protect
itself and the public through properly vaccinating their birds,
protecting the health of their flocks, undertaking adequate
bio-security to keep the virus from contaminating their birds
and protecting the public from disease spread by commercial
- Intentionally failing to prevent the transportation
of fighting cocks from place to place for illegal cock fighting
events or the sale of said birds to third parties, and;
- The government agents after eradication of factory
farm facilities and private residences have carried the allegedly
infected feces of chickens in open trucks thereby spreading
contaminated matter and possibly the disease to privately
owned pet birds.
- The agricultural departments and the special END Task Force
members are systematically concealing and/or ignoring clinical
studies regarding vaccines and treatment of END and the results
of lab tests for current END crisis/depopulation and in the process
depriving California citizens of their most fundamental Constitutional
and civil rights.
- The unintentionally chaotic creation of the END Task Force
has created the opportunity for any government employee, out-of-state
veterinarian and temporary employee to have apparent authority
and flaunt the law with impunity under the Emergency Services
Act. Thus, many of the Task Force Commanders and subordinates
- committing quasi-terrorist acts by using force,
fear, violence or threat of the same to coerce citizens into
surrendering their civil and constitutional rights and denying
them to the right to have legal counsel and threatening them
because they had gotten an attorney;
- illegally searching properties without search
warrants, obtaining illegal search warrants, obtaining search
warrants by false and inaccurate statements and without any
proof that the property being searched had any infected birds
at all, using search warrants that are un-Constitutionally
broad in the extreme which is so extensive that they surpass
the scope of search warrants in criminal cases for notorious
and dangerous criminals;
- knowingly directly contacting and intimidating
individuals represented by counsel,
- failing to follow proper legal procedure and violating
due process and equal protection of the law;
- violating civil and Constitutional rights of citizens by
unnecessarily murdering disease-free pet birds;
- removing expensive and rare bird(s) during a massacre
of healthy pet birds without notifying owner of the bird(s)
in what appears to have been an attempt to steal the bird(s)
for the personal interests of the Task Force agent(s),
- violating civil and Constitutional rights of citizens
first by failing to get a court order to determine whether
or not the birds have been infected and secondly by failing
to allowing personal veterinary treatment of infected or sick
birds who have been proven to be ill with END;
- ignoring bio-security protocols and risking the
further spread of END;
- obstruction of justice by withholding and suppression
of prima facie lab test evidence and statements of victims
of these police state actions and terror tactics;
- obstructing justice by theft of legal documents;
- violating Constitutional and statutory provisions
for due process by failing to informed or lying to citizens
about their rights and privileges;
- ignoring test results and current veterinary science;
- improperly threatening citizens with arrest and
terror tactics/police state tactics; and
- generally misusing and abusing their authority
and establishing a precedent and a policy that undermines
the most fundamental Constitutional protections as well as
the founding principals of this nation for which so many Americans
have fight and died for in order to uphold.
- There are known treatments or supportive care for non-poultry
birds and vaccines for END that make depopulation of even sick
birds unnecessary, which are being ignored by the Task Force.
- The Task Force is indisputably committing mass murder of the
People’s pets, companions and show birds. Euthanasia is
for a bird that is sick or in pain. Murder is for those who are
not sick or in pain.
- The Task Force claims that the public eradication program humanely
euthanizes the birds when destroyed. However, when a personal
veterinarian administer euthanasia it is done through barbiturate
injection. The Task Force utilizes carbon dioxide, gun shots,
and cervical dislocation, which is only humane if done properly
according to the Report of the AVMA Panel of Euthanasia, published
March 2001. Other methods used, such as bludgeoning, suffocation
and wood chippers are not considered humane death under any circumstance.
- The Task Force pretends that the fatality rate is 90 –
95% in unvaccinated birds. In fact these are not disease related
deaths, but rather depopulation statistics. Only 2-5% of all depopulated
birds thus far were infected or became sick from the exotic Newcastle
- The Task Force labels a site as positive because a depopulation
crew has murdered all of the birds on the premises. This occurs
even when there is no evidence of exotic Newcastle Disease Virus
ever being on the premises or having been the cause of any illness.
- USDA veterinarian supervisors on the Task Force depopulation
and other crews are not in fact or law California licensed veterinarians,
or AVMA Board Certified Avian Veterinarians.
- Petitioner has no plain, speedy, and adequate remedy in the
ordinary course of law, other than the relief sought in this petition,
in that the emergency order was made effective immediately, without
findings and without administrative recourse.
- Petitioners respectfully request injunctive relief from the
application of the Proclamation of the Governor of the State
of California filed January 7, 2003 and the Declaration
of Extraordinary Emergency because of Extraordinary Emergency
because of Exotic Newcastle Disease, Docket No. 03-001-01;
Federal No. 03-495 filed 1-9-03.
This Petition is based upon this document, the Supplemental Record
to be submitted, the Declarations of Petitioners and others, and
such record as the Court deems appropriate to review.
Dated: March 24, 2003 ________________________________________
William H. Dailey,
Attorney for Petitioners
Poultry Concerns, Inc.
PO Box 150
Machipongo, VA 23405-0150