Will an Oregon Court be the First American Tribunal to Grant a Habeus Corpus Petition for an Animal?
by John Otrompke
A recent animal neglect opinion from the Supreme Court of Oregon raises the question of whether that state might be an ideal venue for a new “apeus corpus” petition, that is, a test case to establish a rule granting animals a right to habeus corpus relief.
The question arises in the context of an unsuccessful habeus corpus petition brought on behalf of a chimp in New York state in 2014, as well as a habeus corpus argument made on behalf of an orangutang in Argentina in a case with an outcome that is not yet entirely clear. Both cases, however, gave rise to potent language in dicta that could encourage reworked petitions in the future.
Such language is profuse in Oregon case law, although the Nonhuman Rights Project, which brought the New York case, has said that the state is not on the Project’s short list of favorable venues.
But important legal precedents are often as much a product of inspiration and profound philosophical meditation as they are of rote application of pre-existing legal precedent. Therefore, notwithstanding the negative precedent (no third party right to bring habeus corpus petition) thought by the Project to have been established in the 1996 Oregon case of Bryant v. Thompson, a careful analysis supports odds favoring Oregon as a potential first state to make history by granting habeus corpus relief to an animal.
Importantly, while the recent opinion, Oregon v Newcomb, is interesting, it has been commented on by scholars, and past cases from Oregon are even more powerful, and so they will be alluded to below.
Newcomb and Its Antecedents, such as Nix and Hess
The Oregon case, published this past June, was not a petition for an animal’s freedom, but a criminal proceeding for animal neglect, which involved issues of search and seizure law as it applies to human criminal defendants.
However, it was part of a series of such opinions from the Oregon Supreme Court which may hold significance for animal habeus corpus cases. The most powerful language of these cases is from Oregon v Nix, a 2014 case involving emaciated horses and goats on a farm, which is discussed below.
The 2016 Oregon case, Oregon v Newcomb, 359 Or 756 (2016), involved a charge of second degree animal neglect when the defendant (a human) failed to properly feed her dog, Juno. The opinion featured much analysis of search and seizure and privacy law under the Fourth Amendment and Oregon law, but ultimately concluded that the defendant did not “have a protected privacy interest in her dog’s blood.” While the Oregon Supreme Court noted that pet animals are personal property, the defendant had no protected privacy interest in the dog Juno’s blood, because the veterinarian who drew the blood did so to provide apparently needed medical care to Juno (as mandated by state law). Newcomb at 770.
The court noted, “Oregon’s animal welfare statutes impose one of the nation’s most protective statutory schemes...[reflecting] the recognition that animals “are sentient beings capable of experiencing pain, stress and fear.” Id at 767.
Intriguingly, the Oregon Supreme Court also repeated past language: “As we continue to learn more about the interrelated nature of all life, the day may come when humans perceive less separation between themselves and other living beings than the law now reflects. However, we do not need a mirror to the past or a telescope to the future to recognize that the legal status of animals has changed and is changing still.”
Powerful Language that May be a Bridge to Rights Recognition
Aspects of the Newcomb case have been recently commented on by other scholars, such as its search-and-seizure analysis, its weight as a poverty law case, and its fundamental assumption that animals are property.
What I want to talk about is two prior Oregon cases, Oregon v Nix, and Oregon v Hess, in which the Oregon Supreme Court engages in an extended discussion of animal rights which raises in my mind the possibility of more profound achievements in this field in an Oregon forum. (The latter case, Hess, is even more problematic from a criminal law perspective, because it involves an especially contorted and bizarre line of reasoning regarding the insanity defense).
The case with the more important reasoning was Oregon v Nix, 355 Or 777 (2014), which was later vacated because the state failed to preserve for appeal the essential argument: that each animal in an animal neglect or cruelty case is a separate victim. Oregon v Hess, 273 Or App 26 (2015), merely embraced that holding of Nix and made it binding. Other than that, Hess (a cat hoarding case which involved convictions for seven counts of first-degree animal neglect and thirty-eight counts of second-degree animal neglect) did not break any new intellectual ground, except for its seemingly Escher-esque analysis of the insanity defense (held inapplicable, because while the defendant may have acquired cats due to obsessive-compulsive disorder, it was said to be her poverty, not her OCD, which prevented her from properly caring for them).
(Indeed, anyone who has ever had to report their neighbor, friend, relative or loved one because they were unable to feed a non-human animal knows that it is an odious task; and one is left with the troubling question of whether the case resulted in a favorable outcome for the non-human animal).
Therefore, I will spend a little more time discussing Nix. That case, which upheld a conviction for 20 counts of second-degree animal neglect, doesn’t seem to fit the typical mould of a poverty law case, but involved the neglect of numerous horses and goats on a farm.
What is really interesting about Nix is its extended discussion of animal cruelty legislation. Starting with the Puritan Body of Liberties (1641), the court traces an evolving standard from New York’s 1867 statute (ch 375, § 1) and Oregon’s law in 1885. The Model Penal Code of 1962 included a provision protecting animals from cruelty (s. 250.11) which was incorporated into the new Oregon criminal code of 1971 (later overhauled in 1985). Nix, p 791- 797 (also citing eight law review articles and other sources).
Rights and Personhood are Not Recognized (but are Suggested)
Ultimately, the court relies on the sources to conclude that the Oregon anti-merger statute means that a ‘victim’ for the purposes of the animal neglect and cruelty laws is neither the community at large, nor the animal’s owner, but each individual animal.
Along the way, the Nix court addresses the question of whether an animal is a ‘person,’ noting that the statute “itself provides a definition of ‘victim’ as ‘the person or persons who have suffered financial, social, psychological or physical harm as a result of a crime.’” Nix at 878.
However, the Oregon Supreme Court seems to think that an animal is not a person (but concludes that a ‘victim’ under the animal neglect and cruelty laws need not be a ‘person’), in part because “provisions relating to the rights of victims to appear in court, to obtain restitution, and to be heard at sentencing and Parole Board hearings would be difficult to apply were 'victims' to include non-human animals.” Id.
Indeed, the court does not phrase its outcome in terms of animal rights (to habeus corpus or otherwise) at all: “In concluding that animals are ‘victims’ for the purposes of ORS 161.067(2), we emphasize that our decision is not one of policy about whether animals are deserving of such treatment under the law. That is a matter for the legislature.” Nix at 798.
Recall that the effort to convince a court that a non-human animal can be a non-human person with rights (like a corporation, a Hindu statute, the sacred text of Sikhism, or a river in New Zealand, for example) is important to the strategy of the Non-Human Rights Project, which has said that Oregon is not on its short list for bringing such a proceeding (which I dub a writ of ‘apeus corpus’).
I believe that what happens next in Nix, however, is informative. Then the court turns to cases including State v. Hamilton, 348 Or 371, 233 P3d 432 (2010), an armed robbery case in which each person present during a robbery was held to be a separate victim (regardless of whether or not they were individually robbed). And along the way, the Nix court cites another ten sources, including John Stuart Mill, Rachel Carson, and another three law review articles, at pp. 782-784.
The Nonhuman Rights Project, which brought a habeus corpus petition on behalf of a chimp named Tommy in New York in 2014, has noted in previous research that while Oregon is a favorable venue for an animal habeus corpus case in the sense that the state recognizes a common law right to normative equality, Oregon’s law regarding third party habeus corpus powers is less favorable, and therefore, the state is not on the Project’s short list of favorable venues.
My point is simply this: although the Oregon Supreme Court seems to suggest that the legal status of animals as enjoying rights is not inherent or judge-created, but determined by the legislature, the court’s lengthy and elaborate analysis suggests to me that the court is ripe to change its mind.
After all, for how many years and in how many ways following Romer v Evans did the SCOTUS hold that while there is no locus for gay freedom and equality in the U.S. Constitution, nonetheless a state could not preclude a legislature or its subdivision from seeing things the other way? And just last year the Supreme Court said, “Remember when we said all those times that there are no LGBTQ rights under the U.S. Constitution...Well, we’ve changed our mind.”
