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ISAR’s MAJOR PROGRAMS

Animal Law

Litigation

As a result of ISAR’s pioneering leadership in the field of Animal Law, animal litigation has blossomed in the United States and around the world. For example, ISAR has recently consulted concerning, and financially supported, a domestic case testing the interpretation and limits of a state’s anti-cruelty laws and a foreign non-governmental organization in a major international Animal Law case. 

Amicus Curiae briefs

Professor Holzer and ISAR have filed amicus curiae (“friend-of-the-court”) legal briefs on behalf of International Society for Animal Rights and other animal protection organizations, consulted with the lawyers for the parties, and, for example, have submitted non-constitutional amicus curiae briefs in the California Court of Appeal and the Supreme Court of the State of California.   

Constitutional amicus curiae briefs filed by ISAR in the Supreme Court of the United States include United States v. Stevens and Church of the Lukumi Babalu Aye, Inc v. City of Hialeah, Florida. 

The Stevens brief was in support of the federal government’s argument that the statute criminalizing the making, selling, or possessing depictions of “crush videos” and other torture and killing of animals, was constitutional and not protected by the First Amendment. 

In the Hialeah case, Professor Holzer on behalf of ISAR and eleven other animal protection organizations filed amicus curiae briefs in the Supreme Court of the United States in support of the City of Hialeah’s ordinance that prohibited the Santeria cult from sacrificing animals as part of its alleged religious ceremony.  

Constitutional considerations

ISAR often learns that animal protection organizations are contemplating the preparation and introduction of legislation, but fear that courts may rule that the bills will not pass constitutional muster.

Except for the most egregious bills (e.g., imposition of a $1,000 tax per animal levied on the custodians of companion animals), animal protection laws will be upheld against constitutional challenges. 

For example, various levels of government throughout the United States are increasingly enacting laws that severely restrict, or even prohibit, the breeding and owning of cats and dogs; some of these laws are breed-specific, some apply generally.

There is, of course, substantial opposition to these types of laws, especially from organizations such as the American Kennel Club, which have a huge financial stake in the breeding of dogs. Among their many other arguments against anti-breeding laws, their opponents claim they are unconstitutional.

They are not.

The core of a typical anti-breeding law is its “findings,” which usually contain statements such as:

    • The euthanasia of unwanted cats and dogs is rampant, with totals annually in the millions of animals.
    • The destruction of these animals, though necessary, is immoral and not befitting a humane society.
    • The practice is not cost effective, and the costs in the millions of dollars.
    • The root cause of this mass killing is the problem of overpopulation, which causes social and other problems beyond those created by mass euthanasia.

Based on findings like these, some laws provide for a moratorium on the breeding of cats and dogs. If the overpopulation problem in that jurisdiction is not reduced, then a mandatory spay/ neuter program is often provided as Plan B, with eventual mass euthanasia being Plan C.

Equally important is the “Declaration of Intent” found in typical anti-breeding laws. For example:

The Board of Supervisors hereby finds and declares that it intends to provide for the public health, safety, and welfare, through a moratorium on the breeding of cats and dogs owned, harbored, or kept in this municipality, in order to bring the population of abandoned and stray animals to an acceptable level for protection of the public health, safety, and welfare.

To understand why anti-breeding laws will be held constitutional if defended properly, as will mandatory spay/neuter and other animal protection laws, it is necessary first to understand something about the American system of government.

When the United States was founded, the Constitution created a new federal government possessing substantial power. Concern was expressed about whether any power was left to the states. To address that concern, the Tenth Amendment to the federal Constitution reserved to the states what is commonly referred to as the “police power”— not in the sense of law enforcement, but rather the power to legislate for the public’s health, safety, welfare—and morals.

All state constitutions, in turn, delegate its police power from the state to various municipalities— e.g., cities, counties, towns, villages—which gives the latter power to pass laws related to the public health, safety, welfare and morals.

But those laws, like all legislative enactments made at every level of government, must pass the test of constitutionality.

Laws affecting rights so fundamental that they are expressly protected by the federal and state constitutions—e.g., speech, press, religion—are tested by a strict standard. In effect, laws affecting these kinds of fundamental rights (e.g., censoring media reporting, regulating church services) must advance an extremely important (i.e., “compelling”) governmental interest (e.g., not exposing to our enemies plans for the coming D-Day invasion), and be virtually the only way to accomplish that goal.

On the other hand, laws not affecting such fundamental rights are measured for constitutionality by a much less demanding test: Is there a problem properly within the government’s area of concern (e.g., teenage driving), and is the enacted law (e.g., requiring twenty-hours of classes and road testing) a rational way to deal with that problem? Put another way, it is a matter of legitimate “ends” and reasonable “means.”

Since, for example, anti-breeding—and mandatory spay/neuter and other animal protection laws do not affect any fundamental rights, they would be tested by this lesser standard.

Clearly, using this analysis, the number of unwanted cats and dogs causes significant social problems: senseless killing, health risks, wasted taxes, and more. Clearly, these problems raise important issues of public health, safety, welfare—and even morals. In other words, the “end” of mandatory spay/neuter and anti-breeding laws is constitutionally entirely legitimate.

Thus, the next (and last) question is one of “means”: Are anti-breeding and mandatory spay/neuter laws a reasonable way to deal with the problem? The “practical” answer is obvious: If there are too many unwanted cats and dogs, it is certainly reasonable to prevent the breeding of more, to prevent the population from growing and to allow normal attrition to reduce the existing population.

The more principled answer is that the overpopulation problem is a moral outrage. Government has the constitutional power and the moral duty to solve it— to alleviate, if not eliminate, visiting the sins of irresponsible owners and breeders on innocent animals. When it comes to anti-breeding and mandatory spay/neuter laws, the end justifies the means –constitutionally and morally. The same can be said for most other proposed animal protection legislation. As the Supreme Judicial Court of Massachusetts opined in 1931, “[t]he natural, essential, and unalienable rights of men to acquire, possess and protect property are subject to reasonable regulation in the interest of public health, safety and morals.” (Sadly, companion animals are still considered “property” by virtually every American court.)

Indeed, a wide variety of statutes and ordinances affecting animals have been upheld against constitutional challenge. Some examples in the federal, state, and other courts appear HERE.

For example, in one case the United States Court of Appeals for the 6th Circuit affirmed a federal district court ruling that an Ohio statute limiting the private ownership of exotic animals passed constitutional muster.

Just as the State of Ohio was not intimidated by predictions that the proposed legislation would be ruled unconstitutional, no animal protection activists should fear unfavorable rulings—not if proposed animal protection bills are carefully drafted, and defended by competent constitutional lawyers.

Standing to sue

In both the federal and state judicial systems, no one simply unaffected personally can initiate a lawsuit against either a private party or the government. The person (or entity) who would sue (the plaintiff) must have some direct connection with the grievance and with whomever the lawsuit is directed against (the defendant). This requirement is characterized as “standing to sue.”

For at least the past fifty years, the Supreme Court of the United States for the federal judicial system, and the highest courts of the states for the state judicial system, have crafted increasingly complex rules to regulate “standing to sue.” These rules are of crucial importance to would-be litigants because they control access to the courts.

In brief, for an individual, a group, or an organization to possess “standing to sue”— to get into court, and ask that it resolve the alleged dispute—the plaintiff must have suffered (or soon will suffer) some injury reasonably caused by the defendant, an injury that will be redressed if the plaintiff wins in court. The corollary of this “standing” requirement is that the plaintiff usually cannot raise the claims of others (though there are exceptions), the plaintiff cannot raise claims that are common to everyone else (e.g., taxpayers; though, again, there are exceptions), and the plaintiff cannot sue for violation of a statute unless he (or it) is someone intended by the statute to be protected or otherwise affected.

These “standing to sue” requirements, as difficult to understand and apply in “normal” cases, have become even more problematic since the 1950s when activists of all kinds – e.g., civil rights, abortion, anti-war, gun control, censorship – turned away from the legislatures to the courts to implement their agendas, be they political, moral, social, or economic.

In no area has the “standing to sue” problem proved thornier than in animal litigation.

The seminal case that raised the “standing to sue” issue on behalf of animals in America was Jones v. Butz. 

But who has standing to sue about religious exemptions to the federal Humane Slaughter Act?

Professor Holzer and ISAR cobbled together a coalition of various plaintiffs, representing a wide spectrum of interests.  

It is apparent that given the judicial requirements for “standing to sue,” Professor Holzer’s complaint sought to enlist human plaintiffs who represented virtually every kind of personal interest. This was to assure that someone would be able to invoke the power of the federal courts to decide the constitutional questions, and in so doing hopefully protect the animals, who were the plaintiffs’ primary concern.

Moreover, because there is a provision in the Federal Rules of Civil Procedure allowing an individual to sue as the “next friend” of another, and because the fundamental intent of the lawsuit was to protect livestock animals, there was one additional plaintiff: Helen E. Jones as next friend and “guardian for all livestock animals now and hereafter awaiting slaughter in the United States.”

In other words, in addition to the human plaintiffs themselves, Holzer sued through a human plaintiff on behalf of animal plaintiffs. This innovative—indeed, revolutionary idea—had never been attempted in an American court. Animals—in this case, livestock—through human agency were suing to protect their own rights, albeit by asserting a claim that the federal statute depriving them of those rights violated the Religion Clauses of the Constitution of the United States.

Although the underlying claims dealt with the constitutionality or unconstitutionality of the Javits-Case amendment’s exception to the federal Humane Slaughter Act’s “render insensible” requirement, the threshold issue was “standing to sue.” To understand how the court resolved that question, and the implicit question of whether the livestock animals had such standing, it is necessary to understand the court’s entire opinion.  

It is interesting and significant that in the unanimous Butz three-judge opinion, there was no discussion by the court of standing to sue. Implicitly, someone among Professor Holzer’s multiple plaintiffs had standing. Moreover, in the Supreme Court’s ruling that the case did not present a “substantial constitutional question,” there was no discussion of standing, implicitly recognizing that someone did.

In Jones v. Beame, Professor Holzer on behalf of ISAR’s Helen Jones and ISAR itself, sued to close the Central Park zoo in New York City because treatment of the animals confined there violated the anti-cruelty statutes of the State of New York. Significantly, the court’s opinion not only avoided the standing to sue problem, but implied that Helen Jones, a resident of New York County and the State of New York, and ISAR, a not-for-profit corporation doing business in New York County and State, did have standing to sue.

Today, there are scores of federal and state cases involving animals pending in trial and appellate courts throughout the United States, presenting issues of experimentation, hunting, farming, sport, education, spay/neuter, breeding, and more. Professor Holzer has advised some of their lawyers, and ISAR has supported some of the cases financially. 

 

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