Guardianship:Toward a more enlightened view of human-animal relationships and the law

• “The entire universe and everything in it, animate and inanimate, is His. Let us not covet anything. Let us treat everything around us reverently, as custodians. We have no charter for dominion. All wealth is commonwealth. Let us enjoy but neither hoard nor kill. The humble frog has as much right to live as we.” – Ishopanishad, a sacred Hindu text

• “The civilization of a people is indicated by their treatment of animals.” – Henry Bergh

• “Even a dog distinguishes between being stumbled over and being kicked.”

– Oliver Wendell Holmes

Some opening thoughts:

First, some interesting statistics:

• More than 100 million dogs and cats live in American households

• As many as a third of all animal owner/guardians currently provide for their companion animals in their wills.

• At least 80 percent of companion-animal owner/guardians permit their four-legged friend(s) to share their bed!

• Battles in divorce proceedings over custody or visitation of a beloved pet are becoming as heated as those over

human children.

If animals have it so good,why do they need guardians?•“A zoo owner is being investigated over allegations he ate his own wild animals…”

•“Two people find puppy near Green Valley skinned alive…”

•“Swedes have more and more animal sex…”

•“Phoenix-bound air traveler accused in ferret death…”

•“Dogs being poisoned in Portland, Ore., parks…”

•“Mystery criminals killing and mutilating cats in Denver and Salt Lake City…”

•“Many lost pets actually stolen [and used in illegal dogfighting]…”

If animals have it so good,why do they need guardians (cont.)?

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So what would guardianshipdo that isn’t already being done?

• Revise the present “animals as property” scheme

• No longer just private owners and public custodians

• Any concerned person could become a guardian of an animal ward

Guardianship for animals isn’t so different from present legal regime

It would be much like the framework already in place for “guardian ad litem” or “next friend” type advocates appointed by judges to represent the legal interests of:

Children in guardianship/custody battles Mentally incompetent/insane persons Mentally retarded persons (and, at one time, even slaves)!

Short- and long-term guardianships

Ideally, animal guardianship would include the ability to volunteer or be chosen by a court to serve as a:

Temporary guardian and/or

Permanent guardian

Two-tier guardianship system:

(1) Primary guardians Owners Custodians Caretakers

(2) Secondary guardians Individual citizens Nonprofit orgs, activist groups, PACs, etc. Corporations Governments The public

Is declaring guardianship enough?Or is ‘standing’ also needed?

• Guardianship presumes that the guardian has standing to advocate on behalf of their (human) ward

• At one time, animals were deemed to have standing—literally!

Why can’t animals have standing?In addition to natural persons, the law at one time or another

has breathed juridical life into all of the following entities:

Government (nations, states, counties, municipalities, etc.) Churches Banks, trusts, foundations Businesses (corporations, partnerships, joint ventures, etc.) Slaves Ships and, yes, even cans of tomato paste*!

* U.S. v. 449 Cases, More or Less, Containing Tomato Paste, 111 F. Supp. 478 (E.D.N.Y. 1953).

Citizen suits: Guardianship in disguise?

• One way that already exists to challenge injuries to nonhuman animals is through the citizen suit.

• An example: Endangered Species Act (ESA)

National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (Delhi Sands Flower-Loving Fly’s contribution to biodiversity deemed to have a potentially “substantial economic effect on interstate commerce”)

TVA v. Hill, 437 U.S. 153 (1978) (Snail Darter saved from dam inundation by “immeasurable” possible future value to society)

But see e.g. Lujan v. National Wildlife Federation, 504 U.S. 555 (1992) (lack of imminent, concrete plans to revisit habitats of Asian elephant and leopard and Nile crocodile killed members’ standing)

Citizen suits: Like a million private attorneys general!

• The 3Ms (limitations on government action): M inutes M oney M otive

• Private citizens as “whistleblowers”

Pet trusts & guardianship

• 18 states have ratified the Uniform Trusts Act, which includes animal trusts

• Recognition of animal trusts supports the guardian paradigm

• Animal trusts could be used in other ways besides estate planning

Brief history of animals & the law

• Animals as property – Man’s first attempt to exercise control over animals primarily coincided with his becoming a meat-eater!

Animals as ‘unique’ property

• People generally treat their animals differently (usually better) than they do inanimate objects – animals should have greater legal standing than, say, a toaster

• Companion animals exempt from bankruptcy liquidation

Some arguments opposing guardianship (and responses)

“You are taking away our right to do whatever we please with our own property”

“How on God’s green earth are we supposed to know what animals want or need if they can’t communicate it to us?”

“What are you really accomplishing by simply changing a name?”

Examples of animal transactions beginning to use “adoption” language:

Conclusion: Guardianship

The time has come for the law to reflect humans’ growing understanding of animals as sentient beings and, in many cases, family members, who, at the very least, deserve:

RespectConsideration of their unique needsAnd, most of all, freedom from suffering.