Volume XV, Issue V
September/October 2001

by Adam Karp

Hypothetical Question No. 1: Two teenage boys allegedly sodomize a kitten with a stick, rupturing her anus and breaking her tail. An animal sanctuary rescues the kitten after receiving an anonymous call. They contact a veterinarian, who amputates the tail and surgically repairs the colon and rectal cavity. The kitten suffers permanent neurological damage and will remain incontinent for the rest of her life. The prosecutor refuses to press charges. No guardian for the kitten can be found. Can the veterinarian sue the boys and their family for services rendered to the abused kitten?

Hypothetical Question No. 2: A man voluntarily admits to having intentionally shot and killed two chocolate Labrador Retrievers with a hunting bow and arrows. These dogs lived as part of a human family consisting of a husband and wife and four daughters, whose life revolved largely around the canines. "They had a great life. They had a pond to swim in, they had all their neighborhood dogs that they would play with, we even had special furniture in our house that no one else was allowed to sit on, because it was for the dogs," says the wife. The family sues for $200,000 in loss of companionship and emotional distress, even though they only paid $800 for the dogs. How would you handle the case, assuming you even took it?

Hypothetical Question No. 3: After ten years and three children, your client wants a divorce from her overbearing and alcoholic husband. Though he could care less for the kids, she anticipates that the husband would dispute custody over Clifford, the family's Rottweiler of six years. Would you arrange a stipulated custody and visitation plan and support schedule for Clifford? How might you enforce such a companion animal provision? You recall that pets are personalty in dissolutions and may simply be treated as a marital (or premarital) asset with a depreciated market value. Does this affect your decision?

Hypothetical Question No. 4: A judgment creditor attempts to execute upon Captain, a garrulous, yet keen and well-trained, 15-year-old blue and gold macaw belonging to the judgment debtor. The sheriff arrives at the debtor's door, breaks and enters pursuant to court order, then proceeds to seize Captain for auction to satisfy the judgment. Is Captain personalty for the purpose of determining exemptions? If so, what other arguments might you raise to prevent the sale?

Hypothetical Question No. 5: For the past decade, a man has lived as a "strict Ethical Vegan," meaning that he "fervently believes that all living beings must be valued equally and that it is immoral and unethical for humans to kill and exploit animals, even for food, clothing, and the testing of product safety." The County Transit authority fires this man, who employed him as a bus driver, for refusing to hand out coupons for free Carl's Jr. hamburgers. Does he have an employment discrimination claim? If, instead, his veganism compelled him to walk off the job, would he be entitled to unemployment compensation for voluntarily quitting with good cause?

Hypothetical Question No. 6: An elderly widow wants to leave a portion of her fortune to care for Othelia, her pregnant Australian blue-ringed octopus. Would this not lead to an unenforceable honorary trust? Can you draft a non-honorary inter-vivos or testamentary trust for Othelia and Othelia's offspring without violating the Rule Against Perpetuities or the presumption against leaving legacies to personalty?

Hypothetical Question No. 7: A woman observes a man brutally beat a dog with a baseball bat, without provocation and not in self-defense. She sees the man raise his bat above his head and hit Spunky, a Westhighland Terrier puppy, in the back. Spunky tries to run away but gets entangled in a neighboring dog's chain. He continues hitting Spunky with the bat. She cannot believe what she observes and opens her window and leans out screaming at him to stop. But he continues. Even after Spunky is lying on the ground not moving, the man repeatedly hits him on the head and body with the bat. At this point, she grabs her gun and shoots the man dead with two shots to the chest. She is charged with second-degree murder. Can she introduce any variation of self-defense to win an acquittal?

As you have probably gathered by now, a common thread runs through these scenarios – they represent a subset of cases from traditional practice areas except that nonhuman animals lie at the center of the controversy. According to the first casebook on the subject,

"Animal law is, in its simplest (and broadest) sense, statutory and decisional law in which the nature – legal, social, or biological – of nonhuman animals is an important factor. … Animals appear in cases of all sorts, and we notably do not define animal law to mean 'any case with an animal'. … A personal injury lawsuit for damages related to plaintiff's ingestion of contaminated meat is not animal law, even though the meat involved was part of an animal. Compare the Provimi Veal case in which plaintiffs claimed damages because the veal they bought was not properly labeled, allegedly subjecting them to unknown dangers. That case is animal law – not because meat was involved but because plaintiffs' thinly-veiled agenda was to increase protection of veal calves, or perhaps to stop veal production."

Animal law has quickly emerged as a specialty legal field in law schools (Harvard, Duke, Georgetown, Hastings, Rutgers, and the Northwestern School of Law at Lewis & Clark College, which publishes the Animal Law Journal). Animal-centered litigation appears more routinely on court dockets as pet owners sue to recover damages. Nationwide, legislatures debate the passage of bills addressing issues at the boundaries of human-animal relationships. And last year Carolina Academic Press published a 780-page volume Animal Law, the first casebook of its kind. Animal law conferences and CLE's, such as the Oregon State Bar Animal Law CLE on 27 July 2001 and the 9^th Annual Animal Law Conference "Politics of Animal Law" taking place on October 19^th and 20^th at Northwestern, convene with greater regularity, allowing practitioners the ability to discuss the intriguing legal and ethical issues surrounding animal law while obtaining credit.

Currently, only two states and one city have animal-based sections – the Association of the Bar of the City of New York (Committee on Legal Issues Pertaining to Animals, est. 1991), the State Bar of Michigan (est. 1995), and the State Bar of Texas (est. 1996).

Let's make the Washington State Bar Association number four.

With tremendous excitement I ponder what a section comprised of caring and committed defense and plaintiff's counsel, from the public and private sectors, could do to advance Washington's awareness of animal jurisprudence. In addition to providing a forum for members to exchange ideas, study, and understand laws, regulations, and case law pertaining to all areas of Animal Law, we could:

1. Establish a midyear CLE and, eventually, a multi-state MCLE animal law institute.

2. Publish an Animal Law Reporter for the Pacific Northwest or nationally.

3. Create an animal law list serve.

4. Print and distribute quarterly e-mail or paper newsletters to section members, both voting WSBA members and non-voting associate members, soliciting articles from practitioners, academics, and others.

5. Produce pamphlets to the public, such as those offered by the Association of the Bar of the City of New York (see www.abcny.org/pub-provforpet.html, www.abcny.org/rex-home.html, www.abcny.org/pethouse.html, www.abcny.org/cruelty.html)

6. Provide information to and facilitate cooperation with government agencies and non-governmental humane societies, rescue organizations, and animal sanctuaries that deliver services to animals – feral and tame, exotic and domesticated – and their human guardians.

7. Organize brown-bag lunches and roundtables to grapple with animal law matters in a short time frame.

At this time, I have drafted proposed bylaws and budgets through fiscal year 2003. To accomplish even a fraction of the ambitious list of projects enumerated above, I have proposed that dues be set at $25 a year.

In order to approve the establishment of a new section, the WSBA Board of Governors must first waive the six-month waiting period and then consider a petition and report subscribed and endorsed by at least 50 members of the WSBA. I have submitted the proposed bylaws and budgets, along with a request to waive the six-month period, to the Board of Governors, which will meet October 19-20, 2001, in Vancouver. The list of 50 members must be submitted by October 4, 2001.

Time is, therefore, of the essence. With your promise to apply for membership in the proposed Animal Law Section of the Washington State Bar Association, we can form one of the most dynamic, intellectually and emotionally stimulating, and community-involved sections. If interested, please contact me as soon as possible at (206) 903-1315 or adam@animal-lawyer.com. I encourage you to spread to word to attorneys who may not receive De Novo.

More Information 

• Animal Law Section homepage

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