CommitteeNews - Donutsdocshare01.docshare.tips/files/23297/232970838.pdfAnimal Law Committee Newsletter Summer 2009 2 Chair Meena Alagappan 517 N 7th St New Hyde Park, NY 11040-3028

Uniting Plaintiff, Defense, Insurance, and Corporate Counsel toAdvance the Civil Justice System

Animal Law CommitteeSummer 2009

IN THIS ISSUE:

CommitteeNewsCommitteeNews

Successful Launch Of Humane EducationPublic Service Project . . . . . . . . . . . . . . . .1Letter From The Chair . . . . . . . . . . . . . .3Animal Law Subcommittee Updates . . . .5Headline News . . . . . . . . . . . . . . . . . . . . . .7Courthouse Dogs: A Case Study . . . . . . .9

Lien Laws Involving Animal Keepers,Kennels, And Stables . . . . . . . . . . . . . . .11Restitutionary Remedies For WildlifeViolations . . . . . . . . . . . . . . . . . . . . . . . . .12Is The Depiction Of Animal CrueltyConstitutionally Protected Speech? . . . .13Checking The Pulse Of Animal-RelatedNon Profit Organizations . . . . . . . . . . . .142009-2010 TIPS Calendar . . . . . . . . . . .26

SUCCESSFUL LAUNCH OF HUMANE EDUCATION PUBLICSERVICE PROJECTBy: Meena Alagappan“In the end, we will conserve only what we love. We will love only what we understand. We willunderstand only what we are taught.” - Baba Dioum, Ecologist

The Animal Law Committee recently launched theHumane Education Project as a joint public serviceproject of the TIPS’ Animal Law and Law in PublicService Committees; and Humane EducationAdvocates Reaching Teachers (HEART), a nonprofitpublic charity. The primary objective of the HumaneEducation Project is to cultivate compassion andempathy in our youth toward animals and foster respectfor the environment.

In March 2009, we began piloting this program inWashington, DC and New York City, where interestedvolunteers were trained by two of HEART’s teachers,Kimberly Korona and Casey Sullivan, to offer a four-lesson humane education program for fourth and fifthgrade students. As part of the project, the Animal LawCommittee (the Committee) and HEART published acomprehensive Humane Education Training Manualincluding detailed lesson plans, teaching tips, classroom

Continued on page 24

Animal Law Committee Newsletter Summer 2009

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ChairMeena Alagappan

517 N 7th StNew Hyde Park, NY 11040-3028

(212) 744-2504Fax: (914) 381-6176

[email protected]

Chair-ElectJoan E Schaffner

George Washington University2000 H St NW

Washington, DC 20052-0026(202) 994-7040

Fax: (202) [email protected]

Last Retiring ChairGilda I Mariani

New York County District Attorney Office1 Hogan Pl

New York, NY 10013-4311(212) 335-9143


MembershipCo-Vice-ChairsMarianne McDermott

3308 Brandy CtFalls Church, VA 22042-3757

(703) 560-7083Fax: (703) [email protected]

Akisha Townsend222 Park Ave

Takoma Park, MD [email protected]

Law Student Vice-Chair

Newsletter Vice-ChairJoan E Schaffner

George Washington University2000 H St NW

Washington, DC 20052-0026(202) 994-7040


Website Vice-ChairLauren D Godfrey

Drinker Biddle & Reath LLP500 Campus Dr

Florham Park, NJ 07932-1024(973) 549-7095


Vice-ChairsDebora Marietta Bresch

Apt 14E235 W 102nd St

New York, NY 10025-8432(212) 749-3293

[email protected]

James F CarrColorado Attny General Ofce

Fl 51525 Sherman St

Denver, CO 80203-1714(303) 866-5283


Patrick CostelloCostello Carlson & Butzon LLP

310 Main StLakefield, MN 56150-1200

(507) 662-6621Fax: (507) 662-6623

[email protected]

Robert A FerberLA City Attorney Animal Protection

Ste 43011701 S La Cienega Blvd

Los Angeles, CA 90045-6260(310) 202-3839


Julie I FershtmanZausmer Kaufman August & Caldwell

Ste 15031700 Middlebelt

Farmington Hills, MI 48334-2301(248) 851-4111


Marilyn ForbesWomble Carlyle

Ste 2100150 Fayetteville StRaleigh, NC 27601


Robert S FriedlanderMetropolitan Life Insurance Co

Fl 5A2701 Queens Plz N

Long Island City, NY 11101-4007(212) 578-2512

[email protected]

David FurlowThompson & Knight LLP

Ste 3300333 Clay St

Houston, TX 77002-4104(713) 653-8653


Barbara Joan GislasonLaw Offices of Barbara J Gislason

Ste 506219 Main St SE

Minneapolis, MN 55414-2152(612) 331-8033


Eric GlitzensteinMeyer Glitzenstein & Crystal

Ste 7001601 Connecticut Ave NW

Washington, DC 20009-1063(202) 588-5206


Jane GrahamApt 1213

8440 S Dixie HwyMiami, FL 33143-7825

(561) [email protected]

Christopher D GreenApt 16

67 Vestry StNew York, NY [email protected]

Kristina A HancockLuce Forward et al

Ste 20011988 El Camino Real

San Diego, CA 92130-3334(858) 756-4410


Allison Cara HoffmanIncisive Media

Fl 5120 Broadway

New York, NY 10271(212) 457-9404


Rebecca J HussValparaiso University

Wesemann Hall656 S Greenwich

Valparaiso, IN 46383-4945(219) 465-7856


Karina JuarezBrown Law Group

Ste 1650600 B St

San Diego, CA 92101-4517(619) 330-1714


Adam Phillip KarpLaw Offices of Adam Karp

Ste 425114 W Magnolia St

Bellingham, WA 98225-4354(360) 738-7273


John L KerrKerr Legal Group LLC

Ste 302100 Grandview Rd

Braintree, MA 02184-2691(781) 849-6780


Anthony J MacAuleyHanna Brophy et al

Ste 640523 W 6th St

Los Angeles, CA 90014-1232(213) 943-4800


Jaime OlinFish & Richardson PC12390 El Camino Real

San Diego, CA 92130-2081(858) 678-5070

[email protected]

Raj PanjwaniDelhi High Court

339 Law ChamberNew Delhi, India 11003

[email protected]

Charles Thomas PattersonHeidman Redmond Fredregill Patte

PO Box 767Custer, SD 57730-0767

(712) 255-8838Fax: (712) 258-6714

[email protected]

Rachel Hope Perry4150 McGee St

Kansas City, MO [email protected]

Natalie L ReevesCohen Lans LLP

Fl 32885 Third Ave

New York, NY 10022-4952(212) 326-1707


James A RiddleThelen

Ste 1800101 2nd St

San Francisco, CA 94105-3606(415) 369-7302


Rebecca Jill Silverstein13 Hill St

Paxton, MA [email protected]

William John Snape IIIAmerican University

4801 Massachusetts Ave NWWashington, DC 20016-8180

(202) [email protected]

Mariann SullivanAppellate Division First Department

27 Madison AveNew York, NY 10010-2201


Elise A Van Kavage51 Odom Dr

Collinsville, IL 62234-5808(618) 345-8086


K Michelle WelchOffice of the Attorney General

900 E Main StRichmond, VA 23219-3548

(804) 786-7760Fax: (804) 786-9136

[email protected]

Warren Dexter WoessnerSchwegman Lundberg Woessner & Kluth

Ste 1600121 S 8th St

Minneapolis, MN 55402-2852(612) 373-6900


Benjamin ZveniaSWITCA & Lummi Nation Tribal Court

PO Box 98302Las Vegas, NV 89193-8302

(702) 384-0991Fax: (702) 447-9927

[email protected]


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LETTER FROM THE CHAIRIt has been an honor to serve as Chair of the Animal Law Committee (the Committee) in

2008-2009. As this newsletter is my last one as Chair, I wanted to take this opportunity tothank our many active members and the entire TIPS staff for all their efforts, which havehelped make the Committee so successful. As I reflect on my journey this past year, I haveto say that I have learned so much from many of you and your energy and dedication havebeen inspiring.

As you know from our prior newsletters, we have had a very busy year, but there are still new developmentsI would like to share. You can read additional details about our progress in the subcommittee update sectioninfra and Headline News infra.

I am pleased to report that on May 18th, 2009 we held a very successful day-long public interest program,co-sponsored with the Diversity in the Profession Committee and Stetson University College of Law in Florida,entitled “Equal Access to Justice for the Elderly and Persons with Disabilities.” The conference, conducted inthe high-techWilliam R. Eleaser Courtroom on the Stetson campus, focused on providing witnesses, jurors, andattorneys who have a disability or are elderly (including those who have service or emotional support animals)with equal access to justice in the courtroom. The program was simultaneously webcasted and soon will beavailable for viewing on the TIPS website. Special thanks to former Committee Chair Gilda Mariani for herefforts in coordinating this conference on behalf of the Committee.

We recently published our second book, “Litigating Animal Law Disputes: A Complete Guide for Lawyers,”edited by Joan Schaffner and Julie Fershtman (see www.abanet.org/abastore/productpage/5190436). It is a valu-able resource and has gotten a great reception already. Our third book, “A Lawyer’s Guide to Dangerous DogIssues,” is forthcoming this summer.

The Committee also completed the “ABA Humane Education Training Manual” and we successfullylaunched our Humane Education Public Service Project in DC and NYC this spring. This project is describedin detail in the cover story.

Our annual update entitled “Recent Developments in Animal Tort and Insurance Law” was recentlypublished in the Winter 2009 issue of the Tort Trial & Insurance Practice Law Journal. Thanks to Vice ChairsAdam Karp and Julie Fershtman for preparing our comprehensive annual survey again.

Former Chair Gilda Mariani and Founding Chair Barbara Gislason co-hosted the “Legal TIPS” radio talkshow and, in collaboration with the Government Law Committee, we recently completed six internet radiopodcasts, which were made possible by a TIPS Enterprise Fund grant. The podcasts included: “Technology inthe Courtroom,” addressing the technology available to make courtrooms more friendly to people with disabil-ities and the elderly; “When a Dog Enters the Courthouse,” discussing the Courthouse Dogs Program in whichcertified dogs provide emotional support to people who are crime victims (for a detailed description of theProgram see the full article infra); and “Lawyers at the Ready in Disasters,” which addresses issues involvinganimals in natural disasters. In just a few months from mid-February to mid-May there were over 5,100 down-loads of the Legal TIPS podcasts nationally and internationally!

We are continuing to move forward with our two model legislation efforts. First, last winter TIPS Councilapproved submission of our Holding Period Recommendation to the ABAHouse of Delegates for their consid-eration. We were just a bit late to get on the February agenda, but expect to file soon. This recommendationcalls for states and territories to adopt a statute to establish guidelines for animal shelters and mandatoryminimum hold periods for companion animals separated from their human families following natural disasters.Second, at the mid-year meeting in Boston TIPS Council unanimously approved our proposal regarding thesubmission of draft legislation to the National Conference of Commissioners on Uniform State Laws(NCCUSL) for consideration and we are currently awaiting a response from NCCUSL. The legislation wouldallow for recovery of non-economic damages in cases of wrongful injury or death of a companion animal.

Since you will be receiving this newsletter before the annual meeting in Chicago, I want to encourage you


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to attend this meeting. One of the highlights is our CLE program entitled “The Supreme Court and theOwnership of Life: An Oral Argument” from 8:30am-10am on Friday July 31st at the Hyatt Regency. This mootcourt will explore what would happen should the issue of patenting sentient life forms reach the United StatesSupreme Court. We are co-sponsoring this program with the TIPS’ Intellectual Property, Government Law, andAppellate Advocacy Committees along with the Judicial Division’s Council of Appellate Lawyers, theLitigation Section’s Appellate Practice Committee, and the Special Committee on Bioethics and the Law.

We will also be holding a business meeting on Friday July 31st and our third annual “Excellence in theAdvancement of Animal Law Award” reception on Saturday August 1st from 4-5pm (more details forthcoming).The recipient this year is Joyce Tischler, an active Committee member, who is co-founder and General Counselof the Animal Legal Defense Fund, the first national non-profit legal organization focused on issues related toanimals. The reception promises to be a fun event as Deputy K9 Elliott Ness, a 4 year old pit bull rescued froma shelter and who now works in the Cook County Sheriff’s Department, will assist me in presenting the awardto Joyce! We are grateful to Safe Humane Chicago, Best Friends Animal Society, and Animal Farm Foundationfor their generous support in sponsoring this reception.

Please stay apprised of our Committee developments by visiting our website at www.abanet.org/tips/animal.We also now have a presence on Facebook (www.facebook.com), a social networking utility, so please join ourFacebook group, keep up to date, and share your thoughts with us.

I urge all of you to let your colleagues and friends know about our Committee. You can share our member-ship brochure electronically through the following link: http://www.abanet.org/tips/animal/AnimalLawBrochure.pdf. TIPS Membership Specialist Linda Wiley, Committee Membership Vice ChairMarianne McDermott, and several others have already done a great job in promoting our Committee. We haveeven received international inquiries and visibility. For example, we recently began assisting the South AfricanInstitute for Advanced Constitutional, Public, Human Rights, and International Law in their comparativeresearch efforts to develop national animal protection legislation.

I am so pleased to announce that Joan Schaffner is our incoming Committee Chair. I would also like towelcome our 2009-2010 Chair Elect, Mariann Sullivan, who is also co-chair of the Agricultural Subcommitteeand Program Chair for our August annual CLE conference. It has truly been a pleasure working closely withthese talented individuals, among many others, during my term. I will continue to co-chair the HumaneEducation Subcommittee next year and I look forward to collaborating with more of you as we expand ourpublic service project to more cities.

Thank you all for a memorable year and I hope to see you in Chicago!Very Truly Yours,Meena AlagappanABA-TIPS’Animal Law Committee Chair

©2009 American Bar Association, Tort Trial & Insurance Practice Section, 321 N. Clark St., Chicago, Illinois 60610; (312) 988-5607. Allrights reserved.The opinions herein are the authors’ and do not necessarily represent the views or policies of the ABA, TIPS or the Animal LawCommittee. Articles should not be reproduced without written permission from the Tort Trial & Insurance Practice Section.Editorial Policy: This Newsletter publishes information of interest to members of the Animal Law Committee of the Tort Trial &Insurance Practice Section of the American Bar Association — including reports, personal opinions, practice news, developing law andpractice tips by the membership, as well as contributions of interest by nonmembers. Neither the ABA, the Section, the Committee, northe Editors endorse the content or accuracy of any specific legal, personal, or other opinion, proposal or authority.Copies may be requested by contacting the ABA at the address and telephone number listed above.


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ANIMAL LAW SUBCOMMITTEE UPDATESAgricultural SubcommitteeCo-ChairsMariann Sullivan ([email protected])Robert Friedlander ([email protected])

The Committee continues to follow recent legisla-tive and regulatory efforts to define the treatment offarm animals as discussed in the Headline News, infra.Another very interesting potential focal point for theCommittee’s work are efforts to influence the level oftransparency regarding farm animal production in waysthat affect the accuracy and breadth of informationavailable to consumers. Such information is used inmaking purchasing decisions based on concernsregarding animal welfare, as well as concerning otherissues that are often intertwined with animal welfare,such as food safety and environmental concerns.Among the subjects the Committee could address inthis area is the effect and constitutionality of fooddisparagement laws. Additionally, there may be signif-icant opportunities to explore the relationship between,on one hand, biosecurity and the protection of propri-etary information and, on the other, the need for accessto information by the government, third party verifiers,and the public, including the media.Companion Animal SubcommitteeCo-ChairsFrances Carlisle ([email protected])Rebecca J. Huss ([email protected])

The number of states with statutes authorizing trustsfor animals has been increasing and there are now 40states with these statutes. That leaves only 10 stateswithout such statutes. Trusts and estates committees (andanimal law committees, if any) of the state bar associa-tions in these states will be contacted over the comingmonths to see if there is interest in presenting a draft pettrust bill to their legislators and to offer assistance.Disaster Relief SubcommitteeChairBarbara Gislason ([email protected])

In this past year, subcommittee member Mary Kahlhas actively participated in the National Alliance ofState Animal and Agricultural Emergency Programs(NASAAEP) and is in the process of creating a subcom-mittee website. Chair Barbara J. Gislason recentlyhosted a radio show on Legal Talk Network as follows:

Lawyers at the Ready in DisastersAttorneys can be more than lawyers, when thenext disaster strikes. In part two of this emer-gency management series on Legal TIPS, hostBarbara J. Gislason interviews two visionarylawyers, with unique perspectives. First, lawyerRichard Friedman, President of the NationalStrategy Forum, discusses the dangers he sees onthe horizon, and how lawyers can prepare.And Melissa Rubin, Vice President of Field andEmergency Services of the Humane Society ofthe United States shares a compelling storyabout pets in a disaster, and offers legal and prac-tical advice. Check out the podcast at:http://websrvr82il.audiovideoweb.com/ny60web16519/LTN/TIPS/TIPS_021309_EM2.mp3.In addition, Gislason has promoted animal issues in

a in a variety of ways, including through research, asTIPS Liaison to the ABA Special Committee onDisaster Response and Preparedness. Gislason alsocontinues to serve on a Federal Animal Work Groupworking on the National Response Framework.Equine Law SubcommitteeChairKaty Bloomquist ([email protected])

The Equine Subcommittee continues to monitordevelopments in equine law.Great Apes SubcommitteeCo-ChairsPaul Waldau ([email protected])Michele Stumpe ([email protected])

The passing of a remarkable caretaker for chim-panzees underscores the fundamental role that legalstatus plays in our relationships with the nonhuman greatapes, who are our closest evolutionary cousins. CaroleNoon, who died in May, worked tirelessly to provide notonly protections, but also sanctuary for literallyhundreds of chimpanzees at the Center for CaptiveChimpanzee Care. The commitment made by Carole andothers to the individual chimpanzees in this Floridafacility can be contrasted with the starkly impoverishedtreatment received by other chimpanzees who remain inlaboratories—the latter phenomenon is possible onlybecause animal law today remains overwhelminglydominated by the traditional property concept, which


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treats these complex primates as mere “legal things” thatcan be bought, sold, held captive, and used in invasive,harmful experiments. Carole Noon worked hard forchimpanzees, modeling for our society that an individualcan make a difference in the lives of, literally, hundredsof these complicated nonhuman animals. Today the fieldof “animal law” is an educational beachhead in the effortto re-assess how humans might relate to these and otherliving beings. Our legal system’s handling of captivityissues must be led not just by lawyers, trained in thetraditional ways of property concepts, but also byremarkable individuals such as Carole Noon who revealhow human it is to challenge the harsh realities ofcaptivity. This subcommittee explores ways that the legalsystem can deal with chimpanzees, orangutans, gorillasand bonobos as real individuals to whom concepts oflegal protection, justice, and specific legal rights can beapplied in meaningful ways.Humane Education SubcommitteeCo-ChairsMeena Alagappan ([email protected])Debora Bresch ([email protected])

The Humane Education Subcommittee successfullylaunched the Humane Education Public Service Projectthis past spring. For a detailed description see the coverstory infra.Insurance Issues SubcommitteeChairJulie Fershtman ([email protected])

The Insurance Subcommittee is collecting all recentanimal insurance cases (issued 8-2008 to 9-2009) forinclusion in our section of the ABA-TIPS AnnualSurvey of Animal Tort & Insurance Law. As you learnof new cases, please forward them to Chair, JulieFershtman or contact her at 248-851-4111.

Also, subcommittee members are encouragedto develop articles or topics for upcoming issues of theALCnewsletter. Contact Chair, Julie Fershtman with ideas.International Issues SubcommitteeCo-ChairsAmy Chaitoff ([email protected])Yolanda Eisentstein ([email protected])

The International Issues Subcommittee contributedan article on the international black market puppy tradeto the Winter 2009 Animal Law Committee Newsletter.The subcommittee is working on a program that would

assist attorneys in foreign countries to establish animallaw committees and sections within their country’slegal organizational framework.

The subcommittee was recently contacted by a SouthAfrican group of attorneys, academics, and animal welfareproponents regarding the development of an animalprotection act for South Africa. While in the preliminarystages, the goal would be to develop a set of best practicesand model legislation for South Africa.Legislative SubcommitteeChairDavid Favre ([email protected])

Last winter, the Committee’s Holding Period Modellaw was approved by the TIPS counsel to be forwardedto the ABA House of Delegates for their consideration.The proposal will be taken up at the House ofDelegates’ August meeting. This proposal setsout specific holding periods for animals that are pickedup as a result of a natural disaster, separated from theirowners and held by humane societies.Litigation SubcommitteeCo-ChairsMarilyn Forbes ([email protected])Michelle Welch ([email protected])

The Litigation Subcommittee is currently working ondoing regular topics that are “Hot” in animal law on theALC Discussion Board. We are going to post eitherpleadings or discussion topic questions, and encourage allmembers to weigh in and give us their thoughts. We hopeto educate all members of our subcommittee regardingthe latest developments in animal law, especially litiga-tion (civil and criminal) matters. We encourage all of youto use this tool to get to know others on the subcommitteeand to increase the dialogue among us!Science and Technology SubcommitteeTBAWildlife SubcommitteeCo-ChairsEric Glitzenstein ([email protected])William J. Snape III. ([email protected])

The Wildlife Subcommittee continues to followlegis-lative, regulatory, and judicial developmentsregarding wildlife law. Of note, the ObamaAdministration recently removed protections for PolarBears against Global Warming. For more details, seeHeadline News, infra.

mailto:[email protected]



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HEADLINE NEWSSUPREME COURT ACCEPTS CERTIORI INSTEVENS CASEJoan SchaffnerAssociate Professor of LawGeorge Washington University Law School

The Supreme Court accepted certiorari in UnitedStates v. Stevens to review the Third Circuit’s findingthat 18 U.S.C. § 48, that outlaws the knowing creation,sale, or possession of “a depiction of animal crueltywith the intention of placing that depiction in interstateor foreign commerce for commercial gain,” is uncon-stitutional. For a detailed discussion of the case, see thefull article infra.OBAMA ADMINISTRATION AFFIRMS BUSH RULEREMOVING PROTECTIONS FOR POLAR BEARSAGAINST GLOBAL WARMINGWilliam J. Snape, IIISenior Counsel, Center for Biological DiversityLegal Fellow and Practitioner in Residence, AmericanUniversity

On May 8, Secretary of the Interior Salazar took apage out of the George W. Bush playbook – both figu-ratively and literally – by upholding a “special rule”regarding the threatened polar bear that the previousadministration had promulgated under the EndangeredSpecies Act (ESA). In essence, the rule states that anydamaging action that occurs outside of Alaska cannotconstitute an otherwise illegal “take” of the great whitebear, which was listed under the ESA precisely becauseof its melting Arctic ice habitat.

Salazar emphasized two points in embracing theBush polar bear rule. First, he asserted that scientistshave not found a specific link between specific green-house gas emissions in the lower 48 states and themelting Arctic. Of course, if this was really true, thenthere would be no need for the special rule. Second,Salazar claimed that had he repealed the polar bear ruleunder the authority granted to him by Congress, he stillwould have been forced to adopt the previous Bush“interim final rule” on the bear. This argument,however, is completely fatuous because Salazar couldhave easily issued his own interim final rule without theESA exemption.

What does this all mean? It means that the fossil fuelindustries still have great power within the Obama

administration that had promised “change.” It means thatlitigation brought by the Center for Biological Diversity,the American Petroleum Institute, and the state of Alaskaover the polar bear will continue in federal court. But ulti-mately, it means that the hard work of crafting oursociety’s response to global warming will be put offagain. While Salazar waxed eloquently about howObama and Congress will solve the problems caused byglobal warming, the U.S. Government continues to shyaway from any concrete action that will stem the acceler-ating disintegration of the Arctic ecosystem and risingglobal ocean levels now underway.EXTENDING THE BAN ON THE SLAUGHTER OFALL DOWNED COWSMariann SullivanDeputy Chief Appellate Court AttorneyNY Appellate Division, First Department

One of the earliest acts of the Obama administra-tion’s new Secretary of Agriculture, Tom Vilsack, wasto expand the ban on the slaughter of “downed” cows.The new regulation, which was announced by PresidentObama himself in his weekly radio address, bans theslaughter of all cows that become non-ambulatory at aslaughterhouse any time prior to slaughter. The Bushadministration had imposed a ban on the slaughter ofdowned cows due to the increased likelihood that theymight be suffering from bovine spongiformencephalopathy, a.k.a. mad cow disease, but had notincluded a ban on the slaughter of cows who wereambulatory on first inspection, but went down prior toslaughter. Criticized as potentially dangerous forhuman health, this practice also resulted in egregiouslycruel treatment in efforts to get downed cows to theirfeet long enough to be slaughtered. This was brought towidespread public attention by the release of under-cover footage filmed by the Humane Society of theUnited States (HSUS) at the Hallmark Westlandslaughterhouse last year, which showed former dairycows being brought to their feet by the use of forklifts,repeated electric shocks to the eyes and/or genitals, andwaterboarding. The new ban, which was instituted as aregulatory change to the federal meat inspection regu-lations, eliminates the incentive to get these cows totheir feet at all costs to be slaughtered, and insteadrequires that they be euthanized. However, the newregulation does not extend the ban to animals other thancows, or extend it to livestock markets and auctions.Those reforms are still being sought by farm animalwelfare groups, including HSUS and Farm Sanctuary.


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LEGAL TIPSLEGAL TIPS

We're proud to tell you about a special legal podcast series called Legal TIPS

In February, the Government Law and Animal Law Committees began producing a series of internet podcast radio talk shows that air weekly on Legal Talk Network. Join the thousands already tuning in at Legal TIPS on LTN.

CREATIVE APPROACHES TO OLD PROBLEMS

THOUGHT-PROVOKING DISCUSSIONS

CUTTING EDGE ISSUES

Podcasts with global reach concerning...

STATES BANNING INTENSIVE CONFINEMENTSYSTEMS FOR FARMED ANIMALSMariann Sullivan

Maine enacted legislative prospective bans on twointensive confinement systems: the gestation crate forpregnant pigs and the veal crate, which is widely usedto confine the male offspring of dairy cows from birthuntil their slaughter at 4 to 6 months. Other states thatcurrently have bans on some forms of intensiveconfinement include Florida, Arizona, Oregon,Colorado and California. Bills, some of which also seekto ban the use of the “battery cage” for egg laying hens,an industry standard, are currently pending in NewYork, Illinois, Massachusetts and Rhode Island. All ofthese bills come in the wake of last year’s ballot initia-tive in California, in which a substantial margin ofCalifornians voted to prospectively ban all threeconfinement systems. A bill is now pending inCalifornia that would ban the sale of eggs that wereproduced by way of the battery cage system regardlessof where they come from.NEW YORK COURTS MAKE IT MORE DIFFICULTFOR LANDLORDS TO EVICT TENANTS WITHNON-NUISANCE CATSJoan Schaffner

No-pet clauses in rental leases make it very difficultfor people to share their lives with companion animalsand contribute to the number of homeless pets in this

country. One 73-year old tenant has been fighting withher landlord for years to remain with her felinecompanions in her rent-controlled apartment in NewYork City. She just secured a victory from New York’ssecond highest appellate court when it ruled that thelandlord could not kick her out, despite a no-pets clausein her lease, because the landlord failed to take actionwithin three months of her “open and notoriousharboring” of her pets, although she rarely if ever leftthe apartment with them. The court found that the litterboxes and food bowls, plainly visible in her apartmentto the building superintendent and contractors whoentered her apartment over the ten years qualified as“open and notorious harboring.”SPECIAL REPORT: OPERATION RESCUE—FeatureStory in O, The Oprah Magazine

Operation Rescue is the story of Animal LegalDefense Fund’s (ALDF’s) fight against the Woodleys,animal hoarders living in Sanford, North Carolina andthe ultimate victory that saved more than 300 dogs. InOctober 2005, ALDF received the court’s final ordergranting a permanent injunction and awarding perma-nent ownership of the dogs to ALDF. This story high-lights the benefits of a statute, like North Carolina’sSection 19(A), that grants standing to private individualsand/or organizations to civilly enforce the state’s anti-cruelty laws thus reducing the burden on local prosecu-tors, and celebrates the new lives of the dogs who found



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COURTHOUSE DOGS:A Case Study

By: Ellen O’Neill-Stephens“Leave Mama alone!” screamed five-year-old Joey

as he saw his drunken father strangling his mother.“Who are you sleeping with, answer me!” demandedRobert as he continued to tighten his grip. Sophia strug-gled and managed to push her husband aside. She ran tothe kitchen to escape out the back door but her husbandgrabbed her again and flung her against the refrigeratorwith such force that it rocked backwards. Joey tried toget between his parents to protect his mother andbegged his father to leave her alone. The assaultscontinued and each time Sophia tried to flee the apart-ment, Robert stopped her. Sophia managed to grab aphone and call 911, but Robert pried it from her handsand threw it to the ground, shattering it into pieces.Finally, Robert shoved Sophia out the door of the house,pulled her to the ground by her hair and threw the piecesof the broken phone after her. As a parting shot he toldher he was going to kill her and she believed him.Robert brought sobbing Joey inside and locked Sophiaout. Concerned for Joey’s safety Sophia ran to the carand used a cell phone she had left there to call 911.

When the police arrived and entered the house theyfound Joey on the bed with a blanket pulled tightly tohis chest. The officer who found him in the darkenedbedroom described him as having tears in his eyes andshaking visibly. When questioned, Joey described theassault in detail and it was apparent he had witnessedthe whole thing.

Several months later and just weeks before trial,deputy prosecuting attorney Tomas Gahan met withSophia in her apartment. While reluctant to testify,Sophia indicated she would respond to her subpoena.When Gahan asked Joey if he would also take the standand tell the jury what his father did, Joey just shook hishead and looked at the floor. He’s too scared, Sophiasaid—he won’t talk. Then Gahan remembered Ellie,the trained assistance dog that works in the prosecutor’soffice to comfort crime victims. “Do you like dogs?”asked the prosecutor. “Yes, I like puppies a lot,” repliedJoey. The promise of seeing Ellie insured Joey’s pres-ence at the defense interview.

By this timeGahan had learned that this case wasmorethan one incident of domestic violence. Sophia had at onetime been Robert’s stepdaughter, whom he had sexuallyabused for years; at age 19 she had given birth to their son

Joey. Robert then divorcedSophia’s mother and marriedSophia. During the five years thatthey had been married, Sophia wasoften physically abused by Robert.Prior to this most recent incidentshe had attempted to distanceherself from him, but there waspressure from their extended fami-lies for Sophia just to accept thesituation with her husband.

Gahan was determined to do his best to convictRobert because his incarceration would mean thatSophia and Joey would be safe for a number of years.The defendant was charged with several felonyoffenses, but Gahan knew that Sophia, like so manyvictims of domestic violence, was going to minimizethe attack, saying that she felt “a little frustrated” whenthe defendant strangled her. This made Joey’s testi-mony crucial—whereas Sophia had had years tobecome accustomed to the violence, the impact of theassaults witnessed by Joey still had an emotionalimpact. Gahan needed him to convey to the jury whatSophia had really gone through.

On the day of the defense interview, Gahan’s heartached when he saw Joey. The child had black hair, hugebrown eyes, and was wearing cotton jogging pants andsandals. Joey looked scared and Gahan wondered howhe could put him through this ordeal. “Just a minute,I’ll be right back,” Gahan said and trotted down to theother end of the prosecutor’s office to retrieve Ellie.Joey’s face brightened when he saw Ellie wagging hertail as she walked towards him. They played togetherfor about ninety minutes and with Ellie snuggled besidehim, Joey was able to tell the prosecutor and defenseattorney what had happened.

The next stage of the proceedings was the compe-tency hearing. Judge Craighead had to determine ifJoey knew the difference between right and wrong andif he could provide truthful testimony. The judge, Joey,and Ellie nestled into the jury box and the judge askedJoey questions about Ellie. How old are you? Who isyour friend, there? What is her name? Would it be atruth or a lie if I said Ellie was a cat? It would be a lie,exclaimed Joey. After several more questions the judgedetermined that the case could proceed to trial withJoey as a witness. Continued on page 21

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11

LIEN LAWS INVOLVING ANIMAL KEEPERS, KENNELS, AND STABLESBy: Julie I. Fershtman

In a down economy stables, veterinary clinics, andkennels are experiencing with greater frequency theproblem of customers who fail or refuse to pay theirboarding fees. Worse yet, more and more boardingfacilities are encountering the problem of customerswho abandon their animals. Commercial animalkeepers sometimes take drastic action withoutfollowing the laws of their states. For example:

A stable owner, having received no payment froma horse owner in a few months and finding theowner impossible to reach, unilaterally declaredhimself to be the horse’s owner. Then, the stablesold the horse at a private sale. Trouble followed.The police lodged charges of conversion and theftagainst the stable. The horse’s new buyer sued thestable for rescission and damages because thehorse’s breed registry denied papers due to lack ofclear title. And the former owner, the one whosefailure to pay started the problem, threatened tosue the stable for theft and conversion.Animal law practitioners can help their clients avoid

these problems. This article discusses the lawsregarding animal keepers’ liens, which are found inmost states.Stablemen’s Lien Laws

Many states have statutes that are specificallydesigned to give lien rights to people who boardanimals belonging to others. These laws are oftenreferred to as “stablemen’s lien” or “agisters lien” laws.Although the laws differ widely across the country,many do the following:

* They identify whether a stable, barn, kennel, oranimal keeper can have a lien on a boardedanimal.

* They explain how the lien is or can be secured.* They specify how many months must passwithout payment before the facility can enforceits lien rights by selling off the animal or bysending pre-sale notices.

* They explain whether the lien sale must occurthrough a public auction, “public sale,” privateauction, or other means.

* They state procedures, if any, that the facilitymust undertake before the animal can be sold.

For example, somes t a t e s r e q u i r especific notices tothe non -pay inga n im a l ow n e r .Others, such asO h i o , r e q u i r estables to advertiselegal notices ofthe upcoming liensale in the localpaper. Statutes inC a l i f o r n i a a n dM a s s a c h u s e t t ssuggest that judicial approval is needed before alien sale.

* They identify who must conduct a lien sale, suchas a court officer.

* They authorize the facility to keep possession ofthe boarded animal before the sale. For example,laws in Wisconsin and Michigan allow stables toinsist on continued possession of boarded horsesuntil they have been fully paid.

* They direct facilities where to place any excessfunds received from the sale (if the sale generatesmore money than the amount of the debt). Texas,for example, requires the stable to refund theexcess to the animal’s owner.

How the Laws Differ

State laws differ widely as to rights of facilities thatboard animals (such as stables and kennels) whenboarding fees have not been paid. For example:

States that Give Stables Automatic LiensLaws in some states give facilities an automatic lien

on the boarded animal, with no obligation to undertakelegal filings, until paid in full. For example:

* Michigan Compiled Laws § 570.185, states, inpart: “Whenever any person shall deliver to any .. . person any horse, mule, neat cattle, sheep, orswine to be kept or cared for, such . . . personshall have a lien thereon for the just value of . . .the keeping and care of such animals, and mayretain possession of the same until such chargesare paid.” (Emphasis added.)




12

RESTITUTIONARY REMEDIES FOR WILDLIFE VIOLATIONSBy: Ethan Carson Eddy

The core provisions of most wildlife protectionstatutes refer to the violative act—killing, harming, orharassing protected animals—as an unlawful “take.”1Commerce in unlawfully taken animals is also prohib-ited.2 To compensate for what has been “take[n]” bythe violator, modern law equips prosecutors (and tosome extent, citizen suit plaintiffs) with a spectrum ofrestitutionary remedies against poachers and otherviolators of wildlife protection statutes.3 Since restitu-tion serves a different purpose than punishment orinjunctive relief, it complements rather than displacesthose remedies. When prosecutors ask for fines, incar-ceration, and restitution, they often get all three.4

However, restitution is sometimes overlooked orabandoned due to the uncertainty of placing a monetaryvalue on animals or ecosystems. This article brieflycatalogues restitutionary remedies and their sources ofauthority, explores emerging methods of valuation, andexplains why pursuing these remedies is both feasibleand worthwhile, even when precise pecuniary valuationcannot be obtained.Monetary Restitution

The most fundamental compensatory remedy ismonetary restitution. As explained further below, theunique nature of wildlife can make monetary valuationof the loss difficult in some cases. In other cases,compensatory remedies are relatively easy to measure.For instance, if an oil spill harms sea otters that arerecovered live and treated by veterinarians, thecompensatory remedy should include reimbursementfor the costs of capture, veterinary care, rehabilitation,and monitoring. Another relatively easily measurableform of restitution is disgorgement, or the divestiture ofprofits unlawfully obtained from the violation.

The first place to look for restitution authorization isthe substantive statute at issue. State wildlife statutes

often expressly authorize restitution.5 If the unlawfulact in question also violates natural resources laws suchas the Oil Pollution Act, those laws provide forcompensatory remedies to address harm to bothwildlife and the ecosystem.6 Although the federalEndangered Species Act (ESA) does not expresslyauthorize restitution, it does provide that fines andforfeitures may be used to pay for the care of seizedanimals and plants pending criminal proceedings, andto fund conservation efforts.7

Even where the substantive statute at issue does notexpressly authorize restitution, prosecutors and plain-tiffs need not stop there. One frequently utilized sourceof authority is probation or supervised release provi-sions.8 Federal law, for example, permits a court toorder, as a condition of probation, that a defendantrefrain from working in a certain profession, refrainfrom possessing a firearm or weapon, perform commu-nity service, or “satisfy such other conditions as thecourt may impose.”9 The open-ended “other condi-tions” provision is broad enough to include monetaryrestitution. Prosecutors also retain discretion to incor-porate restitution measures into plea agreements.10Finally, most judgments awarding restitution in wildlifecases do not specify the source of authority, even whenthe violation involves a statute that does not authorizerestitution.11 This suggests that courts may understand

Continued on page 181 See, e.g., Endangered Species Act (ESA), 16 U.S.C. § 1538(a) (1) (B).2 See, e.g., Lacey Act, 16 U.S.C. § 3372.3 The term “restitution” technically refers not to compensation, but to the relinquishment of unjust enrichment. See Paul T. Wangerin, The Strategic Value of RestitutionaryRemedies, 75 NEB. L. REV. 255, 260-61 (1996). However, since “restitution” is most often used by courts and litigants to mean compensation, those terms are used interchangeablyhere.4 See, e.g., United States v. Gardner, 244 F.3d 784, 787 (10th Cir. 2001).5 See, e.g., OHIO REV. CODE. ANN. § 1531.99(E).6 33 U.S.C. § 2702(b) (2).7 16 U.S.C. § 1540(d).8 See Mark B. Harmon and Harry T. Gower, Prosecuting Marine Pollution Crimes, 5 U.S.F. MAR. L.J. 241, 277 (1993).9 18 U.S.C. §§ 3563(b)(5), (8), (12), (22); see also 18 U.S.C. § 3561 (setting general limitations on conditions of probation).10 But see United States v Mitsubishi, 677 F.2d 785, 788-89 (9th Cir. 1982).11 United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001).


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IS THE DEPICTION OF ANIMAL CRUELTY CONSTITUTIONALLYPROTECTED SPEECH?By: Joan E. Schaffner

Introduction

In April 2009, the Supreme Court accepted certio-rari in United States v. Stevens1 to review the ThirdCircuit’s finding that 18 U.S.C. § 48 (Section 48) isunconstitutional. Section 48 outlaws the knowingcreation, sale, or possession of “a depiction of animalcruelty with the intention of placing that depiction ininterstate or foreign commerce for commercial gain . .. [unless the depiction] has serious religious, political,scientific, educational, journalistic, historical, orartistic value.”2 The statute defines “depiction of animalcruelty” as “any visual or auditory depiction . . .ofconduct in which a living animal is intentionallymaimed, mutilated, tortured, wounded, or killed, ifsuch conduct is illegal under Federal law or the law ofthe State in which the depiction, sale, or possessiontakes place, regardless of whether the maiming, mutila-tion, torture, wounding, or killing took place in theState.”3

In March 2004, Stevens was indicted under Section48 for advertising and selling three videotapesinvolving dog fighting, and footage of gruesomehunting excursions in which pit bulls caught wild boar.4On January 13, 2005, Stevens was convicted andsentenced to 37 months in prison and 3 years of super-vised release. He appealed on the grounds that Section48 infringed his right to freedom of speech. The ThirdCircuit, sitting en banc, agreed.

First Amendment cases raise serious and importantquestions for our society as freedom of speech is thebedrock of our nation and the Supreme Court guardsfreedom of speech rights, guaranteed by the FirstAmendment, closely. The legislative history of Section48 suggests that Congress sought to address the diffi-culties of state authorities in arresting those involved inthe production of crush videos, in which women inflict

torture on animals with their bare feet or high heelshoes. These videos appeal to sexual fetishes and “turna brisk business, particularly over the internet.”5

The en banc court, with three judges dissenting,held that the statute is a content-based restriction onspeech that targets material beyond crush videos and isunconstitutional. The court refused to extend the cate-gories of unprotected speech to such material and heldthat the statute did not survive strict scrutiny, because“it serves no compelling government interest, is notnarrowly tailored to achieve such an interest, and doesnot provide for the least restrictive means to achievethat interest.”6 The judges in dissent determined that thespeech targeted by Section 48, while not fitting withinthe traditional classes of unprotected speech, share thesame characteristics of such speech and held that suchdepictions of animal cruelty fall beyond the reach of theFirst Amendment because the statute serves acompelling government interest that clearly outweighsthe minimal, if any, social value of the speech.7

The Issues in Dispute

Several interesting issues are raised by this case anddisputed by the en banc court. First, may the lowercourts supplement the existing classes of unprotectedspeech, and if so, under what theory? The majorityexplained that the Supreme Court last declared a cate-gory of speech—child pornography using actual chil-dren—unprotected in 1982, and the court was loathe tocreate additional categories.8 The dissent, on the otherhand, interpreted Chaplinsky v. New Hampshire9 toallow the government to “restrict certain types ofspeech when the social value of the speech is sominimal as to be plainly outweighed by the govern-ment’s compelling interest in its regulation.”10

Moreover, the majority stated that even if the lowerContinued on page 17

1 2009 WL 1034613 (Apr. 20, 2009).2 18 U.S.C. § 48 (a) (b).3 Id. § 48 (c)(1).4 U.S. v. Stevens, 533 F.3d 218 (3rd Cir. 2008).5 Id. at 222.6 Id. at 232.7 Id. at 236 (Cowen, J. Dissenting).8 Id. at 224.9 315 U.S. 568 (1942).10 533 F.3d at 236.


14

CHECKING THE PULSE OF ANIMAL-RELATEDNONPROFIT ORGANIZATIONSBy: Patricia A. Morris

Over the past two years,animal related non-profitshave become the focus of thepublic eye. Due to heightenedmedia attention, public aware-ness and concern on animalwelfare issues has dramatically risen.The media’s coverage of the Michael Vick dogfighting case prompted public outrage. The euthanasia ofrace horses Barbaro and Eight Belles due to race injuriesand the recent deaths of 21 polo ponies in Florida madenational headlines. These issues have sparked passionatedebates from coast to coast over issues such as puppymills, horse slaughter bans, animal cruelty cases, and thefederal government’s proposal to euthanize thousands ofwild mustangs.

Animal welfare has become a topic of everydayconversations at the office and at family dinner tables.This combination of media attention and public awarenesspresents animal-related nonprofits a myriad of new oppor-tunities, as well as new legal responsibilities and chal-lenges. This article focuses on animal rescue nonprofitclients and how we, as their attorneys, can help themprepare, take advantage, and successfully manage theirnewfound fame. (For purposes of this article “clients”shall mean non-profit shelters and rescue organizations)Overview

When it comes to budgeting for legal services, mostclients simply do not. Money is primarily allotted tocover the cost of daily operations: food; supplies; hayand bedding; veterinary services; equipment; and facil-ities maintenance. These are “real” demands for ourclients. Clients do not see an immediate demand forlegal services as they do for animal food and supplies.Our services will not be a priority until the threat orcommencement of a legal action. Therefore, ourthreshold challenge is convincing the client to retainour services proactively, before legal action occurs.

Coming out of the gate, our clients need workingknowledge of the laws that affect them. They must under-stand the responsibilities the law imposes upon them andhow the law impacts their operations. They must alsounderstand the legal ramifications of their failure tocomply with these laws. Many clients realize personalinjury suits are a constant threat especially because

animals are unpredictable. Theyfalsely rely on state liabilitystatutes to protect them fromlegal action, believing theyare immune due to “inherent

risks” of certain animal activi-ties.1 Clients also fail to see the other

consequences which arise if they fail tocomply such as hefty monetary penalties, revocation oftheir state license or nonprofit status, and damage to theirpublic reputation. Notoriety works both ways!

Like many corporations, the economy has impactedour clients’ finances. Clients need to review budgetsand implement cost savings. Three major factorsimpact our clients’ bottom line. First, operating costshave increased at alarming rates, specifically the cost ofanimal feeds, supplies, and veterinary services.Livestock grain and hay prices have reached an all timehigh. Second, the demand for our client’s services hasrisen sharply due to an enormous increase in thenumber of surrendered animals. Finally, adoptions havestalled due to the current economic recession.

But unlike many corporations, our clients are expe-riencing tremendous growth in their volunteer base andin donations (of goods). Most clients are thrilled withthis record growth but are unaware of the new legalissues that result. Our clients need education on therelevant state and federal laws and regulations; munic-ipal ordinances and zoning issues; tax codes; andnonprofit requirements. They need our guidance tonavigate through this unfamiliar territory.

With more people out of work, our clients have seen aremarkable increase in their volunteer base. Most volun-teers interact with the animals, so our clients must assesseach volunteer’s skill set. Internal processes and bestpractices must be implemented, and consistentlyenforced, to record and document each volunteer, theirassessment, training, hours worked, and tasks completed.Ensuring our clients understand and use reasonable carethroughout their operations is critical to limiting theirliability exposure. Furthermore, the legal jargon of statestatutory liability limitations and vicarious liability mustbe thoroughly understood by our clients. Common clientquestions include: what protections does the law offerthem, what is the extent of those protections, and whatmust they do to avail themselves of that protection?

1 N.H. R.S.A. § 508:19 (1999).

“This combination ofmedia attention and public

awareness presents animal-relatednon-profits a myriad of opportunities,as well as new legal responsibilities

and challenges.”


15

Likewise, rapid growth in donations of goods andequipment exposes our clients to new areas of the law.The 2009 Economic Stimulus Bill resulted in increaseddonations of business equipment to our clients. TheStimulus Bill (identical to the 2008 provision) allows anindividual who purchases I.R.S. Section 179 propertyand places the property into service in 2009 to expenseup to $250,000.00 of the cost on their 2009 tax return.2These individuals may also depreciate 50 percent of theremaining cost during the first year.3 Sale of thesedonated used goods results in substantial and muchneeded cash for our clients. Our clients perceive this asquick and easy money, compared to the drafting ofgrants and organizing of fundraising events. However,clients do not understand that the sale of goods triggersa whole new set of responsibilities and laws, theUniform Commercial Code and the Tax Code.4

In addition, our clients face several unique legal chal-lenges, such as animal surrenders, fosters, and adoptions.Surrenders

The surrender of an animal is the relinquishment ofthe owner’s possession and legal title to the animal. Thehot and most litigated title issue is whether the personwho surrendered the animal possessed legal title. Titleissues also arise over whether an animal was abandonedor lost. Generally, clients do not understand there is asignificant legal difference between a lost and abandonedanimal.5 Further complications arise if the animal hasbeen adopted out by our client because the animal mayhave to be recovered and returned to the rightful owner.

However, this risk can be easily managed. Clientsshould require proof of the animal’s ownership prior tosurrender. Tightly drafted adoption contracts mustrequire the surrendering party to warrant they have freeand clear title, and will indemnify and hold our clientharmless in the event of any legal action.

Another potential pitfall for our clients is theanimal’s health. The information a client may have onan animal is what the owner provided to them. A clientshould request all copies of the animal’s veterinarianrecords in the owner’s possession and require the ownerto provide a recent health certificate from a licensedveterinarian. This certificate should be issued no morethan a week prior to surrender. New Hampshire statelaw requires the issuance of an official health certificatewithin 14 days of an animal’s transfer.6 Whether or notall information and a certificate are provided, our clientshould have a veterinarian examine the surrenderedanimal within a few days of its arrival.

Fosters and AdoptionsRecently, clients have increased their use of private

individuals to foster animals offsite. This relieves ourclients of the daily care of the animal, in labor and cost,and alleviates the strain on the client’s physical facili-ties. Similar to the legal issues surrounding title, we canlimit our clients’ liability by carefully draftingcontracts. However, contracts alone are not sufficient.Our clients must take reasonable precautions prior toentering into any foster or adoption agreement.

First, each animal must be evaluated to identify anydangerous propensities, behavioral issues, health prob-lems, or physical limitations.Any findings must be docu-mented and disclosed to the foster or adopter. Second,fosters and adoptions require a visit to the premiseswhere the animal will be kept. Our client must ensure thepremises comply with state laws or town ordinances,such as shelter requirements.7 Third, a thorough assess-ment of the person (and family) and their ability tohandle the animal must be completed. Documentation ofthese three assessments must be retained by the client.

Unlike adoption, our client retains title of the animalin a foster situation. Therefore, it is critical that our clienthas proper insurance coverage for such off site animals.Evaluating a client’s insurance to ensure it covers recentchanges in their operations (including sale of used goodsand off site fosters) must be an annual task.

Our clients are experiencing change on a daily basisand must be prepared to respond and manage thischange and growth. As counsel, we can ensure they areaware of, and comply with, new and existing laws andregulations that govern their operations. An annualreview of our client’s bylaws should be completed, andchanges made if necessary to adapt to these changesand growth. Helping our clients understand the impor-tance of the use of reasonable care throughout all of itsoperations, suggesting the implementation of best prac-tices, and maintaining proper records and documenta-tion, will assist our clients to manage their risks andliabilities, and successfully plan for the future.

Ms. Patricia Morris, an attorney and animal enthusiast, is a solepractitioner located in NewHampshire’s Lakes Region She is licensedto practice law in New Hampshire and Massachusetts, in state andfederal district courts. Her practice consists mostly of animal law andequine law. Currently, she serves on the Board of Directors for theNew Hampshire Horse Council, and the New Hampshire AnimalDisaster Recovery Team. In May 2008, Governor Lynch appointedher to the Governor’s Commission for the Humane Treatment ofAnimals. She spends her free time enjoying her family of rescuedhorses, dogs and cats at her farm in Center Barnstead, NewHampshire.

2 American Recovery and Reinvestment Act of 2009, Pub. L. 111-5 (HR 1).3 Id.4 N.H. R.S.A. § 382-A; 26 U.S.C. Subch. A, Chpt. 1, Subch. F.

5 See e.g. Morgan v. Kropua, 167 Vt. 99 (1997).6 N.H. R.S.A. § 437:10 (2007).7 See e.g. N.H.R.S.A. § 437:14 (2003).


17

courts had authority to supplement categories of unpro-tected speech, the speech would have to constitute agrave threat to human beings or appeal to the prurientinterest11 and meet the five factors articulated in NewYork v. Ferber,12 clearly not met here. The dissentagreed that the Ferber factors provide guidance forrendering a category of speech unprotected, but foundthat the speech at issue here did meet the Ferber factorsand thus is unprotected.

Second, what is the government interest served bySection 48 and is it compelling? The dissent agreedwith the government that the interest is in protectinganimals from intentional and wanton acts of physicalharm, which is compelling as demonstrated by the“overwhelming body of law across the nation aimed ateradicating animal abuse.”13 The majority, in contrast,raising federalism concerns, restated the governmentinterest as “preventing cruelty to animals that state andfederal statutes directly regulating animal crueltyunder-enforce” which, in turn, is not compelling.14 Themajority further relied in part on the Supreme Courtruling in Church of Lukumi Babalu Ave. Inc. v. City ofHialeah15 to find that the government interest inprotecting animals does not supersede fundamentalhuman rights, such as freedom of speech. The dissentdisagreed, stating that the Court in Lukumi struck downthe Florida statute at issue, not because protectinganimals from cruelty is not a compelling interest, butrather because the real rationale behind the statute,otherwise riddled with exemptions for numerous otherkillings, was an unconstitutional suppression of reli-gion targeting Santeria adherents.16

Third, what is the import of Section 48’s exceptionsclause? The majority interpreted Section 48 to restrictprotected speech and to append this clause to “constitu-tionalize” it.17 However, since otherwise protected

speech need not have serious value to be protected,such an exemption fails. The dissent, in contrast, inter-preted Section 48 to restrict unprotected speech and theexceptions clause to codify the Miller v. California18

framework, by expressly shielding the portions ofspeech within the otherwise unprotected category withserious value.19

Finally, the judges argued over the under- and over-inclusive nature of Section 48. The majority, recog-nizing that the reach of Congress’ power under theCommerce Clause is limited, nevertheless stated thatsince the statute does not target intrastate sales ofdepictions of animal cruelty for personal use, it isunder-inclusive if the goal is to protect animals fromcruelty. The dissent countered that “Congress couldhave reasonably decided to focus its attention on purelyinterstate conduct, lest enforcement efforts behampered by costly constitutional litigation,”20 espe-cially in light of the evidence that most of the distribu-tion of this materials is through interstate and foreigncommerce. On the other hand, the majority foundSection 48 over-inclusive because it “covers a widevariety of ostensibly technical violations like huntingand fishing,” and outlaws depictions of acts that werelegal in the location where the depiction was created.The dissent acknowledged that the statute couldpossibly reach technical violations, like depictions ofhunting and fishing out of season, but with the excep-tions clause and the fact that such technical violationswill constitute only a “tiny fraction” of such depictions,this would not render Section 48 unconstitutionallyoverbroad.21 Moreover, even though the acts depictedmay not have been legal at the time and place theyoccurred, they must be illegal in the state in which thematerial is distributed and sold. This is proper as thegoal is to dry up the market for such materials.22Further, since Congress’ authority is limited to theinterstate distribution of this material, it is reasonable tofocus on the illegality of the depiction at the place ofsale.

ANIMAL CRUELTY...Continued from page 13

11 Id. at 224.12 458 U.S. 747 (1982).13 533 F.3d at 236.14 Id. at 233. Interestingly, the majority placed the government in a classic catch-22 position when it further stated that if the court did agree that the government interest wasprotecting animals from cruelty, the statute would still fail because it is not narrowly tailored, nor uses the least restrictive means to serve that goal. Of course, this was after findingthat the category of speech is protected and thus subject to strict scrutiny. Id.15 508 U.S. 520 (1993).16 533 F.3d at 240.17 Id. at 231 (“[unless the depiction] has serious religious, political, scientific, educational, journalistic, historical, or artistic value.”).18 413 U.S. 15 (1973).19 533 F.3d at 243.20 Id. at 242.21 Id. at 248.22 Id.


18

Conclusion

It will be interesting to see how the Supreme Courtrules on this case. It is unclear why they acceptedcertiorari as this is the only instance of a trial to enforceSection 48 and thus there is no Circuit split. Moreover,politically, one might expect that the majority of theJustices would uphold the Third Circuit’s decision, andgiven the large number of cases filed with the Court,there is less need for them to accept certiorari in a case

where the Court will uphold the lower court’s decision.In any event, animal advocates, First Amendmentadvocates, and many others likely will be lined up earlyoutside the Supreme Court’s door on the morning theCourt hears oral argument in this case.

Joan Schaffner is Associate Professor of Law at the GeorgeWashington University Law School and Director of the GWAnimalLaw Program and will assume the position of Chair of theABA/TIPS Animal Law Committee in August 2009.

restitution awards to be within their inherent equitablepower.12

Forfeiture

Civil and criminal forfeiture provisions may alsoserve a restitutionary function, if the recovered assetsor funds are directed toward wildlife recovery orprotection efforts. The federal Endangered Species Actcontains a typical forfeiture provision. That statuteauthorizes forfeiture to the United States of any “guns,traps, nets, and other equipment, vessels, vehicles,aircraft, and other means of transportation” used to aidthe taking of or commerce in protected animals.13Forfeited assets are usually liquidated and the fundsdeposited into the general treasury. However, unlessthe relevant laws or government policies specify other-wise, there is no reason not to direct net forfeitureproceeds to wildlife protection agencies.14

Mitigation and Community Service

Courts can also order defendants to perform specificmitigation measures. For instance, in United States v.Jones, the defendant pled guilty to Clean Water Actviolations for acts that caused habitat loss for twoendangered species.15 As part of his plea agreement, thecourt ordered the defendant to place 2,500 acres of hisproperty in a conservation trust. Similarly, in UnitedStates v. West Coast Homebuilders, Inc.,16 a defendant

that pled guilty to killing endangered red-legged frogsby intentionally draining a pond was ordered to pay$300,000 in restitution and to preserve another 640-acre parcel of its land as habitat for the remainingfrogs.17

Prosecutors can also seek a sentence requiring thewildlife defendant to perform community service. Aswith other forms of restitution, if not explicitlyrestrained by statute, there is no reason a court cannotorder a community service project that remedies theviolation at issue. For instance, in United States v.Cueva, a defendant convicted of smuggling protectedsea turtles was ordered to pay $5,000 to a sea turtleprotection program, perform 350 hours of communityservice for that program, or participate in a publicservice announcement.18 Similarly, in United States v.Arnold, the court ordered a Lacey Act defendantconvicted of illegally killing elk to perform 25 hours ofcommunity service and write a letter to a bow huntingmagazine explaining his conviction.19

Licensure Sanctions

Another remedy that can be found in most wildlifeprotection statutes is the suspension or cancellation ofhunting privileges. These sanctions have a restitu-tionary quality in that they prevent the defendant fromkilling additional wild animals during the sentence,which may help populations recover. Under the ESA,revocation of federal hunting privileges is mandatoryupon conviction.20 Some wildlife statutes also authorize

WILDLIFE VIOLATIONS...Continued from page 12

12 SeeWangerin, supra note 3, at 267. But see Center for Biological Diversity, Inc. v. FPL Group, Inc., 83 Cal. Rptr. 3d 588, 592 (Cal. Ct. App. 2008).13 16 U.S.C. § 1540(e)(4)(B).14 See, e.g., United States v. Borden, 10 F.3d 1058, 1060-61 (4th Cir. 1993).15 See Jane Barrett, Sentencing Environmental Crimes Under the United States Sentencing Guidelines—A Sentencing Lottery, 22 ENVTL. L. 1421, 1434 n.87 (1992) (citing UnitedStates v. Jones, No. S-90-0216, slip op. at 2 (D. Md. filed May 30, 1990); United States v. Ellen, 961 F.2d 462, 463-64 (4th Cir. 1992)).16 United States v. West Coast Homebuilders, Inc., 4:02-cr-40128 (N.D. Cal., Jul. 19, 2002).17 See John C. Cruden, Environmental Litigation: CERCLA Overview, SH-093 AM. LAW INST. – AM. BAR ASS’N CONTINUING LEGAL EDUCATION 555 (Jun. 23-27, 2003).18 United States v. Cueva, 1:07-cr-0358 (D. Colo., Jun. 20, 2008).19 United States v. Arnold, 4:08-cr-0238 (D. Idaho, Apr. 2, 2009).20 16 U.S.C. § 1540(b)(2).


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the termination of the defendant’s livestock grazingpermits or lease.21

How to Measure Restitution

The fullest measure of the loss caused by wildlifecrime includes: (1) the cost to rehabilitate or “replace”the wildlife, if possible;22 (2) “use” values, such as lostbird watching opportunities; and (3) “non-use” or“existence” values, which represent the value placed bysociety on the continued existence of the wildlife inquestion.23 Aggressive litigants may wish to pursue allthree components, but recovery of even one mayprovide significant relief.

Restoration costs are the simplest of these three tomeasure and prove, especially where costs have alreadybeen incurred. For instance, after the Exxon Valdez oilspill, rescuers tracked, captured and rehabilitated 183live, heavily contaminated sea otters at a cost of morethan $80,000 per animal.24 Measuring this type of costis merely a matter of maintaining receipts. For forward-looking costs, such as the recovery of a depletedspecies, prosecutors and plaintiffs should be preparedwith expert testimony about the likely costs of recoverymeasures. Like many future costs, only an estimate ispossible. But in this and other areas of damages law,such as tort law, courts have not demanded exactitude.

The monetary value of lost use, such as diminishedopportunities for bird watching, is typically measuredby an “observed choice” or “revealed preference”survey.25 This type of survey measures how muchmoney respondents, such as visitors to a park, wouldpay for the chance to observe wildlife, including trans-portation costs, entry fees, and equipment. Althoughthe survey samples do not necessarily measure the fullvalue of the loss, they nonetheless provide “a basis forexamination and extrapolation,” and are thus frequentlyused in environmental cases.26

The most difficult type of loss to quantify mone-tarily is harm to “non-use” or “existence” values—theworth placed by society on the affected wildlife’scontinued existence for the wildlife’s own sake. Thesealtruistic values are widely recognized by courts andregulatory agencies,27 but they do not translate easily tocash. To bridge this gap, economists have developed amethod called contingent valuation (“CV”). Roughlystated, CV surveys measure respondents’willingness topay to avoid certain hypothetical environmental harms.For instance, after the Exxon Valdez oil spill, a CVstudy conducted by the state of Alaska assigned anexistence value of $3 billion to the harm inflicted on theenvironment and on animals.28 CV has gained tractionin the courts.29 Prosecutors and plaintiffs seeking torecover non-use damages should be prepared tocommission a professional contingent valuation study.Because these studies can be expensive, they are prob-ably best saved for large-scale cases. However, the costof CV studies may be recoverable from the defendant.Restitution Is Worth Asking For

Wildlife crimes are not “victimless crimes” that canbe fully remedied without restitution. Perpetratorscause real injury to individual animals, species, andecosystems. Although the individual animals who arekilled cannot be brought back to life by court order,judicial proceedings present an opportunity to rectifyharm to populations or ecosystems, by directingresources—the defendant’s—toward recovery efforts.At a time when enforcement entities and wildlife agen-cies face financial cutbacks, it is appropriate to askcourts to order poachers and other wildlife criminals tocontribute to the true social cost of their crimes.

Ethan Carson Eddy is a Trial Attorney in the Wildlife andMarine Resources Section of the Environment and NaturalResources Division of the U.S. Department of Justice. He preparedthis article in his individual capacity. The content does not neces-sarily reflect the position of the Department of Justice.

21 See, e.g., Bald and Golden Eagle Protection Act, 16 U.S.C. § 668(c); ESA, 16 U.S.C. § 1540(b)(2).22 Of course, individual animals killed by violators cannot be “replaced.” However, if the harm is measured on the species or population level, such harm may be remedied byefforts to increase population numbers and thereby “replace” unlawfully taken animals. If the harm results in extinction, “replacement” will not be possible in any sense, but resti-tution awards could still be used to remedy harm to the ecosystem by furthering other wildlife protection efforts.23 See, e.g., Jeffrey C. Dobbins, The Pain and Suffering of Environmental Loss: Using Contingent Valuation to Estimate Nonuse Damages, 43 DUKE L.J. 879, 898 (1994).24 Nancy Y. Davis, The Exxon Valdez Oil Spill, in THE LONG ROAD TO RECOVERY: COMMUNITY RESPONSES TO INDUSTRIAL DISASTER, 231, 236 (James K. Mitchell ed., United NationsUniv. Press, 1996).25 See Dobbins, supra note 23, at 899.26 Id.27 See id. at 879 n.8 (quoting 59 Fed. Reg. 1,062, 1,182 (1994)).28 Id. at 883 n.20.29 See, e.g., Ohio v. U.S. Dep’t of the Interior, 880 F.2d 432, 478 (D.C. Cir. 1989).


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* Nevada Statutes, title 9, Ch. 108.540, states, inpart: “Any person furnishing feed, pasture orotherwise boarding any animal or animals, at therequest or with the consent of the owner or hisrepresentative, has a lien upon the animal oranimals, and may retain possession thereof untilthe sum due for the feed, pasture or board hasbeen paid.” (Emphasis added.)

These laws also discuss how and when the boardingfacility can sell off the animals to satisfy a debt.

States that Require Court ActionSome laws require stables and facilities to go to

court before an animal can be sold for non-paid board.For example:

* Missouri Statutes, Title XXVII, § 430.160,regarding enforcement of liens, requires thatthose who stable, keep, or train a “horse, mule, orother animal” and claim a lien on the animalmust make a special filing in the circuit courtwithin its county. Thereafter, the non-payinganimal owner is notified of the filing, and thematter is brought to trial on the issue of the debtand the keeper’s rights, including the right to sellthe boarded animal.

* Similarly, Arizona Statutes, Chapter 11, § 3-1295, states, in part: “If possession continues fortwenty days after the charges accrue, and thecharges have not been paid, the person retainingpossession of the stock may perfect the amountof the lien by filing an action in either superiorcourt or justice court, according to the amount incontroversy, in the jurisdiction of the holder ofthe stock. . . . If the prevailing party does notreceive payment due within ten days after thefinal judgment of the court, the prevailing partybecomes the owner of the stock. The court shallaward the prevailing party court costs andreasonable attorney’s fees.”

Statutes That Require Notice and a Public SaleSome state laws allow facilities the right to sell off

the animal without first going to court. For example,Connecticut Statutes, Ch. 847, § 49-70, which appliesto facilities that keep birds, fish, livestock, and otheranimals, states, in part: “When a special agreement hasbeen made between the owner of any animals . . . andany person who keeps and feeds such animals,

regarding the price of such keeping, such animals shallbe subject to a lien, for the price of such keeping, infavor of the person keeping the same; and such personso keeping such animals may detain the same until suchdebt is paid; and, if it is not paid within thirty days afterit is due, he may sell such animals . . . at public auction,upon giving written notice to the owner of the time andplace of such sale at least six days before such sale, andapply the proceeds to the payment of such debts,returning the surplus, if any, to such owner.”

Statutes That Allow Submission of Animal to aRescue or Adoption Group

Connecticut Statutes, Ch. 847, § 49-70, allowcommercial kennels and veterinary hospitals to placeabandoned dogs with a nonprofit animal rescue oradoption organization. Animals, under that law, areconsidered “abandoned” if the owner or keeper fails toretrieve the animal within five days of the date onwhich the owner or keeper was scheduled to retrievethe animal. The law provides that before transferringthe animal, the facility must send notification of itsintention to do so and shall allow ten days to pass afterthe receipt is returned before transferring the animal.The law also requires the kennel or veterinary hospitalto post in a visible location the procedures allowedunder state law and shall give a written notice of theprocedures to its boarding customers.Alternatives to a Stablemen’s Lien Sale

Counsel representing kennels, veterinary clinics,and stables can consider whether to advise their clientsto pursue alternatives to the lien procedures. Forexample, they can file suit against the non-payinganimal owner if the debt is sizeable enough to warrantthis action. Counsel should advise their clients whoseek this option to maximize their chances of successby maintaining good records evidencing the debt, suchas service contracts, and copies of unpaid invoices.Pitfalls That Animal Keepers Can Avoid

Any of the following could potentially violate statelien laws:

* Stables that use the boarded horse in its lesson orrental program, without the owner’s consent.

* Facilities that send animals, without firstpursuing state-authorized remedies, to rescue orresearch facilities.

* Facilities that lend or lease the animal, withoutthe owner’s specific consent.

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* Promising breed registration papers to the buyer ina stablemen’s lien foreclosure sale. Breedregistries, unless they receive a signature on thetransfer papers from the last recorded owner, willonly transfer papers if the lien sale was lawfullyperformed. Some breed registries insist on anattorney’s opinion letter that the lien sale compliedwith the applicable law.A few registries demand adeclaratory judgment from a court that the salewas legal before they will allow papers to transfer.

Conclusion

Because of drastic differences among the laws,counsel should make sure to research and read theapplicable law very carefully.

This article does not constitute legal advice. Whenquestions arise based on specific situations, direct themto a knowledgeable attorney.

Julie I. Fershtman practices insurance law and equine law nation-wide. She is currently Of Counsel with the law firm Zausmer,Kaufman, August, Caldwell & Tayler, P.C., in Farmington Hills,Michigan. She is a Vice-Chair of the ABA/TIPS Animal LawCommittee and Chair of its Insurance Issues Subcommittee. She isalso the co-author and co-editor (with Prof. Joan Schaffner) of the newbook Litigating Animal LawDisputes: AComplete Guide for Lawyers.

On the day of the trial Joey immediately asked forEllie and held her leash as he walked up to the witnesschair with her by his side. Assuming that Joey would beable to recount the incident again, Gahan asked Joeyhis name. Joey looked up at the rear of the courtroomand saw his aunt, Robert’s older sister, looking at him.She frightened him and Joey could only sit in his chairand stare at the floor. Gahan felt terrible about Joey’ssituation but continued to ask him questions hoping toget some sort of response from him. Finally heapproached the stand and in a whisper asked him if hewas afraid. Joey nodded his head yes and Gahan askedfor a recess. “Let’s take Ellie and show the judge thetricks she can do,” Gahan said as they walked off thestand. Gahan felt a little guilty that he was using Ellieto bribe Joey to get off the stand and into the judge’schambers but he was desperate to salvage his case.Inside the judge’s chambers Joey played with Ellie andafter a few minutes he began to relax. The judgeshowed Joey pictures of her dog and they talked abouthow friendly Ellie was. Then the judge asked Joey whyhe was afraid and he told her that his aunt would beangry with him for telling what happened.

The judge excused the aunt from the courtroom. Joeyresumed his seat in the witness stand and Ellie lay downbeside him. “Let’s start again, what’s your name?”Gahan asked. “My name is Joey, spelled J-O-E-Y,” andhis description of the strangling and assault of his motherwas described from a terrified five-year-old’s perspec-tive. During cross-examination, Ellie flipped onto herback for a tummy rub and Joey reached down andstroked her belly for several minutes. Gahan was amazed

to see that Joey had become so relaxed that he couldabsentmindedly pet Ellie while answering the defenseattorney’s questions. At last it was over and Joey andEllie marched off the stand and out of the courtroom.

At the defendant’s sentencing a few weeks later, thejudge based her decision that the defendant shouldspend seven years in prison in large part on Joey’scompelling testimony.*

In an interview a short time later Gahan told meabout this case.

“I first met Ellie when she and I were working injuvenile court. I’m not a dog lover, I thoughtEllie was okay but the only thing we had incommon was going into other people’s offices tolook for food at lunch time. I’m still not a doglover but I have to give Ellie credit for not onlyhelping Joey testify but making him feel morerelaxed and safe during the experience. UsingEllie for trial didn’t just help me win the case, italso provided a calming effect on Joey, who wascertainly a primary victim in this case, andassisted him in his rehabilitation as a victim andwitness to a horrific event. I got a call fromSophia just before the sentencing. She told methat she and Joey were living together in anapartment and that they were alone now becauseeveryone in their family hated them. But she alsosaid for the first time in their lives they felt free.”

Courthouse Dogs

Since 2003 courthouse dogs in King County,Washington, have been promoting justice by providingemotional support for everyone in our criminal justicesystem. Because the concept of dogs assisting crime

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victims in a courtroom setting is in its infancy, it isessential that best practices be used in order to preservethe use of this important tool.What type of dog should be used in this setting?

Only highly trained facility dogs should accompanya witness to the stand. A dog that can reduce stress fora witness while he or she testifies requires a dog thatcan be quiet and unobtrusive. The dog should be able toeither sit or lie on the floor beside the witness and beemotionally available to the witness when the needarises. Needless to say, if a dog misbehaves in a court-room it could result in a mistrial or make judges reluc-tant to take this risk to accommodate the needs of anervous witness.When should a dog accompany a witness to thestand?

Using a dog to provide emotional support to awitness should be reserved for those witnesses thattruly require this assistance. Make this assessmentwhile preparing the witness for the trial. In oneinstance, the deputy prosecutor asked the judge toallow a facility dog to assist young twin sisters in anincest case, because the girls cried and refused to sit inthe witness chair. In another case, the judge permittedthe facility dog to assist an adult rape victim when thevictim exhibited physical symptoms of stress and toldthe judge she needed the dog to get through the ordealof seeing the defendant and his defiant family while shetestified. Afterwards, this woman told me that merelyholding Ellie’s leash while she was on the stand madeher feel more in control.Presenting the motion to the judge

Information about the evidence rule, the case law,and making a record about the use of the dog in a trialcan be found at http://www.courthousedogs.com/courtroom.html. A sample brief in support of the use ofa dog in the cou r t room can be found a thttp://www.courthousedogs.com/brief.html.A courthouse dog helps defense counsel too

A defense attorney who is comfortable with dogscan use the dog to her or his benefit during

cross-examination. In this case defense counsel did notobject to Ellie providing emotional comfort to Joey.During cross examination both petted the dog and shescored some points on behalf of her client. Rather thanappearing to be grilling the child and alienating the juryshe came across as a kind and gentle person.Courthouse use improves the status of dogs

Well-trained dogs working in the criminal justicesystem are raising the status of these animals insociety. When many people think about a dog, theyenvision a barking pet who lives in the backyard andadds very little value to society. When they encountera highly-trained assistance dog at the courthouse, it isan eye-opening experience. Their contact with theseprofessional dogs changes their perception of thecognitive capabilities possessed by a domestic canine.The next time that they think about a dog, they mayremember the calm, perceptive animal that they met atthe courthouse.A vision for the future

The use of courthouse dogs can help bring about amajor change in how we meet the emotional needs ofall involved in the criminal justice system. The dog’scalming presence creates a more humane and efficientsystem that enables judges, lawyers, and staff toaccomplish their work in a more positive and construc-tive manner.

For more information about this innovative use ofwell-trained dogs working in the criminal justicesystem, visit www.courthousedogs.com.

*This is a true story. The names of the individuals involved inthe incident have been changed to protect their identities.

Ellen O’Neill-Stephens is a King County Senior DeputyProsecutingAttorney in Seattle, Washington. She has worked in thiscapacity since 1985. She currently assists Seattle Police Departmentwith narcotics investigations and community drug abuse preventionand treatment. Her disabled son Sean and his service dog Jeeterwere the inspiration for the Courthouse Dogs program. Ellen livesin Edmonds, Washington with her husband Jack and a charmingPembroke Welsh Corgi named Chloe.

Photograph of Ellie by Dane and Dane.

VISIT OUR WEBSITE AT:http://www.abanet.org/tips/animal/home.html


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permanent loving homes. For the full story in O, seehttp://www.oprah.com/article/omagazine/200906-omag-abused-dogs.SMITHFIELD SUED FOR THE WRONGFUL DEATHOF THE FIRST AMERICAN CITIZEN TO DIE FROMTHE H1N1 VIRUS (aka SWINE FLU)

Judy Trunell, a young school teacher and eightmonths pregnant, died on May 5, 2009 of swine flucomplications. Fortunately, doctors were able to saveher unborn child. Her husband, Steven Trunell has filedsuit against Smithfield, part-owner of the pig farm inVeracruz, Mexico, where the H1N1 virus is thought tohave originated. This suit seeks $1 Billion dollars forwrongful death alleging that the “manure lagoons” andother unsanitary conditions at the farm caused thedevelopment and spread of the swine flu that in turnkilled Judy Trunell. This is reportedly the first time acompany has been sued for “contributing to the emer-gence of a new pathogen.” http://www.animalpharmnews.com/news_stories/may_09/lawsuit_claims_smithfield_foods_responsible_for_h1n1.Conferences and Programs

EQUAL ACCESS TO JUSTICE FOR THE ELDERLYAND PERSONS WITH DISABILITIES

Gilda MarianiChief, Money Laundering & Tax Crimes UnitNew York County District Attorney’s Office

The Committee co-sponsored a very successful day-long public interest program with the TIPS Diversity inthe Profession Committee and the Stetson University,College of Law in Florida entitled “Providing Personswith Disabilities and the ElderlyWith Equal Access toJustice.” The conference, held on May 18, 2009, in thehigh-tech William R. Eleazer Courtroom, at Stetson’sGulfport Campus, focused on providing witnesses,jurors, and attorneys who have a disability or are elderly(including those who have service or emotional supportanimals) with equal access to justice in the courtroom.

At the program TIPS Diversity Officer Janet Davisand Diversity in the Profession Committee Chair NancyQuan addressed the audience, informing them of TIPSinitiatives and commitment to diversity in all aspects.

TIPS former Financial Officer Jim Bliss introducedour luncheon speaker, the Honorable Rosalyn Richter,

Associate Justice of the Appellate Division FirstDepartment in New York, who gave a moving andinspiring account of her experience as a lawyer andthen a judge with a disability both before and after theenactment of the Americans with Disabilities Act in1990. The judge also moderated our first two panelsdiscussing reasonable accommodations in the court-room and jury selection.

Another highlight of the day was the paneldiscussing the presence of service and emotionalsupport animals. We had guest appearances from twogolden retrievers, Ellie, from the King CountyProsecutor’s Courthouse Dog Program and Hameish,the therapy dog of moderator Professor PeterFitzgerald. In fact, Ellie is highlighted in a full-lengtharticle discussing the Courthouse Dog Program, supra.

Professor Rebecca Morgan, who spearheaded theproject that resulted in the model courtroom, moderated apanel discussing how to promote access to courthousesand courtrooms. Later Professor Morgan and hercolleague Professor Roberta Flowers enlightened theaudience with a tour of the model courtroom and all of itsarchitectural and technological advancements. Although,space will not permit naming all of the speakers, I canreport that they were all excellent presenters.

The program was live and simultaneouslywebcasted. Since, it was also audio-taped and video-taped, courtesy of Stetson University; the program willsoon be available on the TIPS website.

This is the second collaboration between TIPS andan educational institution. As it is ALC’s fashion tooutreach to other ABA entities, the program was alsoendorsed by the Commission on Law and Aging; theCommission on Mental and Physical Disabilities Law;the Criminal Justice Section; the Government andPublic Sector Lawyers Division; the Judicial Division;the Real Property, Trusts and Estates Division; and theSenior Lawyer Division, as well as the NationalAcademy of Elder Law Attorneys.

Co-sponsorship also came from TIPS Committeesof Health and Disability Insurance Law, Law PracticeManagement, and Government Law.

I congratulate my wonderful program co-chairsWes Sunu, former Chair of Diversity in the ProfessionCommittee and Randi Whitehead, Chair of LawPractice Management Committee, and especiallyapplaud Professor Morgan, for their efforts in coordi-nating this conference and for the friendship that devel-oped from this journey.

HEADLINE NEWS...Continued from page 8


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ALC is grateful to Robert Biasotti and his firm ofCarlton Fields (Insurance Practice Group, theAppellatePractice Group and the St. Petersburg Office), TriblerOrpett & Meyer, P.C., the Mac Kay Fund and the TIPSEnterprise Fund for their financial support. Theprogram was dedicated to Sonia SchroederNO KILL CONFERENCE 2009

The first national No Kill Conference, co-sponsoredby the George Washington University (GWU) AnimalLaw Program and the No Kill Advocacy Center,brought together leaders in the animal sheltering andlegal fields who are promoting no kill strategies to savethe lives of millions of companion animals from deathin our shelters. Some 380 individuals, representing 38states and 6 countries, descended on the GWU campusin Washington DC, on May 2-3, 2009 to attend thisground-breaking event. The presenters discussed no-kill strategies designed to prevent animal surrenders;implement cost-effective behavior and medical rehabil-itation programs; establish positive relationships withgovernment, private groups, and veterinarians; createferal cat Trap-Neuter-Return/Release programs;increase animal adoptions; improve public relations;reform animal control; and utilize legislative and litiga-tive options to help secure these strategies.

Three Committee members, Michelle Welch, LedyVanKavage, and Joan Schaffner, presented at theConference. Michelle discussed legislative and litiga-tive efforts to end puppy mills, Ledy presented strate-gies for protecting free-roaming cats and their care-givers, and Joan shared her experiences combining herlegal skills with her passion for animals.Committee News

LITIGATING ANIMAL LAW DISPUTES: ACOMPLETE GUIDE FOR LAWYERS

The Committee’s second book is now availablethroughABApublishing and other venues. This compre-hensive guide is for lawyers who may be unfamiliar withthe various laws in the field of animal law and require abasic guide to handling these cases. The book coversevery major aspect of private civil and criminal litigationof animal law disputes in the areas of tort, contract, prop-erty, insurance, and criminal law. In the fifteen chaptersof this book you’ll find valuable information and casesdealing with topics like personal injury and negligence;disputes over animal possession; wills and trustsinvolving animals; veterinary malpractice; insurance liti-gation; federal cases and Constitutional rights; animalownership and land use rights; criminal cases; and more.There is even a chapter covering practical matters forlawyers handling animal cases, including fee agree-ments, discovery techniques, preparing your client,settlements and collecting judgments. The book alsoprovides sample litigation documents, such as pleadings,discovery materials, expert information, and more. It’sthe complete resource for any lawyer who, sooner orlater, will deal with a case of animal law.ALC ON FACEBOOK

The Committee now has a page on Facebook tofacilitate communication among members and outreachto others who may be interested in joining theCommittee. Please become a fan of the Committee’spage and/or visit at: http://www.facebook.com/home.php#/pages/Animal-Law-Committee-of-the-ABA-Tor t -Tr ia l -and- Insurance-Prac t i ce -Sec t ion /81318181919?ref=nfABA/TIPS ANIMAL BLAWG

The Committee will soon be hosting a blog. Staytuned to Facebook for updates.

communication strategies, school outreach guidelines,state humane education laws, and related articles. Thecurriculum addresses a wide range of animal-relatedissues such as responsible companion animal care,animal cruelty laws, dog and cat population and home-lessness, puppy mills, dog fighting, the violence link,factory farming, endangered species, habitat destruc-tion, pollution, and global warming. Most importantly,

the program invites students to become problem-solvers, engaged young citizens, and conscious choice-makers, so that their lives become part of the solutionto persistent challenges.

TIPS solicited lawyer and law student volunteersfrom the ABA membership, and from the membershipof state or local bar associations, to work on imple-menting humane education programs in their localschools. Special thanks to Joan Schaffner, our ChairElect, who was instrumental in coordinating the work-shops at George Washington University Law School

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and Jane Hoffman from the Mayor’s Alliance forNYC’s Animals for providing the venue for the NYCtraining. We were pleased with the diversity of regis-trants in both cities, including not only our ownCommittee members and students at local law schools,but also members of the NYC, Maryland, and DC BarAssociations working at large and small law firms,non-profit organizations, government agencies, corpo-rations, and law schools.

Despite their diverse affiliations, the participants allshared a passion for this work and we received excel-lent evaluations from the training sessions. One of thevolunteers teaching in NY, Amy Trakinski from theanimal law firm Egert & Trakinski, said “Taking part inthe ABA Humane Education Project has been a greatexperience. HEART makes sure all volunteers gothrough a thorough training and provides terrificteaching materials and support.” All the participantscompleted evaluations and their average rating was 3.9on a scale of 1 (lowest) to 4 (highest) for how helpfuldifferent components of the workshop were withrespect to classroom communication and management,and coverage of the content of the four lessons.Indicative of their enthusiasm, in their open endedresponses, many participants even encouragedextending the half day training to a full day.

Humane Education classes in public schools in DCand NYC have begun and we are reaching approxi-mately 200 fourth and fifth grade students through thispublic service project. We have already received a lotof positive feedback on classroom experiences. Severalof our volunteers were pleasantly surprised that theywere so readily welcomed by the students. BeverlyJones, Associate General Counsel of the Vera Instituteof Justice in NY said, “We were particularly touched bythe kids during our first class. Much of the first lessoncenters on teaching kids to embrace and understandconcepts like empathy and compassion—one of theways this is done is by talking about a ‘Circle ofCompassion,’ in which the kids identify who they careabout. Ordinarily, kids will identify their parents,friends, companion animals, and the like. When ourclass was asked whom they would want to include intheir circles, one boy said ‘you guys!’ It was a reallygratifying experience.” The schoolteachers have beenvery receptive as well. In one program evaluation form,a fourth grade classroom teacher wrote, “The videos,images and simulations were meaningful for thestudents . . . and the questioning was great, scaffoldingstudents’ thinking. I really hope to work with you again

next year.” Another schoolteacher said, “I loved theway each lesson correlated to the previous one. Let’s doit again next year.”

I am impressed that our volunteers have so quicklystarted affecting students on cognitive, emotional, andbehavioral levels and are successfully promoting crit-ical thinking skills. One of our DC volunteers, TessaHale, a management consultant, noted: “The studentswere very engaged and able to really think through theimpact of their actions, the actions of others andconnect it all to the bigger picture of compassion andthe earth. Each discussion was lively with studentsoffering input and seeking additional information.When we returned for subsequent lessons, the studentshad new questions for us and it was apparent they hadbeen thinking about what we had discussed theprevious week.” Another DC volunteer shared, “Thecurriculum does a great job of getting students to thinkcritically and reach their own conclusions instead ofpresenting one viewpoint as a foregone conclusion. Thecurriculum also furthers the objectives of core classes,as it draws upon students’ knowledge of government,social science, earth science, geography, ecology, andeven mathematics.”

The Committee will expand the Humane EducationProject within DC and NYC by holding additionaltraining sessions for volunteers and implementing theprogram at additional public schools. I thank all of youwho participated in the public service project andencourage others to consider getting involved as well.We are looking forward to extending the geographicalreach of the Project in the coming years. You are all sowell poised to be humane educators. Your backgroundas lawyers committed to the humane treatment ofanimals provides an excellent model for children onhow they too can better the lives of one of our world’smost underserved populations. I hope more of ouryouth can benefit from your instruction. Currently, only13 states have statutes mandating or authorizinghumane education in schools and the development ofhumane education legislation is an ongoing process. AsABA members with experience teaching a coordinatedcurriculum in this area, witnessing the positive resultsfor the participating schools, you will be in thevanguard of lawyers capable of effecting furtherlegislative change toward a more humane society.

In closing, I want to acknowledge that this HumaneEducation Project would not have been possiblewithout the late Sonia Schroeder, who was the ABA-TIPS’ Committees Administrator. She inspired this


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Project, facilitated our collaboration with the Law inPublic Service Committee, and was an ardent supporterof the effort at every stage. Sonia will be missed bymany of us. She was a big animal lover and the ABAhas asked those who wish to donate to a charity inSonia’s name to consider the South Suburban HumaneSociety (http://www.sshspets.org/donate.asp) where

she recently adopted her two dogs. Thank you for beingsuch a great friend to our Committee, Sonia.

Meena Alagappan is Chair of the ABA-TIPS Animal LawCommi t t ee and i s Execu t i ve Di r ec to r o f HEART(www.teachhumane.org), a 501(c) (3) humane education organiza-t i on based in New York . She can be reached a [email protected].

2009-2010 TIPS CALENDARJuly/AugustJuly 30-August 4

ABA Annual Meeting Marriott HotelContact: Felisha A. Stewart – 312/988-5672 Chicago, ILSpeaker Contact: Donald Quarles - 312/988-5708

October6-11 TIPS Section Fall Meeting Hotel Del Coronado

Contact: Felisha A. Stewart – 312/988-5672 San Diego, CA

22-23 Aviation and Space Law Litigation Ritz Carlton HotelContact: Donald Quarles – 312/988-5708 Washington, DC

28-30 FSLC Fall Program Four Seasons HotelContact: Donald Quarles – 312/988-5708 Philadelphia, PA

November5-6 Premises Liability Loews Don Cesar Beach & Resort

National Program St. Pete Beach, FLContact: Debra Dotson – 312/988-5597

2010January14-17 Annual TIPS Midwinter Symposium on Hyatt Regency Coconut

Insurance, Employment and Benefits Point Resort and SpaContact: Debra D. Dotson – 312/988-5597 Bonita Springs, FL

CommitteeNews - Donutsdocshare01.docshare.tips/files/23297/232970838.pdfAnimal Law Committee Newsletter Summer 2009 2 Chair Meena Alagappan 517 N 7th St New Hyde Park, NY 11040-3028

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