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June News

 

  Two other states consider legislation on "best interests" of pets during divorce proceedings. Early this year, Alaska became the first state to add an amendment to its domestic relations chapter that allows judges to assess the "well-being" of animals during property division in divorces. Now, two other states, Maryland and Rhode Island, have initiated legislation dealing with divorce and pets. Maryland's proposed amendment (H.B. 749) first defines pet as a "domesticated animal" that does not include livestock. It then allows the court to grant a decree stating one party is the sole owner of the pet, or grant a decree that gives either visitation rights to the other party, or "shared custody." Rhode Island's H5556 approaches the issue simply, adding a new section entitled, "Custody of Pets," which states, "[i]n awarding possession of a domestic animal in a divorce or separation proceeding, the court shall consider the best interest of the animal."

  Cambridge, MA close to adopting landmark pet sales ordinance. The City of Cambridge has amended Title 6 of its ordinances to include chapter 6.20, "Restrictions on the Sale of Animals in Pet Shops." (See pages 122-125 of the June 26th regular meeting pdf file Agenda packet). This ordinance, originally proposed in 2016, will prohibit the retail sale of pet animals unless those animals have been obtained from animal rescues or shelters (or meet other exceptions under the law). What is most unique is that the ordinance covers many families of species, including arachnids, birds, mammals, amphibians, or reptiles. The law requires pet shops to keep records that disclose the source of the animal as well as signs in the animal cages that detail this information for consumers. "Swap meet" or flea-market sales of animals have also been made illegal, with exceptions, under Section 6.20.030. An animal sold in violation of the law results in a fine of $300 with each animal considered a separate violation. The ordinance faces one final step on the July 10, 2017 City Council meeting. If approved, the ordinance goes into effect one year after passage.

  Indiana enacts law giving partial immunity to rescuers of pets from hot cars. The new law was does not criminalize the act of leaving a dog unattended in a motor vehicle under dangerous conditions. Instead, it makes a person liable for only one-half of the property damage done to a motor vehicle after forcible entry to remove an animal in distress. "Animal" under the law only means dogs, cats, or other vertebrates intended as household pets and does not include livestock. Several conditions must be met under the law, such as assuring the vehicle is locked, seeing that the animal appears to be in danger, calling 911 before entering the vehicle, and staying until first responders arrive. The new law does provide complete immunity to several categories of persons who forcibly enter a motor vehicle to rescue a distressed animal, such as law enforcement, firefighters, first responders, animal control, veterinarians, and veterinary assistants. For a table of all the states with laws relating to pets in hot cars, see our Table of Laws.

New archives

Cases

Cal. Supreme Court reverses grant of injunction to protect elephants from abuse brought under Cal. Penal Code - Leider v.  Lewis, --- P.3d ---- 2017 WL 2276526 (Cal. May 25, 2017). The Plaintiffs, Residents of Los Angeles, brought a taxpayer action against the Defendants, the City of Los Angeles and the Los Angeles Zoo, alleging elephant abuse in violation of various Penal Code provisions. The Superior Court, Los Angeles County, granted the Defendants summary judgment. The Residents appealed. At trial after remand, the trial court rejected many of the Resident’s claims, but issued limited injunctions prohibiting use of particular forms of discipline, requiring the elephants to have specific amounts of exercise time, and requiring the rototilling of soil in exhibit. Both parties appealed. The Court of Appeals affirmed. The Supreme Court of California granted review and reversed the Court of Appeals. The Supreme Court held that: (1) the prior Court of Appeals decision was not law of the case as to the argument that the Residents were precluded from obtaining injunctive relief for conduct that violated Penal Code; and (2) the Residents' challenge to the city's treatment of elephants improperly sought injunctive relief for Penal Code violations.

Genuine issue of fact existed whether dog warden assumed duty to protect citizen from vicious dog at large - Bowden v. Monroe County Commission, --- S.E.2d ---- 2017 WL 2224052 (W. Va. May 18, 2017). The Plaintiff, as administratrix of the estate of her late husband, filed a complaint after he was attacked and killed by American Pit Bull Terriers while taking a walk near his home. Plaintiff filed against the Defendants, Monroe County, the County Dog Warden Ms. Green, and other defendants, alleging, negligence in performing their statutory duties by allowing vicious dogs to remain at large, and wrongful death. The Supreme Court of Appeals of West Virginia reversed the Circuit Court and remanded. The Supreme Court held that genuine issues of material fact existed for determining whether a special relationship existed between the county and the victim such as whether: (1) the dog warden assumed an affirmative duty to act on the victim's behalf,  (2) the dog warden was aware that inaction could lead to harm,  (3) the dog warden had direct contact with the victim's wife regarding vicious nature of dogs; and (4) the victim's wife justifiably relied on assurances from dog warden.

U.S. District Court denies FOIA motion/injunction brought by animal advocacy group for removal of USDA animal welfare database - Animal Legal Defense Fund v. United States Department of Agriculture, 2017 WL 2352009 (N.D. Cal. May 31, 2017) (unpublished). USDA/APHIS grew concerned that its Privacy Act system was insufficient to protect parties listed on animal welfare database so it blocked public access to review the information. Plaintiffs/animal welfare organizations, asserted that by blocking access to the databases, the USDA breached its obligations under the Freedom of Information Act's (“FOIA”)'s reading-room provision and motioned for a mandatory preliminary injunction. The U.S. District Court denied the plaintiffs motion and held that the Plaintiffs are not likely to succeed on their FOIA claim because there is no public remedy for violations of the reading room provision and they have not exhausted administrative remedies. Additionally, plaintiffs cannot establish they are likely to suffer irreparable harm absent an injunction or that the balance of harms weighs in their favor in light of the on-going review and privacy interests asserted by the USDA.

Case Archives

Articles

Animal Rights Law Reporter, published by the Society for Animal Rights, Inc., edited by Professor Henry Mark Holzer, available issues from 1980 - 1983.

Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy, Myanna Dellinger, 41 Colum. J. Envtl. L. 395 (2016).

Stevens, R.A.V., and Animal Cruelty Speech: Why Congress's New Statute Remains Constitutionally Problematic, J. Alexandra Bruce, 51 Gonz. L. Rev. 481 (2015-2016).

Animals as More Than 'Mere Things,' but Still Property: A Call for Continuing Evolution of the Animal Welfare Paradigm, Richard L. Cupp, Jr., University of Cincinnati Law Review, Forthcoming; Pepperdine University Legal Studies Research Paper No. 19 (available at SSRN: http://ssrn.com/abstract=2788309).

Designing a Model Dog Park Law,  John J. Ensminger and Frances Breitkopf, Animal Legal & Historical Center (2016).

Take it to the Limit: The Illegal Regulation Prohibiting the Take of Any Threatened Species Under the Endangered Species Act, Jonathan Wood, 33 Pace Envtl. L. Rev. 23 (2015).