When an experienced activist attorney says she’d be inclined to advise low-income citizens not to take grievances to court if a certain bill became law, alarms ought to be ringing.
Kim Ferraro’s focus of concern is Indiana House Bill 1091, under which agricultural operations, such as large confined livestock complexes, would be guaranteed payment of their legal fees if found to be victims of nuisance lawsuits.
“Nuisance” also happens to be a term often applied to confined animal feeding sites, known as CAFOs, whose smells and waste from hundreds and even thousands of close-quartered pigs, chickens and other creatures have drawn complaints and litigation from neighbors and advocates.
Ferraro, who is with the Hoosier Environmental Council and the Legal Environmental Aid Foundation, has had some success representing poor clients pro bono against CAFOs. She says she would not advise them to sue if HB 1091 became law.
“To single out one business for this sort of protection sends a disturbingly chilling signal to anyone considering a (farming practices) lawsuit,” she says.
State Rep. William Friend, R-Macy, the bill’s author and a large pork producer, insists legal rights would not be infringed. Yet the courts already have discretion to award legal fees to those found to have been sued frivolously. This bill would lift that discretion and force them to impose the penalties.
It also must be noted that this single business already has special protection from nuisance lawsuits under the state Right to Farm Act.
The costs, benefits and regulation of this large and controversial industry are subject to continual debate. Closing the courthouse door to opponents, even indirectly, has no place in that political process and no warrant under our tradition of free speech.
State government said as much more than a decade ago when it banned so-called SLAPP (Strategic Lawsuit Against Public Participation) legal actions that have been taken by businesses such as landfills and power plants against remonstrators. Pre-empting these protests by onerous lawsuits has been found by Indiana and most other states to be unconstitutional and plain unfair. HB 1091 carries the same foul aroma.