MORE THAN A PET PROJECT: Chicago attorney works for expansion of animal rightsAuthor(s): Paul MarcotteSource: ABA Journal, Vol. 75, No. 1 (JANUARY 1989), pp. 26, 35Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760290 .

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News

MORE THAN A PET PROJECT

Chicago attorney works for expansion of animal rights Yondi had a nice home in the

Chicago suburb of Rolling Meadows. But when city officials went to court saying the spotted white-nose guenon

monkey couldn't stay, her owners objected.

An Illinois appellate court? pointing out that Yondi is toilet trained, communicates through ges tures, is a "sociable animal and inter acts equally well with people and animals"?ruled that the monkey is a domesticated house pet and could stay.

For Chicago lawyer Kenneth D. Ross, that 1986 case on behalf of Yondi was just another day's work. Ross is one of a small number of law yers around the country who have begun to specialize in animal rights.

Although commercial litigation remains the bulk of his practice, Ross spends about 20 percent of his time on animal rights issues.

"I do not think in today's society that we can be so flippant or arrogant to say we can do what we want with another living creature," he said.

"There is no incentive for any industry which uses animals to treat them in a more humane and moral

manner instead of just another com modity to do with what we want."

Ross is secretary and a board member of the Animal Legal Defense Fund, a national group of about 300 lawyers which litigates and lobbies for legislation to improve the treat

ment of animals.

These lawyers have stopped face branding of cattle, represented hu mane society groups, prevented the hunting of animals on park lands, and sought new causes of action in veter inarian malpractice suits.

In some cases, the stakes can be high. Currently, ALDF is one of the plaintiffs in a suit challenging the U.S. Patent and Trademark Office's 1987 decision to issue patents for animals that have been altered by genetic en gineering.

Harvard researchers last April obtained the first animal patent to genetically alter mice to make them more susceptible to cancer-causing chemicals, aiding research.

Animal rights groups are seeking an injunction against the patent of fice, saying it exceeded its authority. They allege that animals will need lessly suffer and become increasingly deformed by such genetic experi ments.

The government is seeking to dismiss the suit on a number of grounds, including standing. The government's position illustrates a basic obstacle that animal rights ad vocates face.

Animal rights really is a misno mer. Animals have no legal standing. In the patent suit, lawyers are citing violations of the Patent Act and Ad ministrative Procedures Act as the basis for jurisdiction.

Humane society groups allege that the patent decision will directly affect a number of facilities they op erate, increasing their expenses to care for more deformed animals. Some small farmers' groups argue that they will be unable to compete with larger operations that use expensive, genet ically superior animals.

Anti-cruelty statutes and envi ronmental laws are two tools used to defend animal rights. But animal rights groups say more protection is needed.

Various lobbying efforts by dif fering animal rights groups are hav ing an effect. Amendments in 1985 to the federal Animal Welfare Act Continued on page 35

Kenneth Ross: "Animals are not toys to be used or kept on a shelf."

The ABA's Young Lawyers Division established the Animal Protection Committee in 1983 as a forum for attorneys to exchange ideas and seek greater protection for animals under the law.

It publishes the Animal Law Report twice a year updating recent animal-related cases, legislation and literature. It also includes editorials on animal issues. The report is sent to committee members, law libraries and other interested individuals.

I-?.-.-1

26 ABA JOURNAL / JANUARY 1989

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Continued from page 26 cover research procedures including the establishment of committees at research facilities to review their

laboratory practices. The growing influence of ani

mal rights groups has worried some researchers who fear that scientific research may be impeded. A com mittee of the National Academy of Sciences last September issued a re

port saying that animal research was a "critical part" of human health re search and that it has saved lives.

Another area of litigation is the treatment of claims by pet owners

against veterinarians and others who have killed their pets either negli gently or intentionally.

A pet industry group estimated that pet ownership was at an all-time

high in 1987, with 61 percent of American households, 52.5 million, owning animals. The sale of pets and related services is an estimated $1.6 billion industry.

While Americans may be preoc cupied by their pets, most courts still view them as merely personal prop erty with little extrinsic value ex

cept their commercial worth. But some courts are distinguish

ing pets from inanimate personal property. In these cases, animal rights lawyers have argued that it is unfair to treat pets as you would a chair or sofa. They say animals are

capable of giving and receiving af fection, and that studies have shown pets have a beneficial effect on the ill and lonely.

The Texas Court of Appeals first

recognized a pet owner's state of mind in 1963 when it upheld an award of $200 to compensate the

plaintiff for mental suffering after a

policeman shot his pet boxer. Ross said courts in Florida and

Hawaii have allowed recovery for a bond that exists between pet owner and pet. In 1978, a Florida court up held an award of $13,000 to dog own ers against a veterinary hospital. The damages included the plaintiffs' physical and mental suffering fol

lowing the hospital's mistreatment of their dog.

Similarly, a New York court rec

ognized pets as a special class of

property. While damages typically are a

few hundred dollars in these cases, "We're hopeful that the awards will

grow to five figures, somewhere be tween $10,000 and $50,000," Ross said.

But for the time being that may be wishful thinking. Last June, an Illinois appellate court rejected Ross' argument in a veterinarian malprac tice suit that the court should rec ognize damages for loss of compan ionship to a pet owner for a German shepherd which died after being ad ministered anesthesia.

The Illinois court concluded that as part of a property claim some lim

ited damages are recoverable for sentimental value, but that such damages while "not merely nomi nal, are severely circumscribed."

Yet Ross is confident courts will recognize greater rights for animals.

"Animals are not toys to be used or kept on a shelf," he said. "They are living creatures which feel cold, hunger, pain and joy, and are capa ble of giving love and affection to their owners, and seek the same in return." ?Paul Marcotte

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