Washington Lawyer

Animal Law

From Washington Lawyer, March 2008

By Kathryn Alfisi

polar_bearWhether it was the deluge of media coverage of headline-grabbing stories such as the Michael Vick dogfighting scandal and the Menu Foods recall, or the more tabloid-friendly accounts of billionaire Leona Helmsley leaving $12 million to her white Maltese in her will, and Ellen DeGeneres breaking a contract with a dog rescue group, animal-related stories took center in 2007.

But while the issues raised by these incidents may be unfamiliar to the majority of the public, they are well known to the growing number of lawyers who battle within the legal system on behalf of animals.

Ten years ago a lawyer who said he or she practiced animal law likely would have received blank stares or quizzical looks. Nowadays more widespread acceptance of the animal welfare and animal rights movements and recent high-profile events have conferred legitimacy (although not from everybody) onto this emerging and diverse field.

Animal lawyers have seen their share of victories during the past 10 years or so, but it was the Vick case, and the public outrage it generated, that allowed for just the right atmosphere to push for state and federal legislation that would strengthen dogfighting and animal cruelty laws.

The Atlanta Falcons quarterback is now serving a 23-month sentence after pleading guilty to conspiracy for running a dogfighting ring on his property in Surry County, Virginia. Carroll County, Virginia, also made headlines this past year when a Humane Society of the United States (HSUS) investigation resulted in a raid on one of the largest suspected puppy mills in the state’s history.

The Menu Foods recall resulted in a slew of class action suits filed on behalf of pet owners whose dogs or cats became ill or died as a result of tainted pet food manufactured by the Candianbased company.

“Recent events have obviously raised the awareness on the public level that animals are not just inanimate possessions. I think that people understand that animals have feelings and rights to exist and be saved and be taken away from a cruel situation,” says Katherine Meyer, a partner with the public interest firm Meyer Glitzenstein & Crystal. “I think when you get more publicity about these issues, more and more people become aware of those things, and I think it does bring these issues to a higher level of public debate, and public interest, and public awareness. It’s all very helpful to the things that we’re trying to do.”

While everybody in the animal law field is trying to help animals in one way or another, there are divergent views on issues and strategies. Some animal lawyers distance themselves from the term “animal rights,” seeing themselves, instead, as working within the existing legal system to gain protections for animals. Others are pursuing more sweeping changes and questioning the age-old legal boundaries between animals and humans, a controversial and divisive issue.

Animal law has been gaining recognition in the legal community. Approximately 10 states bars and the District of Columbia Bar have animal law sections or committees, and in 2005 (in what some say was a sign the field truly has arrived) the American Bar Association’s (ABA) Tort Trial and Insurance Practice Section created its Animal Law Committee.

Animal law also is a growing presence at law schools and law firms across the country and has come to encompass almost every area of law you could think of— administrative, constitutional, criminal, disability, environmental, international trade, torts, and trusts.

“I always say that sooner or later, whether you consider yourself an animal attorney or not, you’re going to have a case involving an animal,” says Pam Alexander, director of the Animal Legal Defense Fund’s (ALDF) Animal Law Program. “You’re going to face this intersection with animal custody disputes and divorces and separations, vet malpractice cases, housing disputes involving ‘no pet’ policies, discrimination laws, damages cases involving the wrongful death of or injury to companion animals, enforceable trusts, the lists goes on and on.”

Law Schools and Curriculum
The growing popularity of animal law studies at law schools has been particularly helpful in lending legitimacy and fueling more interest in the field.

According to the ALDF, approximately 91 animal law courses are being taught at law schools across the country, compared to nine when the organization started tracking this information in 2000.

The number of student ALDF chapters, known as SALDF, which petition school administrations to add an animal law course and work on raising awareness on animal law-related issues, has risen from 12 to 112 in the past seven years.

“I think we’ve really seen a surge in the last decade where [animal law] is becoming more mainstream, and it has come away from the fringe. I think you can see that reflected with the law schools and animal law courses and the type of law schools that have chapters and law classes,” Alexander says.

When David Steib was looking at law schools to attend, among his considerations was whether the school had an SALDF chapter and was offering animal law courses.

“I’ve been a vegetarian for 17 years and I’ve been a vegan for five years, so animal welfare is something that’s been really important to me for a long time,” he says.

Steib decided to enroll at the Georgetown University Law Center, where he is a third-year student and able to combine his love of animals with his legal education.

“It’s a field of law that a lot of people aren’t familiar with. Even though I had an interest in the social movement of animal welfare, I didn’t have a lot of knowledge of the legal aspect of it, so it was really a great opportunity for me to learn the nuts and bolts of animal law,” he says.

The animal protection litigation seminar that Steib attended at Georgetown is an example of the school’s recent efforts to expand its animal law curriculum through a partnership with the HSUS.

The seminar is part of a clinical program that offers students an externship with HSUS’s Animal Protection Litigation Section.

As a result of the partnership, Georgetown has become the first law school in the country to offer an animal law fellowship that allows recent graduates to practice animal law at HSUS for a year following graduation. The school also will develop a joint animal law conference to be held later this year that will focus on the development and enforcement of animal law in the United States.

All of these initiatives were made possible by a $1 million endowment the school received from the DJ&T Foundation, which was established by former The Price Is Right game show host Bob Barker, as well as grants from the Glaser Progress Foundation and Hayward Pressman of New York.

Other law schools that have received endowments from the DJ&T Foundation include Columbia, Duke, Harvard, Northwestern, Stanford, and the University of California in Los Angeles.

Jonathan Lovvorn, who heads HSUS’s litigation section and teaches animal law at Georgetown and The George Washington University Law School, sees the program at Georgetown as something of a benchmark for animal law.

“When we decided that we were going to partner with Georgetown, I said to our CEO and others, ‘This issue has really arrived,’” Lovvorn says. “When Georgetown decides it’s going to do a major program on this, it’s a big deal.”

HSUS also has partnered with George Washington for its Animal Law Litigation Project, which, similar to Georgetown, combines an animal law seminar with an externship at HSUS.

Students at George Washington also can get involved with the Animal Welfare Project, an independent pro bono effort on behalf of students and faculty that seeks to bring greater awareness to animal welfare issues and promote legislative change to improve the welfare of animals in and around the District of Columbia.

The project was created by George Washington University law professors Joan Schaffner and Mary Cheh (now a Ward 3 councilmember) in 2003 as an opportunity for students to do pro bono work within the school that would benefit the District.

Initially the project had a one-year timeframe to research and write a report on animal welfare in the District. A Report on Animal Welfare in the District of Columbia was presented to D.C. Councilmember David Catania and then-D.C. Department of Health Director Gregg Pane, who suggested the project draft legislation so the city council could implement some of the report’s proposals.

Cheh introduced the Animal Protection Amendment Act of 2007 in February 2007, and as of January, the bill, with substantial alterations, had reached the Judiciary Committee.

The project has continued past its one-year lifespan and now works with local humane organizations, community groups, government, and schools on animal welfare activities.

Lewis & Clark Law School in Portland, Oregon, was the first law school to offer a full animal law program and also hosts an animal law conference, publishes the Animal Law Review, and houses the National Center for Animal Law, which provides training and resources to animal law students.

ALDF assists animal law students by working with law schools around the country to develop SALDF chapters and collaborating with students, faculty, and administrators to facilitate the development of animal law courses.

The organization recently created a clerkship that allows students to work as paid legal clerks for a practicing animal law attorney.

Alexander says the organization is focusing on creating more opportunities outside the classroom for animal law students. “Unfortunately, there aren’t as many full-time positions as I think there is interest,” she says.

Lovvorn recognizes this as well. He says 99 percent of his students probably won’t practice animal law exclusively after graduating from law school, but he hears from many who want to take on animal law on a pro bono basis.

“I have dozens of former students at major law firms who are involved in pro bono projects for us,” he says.

Pro Bono Opportunities
According to Alexander, it is people like Lovvorn’s students who are the driving force behind the growth of animal pro bono work at major law firms. She says in recent years the ALDF has been contacted by several large and reputable law firms who want to work with the organization on a pro bono project, a development she calls “a refreshing change.”

Law firms also have been exploring pro bono projects with HSUS. Firms that have contributed more than 100,000 hours include O’Melveny & Meyers LLP, Weil, Gotshal & Manges LLP, and Latham & Watkins LLP. In 2007 HSUS received a little more than $2.5 million in contributed legal services from about a dozen of the top-20 law firms in the country.

“The thing I think has changed is that it used to be some junior associates dabbling in the area here and there, whereas now we’re getting calls from partners and pro bono coordinators who want to get involved in this area as a public interest practice area, and that’s different for us,” Lovvorn says.

At its 2007 Animal Protection Litigation Program, HSUS honored Faegre & Benson LLP, Frost Brown Todd LLC, Latham & Watkins, and O’Melveny & Myers for their pro bono contributions.

Lawyers from Latham’s Chicago, New York, and Washington, D.C., offices won a victory in United States District Court on behalf of HSUS when it halted the National Marine Fisheries Service from issuing permits to allow invasive scientific research on thousands of endangered Steller sea lions.

The Steller sea lions case is an example of the type of pro bono case the firm likes to take on, says Eric Bernthal, managing partner of Latham’s D.C. office.

Bernthal says the firm wants to work on pro bono projects that create meaningful and sustained relationships with a particular institution and provide the firm’s lawyers with training and experience.

“When a large law firm decides from a contribution standpoint where it’s going to give its money, you really try to limit your contributions to things that are philosophically consistent with what we do for a living and where we could make an impact and a difference, as opposed to being just another contributor. When it comes to pro bono work, it’s really the same thing,” he says.

During the past three years 5,000 hours have been billed for HSUS by Latham lawyers, which translates to about $1.6 million in legal services.

These pro bono contributions are critical for an organization such as HSUS, Lovvorn says.

“When you get into a major legal fight with a corporation, it could bring our entire operation to a halt if we were handling it in-house. That’s when having the support of these major firms is so critical. We couldn’t support the cases that we have now or do the things we’re doing without them,” he says.

However, Bernthal worries some firms might be more hesitant about taking on animal law pro bono cases since The American Lawyer decided in 2007 projects involving animal welfare do not count as pro bono work for its purposes.

Bernthal says regardless of that decision, Latham will continue working with HSUS on a pro bono basis. Latham lawyers are working with HSUS on dogfighting issues and on a program to protect sharks under the Endangered Species Act.

Full-Time Opportunities
The animal law field may be growing, but full-time jobs still are hard to come by.

“I think the potential for people to help out on pro bono projects is almost limitless. Full-time jobs within animal protection organizations, government agencies, and prosecutor-type positions definitely are growing, but it is still pretty limited,” says Ethan Eddy, a staff attorney at HSUS’ Animal Protection Litigation Section.

When HSUS launched the section in 2005, it had three full-time lawyers. Now, it is the largest animal protection litigation program in the country with 12 lawyers at offices in New York, San Francisco, Seattle, and Washington, D.C., and hundreds of volunteer attorneys nationwide who are working on about three dozen cases.

The section focuses its litigation on four animal welfare issues: animal fighting and animal cruelty, farm animal protection, unethical or egregious hunting or contest kills, and the fur industry.

“We look for cases that are going to provide immediate benefit for animals. We try to steer away from the more theoretical, what some would call ‘pie in the sky’ type cases, and try to think about what we can do for animals right now to alleviate suffering,” Lovvorn says. “Sometimes you get a case where the immediate help for animals and a long-term precedent coincide, which is very nice. Usually the question is how do we wade through the huge deluge of proposed cases and decide which ones to take.

One of the saddest parts of this particular line of work is all the cases that need counsel that we just turn down. … Inevitably you’re passing up cases where animals are suffering or will be killed, and you just have to make these choices every day.”

According to Lovvorn, HSUS achieved one of its biggest legal victories in 2007 when the United States Court of Appeals for the Seventh Circuit upheld the state of Illinois’s decision to ban the slaughter of horses for human consumption, and the Fifth Circuit Court of Appeals upheld a Texas law banning the possession of horse meat for human consumption.

“We win skirmishes, we win battles, but I can’t remember a time when we essentially shuttered an industry we think is cruel,” he says.

Some of the more high-profile cases HSUS is working on include a suit against the United States Department of Agriculture that challenges the exclusion of poultry from the Humane Methods of Slaughter Act, a suit against Amazon.com for selling subscriptions to cockfighting magazines, and a case challenging Ringling Bros. and Barnum & Bailey circus’s treatment of elephants under the Endangered Species Act.

Other animal welfare and animal rights organizations such as ALDF, American Society for the Prevention of Cruelty to Animals, and People for the Ethical Treatment of Animals also have similar, if not smaller, litigation programs.

Opportunities to practice animal law at a private law firm are few and far between, and most public interest firms that work on animal law cases are involved in other matters as well. In addition to its animal law casework, the public interest law firm Meyer Glitzenstein & Crystal also handles cases involving open government laws, constitutional rights and civil liberties, and ballot initiatives and referenda.

The firm has won several substantial legal victories for animals since it was created 15 years ago by Meyer and Eric Glitzenstein. Meyer and Glitzenstein started their public interest careers working at the Public Citizen Litigation Group, the litigating arm of the Ralph Nader-founded Public Citizen, followed by a stint at Harmon, Curran, Gallagher & Spielberg, another public interest firm.

“Our background was in administrative law, so we knew we had a very strong training and background in using federal laws to sue federal agencies to get protections that were supposed to be guaranteed under law,” Meyer says. “We were bringing that knowledge to the animal law arena.”

Meyer Glitzenstein & Crystal won what is considered a landmark case, Animal Legal Defense Fund v. Glickman, in 1988 that gave individuals standing to sue the government over conditions that cause an animal pain or suffering. The United States Court of Appeals for the District of Columbia Circuit’s ruling in the case allowed a zoo visitor to sue the United States Department of Agriculture under the Animal Welfare Act to force it to improve the living conditions of the zoo’s primates.

In 1998 the firm successfully challenged a plan by the United States Fish and Wildlife Service, the National Park Service, the Department of Agriculture, and the state of Wyoming to kill excess bison on federal lands in Jackson, Wyoming, by claiming it violated the National Wildlife Refuge System Administration Act and the National Environmental Policy Act.

“From the very beginning our approach was that you couldn’t just go in and say, ‘Save these animals because it’s the right thing to do.’ Our approach was you have to have a good reason to do it, you have to be willing to have a judge that understands that it’s a legitimate public objective, but it also has to be based on a very solid legal theory,” Glitzenstein says.

Pending Legislation
Although legal fights for bears, bison, and other animals continue, it is pets, or companion animals as animal lawyers and activists prefer to call them, which have been receiving increased protections.

When the Vick dogfighting scandal broke, all 50 states already had animal cruelty laws in place and 43 had provisions making some types of animal cruelty a felony—every state except for Idaho and Wyoming had felony dogfighting laws.

However, by January of 2008, 25 states were looking at enacting dogfighting legislation, and many also were considering changing other laws governing animal welfare.

Legislators in Virginia, for example, introduced a bill that would make dogfighting a qualifying offense under the state’s racketeering laws, and a bill that would make all animal fighting a Class 6 felony (dogfighting already was a Class 6 felony). Maryland legislators were considering a bill that would make it a felony to even attend a dog- or cockfight.

There are attempts to change laws on the federal level, too.

“Michael Vick did us all a huge favor,” says Eddy, whose practice at HSUS involves animal fighting. “Usually we’re going to lawmakers at the state and federal level and begging them for help, but after the Vick case they came to us saying they’d like us to help them update their state’s dogfighting laws. That is just unprecedented in our experience.

We have a bill pending right now—it actually got tagged onto the Farm Bill in the Senate—that came out of Senator Kerry and Senator Boxer’s office that would significantly upgrade the federal dogfighting laws.”

Tougher animal protection laws also are being looked more favorably upon as an increasing number of prosecutors, law enforcement officials, and social workers pay more heed to studies linking animal cruelty to other violent acts.

“The social science area has studied this for several years and there are studies that demonstrate that there’s clearly a link between animal abuse and human violence, both in terms of a predictor of violence and as a coindicator, which comes up in the context of domestic violence and child abuse,” says Schaffner, the George Washington professor.

She says that five or six states allow protective orders for people involved in domestic violence situations to include pets within the household. Schaffner says one of the many reasons women may delay seeking protection from an abuser is that they don’t want to leave their pet in a household where it likely will be abused or killed.

The legislation Schaffner helped draft for the D.C. City Council goes one step further and asks that abuse of a pet within a household be considered grounds for obtaining a protective order.

Within the past year lawmakers also have introduced bills targeting puppy mills, which are large-scale commercial breeding facilities where animals are kept in substandard conditions. These facilities often produce sick pets that are sold to pet stores and purchased by innocent consumers.

HSUS recently filed what it says is the country’s first puppy mill class action lawsuit, which is being litigated by Weil, Gotshal & Manges.

Lawyers are seeking compensatory damages for individuals who purchased unhealthy puppies at a Florida pet store that, according to the suit, obtained their dogs from puppy mills and was unwilling to reimburse customers for the purchase price and veterinary bills.

Not everybody, however, is happy with attempts to regulate breeding facilities. Critics say puppy mill legislation will only wind up hurting reputable breeders.

Outside the Criminal Realm
Changes also are occurring in the civil branch of animal law as the legal system begins to reflect the increasingly complex relationship between people and their pets in our society.

According to the American Pet Products Manufacturers Inc. Association, Americans spent an estimated $9.9 billion on pet supplies and over-the-counter medicines for their pets in 2007, and that amount likely will exceed $10.5 billion in 2008.

“There’s a recent study that shows that more than half of companion animal guardians would prefer a cat or a dog to a human if they were stranded on a deserted island, 50 percent of pet owners said they would be very likely to risk their lives to save their pets, and another 33 percent said they’d be somewhat likely to put their own lives in danger to save their pets. I think those are very telling statistics,” ALDF’s Alexander says.

Since pet owners are so willing to spend time and money on their pets while they are alive, it may not come as much of a surprise that some are ensuring their pets will be taken care of after they are gone.

Close to 40 states and the District of Columbia have adopted the Uniform Probate Code, a statute that allows for the establishment of pet trusts.

But while pet trusts may be growing in popularity, it can still be difficult to get some people to take them seriously, and Helmsley, the billionaire hotel and real estate mogul, certainly didn’t help the matter.

“The main challenge with pet trusts is that when people think of them, even if you try to explain what it really is, it conjures up images of some millionaire who dies and leaves a mansion to her poodle, and that’s not the way it works,” says Angela Robinson, a principal at A.S. Robinson & Associates, PLLC, who testified about pet trusts before the Maryland Senate in 2006.

Robinson points out there are legitimate reasons for an average pet owner to establish a pet trust, especially now that “people are starting to take the pets in their lives more seriously.”

A pet owner may try to provide the best care possible for their animal, whether it is expensive veterinary services, high-quality food, or doggy daycare, but once an owner dies or becomes incapacitated, there’s nothing to ensure their pet will continue to receive the same level of care or any at all.

Pets whose owners have died often end up in a shelter and can be particularly hard to place in a new home because of lack of background information and can exhibit fearful, defensive behavior.

According to Robinson, a person doesn’t need millions of dollars to establish a pet trust, but they do need to figure out what their annual expenses are for the animal and figure in unexpected expenses such as surgeries.

“I may have people who love my cat and would take care of it and who wouldn’t mind buying it cat food and litter, but maybe it would come to a point where the cat was 10 years old and needed dental work. I may be willing to cough up $1,000 for this, but the person who took my cat wouldn’t. Well, I could fund a trust with $2,000 to cover any extreme veterinary costs or to pay for vet insurance or what have you,” she says.

Far more controversial than pet trusts are attempts to recover noneconomic damages for pet owners in wrongful death or injury cases.

Because pets are considered property by the law, pet owners have traditionally only been compensated for the fair market value of their pet, although some owners may be able to seek economic damages such as veterinary or special training costs.

Some pet owners have been able to collect pain and suffering awards from the courts, and such lawsuits are becoming more common in a society where pets increasingly are thought of as members of the family. Several states have considered, and a few have passed, legislation that would allow pet owners to sue for pain and suffering damages.

In 2006 a Washington state judge awarded $5,000 in emotional distress damages to a woman whose cat was abducted by neighbors and set on fire. The judge in the case dismissed various claims of the defendant, including outrage, but when the ruling was appealed to the Washington State Court of Appeals, the court recognized a new cause of action for pet owners whose animals have been maliciously injured or killed.

That same year an Oregon attorney was able to convince a jury to award $56,400 —$6,000 for emotional distress and $50,000 in punitive damages—to a family whose neighbor they say purposefully ran over the family dog. However, the lawyer was not able to establish a new tort allowing pet owners to sue for loss of companionship.

The divisiveness of this issue became readily apparent to George Washington’s Schaffner when language she included in the bill before the D.C. City Council about pet owners receiving noneconomic damages received such vehement opposition it had to be removed.

While she says she understands people’s concerns, especially those in the veterinarian community, Schaffner also says the fair market value approach doesn’t reflect the close relationship people have with their pets.

Opponents of noneconomic damages, which include the American Veterinary Medical Association and the Animal Health Institute, say allowing owners such compensation would actually make things worse for animals and their owners by opening the floodgates for litigation, which would, in turn, increase pet care costs.

“There’s a great deal of uncertainty to what it will do to both the cost of veterinary liability insurance and also the availability of a veterinarian to enter into a situation where there may be significant risk,” says Victor Schwartz, a partner at Shook, Hardy, & Bacon L.L.P. and general counsel for the American Tort Reform Association.

Schwartz also worries increased legal liability would put some pet boarders, groomers, and others pet care workers out of business and leave pet owners with fewer options.

“It’s one of those things where there is a lot of speculation about what are the benefits that one derives from changing the rules, and what are the risks,” Schwartz says. “And virtually all but two legislatures have made the decision and have said no, and almost all courts have said no.”

At the heart of the question of noneconomic damages lies a far thornier issue about whether the property status of animals should be reconsidered and whether the law recognizes that animals should have their own interests and preferences.

“It’s one thing to have laws that say that animals have to be protected in a certain way—that has been true in one form or another in American and English jurisprudence for a long time. It’s another thing to say that the animals have certain rights or interests, and that’s really the Holy Grail that people are searching for in this area—for the courts to recognize that animals have certain intrinsic interests of their own that don’t depend on what a human being happens to say,” Glitzenstein says.

Glitzenstein and other animal lawyers say the legal system often is slow to accept change, but they are confident that it will, especially given the growing number of studies being done that show animals have more intelligence and have a greater capacity for emotion than previously thought.

But Richard Epstein, a professor at the University of Chicago Law School who has written critically about some issues surrounding animal law, says such studies do not mean as much as proponents claim, since the biggest difference that stands out between humans and animals is the capacity for cognitive language.

“The gap on cognition means that animals cannot have political or contract rights, no matter what. It also means they always need guardians to assert claims,” he says.

Some people worry that giving legal standing to animals will lead to more far-reaching changes that support the animal rights movement and would create an environment where the legal interests of animals would rival that of humans.

Those in the animal law field, however, warn against alarmists and say their efforts on behalf of animals need not lead to the restructuring of the entire legal system.

“I think one of the things that scare people is the slippery slope: if we start recognizing that animals have rights, where do we stop? I think one of the answers to that is, as with many rights in society, there are always balancing tests,” Glitzenstein says.

HSUS’s Eddy agrees. “It’s possible to achieve very meaningful protections for animals without ever dealing with those questions. Our opponents, so to speak, like to raise that as a red herring—‘Well, if we give animals rights, then do we have to give them the right to vote and to drive cars?’ We don’t have to go down that slippery slope to achieve real gains for animals.”

District of Columbia Bar staff writer Kathryn Alfisi can be reached at kalfisi@dcbar.org.