Apeus Corpus Proceedings

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.”

Shades of Ichabod Crane: Scalia’s Ghost Rides Again!

Shades of Ichabod Crane: Scalia’s Ghost Rides Again!

CA10‘s Refusal to Decide Polygamous Cohabitation 

Issue Possibly Tainted by Substantive Opinions

A decision from a federal court of appeals last month illustrates the serious obstacle that standing sometimes presents to federal constitutional plaintiffs outside of the free speech context. The Tenth Circuit reversed the district court’s opinion, which had granted thepolygamous plaintiffs relief and declared a Utah law against cohabitation unconstitutional.

Perhaps more interestingly, however, the opinion may illustrate the relatively plastic nature of the “standing” doctrine which so often “stands” as a barrier to relief in these cases, because one may speculate (as the author of this blog does herein) that the Tenth Circuit panel was influenced as much by unspoken skepticism regarding the constitutional claims made my the plaintiffs as they were by that jurisdiction’s ideas about standing.

Notably, the law challenged in the case could be described in legal jargon as “a law of general application,” meaning that it did not appear to single out anybody’s viewpoint or religion for discriminatory treatment; nor did it explicitly create any restrictions on speech.

The district court opinion in the case, Brown, Sullivan, et al v Buhman, 14-4117 (CA 10 2016), had been foreseen by the late Justice Antonin Scalia as a logical consequence of the Supreme Court’s recent landmark opinions on gay freedom and equality. 

But in reversing, the federal appeals court panel may have reasoned that the relief that plaintiffs were given in the district court by the defendant law enforcement agencies (an enforceable promise not to enforce the law being challenged) was much more protective to the plaintiffs than the likely decision the panel would issue, had they decided the case. (I assume the panel would have held that there is no right under the U.S. constitution to live together as a spiritually polygamous family). 

Therefore, the panel may have reasoned, the plaintiffs had nothing to complain about. For that reason, the panel may have been more inclined to stretch to find a lack of standing. 

The case was filed under 42 USC 1983 by Kody Brown and his companions, the stars of the famous reality television series, ‘Sister Wives.’ The complaint alleged that upon the airing of the series, local law enforcement officers in Lehi, Utah “opened an investigation of” the plaintiffs in 2010. It seems that after scary comments were made by law enforcement agents, the plaintiffs moved to Nevada in 2011. 

The Browns and companions sought relief in the local district court, challenging Utah Code § 76-7-101 (1): “ A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

According to the Court of Appeals, the case suffered from “mootness” (a doctrine related to standing), because the Utah Attorney General has a pre-existing policy against initiating prosecutions for Mormon cohabitation in the absence of abuse, fraud or other crimes. The local attorney general created a similar policy while the case was pending in the district court. 

Importantly, the Tenth Circuit said, both law enforcement policies were accompanied by affidavits filed in federal court and sworn under penalty of perjury, and, if necessary, the federal courts could enforce them using federal laws like 18 U.S.C. § 401(2) to sanction the individual officials who were being sued, either for perjury or by entering punishments such as a fine or imprisonment for “misbehavior.”

Now let’s examine some reasons that the panel might have reached a contrary result.

First, let me reiterate that this was not a challenge to a law which implicated free speech on its face. In such cases, the requirements of standing are greatly relaxed. Instead, as mentioned above, Utah Code § 76-7-101 is “generally-applicable”: it neither singles out any religion or viewpoint for disparate treatment, nor does it appear to proscribe speech, at least not at first glance. 

Because the challenged statute was treated as a state law “of general application,” the plaintiffs also had a harder time challenging it as a burden on their religious beliefs. If instead they were challenging a federal law, the federal government would have to show a compelling interest in upholding the law, because in creating the Religious Freedom Restoration Act (RFRA), Congress voluntarily limited the application of its laws when they impose a substantial burden on an individual’s religious beliefs, even if the law in question is one of general application.

But the Supreme Court has held that RFRA does not apply to the states, because RFRA is not required by the Constitution, and Congress lacks authority to impose it on the states (like Utah).

What this means is that Mormons do not have a right under the federal constitution to live together in spiritually polygamous cohabitation, unless everyone has that right. Theoretically, it seems, the plaintiffs in the case could have argued that even though the law looks generally-applicable on its face, it had previously been applied in a discriminatory manner. But the court of appeals engaged in a cursory, desultory discussion of that question, and suggested that the state’s description of its policies was made in good faith.

The court also said that because the complaint described an alleged past injury (the plaintiffs’ move to Nevada), they could have brought a damages action. That might have forced the constitutional issue, but the court said the plaintiffs chose not to do so.

So what arguments for finding standing did the Tenth Circuit overlook?

For one thing, the appeals court stretched the facts a little bit, by crediting the declaration of Kody Brown (“[w]e have decided to stay in Nevada in the foreseeable future”), and giving less credence to that of Janelle Brown, who declared “that were the statute declared unconstitutional, the plaintiffs ‘would certainly resume [their] open participation in [their] religious community’” in Utah. Apparently the Tenth Circuit decides who wears the pants in the Brown household.

The court also stretched the law a little bit. It was important to the appellate court panel that the dismissal was not on the merits, and without prejudice, because while any future law enforcement officers were free to change Utah’s policy regarding enforcement of § 76-7-101, “any steps to reconsider would almost certainly provoke a new lawsuit[.]”

Perhaps the court was being a little disingenuous in that regard, however; if the Utah authorities were somehow to decide to prosecute the plaintiffs, imagine what difficulty the household would have in ever getting the case back into federal court. A host of preclusion doctrines would prevent the federal court from interrupting criminal proceedings that had already been initiated. While there can be a federal habeus corpus action, it only lies while an individual is still imprisoned, and after they have exhausted state avenues of relief. Were they to be prosecuted, the plaintiffs would be unlikely ever to get their case heard in federal court, unless the state judge were to impose a relatively long sentence.

So what could have biased the court of appeals in favor of holding that the plaintiffs lacked standing in the case? The court explained that “voluntary cessation” of a practice can make a case moot, but only if the government bears the “heavy burden” of showing it has no desire or intention to return to “the old ways.” 

The heart of the plaintiff’s grievance was an argument that individuals enjoy a due process right “to freely make personal decisions relating to procreation, contraception, family relationships, and child rearing,” as well as an argument about vagueness. But as I mentioned above, the Tenth Circuit may have held an unspoken opinion that there is no such constitutional right to spiritually polygamous cohabitation. 

In fact, the Supreme Court held in Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878) that there is no constitutional right for Mormons to engage in religiously- motivated polygamy. But Mr. Brown and his companions did not apply for or hold marriage licenses. What about mere cohabitation? 

No right for consenting adults to live together, you say? Believe it or not, the Supreme Court has never decided that issue. The court came close in McLaughlin v. Florida, 379 US 184 (1964), in striking down a law proscribing interracial cohabitation, but also explained that the holding was rooted in equal protection, not a liberty interest. See also Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (denial of special use zoning permit to group home for the mentally retarded was a violation of equal protection).

But everybody’s doing it, right? It seems that a constitutional right of adults to live together is simply one of those issues that the court has transcended, without ever actually deciding it, perhaps because it has come to seem so obvious. 

Nonetheless, polygamy was listed among a parade of horribles cited as a justification for upholding anti-gay laws by Justice Scalia in his dissent in Lawrence v. Texas, 539 US 558 (2003). Perhaps that alone made the Brown case more controversial for the Tenth Circuit.

For an example of another lovestyle which a federal court recently held was not protected by the U.S. Constitution, see Doe v Rector and Visitors of George Mason University, 1:15-cv-209 (D.C. VA 2016) (no right to engage in consensual S&M under U.S. Constitution).

John Otrompke, JD, a graduate of DePaul University College of Law, and a 2015 AALS FAR applicant, may be reached at John_Otrompke@yahoo.com

In Pastafarianism Case, the Nebraska District Court Discriminates 
Against Irreligion, Setting a Dangerous Freedom of Religion Precedent

A freedom-of-religion decision issued this month by the U.S. District Court for Nebraska seems to have discriminated against irreligion and in favor of religion by refusing to extend religious rights to a prisoner who claimed to adhere to the ‘Pastafarian’ religion of the Flying Spaghetti Monster.

Unfortunately, the opinion is a step toward engraving into law a principle often expressed by the late Justice Antonin Scalia: that the constitution does not prohibit the government from favoring religion over non-religion. The only difference is that in this case, it is not non-religion which is disfavored- but irreligious satire. I take issue with all of these conclusions, and posit that the decision should be reversed.

In justifying the holding, district court Judge John M. Gerrard seemed to rely on two logically incompatible conclusions: that the inmate, Cavanaugh, had no sincere religious belief in the Flying Spaghetti Monster, and that any religious practices he wanted to engage in had not been burdened.

Importantly, the court also suggested in several places that poor pleading by the pro se plaintiff justified the result, because it showed that Cavanaugh’s claims to religious belief were insincere. 

The judge’s decision is all the more puzzling because he recognizes that atheism and out-of-mainstream religious practices qualify as religions for purposes of the law, for which proposition the court produces an prodigious bibliography of legal authority. In fact, the court expressly mentions unorthodox religious beliefs described in two novels, Stranger in a Strange Land (Robert Heinlein, 1961), and Cat’s Cradle (Kurt Vonnegut, 1963).

But when it comes to Pastafarianism, the court puts its foot down, describing it as a mere parody of intelligent design theories, “intended to advance an argument about science, the evolution of life, and the place of religion in public education.”

The opinion, issued April 12, dismissed the case, Cavanaugh v Bartelt, which was a section 1983 action in which the prisoner sought to compel the prison authorities to extend him “the same rights and privileges as religious groups, including the ability to order and wear religious clothing and pendants, the right to meet for weekly worship services and classes and the right to receive communion.’”

Even though the plaintiff did not mention the most relevant statute, the court analyzed the question under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which is broader than the First Amendment, since, like the Religious Freedom Restoration Act (RFRA), it restricts the government from imposing a law of general applicability so as to substantially burden an individual’s religious practices, unless it passes strict scrutiny. Unlike RFRA, however, RLUIPA applies to the states, because it applies to all states that receive federal funding for prisons, and all states do. 

The court also took pains to learn about Pastafarianism, so that the judge could “liberally interpret” the prisoner’s complaint, and traced the historical development of this practice from 2006 (The Gospel of the Flying Spaghetti Monster, Bobby Henderson).

Courts must not presume to determine the plausibility of a religious

claim, the court reminds us, citing Burwell v. Hobby Lobby Stores. But RLUIPA does not apply when the individual has no sincere religious beliefs that could be burdened.

“This case is difficult,” the court wrote, because Pastafarianism does not “advocate for humanism or atheism,” which would be a religion for purposes of RLUIPA. “The only position it takes is that others' religious beliefs should not be presented as ‘science.’ Despite touching upon religion, that is a secular argument,” the court wrote.

Clearly the court is partly correct, but the decision is nevertheless wrong. Pastafarianism does smack of satire rather than religious belief, but

there seems little doubt that the disrespectful opinion of adherents toward religious belief is sincere. Pastafarianism’s irreligiosity should be entitled to the same respect as sincere religious beliefs. The government should have no power to favor religion over irreligion. 

Satire has historically been a powerful way to criticize beliefs of all kinds, so imprisoned individuals should be as free to gather in prison to satirize religion, as others are to sincerely practice religion. Extending such rights to them might even give them the moral strength necessary to continue on with their disbelief.

The court justified the decision by a second conclusion which was logically irreconcilable with the first: Cavanaugh had not shown how any beliefs he held had been substantially burdened. 

The court again complained about poor pleading, explaining that from the pro se complaint, “it would be impossible to tell what he had actually asked for, or why, or anything about his purported beliefs other than their name....Cavanaugh has not alleged anything about what it is that he actually believes—leaving the Court to read the book.”

However, The court decided that it would be pointless to allow the prisoner to amend his complaint.

Adding to the satire, the court interpreted the complaint as seeking relief that would allow the prisoner to dress like a pirate. It seems possible that a rule prohibiting inmates from dressing like pirates would pass strict scrutiny, though the test is sometimes rephrased as ‘strict in theory, fatal in fact.’ On the other hand, if the RLUIPA did guarantee prisoners the right to dress like pirates, and engage in other behavior the Cavanaugh court found objectionable, that may be a statutory issue for Congress o decide.

Perhaps the prisoner might be permitted to wear a small patch of a parrot on his prison shirt; and spaghetti dinners likely occur in the institution on a regular basis anyway. Permitting incarcerated Pastafarians to gather periodically seems like a rather legitimate way of encouraging people to question their religious beliefs and values.

In short, the opinion discriminated in favor of religion, and against irreligiosity. The religious beliefs of the plaintiff may not be sincere, but surely the disbelief of Pastafarians in religion is as sincere as any conviction. 

It seems the opinion would likely make the late Justice Scalia pleased on the other side of the veil (unless, indeed, Justice Scalia found himself disappointed when he crossed over).

Hopefully, higher courts will reverse this extremely dangerous precedent.

John Otrompke, JD, a graduate of DePaul University College of Law, and a 2015 AALS FAR applicant, may be reached at John_Otrompke@yahoo.com

All contents (c) 2016 John J. Otrompke