For many years ISAR has received requests for information about how concerned individuals and humane societies can bring legal action against local animal shelters that are not being run properly. Unfortunately, there are many ways in which shelters can be derelict in their statutory, humane and moral responsibilities to the unfortunate dogs and cats that come into their custody.
As we consistently point out, there are several difficult hurdles “outsiders” have to clear in order to bring such lawsuits, some of them practical (e.g., cost, capable counsel, entrenched political obstacles) and other of them legal (e.g., proof, legal theory, a fair judge).
The greatest problem, however, has always been what lawyers call “standing to sue”—the legal requirement that the lawsuit be brought by the appropriate plaintiff.
In both the federal and state legal systems, not just anyone can start a lawsuit against either a private party or the government. Generally speaking, the person (or entity) who would sue (the plaintiff) must have some connection with the grievance and with whomever the lawsuit is directed against (the defendant). This requirement is the standing to sue requirement.
For about the past fifty years, the Supreme Court of the United States for the federal system, and the highest courts of the states for the non-federal 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. (For a lengthy ISAR article on standing to sue see https://isaronline.org/programs/animal-rights-education/.)
There are two ways for would-be plaintiffs to obtain standing to sue.
The hard way, and the easy way.
As to the hard way, for an individual, a group, or an organization to possess standing to sue—to be able 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 can’t raise the claims of others (though there are exceptions), the plaintiff can’t raise claims that are common to everyone else (e.g., taxpayers; though, again, there are exceptions), and the plaintiff can’t sue for violation of a statute unless he (or it) is someone intended by the statute to be protected or is otherwise affected.
These standing to sue requirements, as difficult to understand and apply in “normal” cases, have become all the more problematic since the 1950s when activists of all kinds—e.g., civil rights, abortion, anti-war—have turned from the legislatures to the courts to implement their agendas, be they political, moral, social, economic, or whatever.
And nowhere has the standing to sue problem proved more thorny than as regarding “Animal Rights.”
However, there is an easy (or at least easier) way.
That way is exemplified by a lawsuit recently brought in North Carolina by two animal welfare organizations against a county sheriff and other county and state officials seeking to end the use of a gas chamber at the county animal shelter.
Rather than paraphrase the plaintiffs’ complaint, here it is:
State of North Carolina
In the General Court of Justice DISTRICT Court Division
NORTH CAROLINA COALITION FOR HUMANE EUTHANASIA and THE HUMANE SOCIETY OF UNION COUNTY,
EDDIE CATHEY, SHERIFF OF UNION COUNTY, NC, LT. MICHELLE STARNES, ANIMAL SERVICES OFFICER OF UNION COUNTY, NC, PHILLIP TARTE, LOCAL HEALTH DIRECTOR FOR UNION COUNTY, NC, and DEMPSEY E. BENTON, SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Verified complaint for MANDATORY INJUNCTION AND OTHER RELIEF
Plaintiffs, North Carolina Coalition for Humane Euthanasia (“NCCHE”) and The Humane Societyof Union County, Inc. (“HSUC”), each a non-profit domestic corporation, allege as follows:
Plaintiffs file this Complaint to stop defendants from unlawfully killing young, geriatric, injured, sick or pregnant animals in the gas chamber in violation of North Carolina law. While plaintiffs understand that not every animal that ends up in defendants’ custody can be placed in an adoptive home and that some of them must be euthanized, defendants, as government employees charged with enforcement of the law, should themselves comply with the law. North Carolina law prohibits the use of the gas chamber to euthanize young, geriatric, injured, sick or pregnant animals. However, documents that defendants are required by law to maintain (Animal Services Complaint Report/Impound Sheets) and which they were compelled to provide to NCCHE show that they routinely use the gas chamber to do what the law prohibits them from doing—euthanize young, geriatric, sick, injured and pregnant animals in the gas chamber.
JURISDICTION AND VENUE
FACTS Acceptable methods of euthanizing animals are dictated by statute in North Carolina.
N.C. Gen. Stat. 19A-24(5) provides that “[a]n animal shall only be put to death by a method and delivery of method approved by the American Veterinary Medical Association, the Humane Society of the United States, or the American Humane Association.”
Neonatal animals appear to be resistant to hypoxia, and because all inhalant agents ultimately cause hypoxia, neonatal animals take longer to die than adults. … The panel recommended that inhalant agents not be used alone in animals less than 16 weeks old except to induce loss of consciousness, followed by the use of some other method to kill the animal.See Exhibit 1.
Geriatric; Under the age of four months; Sick or injured; or (Obviously) pregnant.Old, sick, or injured animals may have poor blood pressure or weak hearts, which may delay the effects of CO, causing them to experience distress prior to unconsciousness. Animals under the age of four months may not have the lung capacity to inhale enough CO to be effective. In pregnant animals, it is likely that the mother will die from exposure to CO before the unborn puppies/kittens. Consequently, it is possible that the puppies/kittens will die as a result of the mother’s death (by suffocating to death) rather than from exposure to CO. The HSUS condemns using CO for animals meeting the above criteria.
See Exhibit 2 (emphasis added).
Union County Animal Control officials have the statutory obligation to maintain certain records relating to the animals of Union County Animal Control impounds
NCCHE requested documents relating to the Union County Animal Shelter
FIRST CLAIM FOR RELIEFViolations of N.C. Gen. Stat. 19A-24(5) by All Defendants
WHEREFORE, Plaintiffs pray judgment of the Court as follows:
(a) that the Court issue a Temporary Restraining Order and Preliminary Injunction restraining Defendants Cathey and Starnes, under the supervision of Defendants Tarte and Benton, from euthanizing animals under 16 weeks of age, as well as pregnant, sick, injured and geriatric animals, by use of the gas chamber;
(b) that the Court grant their Complaint for a Mandatory Injunction directing Defendant Eddie Cathey and Defendant Michelle Starnes, under the supervision of Defendant Phillip Tarte and Defendant Dempsey E. Benton, to euthanize puppies and kittens under 16 weeks of age, pregnant, sick, injured and geriatric animals by intravenous (or where impractical or impossible, intraperitoneal) injection of a nonirritating euthanasia agent or other approved means other than the gas chamber and consistent with the guidelines set out by the American Veterinary Medical Association, the Humane Society of the United States or of the American Humane Association and as required by N.C. Gen. Stat. 19A-24(b)(5);
(c) that the Court order Defendants Cathey and Starnes, under the supervision of Defendant Phillip Tarte and Defendant Dempsey E. Benton, to submit to this honorable court a plan for euthanizing all animals, including animals under 16 weeks of age, pregnant, sick, injured and geriatric animals, consistent with the guidelines set out by the American Veterinary Medical Association, the Humane Society of the United States or of the American Humane Association and as required by N.C. Gen. Stat. 19A-24(b)(5), including a plan to allow for monitoring the compliance therewith;
(d) that the Court order Defendants Cathey and Starnes, under the supervision of Defendants Tarte and Benton, as part of the monitoring plan, to keep complete records of impounded animals pursuant to 02 NCAC 52J.0101, including, inter alia, the noting on Impound Sheets of euthanized animals, the age of animals and the specific means, mode, and route of administration of euthanasia used; specifically, the killing agent used, other drugs administered pre-euthanasia, and the route of administration;
(e) that the court order Defendants Cathey and Starnes, under the supervision of Defendants Tarte and Benton, to implement this plan within a reasonable time;
(f) that the costs of this action be taxed against the Defendants; and
(g) that Plaintiffs have such other and further relief as this honorable court may deem just and proper, as is provided for in N.C. Gen. Stat. 19A-4.This the ___ day of March 2008.
Rodney E. Alexander
N.C. Bar No.: 23615
Annette K. Ebright
N.C. Bar No.: 36736
Mayer Brown LLP
214 N. Tryon St.
Suite 3800Charlotte, NC 28202
ATTORNEYS FOR NORTH CAROLINA COALITION FOR HUMANE EUTHANASIA and THE HUMANE SOCIETY OF UNION COUNTY
The Plaintiffs’ lawyers—the outstanding international law firm of Mayer Brown LLP—have done a first-rate job of presenting the relevant facts and applying them against the existing statute, leading to the conclusion that the law is being violated and that redress is necessary.
But how do the North Carolina Coalition for Humane Euthanasia and The Humane Society of Union County have “standing to sue”?
The answer is found in three paragraphs of the second major section of the complaint (“PARTIES”);
That section is contained in the North Carolina General Statutes, which contain an article providing for a “Civil Remedy for Protection of Animals”:
The following definitions apply in this Article:
(1) The term “animals” includes every living vertebrate in the classes Amphibia, Reptilia, Aves, and Mammalia except human beings.
(2) The terms “cruelty” and “cruel treatment” include every act, omission, or neglect whereby unjustifiable physical pain, suffering, or death is caused or permitted.
(3) The term “person” has the same meaning as in G.S. 12-3 [individuals and “bodies politic and corporate”].
This Article shall not apply to the following:
(1) The lawful taking of animals under the jurisdiction and regulation of the Wildlife Resources Commission, except that this Article applies to those birds exempted by the Wildlife Resources Commission from its definition of “wild birds” pursuant to G.S. 113-129(15a).
(2) Lawful activities conducted for purposes of biomedical research or training or for purposes of production of livestock, poultry, or aquatic species.
(3) Lawful activities conducted for the primary purpose of providing food for human or animal consumption.
(4) Activities conducted for lawful veterinary purposes.
(5) The lawful destruction of any animal for the purposes of protecting the public, other animals, or the public health.
(6) Lawful activities for sport.
It shall be the purpose of this Article to provide a civil remedy for the protection and humane treatment of animals in addition to any criminal remedies that are available and it shall be proper in any action to combine causes of action against one or more defendants for the protection of one or more animals. A real party in interest as plaintiff shall be held to include any person even though the person does not have a possessory or ownership right in an animal; a real party in interest as defendant shall include any person who owns or has possession of an animal. (Emphasis added)
(a) Upon the filing of a verified complaint in the district court in the county in which cruelty to an animal has allegedly occurred, the judge may, as a matter of discretion, issue a preliminary injunction in accordance with the procedures set forth in G.S. 1A-1, Rule 65. Every such preliminary injunction, if the plaintiff so requests, may give the plaintiff the right to provide suitable care for the animal. If it appears on the face of the complaint that the condition giving rise to the cruel treatment of an animal requires the animal to be removed from its owner or other person who possesses it, then it shall be proper for the court in the preliminary injunction to allow the plaintiff to take possession of the animal as custodian.
(b) The plaintiff as custodian may employ a veterinarian to provide necessary medical care for the animal without any additional court order. Prior to taking such action, the plaintiff as custodian shall consult with, or attempt to consult with, the defendant in the action, but the plaintiff as custodian may authorize such care without the defendant’s consent. Notwithstanding the provisions of this subsection, the plaintiff as custodian may not have an animal euthanized without written consent of the defendant or a court order that authorizes euthanasia upon the court’s finding that the animal is suffering due to terminal illness or terminal injury.
(c) The plaintiff as custodian may place an animal with a foster care provider. The foster care provider shall return the animal to the plaintiff as custodian on demand.
(a) In accordance with G.S. 1A-1, Rule 65, a district court judge in the county in which the original action was brought shall determine the merits of the action by trial without a jury, and upon hearing such evidence as may be presented, shall enter orders as the court deems appropriate, including a permanent injunction and dismissal of the action along with dissolution of any preliminary injunction that had been issued.
(b) If the plaintiff prevails, the court in its discretion may include the costs of food, water, shelter, and care, including medical care, provided to the animal, less any amounts deposited by the defendant under G.S. 19A-70, as part of the costs allowed to the plaintiff under G.S. 6-18. In addition, if the court finds by a preponderance of the evidence that even if a permanent injunction were issued there would exist a substantial risk that the animal would be subjected to further cruelty if returned to the possession of the defendant, the court may terminate the defendant’s ownership and right of possession of the animal and transfer ownership and right of possession to the plaintiff or other appropriate successor owner. For good cause shown, the court may also enjoin the defendant from acquiring new animals for a specified period of time or limit the number of animals the defendant may own or possess during a specified period of time.
(c) If the final judgment entitles the defendant to regain possession of the animal, the custodian shall return the animal, including taking any necessary steps to retrieve the animal from a foster care provider.
(d) The court shall consider and may provide for custody and care of the animal until the time to appeal expires or all appeals have been exhausted.
Although this North Carolina statute contains some objectionable features—e.g., research, farming—its important virtue, for the animals in this case and all others in the State of North Carolina, is that the law provides statutory standing to sue for individuals and entities working for the protection and humane treatment of animals.
As a matter of fact, the North Carolina appellate court noted in 2007, in a case entitled
Animal Legal Defense Fund v. Woodley, that Section 19A “express[es] the [Legislature’s] intent that the broadest category of persons or organizations be deemed ‘[a] real party in interest’ when contesting cruelty to animals.”
There are at least four lessons to be learned from the NCCHE/HSUC case.
The first is that animal shelters are not above the law, and that their conduct can and should be scrutinized by outsiders, and certainly by the governments and/or private donors that support them.
Second, is that an irreplaceable requisite for suing an animal shelter for dereliction of its duty is competent counsel, like the lawyers at Mayer Brown who put this case together. There is no substitute for this! (ISAR can provide guidance in obtaining counsel.)
Third, is that because a crucial key to litigation in behalf of animals—whether in lawsuits against shelters or otherwise—is the ability to solve the standing to sue problem, the entire animal protection movement must push hard for other states to enact a North Carolina-type statute giving individuals and entities the right to sue. (ISAR can provide guidance in crafting a standing to sue statute which does not suffer from some of the infirmities of the North Carolina statute.)
Finally, the NCCHE/HSUC complaint is a template for lawsuits not only against shelters that are not following the law, but against any other individuals and entities that are disregarding their responsibilities to animals. That template should be used often—and effectively.