The Annual Report of the Animal Law Section of the State Bar of Michigan

by Catherine L. Wolfe, Chairperson

The annual report from the Animal Law Section was received by the Bar in a timely manner but was inadvertently omitted from the August 2000 issue of the Bar Journal. We apologize for any confusion this may have caused.

[The day should come when] all of the forms of life...will stand before the Court—the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams.

—William O. Douglas(late U.S. Supreme Court Justice)

The Animal Law Section of the State Bar was established in 1994 for the purpose of promoting the interests of attorneys concerned about the welfare of animals. The goals of the section are to educate members of the Bar and the public about legal issues concerning animals, promote legislation/regulations that advance animal protection and animal rights, facilitate communication between concerned attorneys, and encourage changes in the law. The section is composed of attorneys from all areas of law, including personal injury, commercial, probate, real estate, and academics.

Of the issues confronting the section this year, some of the most important were veterinary malpractice and the measure of damages in cases involving the wrongful death of a pet. Traditionally, animals have been treated as personal property so that a pet owner could only recover the market value of their pet in the event that it was injured or killed. This is true even if the pet’s injury or death was caused by gross negligence or malice. The problem with this methodology—treating animals as property—is that it fails to acknowledge the emotional relationship that often exists between a pet and its owner.

With the hope of changing that law, the section filed an amicus brief in Koester v VCA Animal Hospital, Court of Appeals docket number 216563. In that case, the plaintiff’s dog died as the result of alleged veterinary malpractice. The plaintiff sued, seeking damages for the loss of companionship and emotional distress. The trial judge granted the defendant’s motion for summary disposition because Michigan does not recognize damages beyond the chattel value of an animal. The plaintiff appealed.

The amicus brief argued that companion animals have social and psychological value for which their owners deserve compensation beyond the animals’ status as personal property. It offered scientific and other data to supplement the legal argument in the plaintiff’s own appeal brief. The case is likely to be heard this summer and a decision could be issued by the end of the year. The section hopes that the Court of Appeals will follow the lead set by Wayne County Circuit Judge Kaye Tertzag in Murray v Bill Wells Kennels, Ltd, Wayne County case no. 95-536479-NO.

In his well-reasoned opinion, Judge Tertzag held that a plaintiff may recover damages for emotional distress for the negligent death of his or her pet. In so holding Judge Tertzag stated that

[The] view equating a living, breathing animal to chattel is archaic and does not withstand the test of critical analysis. Slavish adherence to a worn out doctrine without serious, critical analysis does the law no good and, indeed, engenders public disrespect for the law...Blind adherence to such a doctrine is unbecoming for an enlightened people.

Another important issue that confronted the section was the violent control of an animal population. One of our section members assisted a group of animal advocates concerned about the killing of deer in metropolitan parks in the Detroit area. The controversy arose when the authorities proposed reducing the deer population by using hired "sharpshooters" to kill them. The animal advocates hoped to convince the authorities to use nonviolent means of controlling the deer population. Unfortunately, the authorities could not be dissuaded from their initial plan and the deer were shot. However, the group was successful in gaining much-needed publicity for the issue of nonviolent alternatives for controlling animal populations.

The section is also dealing with the issue of hunting. In the section’s latest newsletter, one section member, who is a wildlife biologist as well as an attorney, discussed how hunting negatively impacts the health of game species by eliminating the strongest, best fit "trophy specimens" and leaving the weaker, less fit individuals to reproduce. The newsletter also features an article by another section member, David Favre, who is the dean of Detroit College of Law at Michigan State University. Dean Favre uses scientific evidence to demonstrate that, contrary to popular belief, hunting is not necessary to control animal populations—that it actually causes overpopulation.

The section continues to update its Animal Law Handbook, which is a compilation of Michigan animal laws and regulations. The handbook is popular with animal control officers, animal shelters, and humane societies, and may be purchased from the section. Also, the section drafted a Model County Ordinance, which covers wild and exotic animals, as well as domestic animals, and is available without charge. Although the Model County Ordinance is designed for use by counties, local municipalities have also found it helpful.

As a service to the public, the section maintains an Animal-Attorney Referral Hotline, which refers people with problems to attorneys within the section who are willing to accept such cases. A representative from the section appeared on the Oakland County Bar Association’s "Due Process" television show and discussed legal issues that affect animals. Finally, the section council held a "retreat" in Northern Michigan during which council members planned future goals, objectives and events for the section.

In the last five years, there have been exciting developments in the area of animal law. Attorneys as well as the general public are becoming increasingly aware of and intolerant of unjust laws and behaviors that adversely affect animals. It is the section’s hope that with continued education and support, these developments will continue.

As St. Francis of Assisi said:

Not to hurt our humble brethren is our first duty to them, but to stop there is not enough.

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