by Michelle C. Pardo
We previously blogged about the Oregon negligence lawsuit that animal activist group Animal Legal Defense Fund (ALDF) brought on behalf of “Justice” — an American Quarter Horse — and his self-described “guardian” against the horse’s former owner. Back in 2017, Justice (formerly named “Shadow” and renamed ostensibly for this lawsuit) was removed from his prior owner’s care for neglect and relocated to a new caretaker. Months later, Justice’s former owner pleaded guilty to first degree animal neglect and was ordered to pay for the cost of Justice’s care prior to July, 2017.
In May of 2018, Kim Moisman, Justice’s new caretaker, filed a lawsuit that named “Justice, an American Quarter Horse” as plaintiff (with Moisman as Justice’s legal “guardian”). The single claim of negligence sought economic damages for Justice’s past and future care, noneconomic damages for Justice’s pain and suffering, and attorneys’ fees. The trial court granted a motion to dismiss the case, finding that a horse, which is not a person or legal entity, lacks legal capacity to sue in court. Justice and his caretaker appealed.
Two years after the appeal was argued and submitted, the Oregon Court of Appeals affirmed the trial court’s decision, finding:
“only human beings and legislatively created entities are persons with the capacity to sue under Oregon common law.”
Justice v. Vercher, 321 Or. App. 439, 441 (2022) (read opinion here).
The Court of Appeals first rejected the notion that Moisman was the horse’s “de facto guardian” and that the trial court could have appointed her to be the horse’s guardian ad litem to represent his interests in court. The Court of Appeals challenged plaintiff’s argument that a “party” to a lawsuit could be anyone other than a natural or artificial person. Id. at 445. “A procedural mechanism does not appear to exist under Oregon law for a person to sue on behalf of an animal.”
But the Court of Appeals didn’t stop there. In examining whether it would be appropriate to appoint a legal guardian for an animal, the court considered how it could discern what the interests of an animal are in a negligence action, or any action at law, and importantly, who gets to decide the animal’s own interests in pursuing a legal action. The Court went on:
“An animal such as a horse inherently lacks self-determination and the ability to express its wishes in a manner that the legal system would recognize. That incapacity exists in perpetuity such that it would be difficult to say that a court — or any human being — may actually discern the animal’s own interest in pursuing a legal action.”
Id. at 446. The unanswerable question remains: if Justice could make legal decisions and communicate the same, would he want ALDF to represent him in court? Or an agricultural or equine organization? Or prefer instead to focus on a life unencumbered by litigation? The Court pondered:
“Who is the appropriate agent to make an assumption on behalf of an animal, to create that legal fiction?”
In considering this dilemma, the Oregon Court of Appeals recognized the Ninth Circuit’s similar concerns in the highly-publicized “animal as plaintiff” case — Naruto v. Slater (the “selfie monkey” case) in which the Court denied PETA’s attempt to assert “next friend” status on behalf of the monkey and delivered the oft-quoted smackdown about PETA’s intentions:
“however worthy and high minded the motives of ‘next friends’ may be, they inevitably run the risk of making the actual [party] a pawn to be manipulated on a chessboard larger than his own case.”
Naruto v. Slater, 888 F.3d 418, 431 (9th Cir, 2018) (read about the selfie monkey case here). The Ninth Circuit notably called animal next-friend standing “particularly susceptible to abuse” and that organizations could “use it to advance their own institutional goals with no means to curtail those actions.”
The Oregon Court of Appeals went on to reject appellants’ argument that animals should be afforded the same legal rights as incompetent or incapacitated persons — an argument often asserted by those pursuing animal “personhood” cases — finding that while humans have “millennia of experience understanding the interests and desire of humankind,” no human can ever “credibly articulate [an animal’s] interests or goals.” Id. at 448. In doing, the court definitively rejected the notion that an animal activist group or sympathizer will always have an animal’s best interest in mind and that to find otherwise, animals may well be “left at the mercy of the institutional actor to advance its own interests.”
As is routine in animal “personhood” cases, the court undertook an extensive analysis of the common law and concluded that under Oregon law, the right to sue and redress a violation of rights “is and always has been [the right of] a human being or an entity created by human law.” Id. at 450. The court saw no reason to depart from that well-settled common law doctrine. Animals have not been considered persons — either natural or artificial — capable of holding and asserting rights under the law and are viewed as property in the law. The court noted, however, that while Oregon’s animal welfare statutes impose “one of the nation’s most protective statutory schemes,” this statutory scheme does not confer legal rights on animals — it merely qualifies a person’s right to exercise otherwise absolute dominion and control over an animal (e.g. as per Oregon Revised Statutes 167.305, mandating care for animals in ways that minimize pain, stress, fear and suffering). Id. at 452.
The Court of Appeals recognized that the state legislature is the proper forum to determine, as a matter of policy, how the law should view animals. It did not foreclose the possibility that the Legislature could create a limited statutory cause of action allowing a person to sue on an animal’s behalf for specified damages in specific instances. Id. at 458, n.11. But the Court recognized that extending to animals the right to sue in tort would have “profound implications” and, like the trial court it noted: “we, too, are unable to take that leap.”
This Court of Appeals decision marks yet another legal defeat in a string of defeats for the animal legal personhood movement.