In Justice v. Gwendolyn Vercher, Case No. 18CV17601 (Oregon Judicial Department, Washington County Circuit Court, Twentieth Judicial District, Sept. 17, 2018) the Court dismissed a complaint filed by the Animal Legal Defense Fund, for Justice, the Plaintiff, a quarter horse.  The Court held that an animal, including the equine Plaintiff, lacked the legal capacity to sue, pursuant to Oregon Rule of Civil Procedure (ORCP) §21(A)(4) and for failure to state facts sufficient to constitute a claim, pursuant to ORCP 21(A)(8).

The court finds that a non-human animal such as Justice lacks the legal status or qualifications

necessary for the assertion of legal rights and duties in a court of law . . . Justice is not the real party in interest. There are profound implications of a judicial finding that a horse, or any non-human animal for that matter, is a legal entity that has the legal right to assert a claim in a court of law. Such a finding would likely lead to a flood of lawsuits whereby non-human animals could assert claims we now reserve just for humans and human creations such as business and other entities. Furthermore, non-human animals are incapable of accepting legal responsibilities.

The Court observed that an appellate court or the state legislature might determine that public policy regarding this issue should permit such legal actions from animals, perhaps opening the door for further uncertainty through an appeal or legislative action.

The Court declined to award attorneys’ fees and costs to the defendant that was dragged into this seemingly frivolous lawsuit.

This is not the first time—or likely the last—activist nonprofit organizations have filed lawsuits on behalf of animals, in attempts to elevate their status to those of humans.  The Nonhuman Rights Project, Inc. (NHRP) filed a number of failed attempts to apportion personhood rights to certain animals, The Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 100 N.E.3d 846 (N.Y. 2018); The Nonhuman Rights Project, Inc. ex rel. Tommy v. Lavery, 54 N.Y.S.3d 392, 394 (N.Y. App. Div. 2017), leave to appeal denied sub nom. The Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 100 N.E.3d 846 (N.Y. 2018); The Nonhuman Rights Project, Inc. ex rel. Kiko v. Presti, 3 N.Y.S.3d 698 (N.Y. App. Div. 2015); The Nonhuman Rights Project, Inc., ex rel. Kiko v. Presti, 999 N.Y.S.2d 652 (App. Div. 2015); Article 70 of CPLR for a Writ of Habeas Corpus, The Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley, 16 N.Y.S.3d 898 (N.Y.  Sup. Ct. 2015); The Nonhuman Rights Project, Inc. v. Stanley, 2015 WL 1812988 (N.Y. Sup.); see also, Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004); Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018); Tilikum v Sea World Parks & Entertainment, 84 2 F.Supp.2d 1259 (S.D. Cal. 2012).

NHRP filed another petition, The Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., No. 17-5009822, slip op. (Conn. Super. Ct. Dec. 26, 2017), seeking personhood rights through a writ of habeas corpus for three elephants in Connecticut owned by R.W. Commerford & Sons, Inc. (the “Commerford Zoo”) on November 13, 2017.  Long before the scheduled status conference, which was to be held on February 27, 2018, the Court filed a Judgment of Dismissal and related Memorandum of Decision on December 26, 2017, finding that the petitioner lacked standing under the “next friend” theory.  Id.

The burden is on the next friend clearly to establish the propriety of his status and thereby justify the jurisdiction of the court . . . [and holding that] [b]ecause the petition has failed to allege that it possesses any relationship with the elephants, the petitioner lacks standing.

The Court also found the petition “wholly frivolous on its face in legal terms,” stating:

even if the petitioner here had standing, resolution in its favor would require this court to determine that the asserted liberty interests in its petition are assured by statute, constitution, or common law, i.e., that an elephant is a person for the purposes of this land’s laws that protect the livery and equality interests of its persons . . . [and] [b]ased on the law as it stands today, this court cannot so find.

Recently, the NHRP filed another writ of habeas corpus in Orleans County, New York, The Nonhuman Rights Project, Inc., on behalf of Happy v. Breheny, No. 18-45164 (N.Y. 2018) “demanding recognition of [an elephant named] Happy’s legal personhood and fundamental right to bodily liberty as well as her transfer to an elephant sanctuary.”  Happy has been housed at the Bronx Zoo since around 1977.  In the Memorandum of Law filed in support of its application, NHRP did not cite to the decision in R.W. Commerford & Sons, Inc.

Circuit Judge Smith’s concurring opinion in Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018) also discusses restrictions on “next friend” or “third party” standing, stating:

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’ . . . 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.’

More to come on these latest legal proceedings and other continued attempts to change the legal status of nonhuman animals.

 

As they had promised, the Nonhuman Rights Projects, Inc. (the “petitioner”) filed another petition seeking personhood rights through a writ of habeas corpus for 3 elephants in Connecticut owned by R.W. Commerford & Sons, Inc. (the “Commerford Zoo”) on November 13, 2017.

Long before the scheduled status conference, which was to be held on February 27, 2018, the Court filed a Judgment of Dismissal and related Memorandum of Decision on December 26, 2017.

Relying on expert testimony, by way of Affidavits, petitioner alleged that elephants, including the subjects of its petition “are autonomous beings who live extraordinarily complex emotional, social, and intellectual lives and who possess those complex cognitive abilities sufficient for common law personhood and the common law right to bodily liberty protected by the common law of habeas corpus, as a matter of common law liberty, equality, or both.”  Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., No. LLI-cv-17-5009822, slip op. (Conn. Super. Ct. Dec. 26, 2017).

The court described the issue at hand which it summarily dismissed:

The issue is whether the court should grant the petition for writ of habeas corpus because the elephants are ‘persons” entitled to liberty and equality for the purposes of habeas corpus.  The court denies the petition on the ground that the court lack subject matter jurisdiction [based on lack of standing] and the petition is wholly frivolous on its face in legal terms.”  Id.

On the issue of standing, under the “next friend” theory, the court opined”

The burden is on the next friend clearly to establish the propriety of his status and thereby justify the jurisdiction of the court . . . [holding] [b]ecause the petition has failed to allege that it possesses any relationship with the elephants, the petitioner lacks standing.”  Id. (emphasis in original).

On its website, the petitioner states :

we are studying the decision and will likely either seek to amend our habeas corpus petition to add a sentence stating that Minnie, Karen, and Beulah have no significant relationships with anyone able to to file a habeas corpus action against their captors or we will refile our lawsuit so that our petition includes this sentence.

Under the “frivolous” prong, the Court found:

even if the petitioner here had standing, resolution in its favor would require this court to determine that the asserted liberty interests in its petition are assured by statute, constitution, or common law, i.e., that an elephant is a person for the purposes of this land’s laws that protect the livery and equality interests of its persons . . . [and] [b]ased on the law as it stands today, this court cannot so find [that there is a possibility or probability that the Court would find that an elephant is a legal person entitled to those same liberties extended to humans].

The Court “points the petitioner to this state’ laws prohibiting cruelty to animals” but that is not petitioners’ goal-it is instead to “help build a national and global movement to win legal personhood and rights for nonhuman animals.”  See NHRP, Inc.

In civil litigation, when a court finds one party has filed a frivolous lawsuit against another, at least in federal court, the victimized party may request sanctions, in certain circumstances.  See, generally, Fed. R. Civ. P. 11.  Should petitioner, now that it has been on notice that at least this Court has determined that its petition is “frivolous” be required to pay for the cost of subsequent litigation or will citizens be required to fund such cases in the future?

You have probably heard of the decision by the First Judicial Department’s Appellate’s Division upholding the lower courts’ decision not to sign orders to show cause seeking the transfer of chimpanzees from one form of captivity to another, under the rejected narrative that writs of habeas corpus should be applied to the chimps because they are allegedly “persons.”

Citing to and relying on the amicus brief filed by Pepperdine Law Professor Richard Cupp, the Court held that animals are not legal persons because they are unable to fulfill legal duties, or to be held legally accountable for their actions.  The Court described and rejected petitioner’s repeated attempts to have courts grant “personhood status” to chimpanzees.

Petitioner has filed four identical petitions in four separate state courts in four different counties in New York. Each petition was accompanied by virtually the same affidavits, all attesting to the fact that chimpanzees are intelligent, and have the ability to be trained by humans to be obedient to rules, and to fulfill certain duties and responsibilities. Petitioner has failed to present any new information or new ground not previously considered. The “new” expert testimony presented by petitioner continues to support its basic position that chimpanzees exhibit many of the same social, cognitive and linguistic capabilities as humans and therefore should be afforded some of the same fundamental rights as humans.

Interestingly, the NonHuman Right’s Project (NhRP) describes the chimpanzees for whom they filed petitions―Tommy, Hercules, Leo, and Kiko―as “clients.” 

This is curious, since, according to New York State’s Rules of Professional Conduct  (yes there are ethical standards for attorneys) there are a number of provisions that call into question whether these chimpanzees should be considered “clients.”

For example, Rule 1.4 requires a lawyer to inform their client of “any decision or circumstance with respect to which the client’s informed consent . . . is required.”  Did or could the chimpanzee “clients” provide informed consent to NhRP to file the petitions?

Also, Rule 1.7 (Conflict of Interest: Current Clients) states in relevant part:

a lawyer shall not represent a client if a reasonable lawyer would conclude that . . . there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial business, property or other personal interests.

Does the NhRP’s interest in and requests for donations related to these petitions affect the lawyers’ professional judgment related to these petitions?

Rule 7.1 provides:

A lawyer or law firm shall not use or disseminate or participate in the use or dissemination of any advertisement that: contains statements or claims that are false, deceptive or misleading . . . [where] such an advertisement may include information as to . . . (2) names of clients regularly represented, provided that the client has given prior written consent . . .

The NhRP advertises the names of four chimpanzees as their “clients.”  There is no indication on the website that the chimpanzees― Tommy, Hercules, Leo, or Kiko―provided written consent for this purpose (nor would it have been possible for them to do so).

It is clear that NhRP believes passionately in its mission statement, to “work for the recognition and protection of fundamental rights for nonhuman animals,” but perhaps they should be more careful about their use of words, like “clients.”

Words matter.

The Conversation logo

Richard L. Cupp, Pepperdine University, writes for The Conversation:

My reaction to the killing of Harambe the gorilla at the Cincinnati zoo when a child went into the gorilla’s enclosure is probably typical: I am sickened and I am angry. This must not happen again.

One step that some advocates will surely press for in light of Harambe’s killing is to change our legal system to designate gorillas and other great apes such as chimpanzees as legal persons.

Expanding legal personhood to include intelligent nonhuman animals would give them legal rights, and would create standing for a human guardian to initiate legal actions on their behalf – much like children’s rights are protected in courts by guardians.

At first blush this may sound progressive and enlightened, but in reality the concept is fundamentally flawed and dangerous for society.

Turning to our legal system in responding to Harambe’s tragedy is the right approach, but our legal focus should be on ensuring effective human responsibility for the proper treatment of gorillas and other nonhuman animals rather than on pretending that gorillas are people.

Protections for animals

At surface, legal personhood for intelligent nonhuman animals has an edgy appeal and is often compared by its advocates to the noble battles to attain civil rights for marginalized humans.

Illustrating growing popular interest in the concept, a documentary about the legal battle for nonhuman animal personhood entitled Unlocking the Cage made its debut in January at the Sundance Film Festival. It is now opening in some theaters, and will be aired on HBO, BBC, and other television outlets later this year. The documentary highlights lawsuits filed in New York seeking to have intelligent chimpanzees treated as legal persons so that the chimpanzees would be removed from confined environments and placed in less restrictive, more natural environments.

These lawsuits do not seek to set the captive chimpanzees loose on the streets, but rather seek to have them moved to chimpanzee sanctuaries. Their arguments are based primarily on chimpanzees’ impressive cognitive abilities, asserting that as “self-aware, autonomous beings” they are “entitled to such basic legal rights as bodily liberty and integrity.” Significantly, the organization behind the lawsuits has indicated that it also plans to pursue legal personhood for other great apes (which include gorillas), as well as elephants and dolphins.

Would Harambe’s tragic killing have been avoided if our legal system considered a gorilla to be a legal person? Probably. A zoo likely would not be permitted to confine a legal person for viewing by the public. But although the nonhuman animal personhood approach has dramatic flair, it is not needed to change our laws regarding great apes and zoos.

Whether animals with the intelligence of great apes should be kept in any zoos, even high-quality zoos, is an increasingly serious question appropriate for thoughtful deliberation. And if the argument that they should not carries the day, this can be readily accomplished by changing the laws within our existing legal framework.

In other words, we do not need to pretend that great apes are people to protect them. Engaging in this pretension would be, in my view, both illogical and dangerous.

Society is rapidly evolving to demand greater protections for nonhuman animals, and appropriately so. Maintaining the status quo regarding levels of protection is in many instances neither feasible nor desirable.

But we are also increasingly facing a question with weighty societal implications. Will we channel this evolution through the animal welfare paradigm of enhanced human responsibility toward nonhuman animals? Or will we channel it through the radical paradigm of legal personhood and human-like rights for nonhuman animals?

In our society, legal personhood is anchored in the human community’s expectations of reciprocity from moral agents. We recognize that humans have rights, but we also generally expect them to accept responsibilities that come with belonging to or interacting with our society. Extending personhood beyond humans and their proxies would be inconsistent with our society’s core foundational principles.

When an adult chimpanzee at the Los Angeles zoo mauled a baby chimpanzee to death in front of zoo visitors in 2012, of course officials did not consider putting the chimpanzee on trial for murder. Although chimpanzees are highly intelligent as compared to most nonhuman animals, none of them are capable enough to be held morally responsible under our society’s laws. We should not dilute the protections and responsibilities connected to personhood by extending it to nonhumans incapable of the level of accountability we generally impose on humans.

Cognitive test?

Corporate personhood – the granting of legal standing and some legal rights to corporations – does not negate humanity’s centrality to personhood, because corporate personhood was created merely as a proxy for the rights and responsibilities of the humans who own the corporation. Regardless of whether corporate personhood is good or bad or whether it has been extended too far in recent Supreme Court cases, it is undeniably intended as a tool for representing human interests.

Further, analyzing courts’ and advocates’ rationales for assigning legal personhood and rights to humans who lack significant moral agency, such as young children and humans with significant cognitive impairments, demonstrates that their belonging in the human community, rather than an assessment of their cognitive abilities, is the anchor of their rights and legal personhood. I have published separate law review articles addressing in much more detail why the legal personhood of young children and the legal personhood of humans with significant cognitive impairments do not support legal personhood for intelligent nonhuman animals.

Humans are the only beings that we know of where the norm is capacity to shoulder the mutual obligations that are at a foundational level related to legal rights in our society. Among other beings of which we are aware, not only do no other types of animals meet this norm, no individual members of any other types of animals meet this norm.

The most vulnerable humans, those with significant cognitive limitations, would face the greatest risks in a shift to considering individual cognitive capacities as a basis for legal personhood. Although the legal personhood paradigm we assign to them would not immediately collapse, over time thinking of personhood in terms of individual abilities could erode their protections.

Nonhuman animal legal personhood presents other intractable problems, such as articulating a workable approach to determining how far down the intelligence chain personhood should extend.

Every species of mammals and many other nonhuman animals demonstrate some level of autonomy, indeed probably more autonomy than some humans with particularly severe cognitive limitations, such as, for example, humans in a persistent vegetative state. To ensure “equality,” should all of these animals be designated as legal persons?

More legal cases to come

Fortunately, New York’s courts have unanimously rejected nonhuman animal legal personhood thus far. By my count at least 23 New York judges have participated in ruling against the cases at various stages of the litigation. In the most prominent appellate opinion to date the court dismissed one of the lawsuits by focusing on chimpanzees’ incapacity to bear the societal responsibilities that are at a foundational level associated with rights.

But we are just at the beginning of what will be a long-term struggle. Many more lawsuits will likely be filed over the years in many jurisdictions. The ultimate outcome is far from clear, and the stakes are high.

Concluding that intelligent nonhuman animals such as Harambe should not be legal persons does not excuse us from doing more to protect them. Harambe’s outrageous death provides a powerful illustration. The facts surrounding his death must be extensively investigated to determine whether the zoo, the child’s parents, or any other humans or human proxies should be held legally accountable.

Regardless of whether the zoo’s employees made the right decision in shooting Harambe, wrong decisions must have been made earlier that allowed this tragedy to take place.

If no laws or regulations were violated, the laws and regulations almost certainly need to be changed to ensure that this does not happen again. But our focus needs to be on demanding appropriate responsibility from morally accountable humans and human institutions, rather than on the dangerous pretense of nonhuman animal personhood.


Richard L. Cupp, John W. Wade Professor of Law, Pepperdine University

This article was originally published on The Conversation. Read the original article.

The Conversation

Pepperdine Law School Professor Richard Cupp has posted on SSRN.com an article that is forthcoming in the Florida Law Review entitled Cognitively Impaired Humans, Intelligent Animals, and Legal Personhood.

The article may be downloaded for free at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2775288.

This Article analyzes whether courts should grant legal personhood to intelligent animal species, such as chimpanzees, with a particular focus on comparisons made to cognitively impaired humans who are recognized as legal persons even though they may have less practical autonomy than intelligent animals. Granting legal personhood would allow human representatives to initiate some legal actions with the animals as direct parties to the litigation, as is presently allowed for humans with cognitive impairments that leave them incapable of representing their own interests. For example, a human asserting to act on behalf of an intelligent animal might seek a writ of habeas corpus to demand release from a restrictive environment where less restrictive environments, such as relatively spacious sanctuaries, are available. Highly publicized litigation seeking legal personhood in a habeas corpus context for chimpanzees is underway in New York, and the lawsuits have garnered the support of some eminent legal scholars and philosophers. Regardless of its short-term success or failure, this litigation represents the beginning of a long struggle with broad and deep societal implications.

A previous article by the author was quoted and largely followed by a unanimous New York appellate court in Nonhuman Rights Project, Inc. v. Lavery, the most prominent and controversial appellate decision addressing (and rejecting) legal personhood for chimpanzees thus far. This Article builds on that previous article, which focused on justice arguments based on young children with limited practical autonomy being granted legal personhood status. The New York lawsuits and other significant developments have highlighted important additional issues and nuances since the previous article’s publication.

Further, in the previous article the author indicated that additional scholarship was needed addressing justice arguments based on legal personhood being recognized for humans with cognitive impairments not related to typical childhood development – such as humans with significant intellectual disabilities or comatose humans. This Article analyzes these comparisons based on cognitive impairments not related to childhood, as well as analyzing issues presented by the New York lawsuits. The Article concludes that, like comparisons with young children and intelligent animals, comparisons between intelligent animals and humans with cognitive impairments unrelated to childhood do not support restructuring our legal system to make animals persons.

Further, the rights of the most vulnerable humans, particularly humans with severe cognitive impairments, would be endangered over the long term if legal personhood were granted to some animals based on cognitive abilities. Courts should continue to reject animal legal personhood in the lawsuits that will likely continue to be filed in numerous jurisdictions for decades. However, legislatures and courts should embrace societal evolution calling for greater human responsibility regarding our treatment of animals.