IN THE COURT OF APPEALS OF THE
STATE OF OREGON
JUSTICE, an American Quarter )
Horse, by and through his )
Guardian, Kim Mosiman, ) Washington County Circuit Court
) Case No. 18CV17601
Plaintiff-Appellant )
) CA No. A169933
v. )
)
GWENDOLYN VERCHER, )
)
Defendant-Respondent )
AMICI CURIAE BRIEF OF THE OREGON FARM BUREAU
FEDERATION, OREGON CATTLEMEN’S ASSOCIATION AND
OREGON DAIRY FARMERS ASSOCIATION
Appeal from the Order of the
Circuit Court for Washington County
December 26, 2018
The Honorable John S. Knowles
Pro Tem Circuit Court Judge
(Identification of Counsel on Following Page)
NOVEMBER 2019
November 7, 2019 01:27 PM
Samantha J. Bayer
Oregon Bar No. 185220
Mary Anne Cooper
Oregon Bar No. 104586
Oregon Farm Bureau Federation
1320 Capitol St. NE Ste 200
Salem, Oregon 97301
Main No.: 503-399-1701
Facsimile: 813-229-8712
Email: [email protected]
Email: [email protected]
Counsel for Amici Curiae Oregon Farm
Bureau Federation
T. Beau Ellis
Oregon Bar No. 093437
Vial Fotheringham LLP
17355 SW Boones Ferry Rd. Ste. A
Lake Oswego, OR 97035
Main No.: 503-684-4111
Direct No.: 503-594-8116
Facsimile: 503-598-7758
Email: [email protected]
Counsel for Amici Curiae Oregon Cattlemen’s
Association and Oregon Dairy Farmers Association
i
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION ..................................................................................................... 1
DESCRIPTION OF AMICI CURIAE ....................................................................... 3
ARGUMENT ............................................................................................................. 4
I. THE TRIAL COURT DID NOT ERR IN DISMISSING THE
COMPLAINT BECAUSE ANIMALS DO NOT HAVE LEGAL
STANDING TO BRING A CIVIL ACTION. ............................................. 5
A. Oregon’s statutory animal welfare scheme does not elevate
animals to “persons” authorized to bring a civil action. ....................... 6
B. Abused animals do not need to seek economic damages on behalf
of themselves because the animal welfare statutes expressly
provide for restitution to those who care for abused or neglected
animals. ................................................................................................11
C. Under Oregon law, animals are personal property
notwithstanding protections under the animal welfare statutes. .........13
D. Under the Oregon Constitution’s social compact theory, the
Court cannot grant legal standing to animals because animals
cannot accept legal responsibility for societal obligations and
duties....................................................................................................17
II. UNDER OREGON LAW, A HORSE CANNOT BEAR THE
EXPENSE OF ITS CARE BECAUSE ANIMALS DO NOT BEAR
FINANCIAL RESPONSIBLITY. ..............................................................20
III. GRANTING ANIMALS LIMITED PERSONHOOD WILL OPEN
THE FLOODGATES OF LITIGATION AND UPEND THE
FABRIC OF SOCIETY. .............................................................................21
CONCLUSION ........................................................................................................24
ii
CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE
SIZE REQUIREMENTS .........................................................................................25
CERTIFICATE OF FILING AND SERVICE ........................................................26
iii
TABLE OF AUTHORITIES
Cases
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 US 388
(1971) ...................................................................................................................22
Bowden v. Davis, 205 Or 421, 289 P2d 1100 (1955) ..............................................15
Cetacean Community v. Bush, 386 F3d 1169 (9th Cir 2004) ..............................9, 10
Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium,
836 F Supp 45 (D Mass 1993) .............................................................................10
Hawkins v. Toombs, 194 Or 478, 242 P2d 194 (1952) ............................................22
Kellas v. Dep’t of Corr., 341 Or 471, 145 P3d 139 (2006) ....................................... 5
Lewis v. Burger King, 344 Fed Appx 470 (10th Cir 2009, cert. denied 558 US 1125,
130 S Ct 1083, 175 LEd2d 907 (2010) .................................................................. 9
Local No. 290 v. Dept. of Environ. Quality, 323 Or 559, 919 P2d 1168 (1996) ....... 5
Matter of Nonhuman Rights Project Inc. v. Stanley, 16 NYS3d 898, 49 Misc 3d 746
(Sup Ct 2015) .......................................................................................................19
McGarrah v. State Acci. Ins. Fund Corp., 296 Or 145, 675 P2d 159 (1983) .........22
Moore v. Ganim, 233 Conn 557, 660 A2d 742 (1995) ............................................18
Neb. Press Ass'n v. Stuart, 427 US 539 (1976) .......................................................22
Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., 192 Conn App
36, 2019 WL 3886852 (August 20, 2019) .................................................... 18, 19
iv
People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 998 NYS2d 248, 124 AD3d
148 (2014) ................................................................................................. 9, 18, 19
State v. Crow, 249 Or App 88, (2018) ....................................................................... 7
State v. Fessenden, 355 Or 759, 333 P3d 278 (2014) ............................. 7, 13, 14, 16
State v. Hershey, 286 Or App 824, 401 P3d 256 (2017) ........................................... 7
State v. Lewallen, 262 Or App 51, 324 P3d 530 (2014) ..........................................22
State v. Newcomb, 359 Or 756, 375 P3d 434 (2016) ................................................. 7
State v. Nix, 355 Or 777, 334 P3d 437 (2014), vac’d on procedural grounds, 356 Or
768, 345 P3d 416 (2015) ......................................................................... 7, 8, 9, 13
Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. Sea World Parks
& Entertainment, Inc., 842 FSupp2d 1259 (SD Cal 2012) ................................... 9
Westberry v. Blackwell, 282 Or 129 (1978) .............................................................21
Statutes
ORS 161.067 .............................................................................................................. 7
ORS 167.305 ............................................................................................................14
ORS 167.305 to ORS 167.390 ................................................................................... 6
ORS 167.310 ..................................................................................................... 13, 14
ORS 167.312 ............................................................................................... 13, 14, 15
ORS 167.330 ............................................................................................................14
ORS 167.348 ............................................................................................................14
v
ORS 167.350 .................................................................................................... passim
ORS 31.360 ..............................................................................................................21
ORS 599.620 ............................................................................................................14
ORS 603.010 to 603.995 ..........................................................................................14
ORS 607.345 ............................................................................................................13
ORS 608.015 ............................................................................................................13
ORS 609.125 ............................................................................................................13
Other Authorities
Animal Legal Defense Fund, Focus Areas: Farmed Animals,
https://aldf.org/focus_area/farmed-animals/ ........................................................23
J. Locke, ‘Two Treatises of Government,’ book II (Hafner Library of Classics Ed.
1961) ....................................................................................................................18
Richard L. Cupp Jr., A Dubious Grail: Seeking Tort Law Expansion and Limited
Personhood as Stepping Stones Toward Abolishing Animals' Property Status, 60
SMU L. Rev. 3 (2007) .........................................................................................18
Constitutional Provisions
Conn Const Art I, § 1 ...............................................................................................19
Or Const Art I, § 1 ...................................................................................................17
1
INTRODUCTION
The Oregon Farm Bureau Federation, Oregon Cattlemen’s Association, and
the Oregon Dairy Farmers Association (collectively “Amici”) appear as amici
curiae in this case because the correct interpretation of Oregon’s animal welfare
scheme is of the upmost importance to the Amici organizations. Granting animals
legal personhood would have a detrimental impact to the agricultural community
and other industries that rely on working animals.
Amici strongly oppose the abuse or neglect of animals. The facts of this case
are abhorrent, and Amici do not condone the actions of Respondent. Amici and
their members are practitioners of the highest standards of animal welfare and
good animal husbandry practices, and believe that anyone abusing or neglecting
animals should be, consistent with the law, held criminally liable for abuse and
neglect. To this end, Amici participated in the crafting of Oregon’s animal welfare
statutes to make it easier to prosecute those who abuse and neglect animals, while
still protecting the rights of those who effectively care for and rely on livestock for
their livelihood. Amici offers this brief in order to help the Court ensure that
Oregon law is interpreted correctly, as a misinterpretation could drastically impact
the survival of Oregon’s farms, ranches, and dairies.
Oregon has one of the most progressive statutory animal welfare schemes in
the country; however, the Oregon Legislature has never granted animals legal
2
personhood or standing to sue in court. Instead, the Oregon Legislature has
continually stated that animals are personal property under the law, not legal
persons. The distinction between personhood and property is a foundational
principle in our society. This principle is core to the existence of the livestock
industry, permits humans to command working and service animals, and is central
to state management of fish and wildlife populations. This principle also
underscores the responsibilities humans bear to enact reasonable animal welfare
statutes, wildlife conservation laws, and is what ultimately leads to humans’ role as
the protector of animals, as we have been for the past several millennia.
Oregon’s animal welfare laws create a comprehensive scheme to deter and
punish the abuse or neglect of animals. However, the Legislature has never
extended to animals rights of personhood or standing. Moreover, the Legislature is
unable to grant animals legal personhood as animals plainly lack the ability to
accept legal responsibility and duty, which is a foundational principle under the
Oregon Constitution’s social compact theory.
Despite its recognized status as a sentient being, a horse – or any other
animal – does not have legal standing to sue its owner in a court of law. A horse is
the personal property of its owner, inherently without the legal status and
qualifications necessary to assert legal rights and duties. What should be evident to
this Court is that granting a horse even limited standing to sue is not for the
3
purpose of ensuring the well-being of the horse, but rather is an effort to
circumvent the Legislature and to seek full legal personhood for animals. This
Court should not take such a leap, because at minimum, this would cause chaos
within the livestock industry, jeopardize the status of service animals for disability,
police, and military work, and inject uncertainty into our state’s wildlife
management. The trial court correctly held that a horse does not have legal
standing to sue, and this Court should affirm that decision.
DESCRIPTION OF AMICI CURIAE
The Oregon Farm Bureau Federation (“OFBF”) is Oregon’s largest
grassroots agriculture association, representing nearly 7,000 farming and ranching
families across the state. OFBF’s mission is to promote educational improvement,
economic opportunity, and social advancement for its members and the farming,
ranching, and natural resources industry as a whole.
The Oregon Cattlemen’s Association (“OCA”) advocates the interest of over
13,000 cattle producers in the state. OCA fulfills its mission by promoting
environmentally and socially sound industry practices; seeking to improve the
economic outlook of the industry; representing OCA member interests to the
public, before state and federal agencies, and the Oregon legislature; and working
to protect industry communities and private property rights.
4
The Oregon Dairy Farmers Association (“ODFA”) represents Oregon’s 212
multi-generation dairy farming families. ODFA works to create an atmosphere
conducive for Oregon’s dairy producers by proactively addressing industry issues
and concerns, working with regulatory agencies, and supporting the youth of the
dairy industry.
Amici’s members rely on animals for their livelihood, both in the livestock
industry and the working animals that help manage livestock. Amici and their
members have been deeply engaged in crafting legislation related to animal
husbandry, veterinary medicine, and the animal welfare statutes in question. The
outcome of this case will unquestionably impact Amici’s members, many of whom
rely on livestock and working animals as part of their farming and ranching
operations.
ARGUMENT
A horse does not have legal standing to bring a civil action. Animals do not
have the legal status and qualifications necessary to assert legal rights and duties to
function as members of society, and enjoy no right to seek redress in a court of
law. While the Oregon Legislature has determined that those who abuse and
neglect animals should be prosecuted for their actions, those criminal
consequences do not confer upon animals the ability to seek civil redress, nor do
5
those protections grant humans the ability to assert those rights on behalf of
animals, in a representative capacity or otherwise.
The Oregon Legislature has conclusively determined that animals are
personal property under the law. The Legislature has never conferred legal
standing on animals or declared animals to enjoy legal personhood. Moreover, the
Legislature is not able to grant animals legal personhood as animals plainly do not
have the ability to accept legal responsibility and duty, which is a foundational
principle under the Oregon Constitution.
I. THE TRIAL COURT DID NOT ERR IN DISMISSING THE
COMPLAINT BECAUSE ANIMALS DO NOT HAVE LEGAL
STANDING TO BRING A CIVIL ACTION.
“Standing” is a legal term that identifies “whether a party to a legal
proceeding possesses a status or qualification necessary for the assertion,
enforcement, or adjudication of legal rights or duties.” Kellas v. Dep’t of Corr.,
341 Or 471, 476-77, 145 P3d 139, 142 (2006). To determine standing, the court
looks to the statute in question “because standing is not a matter of common law
but is, instead, conferred by the legislature.’” Id. at 477 (quoting Local No. 290 v.
Dept. of Environ. Quality, 323 Or 559, 566, 919 P2d 1168 (1996)).
In this case, attorneys purporting to represent a horse have brought a claim
under the common law theory of negligence per se. Appellant-counsel admit there
is no express statutory authorization for this claim. Appellant’s Opening Brief at
6
12. Instead, the negligence claim is premised on the concept that horses are within
the class of “persons” protected by Oregon animal welfare laws, and that Oregon’s
animal welfare scheme provide some implied authorization for this claim.
Appellant’s Opening Brief at 11-12. The claim must fail. The Oregon Legislature
has not granted animals legal personhood or standing to sue in a court of law. The
court should not endeavor to grant standing here.
A. Oregon’s statutory animal welfare scheme does not elevate animals to
“persons” authorized to bring a civil action.
Despite authorizing criminal charges against persons who abuse or neglect
animals, the Oregon Legislature has not elevated animals to the status of legal
persons with procedural standing to sue in their own name. As an initial matter,
Oregon’s animal welfare laws do not express any authorization for an animal to
bring a civil action. See ORS 167.305 to ORS 167.390. Appellant-counsel do not
point to any provision of Oregon’s animal welfare statutes – or any Oregon statutes
– that authorize legal standing for animals to sue. No such Oregon statute exists.
Put plainly, Oregon law does not permit animals to bring a private right of action.
Instead, Oregon law treats animals as personal property and vests any claims for
damages to animals in their owners.
Appellant-counsel concludes that if the owner of an animal is convicted of
animal abuse under criminal law, that the “victim” animal then has rights under
7
civil law without any legitimate, reasonable, or supportable inference from either
statute or case law in Oregon, or elsewhere. There is no legal authority in Oregon
even inferring that animals have standing to sue in their own name under statutes
that criminalize the abuse of animals.
To overcome the lack of express authorization under Oregon law, Appellant-
counsel relies heavily on the Oregon Supreme Court’s determination in State v.
Nix, 355 Or 777, 779, 334 P3d 437, 438 (2014), vac’d on procedural grounds, 356
Or 768, 345 P3d 416 (2015),1 that animals are considered “victims” for purposes of
the “anti-merger”2 statute as a means to posit a form of implied authorization for
their claims. Nix concluded that each animal abused in a case is a separate
“victim” for purposes of Oregon’s anti-merger statute. Id. at 798. In reaching this
conclusion, the Court determined that it was only logical that the “victim” of
animal neglect, for purposes of merger, is the animal and not the owner of the
animal, who is often the person who caused the abuse or neglect. Id. at 797.3 The
1 While vacated, the underlying reasoning of Nix has been adhered to by this Court
in recent decisions. See State v. Crow, 249 Or App 88, 91-96 (2018). 2 The anti-merger statute provides that when the same conduct violates only one
statute, but involves more than one “victim,” there are as many separate offenses as
there are victims. See ORS 161.067. 3 Subsequent Courts have also acknowledged the ability of officers to take
warrantless actions to protect abused or neglected animals in emergency
circumstances. See, e.g. State v. Fessenden, 355 Or 759, 774, 333 P3d 278, 287
(2014); State v. Hershey, 286 Or App 824, 832, 401 P3d 256, 261 (2017); State v.
Newcomb, 359 Or 756, 767, 375 P3d 434, 441 (2016) (citing Fessenden and noting
8
Nix court specifically noted that it was only speaking to the anti-merger statute, as
other criminal statutes, including the right of a victim to appear in court, to obtain
restitution, and to be heard at sentencing “would be difficult to apply were
‘victims’ to include non-human animals.” Id. at 787. The Nix analysis indicates a
clear intention to limit application of its decision to Oregon’s anti-merger statute.
Notwithstanding the clearly demarcated boundaries within the Nix decision,
Appellant-counsel relies on Nix to argue that animals have an implied right to bring
civil actions, including the negligence per se claim at issue in this case.
Appellant’s Opening Brief at 11. However, in reaching this conclusion, counsel
stretches Nix well beyond its breaking point. Nothing in the legislative history of
Oregon’s animal welfare statutes or Nix supports the consequential leap
Appellant-counsel asks this Court to make from identifying each animal subjected
to abuse as a separate criminal act to granting animals the full panoply of rights
and legal standing to sue in civil court, generally associated with legal personhood.
The Nix decision cannot be read to support Appellant-counsel’s argument.
First, in concluding that animals are victims for the purposes of Oregon’s anti-
that “the protection given to animals under Oregon law does not place them on a
par with humans.”) In each of these cases, the focus of the Court was on the
prevention and prosecution of the crime of animal neglect or abuse, and the Courts
never found animals to be legal persons for purposes of the warrant analysis. In
fact, no Oregon case has ever stated an intent to allow animals an individual cause
of action for their former owner’s criminal abuse or neglect.
9
merger statute, the Oregon Supreme Court emphasized that its decision was not
one of policy about how animals should be treated under the law, as that was left to
the Legislature. Nix, 355 Or at 777. Instead, the Nix court succinctly held that
animals are victims such that the abuse of each individual animal can be counted as
a separate “offense” under the animal welfare statutes. Id. at 797. Second, as
discussed in Nix, the focus of the Oregon Legislature has been on the development
of a comprehensive criminal scheme to deter abusers and protect animals from
abuse and neglect. Id. at 777. There has never been an intention to grant animals
legal rights to sue in civil court or to do anything more than to deter and punish
those who abuse or neglect animals.
“Not surprisingly, animals have never been considered persons [ … ], nor
have they been explicitly considered as persons or entities capable of asserting
rights for the purpose of state or federal law[.]” People ex rel. Nonhuman Rights
Project, Inc. v. Lavery, 998 NYS2d 248, 249–50, 124 AD3d 148, 150 (2014)
(citing Lewis v. Burger King, 344 Fed Appx 470, 472 (10th Cir 2009), cert. denied
558 US 1125, 130 S Ct 1083, 175 LEd2d 907 (2010); Cetacean Community v.
Bush, 386 F3d 1169, 1178 (9th Cir 2004); Tilikum ex rel. People for the Ethical
Treatment of Animals, Inc. v. Sea World Parks & Entertainment, Inc., 842
FSupp2d 1259, 1263 (SD Cal 2012); Citizens to End Animal Suffering &
Exploitation, Inc. v. New England Aquarium, 836 F Supp 45, 49-50 (D Mass
10
1993)). While not binding precedent on this Court, these cases are helpful and
instructive – and in each case – the general theory advanced by Appellant-counsel
here was rejected.
The Ninth Circuit Court of Appeals has taken up this very issue and held
against granting animals standing. In Cetacean Community, the court was tasked
with determining whether the Cetacean Community (name chosen by the
Cetaceans’ self-appointed attorney purporting to represent all of the world’s
whales, porpoises, and dolphins) had standing to bring suit in their own name
under the Endangered Species Act, the Marine Mammal Protection Act, the
National Environmental Protection Act, and the Administrative Procedure Act. See
Cetacean Cmty., 386 F3d at 1171. The Ninth Circuit held that the Cetacean
Community did not have standing to bring a private cause of action. Id. In reaching
this conclusion, the court noted that in some instances, criminal statutes punish
those who violate statutory duties that protect animals, and in other instances,
humans are granted standing to bring civil suits to enforce statutory duties that
protect these animals. Id. at 1175. Notably, the court stated that, “[i]t is obvious
that an animal cannot function as a plaintiff in the same manner as a judicially
competent human being[.]” Id. at 1176. The court examined whether Congress
granted standing to the Cetaceans under the Endangered Species Act, the Marine
Mammal Protection Act, the National Environmental Protection Act, and
11
the Administrative Procedure Act. Ultimately, the Ninth Circuit determined that
under each statute, Congress had not authorized animals to sue.
An obvious and fair reading of the Oregon animal welfare statutes reveals
both from the scheme of the statute, as well as from the statute's explicit definitions
of its terms, that animals are the protected rather than the protectors. These statutes
cannot be reasonably read to even so much as suggest that an animal may bring a
civil action against its owner – regardless of whether the animal suffered abuse at
the hand of that owner.
B. Abused animals do not need to seek economic damages on behalf of
themselves because the animal welfare statutes expressly provide for
restitution to those who care for abused or neglected animals.
Instead of seeking legal personhood for animals, individuals who choose to
rescue neglected or abused animals should seek restitution under the existing
provisions in Oregon’s animal welfare statutes for cost recovery.
In Oregon, the Legislature has created a pathway for restitution to those who
provide care to neglected or abused animals. See ORS 167.350. Specifically, a
court may require a defendant convicted under Oregon’s animal welfare statutes to
“[…] repay the reasonable costs incurred by a government agency, a humane
investigation agency or its agent or a person prior to judgment in caring for each
animal associated with the criminal proceeding.” ORS 167.350(1). Moreover, a
court “may order the owner or person having custody of an animal to repay any
12
reasonable costs incurred by a government agency, a humane investigation agency
or its agent or a person in providing minimum care to the animal that are not
included in a repayment order under subsection (1) of this section.” ORS
167.350(3).
Despite being “victims” for purposes of the state prosecuting their owners,
animals were clearly not intended to themselves receive restitution under Oregon
law, as they are not identified as a potential recipient of a restitution award under
ORS 167.350. The Legislature expressly listed “a government agency, a humane
investigation agency or its agent or a person” in its list of parties that may be
reimbursed or receive payment for the expense of caring for an abused or neglected
animal. As previously discussed, animals are not “persons” and cannot be
“persons” under Oregon law. As such, under the statutory construction maxim of
expressio unius est exclusio alterius, the Legislature clearly did not intend to
include animals as being able to seek repayment for expenses associated with care
of the animal.
Instead, Kim Mosiman or her organization, Sound Equine Options, should
personally have sought restitution for the cost of care in this case.4 Restitution
4 Kim Mosiman, through her organization, Sound Equine Options, has already been
awarded restitution under ORS 167.350, as part of the criminal judgment entered
against Respondent. Appellant’s Opening Brief at 7.
13
under ORS 167.350 is the sole vehicle the Legislature intended to provide for the
expenses associated with care of abused or neglected animals, and is sufficient to
address the expenses incurred by Kim Mosiman and her organization.
C. Under Oregon law, animals are personal property notwithstanding
protections under the animal welfare statutes.
The conclusion mandated by Oregon’s animal welfare laws and the Nix case
is consistent with long-standing Oregon jurisprudence recognizing animals as
personal property under the law. A horse is not a legal person capable of
vindicating its own legal rights, but instead is personal property under Oregon law.
Fessenden, 355 Or at 767 (“Oregon law still considers animals to be property.”).
Notwithstanding the progressiveness of Oregon’s animal welfare scheme,
the Oregon Legislature has continued to pass legislation describing animals as
property of either humans or the state, and separate and distinct from human
beings. See ORS 167.310(2) (describing domestic animals as “owned or possessed
by a person”); ORS 167.310(9) (describing minimum care that must be provided
by the owner of an animal); ORS 167.312 (providing for damages payable to the
owner of an animal for interference with research). The Oregon Legislature has
also continually treated horses specifically as property. See ORS 609.125
(describing horses as “livestock” maintained commercially by human beings);
ORS 607.345 (prohibiting sale of freshly branded horses); ORS 608.015
14
(describing civil liability for a human being who allows their horse to trespass on
another human being’s property); ORS 599.620 (allowing the State to regulate the
sale of horses at livestock auctions).
Further, the text and context of Oregon’s statutory animal welfare scheme
unmistakably does not treat animals as “persons.” See ORS 167.310(3) (“‘Animal’
means any nonhuman mammal, bird, reptile, amphibian or fish.”); ORS 167.310(4)
(“‘Domestic animal’ means an animal, other than livestock or equines, that is
owned or possessed by a person.”); ORS 167.312(5) (award of damages for
interference available to the owner of the animal used in research); ORS 167.330
(describing animals as in a “person’s” custody or control);) ORS 167.348
(describing the animal as being the property of an owner); ORS 167.350
(describing forfeiture of ownership of an abused animal and restitution for care of
animal prior to conviction judgment). Beyond the obvious ownership distinction,
Oregon law also permits people to treat animals differently from human beings.
“Although the Oregon legislature has found that ‘[a]nimals are sentient beings
capable of experiencing pain, stress and fear,’ ORS 167.305(1), Oregon law
nevertheless permits humans to treat animals in ways that humans may not treat
other humans.” Fessenden, 355 Or at 768 (citing ORS 603.010 to 603.995 (setting
out procedures for lawful animal slaughter); ORS 167.310(6) (defining “good
animal husbandry” as including “the dehorning of cattle, the docking of horses,
15
sheep or swine, and the castration or neutering of livestock, according to accepted
practices of veterinary medicine or animal husbandry”); ORS 167.312 (prohibiting
interference with animal research)).
Beyond the specifics of domestic animals, horses, or livestock, in a broader
context, the Oregon Supreme Court has even noted that the “ownership right of the
state in wild animals forms the basis of our fish and game laws.” Bowden v. Davis,
205 Or 421, 441, 289 P2d 1100, 1109 (1955) (discussing the constitutionality of a
statute permitting the taking by the state of unbranded and unlicensed horses
running at large). Bowden centered on the question of whether the horses at issue
were “wild horses” and, therefore, property of the state or domestic horses and,
therefore, personal property of the owner. Id. Although the Bowden court
ultimately held that the statute was unconstitutional because of interference with
rights to private property, without due process of law, the Bowden court made clear
in its decision that, “[l]ike all other wild animals, [wild horses] are recognized as
being the property of the state, and the state can dispose of them as it sees fit.” Id.
The foregoing authorities clearly demonstrate Oregon law is premised on the
foundational principle that animals, including horses, are personal property and not
legal persons. Moreover, Oregon law consistently allows for animals to be treated
differently under the law than human beings because of their property status. This
16
is an outcome which exists notwithstanding the Legislative recognition that a horse
is an intelligent animal capable of experiencing pain.
To be clear, Amici makes this argument not to minimize the importance
animals have in our lives. As the Fessenden court recognized, some animals
occupy a unique place in our hearts. Fessenden, 355 Or at 769. Amici do not
dispute that principle. In fact, one would be hard pressed to find a farmer or
rancher in the State of Oregon who does not have a beloved ranch dog, a trusted
horse assisting them in their daily operations, or a favorite cow in their herd.
Animal welfare and good animal husbandry practices are of the upmost importance
to any livestock operator – to do otherwise would run counter to common sense,
the law, and basic business principles; a ranch or farm is only as successful as the
health and wellbeing of its animals.
Animals are property under the law, and this principle must not be eroded. It
is an inescapable fact that humans are allowed to own, buy, sell, and even kill and
eat animals in our society. A decision to the contrary of this long-held principle
would upend society, and put every livestock producer, dairy owner, grocery store,
restaurant, chef, and even homeowner with a backyard chickencoop, out of
business or at risk of a lawsuit. It would jeopardize people’s ability to utilize
service animals, military, police, and other working dogs or horses, hawks to
manage invasive bird populations, and countless other working animals. The
17
outcome sought by Appellant-counsel would drastically change foundational
principles in our society and daily lives. As such, this Court should not depart from
the principle that animals are personal property without legal standing to bring a
civil action.
D. Under the Oregon Constitution’s social compact theory, the Court
cannot grant legal standing to animals because animals cannot accept
legal responsibility for societal obligations and duties.
Animals cannot be legally considered a person under Oregon law because
animals do not have the ability to accept legal responsibility and duty. The ability
to accept legal responsibility is inherent in the distinction between man and beast,
and is a foundational principle of the Oregon Constitution. The Oregon
Constitution provides:
We declare that all men, when they form a social compact are equal in
right: that all power is inherent in the people, and all free governments
are founded on their authority, and instituted for their peace, safety, and
happiness; and they have at all times a right to alter, reform, or abolish
the government in such manner as they may think proper.
Or Const Art I, § 1.
The concept of duty and responsibility being inherent to legal personhood is
far from “unfounded” as proffered by Appellant-counsel. Appellant’s Opening
Brief at 18. The concept of legal responsibility dates back to the very beginning of
our system of governance in the form of the “social compact theory.” Political
scientists often describe our governance as built upon a “social compact” between
18
natural persons and their government; in exchange for being assured rights and
protection, humans agree to sacrifice some freedoms and to take on responsibilities
to their community and government. Richard L. Cupp Jr., A Dubious Grail:
Seeking Tort Law Expansion and Limited Personhood as Stepping Stones Toward
Abolishing Animals' Property Status, 60 SMU L. Rev. 3, 28 (2007). “The social
compact theory posits that all individuals are born with certain natural rights and
that people, in freely consenting to be governed, enter a social compact with their
government by virtue of which they relinquish certain individual liberties in
exchange ‘for the mutual preservation of their lives, liberties, and estates.’ J.
Locke, ‘Two Treatises of Government,’ book II (Hafner Library of Classics Ed.
1961) ¶ 123, p. 184[.]” Nonhuman Rights Project, Inc. v. R.W. Commerford &
Sons, Inc., 192 Conn App 36, 45, 2019 WL 3886852 at *5 (August 20, 2019)
(citing Moore v. Ganim, 233 Conn 557, 598, 660 A2d 742 (1995)).
While the Oregon courts have yet to resolve this question, both Connecticut
and New York have rejected the concept of legal standing for animals because
animals cannot bear societal obligations. Commerford 192 Conn App at 45, 2019
WL 3886852 at *5 (deciding that elephants, or any nonhuman animal, is incapable
of bearing duties and social responsibilities required by such social compact)
(citing People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 998 NYS2d 248,
250, 124 AD3d 148, 151 (App Div 2014) (deciding that Chimpanzees cannot bear
19
any legal duties or submit to societal responsibilities); Matter of Nonhuman Rights
Project Inc. v. Stanley, 16 NYS3d 898, 914, 49 Misc 3d 746, 768 (Sup Ct 2015)
(relying on Lavery). The Commerford court found a constitutional bar to legal
actions brought on behalf of animals and relied on Connecticut’s own social
compact clause to do so. Connecticut’s social compact clause provides, “[a]ll men
when they form a social compact, are equal in rights; and no man or set of men are
entitled to exclusive public emoluments or privileges from the community.” Conn
Const Art I, § 1. The Commerford court reasoned the legal rights sought could not
be afforded to any nonhuman which is incapable of bearing duties and social
responsibilities implicit in the social compact clause of the Connecticut
Constitution. Specifically, the Commerford court noted:
There are profound implications for a court to conclude that an
elephant, or any nonhuman animal for that matter, is entitled to assert a
claim in a court of law. In the present case, we have little difficulty
concluding that the elephants — who are incapable of bearing legal
duties, submitting to societal responsibilities, or being held legally
accountable for failing to uphold those duties and responsibilities — do
not have standing to file a petition for a writ of habeas corpus because
they have no legally protected interest that possibly can be adversely
affected.
Id. at 48 (2019).
Given the similarity of the Connecticut and Oregon social compact clauses
in each respective constitution, the Court here should find a constitutional bar to
animals seeking judicial relief because animals are incapable of bearing legal
20
responsibility under the law. Animals are incapable of understanding the law and
following its principles and, therefore, do not possess the capacity to enter into our
social compact as provided under the Oregon Constitution. As such, the Oregon
Constitution bars a horse, and any nonhuman animal, of the right to pursue a civil
action in the Oregon courts.
II. UNDER OREGON LAW, A HORSE CANNOT BEAR THE EXPENSE
OF ITS CARE BECAUSE ANIMALS DO NOT BEAR FINANCIAL
RESPONSIBLITY.
Horses, like all animals, do not personally bear the expense of their care.
Instead, the owner of the horse is responsible for the expense of the care.
Appellant-counsel argues that forcing a victim of animal cruelty to bear the costs
of their injuries violates the primary purpose of the tort system. Appellant’s
Opening Brief at 21. However, Appellant-counsel’s argument is not compelling.
As outlined above, the Oregon Legislature has already created a statutory method
for persons to recover the expenses of caring for neglected and abused animals. See
ORS 167.350. Restitution was awarded to Kim Mosiman’s organization, Sound
Equine Options, as part of the criminal judgment entered against Respondent in the
criminal case. Appellant’s Opening Brief at 7.
Further, it is plain that animals are never held responsible for the costs of
their care or injuries, regardless of whether those injuries are caused by abuse or
neglect. Horses don’t take themselves to the vet, have private insurance, or pay
21
out-of-pocket for veterinary care expenses. There is no way to hold a horse
financially responsible for its care. A horse, like every other animal, has no title to
money, is without the capacity to understand money, and would never be held
financially responsible to another under the law. In fact, the converse is true; under
Oregon law, the owner of a dog is liable for the injuries caused by that dog.
Westberry v. Blackwell, 282 Or 129, 133 (1978); see also ORS 31.360 (identifying
required proof for economic damages caused by dog bite). To determine that
animals bear the cost of their injuries or the injuries they cause runs counter to law,
reason, and societal construct.
III. GRANTING ANIMALS LIMITED PERSONHOOD WILL OPEN THE
FLOODGATES OF LITIGATION AND UPEND THE FABRIC OF
SOCIETY.
This is not the first time animal rights activists have sought legal personhood
for animals, and it unlikely to be the last. Sensing this inevitable reality, the trial
court noted the floodgates of litigation would open if this case were permitted to
move forward. Opinion Letter at 1 (ER 15). Contrary to Appellant-counsel’s
argument, Appellant’s Opening Brief at 26, the “floodgates” concern is legally
relevant and entirely practical.
The United States Supreme Court has consistently considered the
“floodgates of litigation” concern when balancing the equities of a case. See Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 US 388, 410
22
(1971) (Justice Harlan describing strain on judicial resources as a substantial policy
concern in concurrence); Neb. Press Ass'n v. Stuart, 427 US 539, 608 (1976)
(Justice Brennan discussing “practical concerns” such as the “floodgates of
litigation” and “drain on judicial resources” as a basis for denial in concurrence).
The Oregon Supreme Court has measured this concern too. See Hawkins v.
Toombs, 194 Or 478, 488, 242 P2d 194, 199 (1952) (discussing how interpreting a
statement would open a floodgate of claims); McGarrah v. State Acci. Ins. Fund
Corp., 296 Or 145, 162, 675 P2d 159, 169 (1983) (discussing how interpreting a
worker’s compensation statute my open a floodgate of estate claims). Moreover,
this Court has even granted credence to a trial court’s fear about the floodgates of
litigation opening. See State v. Lewallen, 262 Or App 51, 57, 324 P3d 530, 534
(2014) (deciding that a trial court expressed appropriate concerns about finality,
including opening the “floodgates”).
Even so much as cracking open the door to Appellant-counsel’s view of the
world would have an irreversible effect on agriculture and other professions reliant
on animals nationwide. Given that these cases have continually been filed, despite
stare decisis clearly indicating they should not, it is not unrealistic to forecast a
torrent of lawsuits from human-backed interest groups, such as the Nonhuman
Rights Project or the Animal Legal Defense Fund, under the guise of animals
seeking justice (no pun intended), restitution, and attorney’s fees.
23
From a larger policy perspective, if animals were granted legal standing to
sue, there would undoubtedly be an overwhelming number of unsubstantiated
claims against the agricultural industry. As stated by the Animal Legal Defense
Fund’s own website:
There’s an estimated 9 billion land animals raised and killed for food
every year in the United States. […] The Animal Legal Defense Fund
is working to change this. Farmed animals are every bit as capable of
feeling pain, and pleasure, as the animals who live inside our homes
with us. We are fighting for stronger laws to protect farmed animals,
and better enforcement of those laws.5
If this court were to grant animals legal standing, Oregon would become
ground-zero for baseless and frivolous litigation against the owners of those
animals. As stated earlier, animals are personal property under the law, and this
principle cannot be eroded in even the slightest degree. To do otherwise would put
every farmer, livestock producer, dairy owner, and anyone tangentially involved in
agriculture out of business or at risk of a lawsuit. It would impact countless other
professions. It would drastically upend foundational principles in our society, and
negatively impact our economy. Simply put, this Court cannot endow animals with
legal personhood.
5 Animal Legal Defense Fund, Focus Areas: Farmed Animals,
https://aldf.org/focus_area/farmed-animals/
24
CONCLUSION
For the foregoing reasons, the Court should affirm the decision of the trial
court.
Dated this 7th day of November, 2019
OREGON FARM BUREAU FEDERATION
/s/ Samantha J. Bayer_
Samantha J. Bayer, OSB # 185220
Mary Anne Cooper, OSB # 104586
1320 Capitol St. NE Ste 200
Salem, Oregon 97301
T: 503-399-1701
F: 503-399-8082
Attorneys for Amici Curiae
Oregon Farm Bureau Federation
VIAL FOTHERINGHAM LLP
/s/ T. Beau Ellis________
T. Beau Ellis, OSB #093437
17355 SW Boones Ferry Road, Ste A
Lake Oswego, OR 97035
T: (503) 684- 4111
F: (503) 598-7758
Attorneys for Amici Curiae
Oregon Cattlemen’s Association &
Oregon Dairy Farmers Association
25
CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE
SIZE REQUIREMENTS
I HEREBY CERTIFY that this brief complies with the word-count
limitation in ORAP 5.05(2)(a), and that the word count of this brief is 5,566.
I HEREBY CERTIFY that the size of the type in this brief is not smaller
than 14 point for both the test of the brief and footnotes as required by ORAP
5.05(4)(f).
DATED this 7th day of November, 2019.
OREGON FARM BUREAU FEDERATION
/s/ Samantha J. Bayer_
Samantha J. Bayer, OSB # 185220
Mary Anne Cooper, OSB # 104586
1320 Capitol St. NE Ste 200
Salem, Oregon 97301
T: 503-399-1701
F: 503-399-8082
Attorneys for Amici Curiae
Oregon Farm Bureau Federation
VIAL FOTHERINGHAM LLP
/s/ T. Beau Ellis________
T. Beau Ellis, OSB #093437
17355 SW Boones Ferry Road, Ste A
Lake Oswego, OR 97035
T: (503) 684- 4111
F: (503) 598-7758
Attorneys for Amici Curiae
Oregon Cattlemen’s Association &
Oregon Dairy Farmers Association
26
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that on this day, I served the foregoing Amici Curiae
Brief of the Oregon Farm Bureau Federation, Oregon Cattlemen’s Association and
Oregon Dairy Farmers Association by first class mail and the court’s electronic
service on:
Margaret H. Leek Leiberan, OSB
#770468
JENSEN & LEIBERAN
10300 SW Greenberg Road, Suite 300
Portland, OR 97223
T: 503-641-7990
Attorney for Plaintiff-Appellant Justice,
an American Quarter Horse
Matthew Liebman (pro hac vice)
Christopher A. Berry (pro hac vice)
AMERICAN LEGAL DEFENSE
FUND
525 E. Cotati Avenue
Cotati, CA 94931
T: 707-795-2533
Attorneys for Plaintiff-Appellant
Justice, an American Quarter Horse
Matthew Hamity (pro hac vice)
LAW OFFICE OF MATTHEW
HAMITY
537 Kains Avenue
Albany, CA 94706
T: 847-721-9802
Attorney for Plaintiff-Appellant Justice,
an American Quarter Horse
Sarah Hanneken, OSB #165104
2906 NE 57th Avenue
Portland, OR 97213
T: 414-405-0538
Attorney for Plaintiff-Appellant
Justice, an American Quarter Horse
Georgie Duckler, OSB #873780
GEORGIE DUCKLER PC
9397 SW Locust Street
Tigard, OR 97223
T: 503-546-8052
Attorney for Defendant-Respondent
Gwendolyn Vercher
Lindsey Stallings, OSB #180224
Conway Law, PLLC
1014 Franklin St., Suite 306-B
Vancouver, WA 98660
T: 360-906-1007
Attorney for Amicus Curiae Animal
Law Processors
27
Julia Markley, OSB #000791
Sasha A. Petrova, OSB #154008
1120 NW Couch Street, 10th Floor
Portland, OR 97209
T: 503-727-2000
Attorneys for Amici Curiae Robin L. Foster,
Ph.D., CAAB; Antonia J. Z. Henderson, Ph.D.;
Tammy M. Donaldson, MC, Ph.D., CAAB; Nina
Ekholm Fry, MSSC; Katherine Houpt, VMD,
Ph.D., DACVB; Shawna Karrasch; Sharon
Madere, CHNC; and Andrew McLean, Ph.D.
I HEREBY CERTIFY that I filed this brief with the Appellate Court
Administrator on this date by e-filing to:
Appellate Court Records Section
Appellate Court Administrator
Supreme Court Building
1163 State Street
Salem, OR 97301-2563
DATED this 7th day of November, 2019.
OREGON FARM BUREAU FEDERATION
/s/ Samantha J. Bayer_
Samantha J. Bayer, OSB # 185220
Mary Anne Cooper, OSB # 104586
1320 Capitol St. NE Ste 200
Salem, Oregon 97301
T: 503-399-1701
F: 503-399-8082
Attorneys for Amici Curiae
Oregon Farm Bureau Federation
VIAL FOTHERINGHAM LLP
/s/ T. Beau Ellis________
T. Beau Ellis, OSB #093437
17355 SW Boones Ferry Road, Ste A
Lake Oswego, OR 97035
T: (503) 684- 4111
F: (503) 598-7758
Attorneys for Amici Curiae
Oregon Cattlemen’s Association &
Oregon Dairy Farmers Association