Thursday, May 10, 2001
Page 7
PERSPECTIVES (Column)
Best Interest of the Dog: an
Irrelevancy in Canine Custody Case
By ROGER M. GRACE
(Fourth in a series on dogs and the courts.)
A case which reflects the lowly position the dog holds in the eyes of the law is Edwards v. Superior Court (1991) 230 Cal.App.3d 173. The opinion was authored by California Chief Justice Ronald M. George, back when he was a member of Div. Four of this district’s Court of Appeal.
The case concerned an English Bull Terrier named Nada. In Spanish, "nada" means "nothing." That’s apparently what Nada’s rights amounted to, under the laws of California.
According to the allegations of Dr. Patricia Walters in her petition for a writ of possession, she was the owner of Nada; Roland Edwards and others were commissioned to show Nada; they were to have the pick of the litter if Nada were bred, and to secure their interest in the offspring, were listed as co-owners on the American Kennel Club registration certificate; while Nada was in their possession, Walters was told by them that if she did not sign a new agreement altering the terms that had been arrived at, she would never "see the dog alive again," prompting her to sign; later, with Nada safely back at home, Walters’ lawyer advised Edwards et al. of his client’s intent to terminate their relationship; Edwards entered the backyard of Walters’ home and had Nada under his arm when Walters came outside and demanded he leave; he punched and kicked her, taking the dog.
(A footnote in George’s opinion disclosed: "In the complaint seeking damages, later filed by Walters, she alleged that petitioners engaged in unethical practices which led her to seek termination of their relationship, including ‘stuffing’ Nada with food immediately prior to some shows in order to improve her appearance, and force-feeding vodka to another of their dogs so as to make the dog a ‘happy show-er.’ ")
The trial court awarded Walters a writ of possession. The respondents posted a counterbond and refused to surrender Nada. They were found in contempt, and sought writ relief.
The issue before the Court of Appeal was whether Edwards and three co-defendants were properly adjudicated to be in contempt for violating the order to return Nada to Walters. George declared that their filing of a counterbond was sufficient to allow them to keep the dog for the time being, and the Superior Court was ordered to vacate the contempt order.
But what about the welfare of Nada?
The court dealt with the case simply in terms of law relating to claim and delivery. George observed in a footnote: "As a ‘domestic animal,’ Nada comes within the definition of property. (Civ. Code, §§ 654, 655.)"
Nada was not a chattel like any other chattel, such as a chair or an umbrella. The "res" in the case was a dog, a living animal—not an inanimate object—and an animal of relatively high intelligence and awareness. Nada, unlike a chair or umbrella, could feel sadness, loneliness, abandonment, pain. Dogs, through the ages, have provided humans with fidelity, protection and society, and are deserving of higher regard in the courts than lifeless and fungible goods.
In deciding what is essentially a custody question involving a dog, courts ought to be required to determine what is in the best interests of the animal.
Was the Court of Appeal remiss in failing to order a remand for the purpose of such a determination? No. The law, at present, has no such requirement. A remand to consider Nada’s welfare would have been subject to the criticism that it constituted judicial over-reaching.
This points to the need for legislation that elevates the status of the dog above that of an ordinary chattel, and requiring application of some basic family law precepts to the issue of a dog’s custody.
That dogs should be regarded differently from non-living personalty is really not a radical concept. A person who owns a vase may, if he or she wishes, shatter it. Intentionally harming or killing a dog or other living domestic animal, on the other hand, subjects the miscreant to possible imprisonment for a year and/or a $20,000 fine, under Penal Code §597(a). One who has a plant is privileged to desist from watering it and allowing it to wither. However, one who has custody of a dog or other animal and who "fails to provide the animal with proper food, drink, or shelter or protection from the weather," also faces the prospect, under §597(b), of a year in prison and/or a $20,000 fine. While a bailee may without fear of liability shake a fist and shout at inanimate objects that are the subject of a bailment, a depository of living animals must treat the charges "kindly," under Civil Code §1834, or stand liable for damages.
Dogs can be bought and sold, and are, therefore, properly regarded as personal property. Nonetheless, they belong in a special category of property: sentient property. And property in that category must be regarded as possessing "rights," such as those conferred by Penal Code §597 et seq. and Civil Code §1834.
The list of statutorily defined rights should expand.
There is, perhaps, slowly evolving the notion that dogs are something more than chattel.
In a dissenting opinion in Katsaris v. Cook (1986) 180 Cal. App. 3d 256 (which I’ll discuss tomorrow), Court of Appeal Justice M.O. Sabraw observed that dogs, viewed under common law as something less than property, are "more than property today."
In People v. Speegle (1997) 53 Cal. App. 4th 1405 (a case in which the constitutionality of Penal Code §597(b) was upheld against a claim of vagueness), the Third District Court of Appeal affirmed the convictions of a woman from whose unsanitary premises 200 poodles were rescued (along with a cat and three horses). Language in the opinion strongly implies that the animals were viewed as more than "mere chattel." Responding to the appellant’s contention that it would be double jeopardy to punish her for mistreatment of her animals when she had already suffered the penalty of having them confiscated, Justice Rodney Davis wrote :
"The argument is without merit. As the People properly point out, her reasoning leads to the abhorrent result that parents could not be criminally punished for abusing their children after the juvenile court places them in a different home or terminates parental rights. Moreover, even were we to consider the animals mere chattel and the confiscation no more than a ‘forfeiture,’ the United States Supreme Court concluded (after the defendant filed her opening brief) that ‘civil forfeitures...do not constitute ‘punishment’ for purposes of the Double Jeopardy Clause.’...
By contrast, the United States Supreme Court back in 1897 said this of dogs in Sentell v. New Orleans & C. R. Co., 166 U.S. 698:
The very fact that they are without the protection of the criminal laws shows that property in dogs is of an imperfect or qualified nature, and that they stand, as it were, between animals feroe naturoe in which until killed or subdued, there is no property, and domestic animals, in which the right of property is perfect and complete. They are not considered as being upon the same plane with horses, cattle, sheep and other domesticated animals, but rather in the category of cats, monkeys, parrots, singing birds and similar animals kept for pleasure, curiosity or caprice. They have no intrinsic value, by which we understand a value common to all dogs as such, and independent of the particular breed or individual. Unlike other domestic animals, they are useful neither as beasts of burden, for draught (except to a limited extent), nor for food. They are peculiar in the fact that they differ among themselves more widely than any other class of animals, and can hardly be said to have a characteristic common to the entire race. While the higher breeds rank among the noblest representatives of the animal kingdom, and are justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection, and, above all, for their natural companionship with man, others are afflicted with such serious infirmities of temper as to be little better than a public nuisance. All are more or less subject to attacks of hydrophobic madness.
By the time that opinion was written, California already had adopted a view that dogs fully met the definition of property. The state Supreme Court said in Johnson v. McConnell (1889) 80 Cal. 545:
Dogs are property for the malicious destruction or injury of which an action for damages will lie....At common law and in some of the states they are not the subject of larceny....But even in those states it is held that they are the subject of a criminal prosecution for malicious trespass....In this state they are declared to be property, and made the subjects of larceny. (Pen. Code, sec. 491.) And while it has been said that they have nearly always been held "to be entitled to less regard and protection than more harmless domestic animals," it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt.
Penal Code §491 provided then, as it provides now: "Dogs are personal property, and their value is to be ascertained in the same manner as the value of other property."
In the early part of the last century, there came this utterance from the Court of Appeal in Roos v. Loeser (1919) 41 Cal. App. 782:
As Blackstone puts it, dogs were the subject of property to a very limited and qualified degree; they had no intrinsic value, and were regarded as being kept only through the whim or caprice of their owner. They were not the subject of larceny. (2 Blackstone’s Commentaries, 393.) But that day has passed, and dogs now have a well-established status before the law. Considerable sums of money are invested in dogs, and they are the subject of extensive trade. Aside from their pecuniary value their worth is recognized by writers and jurists. Cuvier has asserted that the dog was perhaps necessary for the establishment of civil society, and that a little reflection will convince one that barbarous nations owe much of their subsequently acquired civilization to the dog. From the building of the pyramids to the present day, from the frozen poles to the torrid zone, wherever man has wandered there has been his dog. In the case of State v. Harriman, 75 Me. 562, he is eulogized in the following language: "He is the friend and companion of his master, accompanying him on his walks; his servant aiding him in his hunting; the playmate of his children, an inmate of his home, protecting it against all assailants."
While the status of dogs is higher now than in the days of Blackstone, the law has not advanced to the point that a court, in considering the matter of custody of a dog, may consider the best interests of the dog. Property law has some more evolving to do.
In case you’ve been wondering whatever happened to Nada...Walters relinquished any claim to her upon being paid $160,000 by the defendants’ insurers.
That information comes from one of the defendants, breeder Linda Martin of Kingsmere Kennels—whose recitation of the facts varies considerably from the allegations in Walters’ petition.
She insists that she, Roland ("Bill") and Pat Edwards, and Walters were co-owners of the dog, and that Walters breached their contract by disavowing shared ownership and insisting that she and her husband would show Nada. Some lawyers specializing in dog law gave them off-the-record advice to simply take Nada back, Martin recounts.
"Probably the way we went about it, with Bill going over the fence, wasn’t right," she says on reflection.
Martin relates that Nada was placed with "an older couple, nice people," and remained with them.
She notes that Los Angeles Superior Court Judge Richard Adler—who ordered the turn-over of Nada—didn’t believe the defendants’ assertion that they were without the ability to contact the custodians of Nada because the couple was "traveling around the county." It was, however, true, the breeder says.
Martin recalls:
"Adler screamed at me once, ‘If they could make Nixon turn over the Watergate tapes, I can make you turn over Nada.’ "
As it turned out, he couldn’t.
Martin surmises that Nada is dead by now, noting that some years ago the dog developed cancer.
"She was super well taken care of," Martin assures.
While dogs may not have rights under California law, they are, at least, recognized by the courts as "man’s [and woman’s] best friend," as I’ll discuss in tomorrow’s offering.
Copyright 2001, Metropolitan News Company