Edgy Animal Welfare

16 Pages Posted: 24 Jul 2018

Richard L. Cupp

Pepperdine University School of Law

Date Written: July 18, 2018

Abstract

Legal animal welfare proponents should not reject out-of-hand reforms that may be celebrated by some as steps toward a radical version of animal rights. Rather, animal welfare proponents should consider the costs, risks, and benefits of all potential reforms. Some potential reforms’ risks and costs outweigh their benefits. But, both to improve animals’ welfare and to avoid irrelevance in an evolving society, legal animal welfare advocates should be willing to tolerate some costs and risks. Walking on the edge of slippery slopes is in some situations better than avoiding the slopes altogether. Connecticut’s 2016 animal advocacy statute provides an illustration of legal reform that legal animal welfare proponents should embrace even though it presents some risks of being perceived as a step toward a radical legal personhood rights paradigm.

Cupp, Richard L., Edgy Animal Welfare (July 18, 2018). Denver Law Review (Forthcoming); Pepperdine University Legal Studies Research Paper No. 2018/11. Available at SSRN: https://ssrn.com/abstract=3216112

NOTE:  Law review articles available for free download at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=543387

 

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?