In Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018)-the case in which Naruto, a crested macaque by and through his alleged “next friends,” People for the Ethical Treatment of Animals, sued a photographer and his publishers for copyright infringement-the Court, citing an earlier case, Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004) stated that at least part of the requirements for standing-the existence of a case or controversy-was not impossible simply because the plaintiffs were animals.
While in both cases, the Ninth Circuit held that the plaintiffs did not have standing under the relevant statutes-in-suit, the fact that animals may have standing has been disputed by some and seems inconsistent with this court’s reasoning.
In Cetacean Cmty. the Court stated “we see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents.” Cetacean Cmty., 386 F.3d at 1176.
But what the courts seem to overlook is that Article III is one of several articles to the Constitution of the United States which begins:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (Emphasis added).
I find Circuit Judge Smith’s concurring opinion in Naruto v. Slater, explaining the restrictions on “next friend” or “third party” standing, instructive.
The limitations on the ‘next friend’ doctrine are driven by the recognition that ‘it was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves as next friends.’
NOTE-isn’t this essentially what the Nonhuman rights project has done in its various, non-winning petitions for writs of habeas corpus.
And Judge Smith added:
Indeed, if there were no restrictions on ‘next friend’ standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of ‘next friend.’
Judge Smith disagreed with the majority finding that lack of next friend standing removes jurisdiction of the court, while the majority held that next-friend standing is nonjurisdictional.
Both Judge Smith and the majority agreed that “animals cannot be represented by a next friend.”
And Judge Smith explains that “[t]here is no textual support in either the habeas corpus statute or Rule 17 for animal next friends,” providing additional legal support for courts’ rejections of the Nonhuman Rights Projects’ petitions that claimed that animals were legal persons.
However, because of these holdings over standing via Article III’s case and controversy provision by the 9th Circuit we expect to see more cases brought under the guise of the next friend.
Of note, in Oregon, a lawsuit was filed by a horse (Justice) “by and through his Guardian, Kim Mosiman” against his former owner, who had already pleaded guilty to neglect of the horse. The suit includes a single claim for relief of negligence, allegedly based on Justice’s owner’s requirement to comply with Oregon’s anti-cruelty statute, which the owner had previously pleaded guilty to. Justice requests relief for economic damages of not less than $100,000, non-economic damages in an amount to be determined at trial, reasonable attorneys’ fees, costs and disbursements, and other relief the court deems proper.
We should expect similar lawsuits to be filed in many jurisdictions.