Hounded, Cowed, & Badgered

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?

On da hill, in da statehouses, at da council in brief

The House has passed the Pets Evacuation and Transportation Standards Act (HR 3858), reports the HSUS. It would require state and local authorities receiving federal disaster to consider in their emergency preparation plans "the needs of individuals with household pets and service animals following a major disaster or emergency."

Following an embarrassing first try, Arizona has criminalized bestiality once again. The new law follows a high profile case involving the sexual assault of a lamb which brought to legislators' attention that bestiality has been decriminalized in the state since 1985. See this research memo. SB 1160 codifies the offense of bestiality in the same section of the code as the offense of child molestation.

Philadelphia is considering banning foie gras. (Update (6/4/06): Councilmember Kelly's bill [pdf].)

The mayor of Albuquerque has signed an animal care ordinance he thinks would be bad if enforced. There's a lot to like: limits on chaining, mandatory spay/neuter, very specific requirements regarding spaces for keeping animals, a broader power to seize animals. There's also some nice, but precatory language that the City Council "finds that the people of Albuquerque should treat animals as more than just lifeless inanimate chattel property." (Update 12/4/06: a challenge to the law has largely failed.)

Spay/neuter bills pass in Alabama, Rhode Island

A bill in Alabama requiring shelters to spay or neuter animals adopted out has been signed into law. Although we're happy to see something done which could mean fewer companion animals killed solely because they're too expensive to keep alive, we've expressed doubts as to the efficacy of targeting shelters while excluding pet stores and individuals.

A better approach has recently been taken by the Rhode Island legislature, which passed a bill which would require spay/neuter for all cats. (Hat tip: An Animal-Friendly Life.) (We are going from S. 2014, which fits the description in news accounts.) The bill is better because it covers everyone who keeps cats and it regulates breeders. It also funds a low-income spay/neuter program through a "canine surcharge"--we'll leave the lame jokes to the Jackie Masons of the blogosphere. As this interesting article in the Providence Journal notes, having affordable spay/neuter can dramatically reduce the number of animals killed in shelters. A nuanced policy statement by Pawswatch suggests that mandatory spay/neuter will not be successful without greater funding than the bill provides. A bill allowing a tax check-off could help, if it can get past the veterinary lobby.

In da statehouses, in brief

There is further talk of regulating puppy mills in the Rust Belt, as an Ohio legislator introduces a bill which (per the Dover-New Philadelphia Times-Reporter) includes inspections and licensing by the Ohio Department of Commerce. State Senator Robert F. Hagan frames the issue even more starkly than Pennsylvania Governor Ed Rendell did in his recent tough talk against puppy mills: "This is about torturing animals for profit."

A recently signed Mississippi law (SB 2210) extends the state's cruelty by malicious injury offense to include injury to cats; the law now [before SB 2210--ed.] only applies to dogs, while cruelty to other animals is included under a catchall. (Hat tip: An Animal-Friendly Life.) The law also bans hog-dog fights. As the Natchez Democrat notes, others bans have passed in Alabama and Louisiana and more are on the way.

The Journal News (NY) reports on a bill which passed the New York State Assembly allowing a tax check-off to fund animal shelters, but which a quoted advocate says may require shelters to turn over animals for a narcotic- and bomb-sniffing program funded by the check-off. The language is indeed sloppy, referring to the "development of police canine units (with dogs from shelters)," but without outlining procedures for requisitions.

 

CO: No fundamental right to own pit bull

This is just a snippet, but the Aurora, CO, statute banning pit bulls was upheld against a constitutional challenge. The statute appears to have been less absolute than nearby Denver's. The article refers obliquely to a claim that the law burdens the "'fundamental rights' of all dog owners." Given lower court's general deference to the Supreme Court, and the Court's current complexion, it seems very, very unlikely that a court would be embrace the claim that keeping an animal is a fundamental right. The closest we've seen to a court embrace a fundamental rights analysis is in Rabon v. City of Seattle, where the court found:

There may be merit to the argument that a person's relationship with a dog deserves more protection than a person's relationship with, say, a car . . . We do not necessarily accept the City's argument that the result of the criminal trial extinguished Rabon's substantive right to dog ownership altogether. But we cannot conclude that a person's interest in keeping a vicious dog as a pet is so great as to require a more careful procedure than is provided by Seattle's administrative and hearing process.

Most courts simply state that there is no fundamental right, often relying on century-old precedent, from when animals were arguably treated even worse than today. Could a plaintiff successfully expand on precedent recognizing the right to order one's family to convince some judge somewhere that relationships with companion animals deserve constitutional protection?

Seattle Times profiles Adam Karp

Susan Gilmore of the Seattle Times has a nice profile of animal law practitioner Adam Karp (hat tip: AnimalLaw listserv). The article hits on a number of issues related to companion animal law practice, including how difficult it is for potential clients to find attorneys willing to take their cases, and the motivations of those clients in seeking justice. Karp calls $45K+ damages awarded in one case where a dog mauled a cat a "symbolic victory." Although there is a tendency in the media, and not just the conservative parts of it, to question the motives of plaintiffs with novel legal theories, many (probably most) people whose companion animals have been injured or killed just want to "send a message" to the tortfeasor or for the court to recognize the wrong. They are not in it for the dough because, generally, there is none to be had. We wonder if this will change as animal law goes more mainstream.

The article highlights the recently decided  Mansour v. King County (Wash. Ct. App. Jan. 23, 2006), which concerned the due process rights of a man who was ordered by local animal control to remove his companion dog from the jurisdiction or give it up to be euthanized. In order to challenge a government action under the due process clauses of the Fifth or Fourteenth Amendments, you must prove you have an interest at stake, either in life, liberty, or property. Mansour argued that he had both a property interest and liberty interest in the dog, but the court found the property interest sufficient and did not reach the more interesting question of whether a liberty interest was at stake (perhaps akin to the liberty interest in family arrangements, see Moore v. East Cleveland.) In a discussion of what standard a reviewing court should use for animal control decisions, though, it treats the relationship between Mansour and the dog, named Maxine, somewhat confusingly:

A determination of removal does not sever the relationship between dog and owner; as long as Mansour moves out of King County, his relationship with Maxine can continue uninterrupted.  While this is certainly a burden on Mansour, it leaves it up to him to determine whether the relationship can continue.  Even a dependency proceeding, where a parent may lose custody of a child, requires proof only by a preponderance of the evidence. The government's decision to remove a child, even if temporary, cannot warrant less protection than the government's order to remove a dog, no matter how beloved, to another county.  And although we have recognized the emotional importance of pets to their families, legally they remain in many jurisdictions, including Washington, property.

Property, yes (in all jurisdictions), but why analogize to a child custody hearing when there a world of other hearings in the annals of administrative law?  We suspect this analogy was following the lead of counsel Karp.

Finally, Gilmore's piece notes rather prominently that Karp is a vegan. Kudos to Karp for being out about it. Given how conservative law culture is, there is a tendency among many lawyers, pony-tailed Legal Aid and PDs aside, to dress and act as if the judge is from 1955 (or 1855). Although half of HB&C has not been able to put aside his wool suit before heading into court or job interviews, he feels inspired to follow Karp's lead.

Weakened spay/neuter bill in AL

The Birmingham News reports that Alabama legislators are considering a bill which would require all shelters to spay and neuter animals adopted from them.  The article does a good job conveying the dimensions of the problem -- 20,000 animals were killed in three AL counties alone -- and the political compromises which went into the bill.  The bill notably only covers shelters and rescue organizations, which, as a rep from HSUS reports, are responsible for less than 20% of all adoptions nationwide.  Previous attempts in the state to impose spay/neuter on animals kept by private owners, pet stores, and breeders had failed because of worries about "property rights."  It seems a bit wrong-headed to focus on those organizations that are generally already sensitive to animal overpopulation, and who bear the brunt of what is a problem largely out of their control.  The article notes that large shelters already require spay/neuter and that the bill would mostly affect small rescue and shelter organizations, groups who no doubt have fewer resources.  Although every little bit helps, the P.R. from the animal advocates ("could help,"  "certainly not the entire solution") does not suggest this is much more than a Band-Aid. 

We can't find a copy of the bill online, but it seems doubtful that there is any funding for the bill.  Backing such laws with money to subsidize spay/neuter is unlikely but might be effective.  For those concerned with property rights, subsidies, although not ideal from a laissez faire perspective, could allow private individuals to do the right thing, without having to worry about the finances of it.  Such subsidies are often available for low-income people from local shelters, but statewide funding would really back up claims that legislators are concerned with the number of animals killed in shelters every year.

A little bit of standing in WA

In an unpublished opinion, an intermediate appellate court in Washington State recently found an animal advocate had standing to challenge the policies of local animal control.  The plaintiff alleged that animal control failed to scan animals for microchips (which would identify an animal with its human companion), under-dosed animals being euthanized and failed to abide by hold periods.  The trial court had rejected the suit on standing grounds.  The appeals court found that the plaintiffs have taxpayer standing to challenge illegal acts, but denied standing on a variety of other theories.

Notably, the plaintiff alleged standing based on the theory of aesthetic standing used by courts to determine whether a dispute falls within Article III of the U.S. Constitution.  The court cites Sierra Club v. Morton and later cases which held that a plaintiff is injured if she observes an animal being harmed, and concludes:

While these cases demonstrate a trend toward broadening categories of injury to support standing, Ms. Wolverton [the plaintiff] failed to demonstrate that she fits within the categories.

The holding is consistent with cases which limit aesthetic standing to people who work with animals and people who can regularly view animals in a public space, such as a park or a zoo.  We'd be curious to know if the result would be any different if a complaint alleged that the plaintiff had visited dogs or cats in a city-run pound.

The plaintiff also interestingly argued (unsuccessfully) that the state's pet trust statute supports finding standing and that the state's anti-cruelty laws create an implied cause of action for animals.

Background:  a great primer on standing for animals.