Mass. court strikes down pro-dog initiative

In a recent opinion, the Massachusetts Supreme Court rejected the state attorney general's approval of an initiative which would have increased penalties for offenders who injure certain working dogs, expanded the ability of officers to seize dogs used in fighting, and banned dog racing in the state. (Hat tip: Joyrati). You may recall supporters of a ban were outspent in a previous attempt to ban dog racing. The court's decision in Carney v. Attorney General accepted the racetrack's claim that the initiative violated a provision of the state constitution which limits initiatives to subjects "which are related or which are mutually dependent."

The court devotes more of its analysis to recounting the stirring story of how the relatedness language was enacted in 1918 than it does looking at the initiative before it. Although some parts of the history support the 2006 court's conclusion, e.g., a lone comment by the clause's sponsor indicating the language was meant to combat the "hitching" of less popular provisions below more popular ones, some of the history cuts the other way, namely comments indicating that the relatedness clause was mean to combat "well-financed" special interests. Although the racing industry has relatively less political and financial power than other animal abusers, the plaintiffs, as noted above, are much better financed than anti-racing advocates. Grey2K is surely not the sort of big business lobbyist whose influence the language was intended to fight.

When it finally gets to the initiative itself, the court's analysis is lean, imagining a hypothetical voter who would support increased penalties for animal abuse but not a ban on dog racing, and a voter whose opinions run vice versa. In doing so, the court does not pay even lip service to the claim that dog racing is bad for dogs (it is), instead highlighting the industry's "legitimacy" and alleged economic benefits. Why stop there? Isn't it possible to imagine a law-and-order type who thinks it is important to increase penalties for abuse of police dogs but not service dogs? A court can imagine a voter with any preferences, but doing so strays from precedent that an initiative should be upheld if the subjects are "reasonably be said to be germane" to one common purpose. It is, of course, line-drawing, but it doesn't seem unreasonable to us to group these subjects together.

The court further notes, without authority, that the initiative impermissibly mixes civil and criminal matters.  Anyone who studies animal law knows that the law of animals in the U.S. is fragmented. A dog may be covered by legislation involving torts, licensing, trusts, zoning, and criminal laws, to name a few. In the absence of a comprehensive solution to animal abuse (say, abolition of the use of animals), why should animal advocates' hands be tied by a court that refuses to see the common purpose of reform in this fragmented legal landscape?