Category: Animal Law

HSUS: Protecting its Fox in the Hen House

by ENCW, posted in Animal Law, Civil Rights

In a stunning development, the Humane Society of the United States (HSUS) chose this week to stand by CEO Wayne Pacelle amidst complaints of sexual misconduct and sexual harassment by HSUS employees.  Twenty-eight of HSUS’s 31 board members participated in a 7 hour telephone conference on February 2nd that culminated in a vote of 17-9 in favor of retaining the beleagured CEO.  (Two members abstained.)  In protest of the decision, seven members of the HSUS Board immediately resigned.

Pacelle3 cartoonFollowing backlash from donors, HSUS employees, and the public, Pacelle announced his resignation the next day in an email. “I am resigning, effective immediately . . . to put aside any distractions, in the best interests of all parties,” he wrote.

The board vote and Pacelle’s subsequent resignation came at the conclusion of an allegedly independent investigation by the law firm of Morgan Lewis.  (Notably, HSUS board member and former Chair, Anita W. Coupe, was a partner in labor and employment with Morgan Lewis.)  The Morgan Lewis investigation lasted from late December until late January and 33 people were interviewed, including Pacelle.  According to multiple media sources, the investigation, whose findings were based on interviews, evidence provided by witnesses and emails on Pacelle’s work computer (FN1), the memo of findings reported that:

  • HSUS had settled three complaints from women after they were terminated or demoted after making sexual harassment claims against Pacelle (FN1);
  • Three additional women employees claimed they were subjected to Pacelle’s unwelcome advances toward them (FN1);
  • The nature of the claims included Pacelle seeking to masturbate in front of an employee, offering to perform oral sex on an employee and forcibly kissing an employee against her will, among others (FN1);
  • Senior women employees at HSUS stated that their warnings about Pacelle’s conduct in the work place were ignored (FN1).

In addition to the claims against Pacelle himself, multiple women complained of harassment from former HSUS Vice President of Policy, Paul Shapiro, who resigned in January, approximately one week after the investigation began.   One employee, Ashley Rinhehart, allegedly complained to Pacelle, her superior, after being repeatedly sexually harassed by Shapiro, and Pacelle, covering for his colleague, told her, “boys will be boys.” (FN2)

Following its decision to retain Pacelle as CEO, HSUS Chair, Rick Bernthal wrote, “we did not find that many of these allegations were supported by credible evidence.”  FN3.

“We are not an association that investigates sexual harassment…Which red blooded male hasn’t sexually harassed somebody?”

~ Erika Brunson, HSUS Board Member

Board member, Erika Brunson, an interior designer, who participated in the 7 hour teleconference stated, “We’re not an association that investigates sexual harassment.”  FN4  She went on to add, “Which red-blooded male hasn’t sexually harassed somebody? Women should be able to take care of themselves.” FN5  (Brunson left the HSUS board in the wake of Pacelle’s resignation. FN3)

The HSUS board conference call has been described as “extremely dysfunctional.”   Although the investigators were not included to answer questions, Pacelle was given the floor for ten minutes to extol his own performance record within HSUS and to deny all wrongdoing.  Some board members were disturbed by the implication that Pacelle’s fundraising record was relevant to accusations of illegal workplace misconduct. FN3.

Bernthal’s claim that the allegations against Pacelle lacked “credible evidence” is simply not plausible.  HSUS has paid to settle three claims by women that they were wrongfully terminated for complaining of Pacelle’s sexual harassment.  To suggest that the mega non-profit paid to settle claims that lacked “credible evidence” is patently disingenuous.  In addition to its legal responsibilities, the board acts in a fiduciary role by maintaining oversight of the nonprofit’s finances.  Where was Bernthal’s oversight when HSUS was paying to settle sexual harassment claims that lacked “credible evidence”?

This comes in addition to the $15.75 million settlement HSUS paid along with two of its lawyers, and its affiliate, the Fund for Animals, along with other animal rights activists, as a multi-party settlement of a federal racketeering lawsuit to Feld Entertainment in 2014 that was not covered by insurance.  FN6.

How many millions of dollars of donations has HSUS paid out to settle lawsuits under Pacelle’s direction?

Kitty Block2Predictably, in the midst of the backlash against an institutional enviroment that appears pervasively hostile to women, HSUS has appointed Cristobel “Kitty” Block  as its acting CEO.  Block is currently President of Humane Society International (HSI), HSUS’s global wildlife charity.  Block came to HSUS from People for the Ethical Treatment of Animals (PeTA) where she worked as an investigator.  (You can read more about PeTA here.)

While Block likely shares Pacelle’s views on animals and animal ownership, it is unlikely that she will share his unprecedented skill for fundraising.  Under Pacelle’s stewardship, HSUS has grown in the last decade from $160 million in assets to $210 million in assets (although unknown millions of dollars of donations have apparently gone to fund settlements for racketeering and for Pacelle’s sexual escapades).  It also remains to be seen how donors will react to HSUS’s persistent protection of what appears to be an extremely toxic work environment for women.

FN1  Paquette, Danielle (January 29, 2018). “Humane Society CEO Wayne Pacelle accused of sexual harassment by three women.” Retrieved February 3, 2018 – via http://www.chicagotribune.com.

FN2  Townsend, Karen (February 1, 2018).  “Let’s hope Humane Society treats animals better than women.” Retrieved February 3, 2018 – via http://www.hotair.com.

FN3  Paquette, Daneille (February 2, 2018). “Humane Society CEO resigns after sexual harassment allegations.”  Retrieved February 3, 3018 – via http://www.washingtonpost.com.

FN4  Okun, Gabrielle (February 2, 2018).  “Humane Society Does Not Investigate Sexual Harassment, Board Member Says.”  Retrieved February 4, 2018 – via http://www.dailycaller.com

FN5  Bosman, Julie et al. (February 2, 2018).  “Humane Society CEO resigns amid sexual harassment allegations.” Retrieved February 3, 2018 – via http://www.nytimes.com.

FN6  Humanewatch.  (May 16, 2014).  “HSUS denied insurance coverage in racketeering lawsuit.” Retrieved February 3, 2014 – via http://www.humanewatch.org.

 

 

Pet Custody Comes to Illinois

by ENCW, posted in Animal Law, Family Law

Companion animals play an ever-increasing role in American society.  US pet industry expenditures were $38.5 billion in 2006 and nearly doubled to $66.75 billion in 2016.  According to the 2017-2018 APPA National Pet Owners Survey, 68% of US households own a pet, equating to 84.6 million homes.

The strong emotional bond that binds people to their pets is undeniable, and it is a bond that courts and legislatures throughout the country are increasingly recognizing.  California Supreme Court Justice Arabian, in his dissenting opinion in Nahrsted v. Lakeside Village Condominium Ass’n, 8 Cal. 4th 361, 390 (1994), summarized it as follows:

The value of pets in daily life is a matter of common knowledge and understanding as well as extensive documentation.  People of all ages, but particularly the elderly and the young, enjoy their companionship . . . Animals provide comfort at the death of a family member or dear friend, and for the lonely can offer a reason for living when life seems to have lost its meaning . . . Families benefit from the experience of sharing that having a pet encourages.

 Until recently, the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) has been silent as to specific references to pets, and they were allocated as personal property in a divorce, just like the furniture, automobiles and appliances of a marriage.  On August 25, 2017, Illinois Governor Bruce Rauner signed into law, Public Act 100-0422 (the “Act”), which makes provisions in the IMDMA for the allocation of possession and responsibility for companion animals jointly owned by parties in a divorce proceeding.  Public Act 100-0422 becomes effective January 1, 2018.

The Illinois Legislature will now also take a step toward recognizing the unique value of pets.  While the Act does not use the words “custody” or “best interests” in referring to the allocation of pets, and the language still refers to them as “assets” and makes reference to ownership, consideration for the welfare of the animals will now be codified in the statute, which reads:

In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.

Public Act 100-0422 at Sections 501(f) and 503(n). (Emphasis added.)

In other words, the court is now required to consider the pet’s “well-being”, which is a significant departure from the way all other property is treated under the law.  For instance, courts do not consider which party will get more regular oil changes when it allocates a car, or who rinses the dishes more thoroughly when allocating a dishwasher.

While the Act exclusively deals with “companion animals,” it does not define them.  However, since it exempts service animals as defined under the Humane Care for Animals Act (510 ILCS 70/1 et seq.)  (“HCAA”), the HCAA’s definition of a “companion animal” should be considered.  Specifically, the companion animal is “an animal that is commonly considered to be, or is conserved by the owner to be, a pet.  ‘Companion animal,’ includes, but is not limited to canines, felines, and equines.”  510 ILCS 70/2.01a.

Parties who are contemplating divorce should be prepared if possession of the family pet may be contested in the divorce proceeding.  Ownership/adoption papers and registrations should be maintained indicating which spouse acquired the pet and also which spouse primarily cared for the pet.  Relevant issues to consider may include which spouse takes the pet to veterinary visits, training classes and who makes arrangements for pet care during vacations since that spouse may have an advantage in establishing herself as the primary caretaker of the pet.  Therefore, maintaining veterinary receipts, health records and training records may provide important documentary evidence.

While the Act seeks to have courts consider the welfare of pets in their allocation decisions, it will be interesting to see how courts will rule with respect to valuable companion animals, such as horses, which can be worth substantial amounts of money, and show dogs and cats.

If you think the ownership or possession of your companion animal will be contested in your divorce, you should seek an attorney who is experienced and knowledgeable in family law and raise the issue early to best position your case for ownership in the dispute.

 

Tribute to the Dog

by ENCW, posted in Animal Law

Senator George Graham Vest  (December 6, 1830 – August 9, 1904) was a U.S. politician. Born in Frankfort, Kentucky, he was known for his skills in oration and debate. Vest, a lawyer as well as a politician, served as a Missouri Congressman, a Confederate Congressman during the Civil War, and finally a US Senator. He is best known for his “a man’s best friend” closing arguments from the trial in which damages were sought for the killing of a dog named Old Drum on October 18, 1869. As long as the name of the late Senator George Graham Vest of Missouri is mentioned it will always be associated with his love for a dog.

In 1869,  in Johnson County, Warrensbug, Missouri, Senator Vest represented a plaintiff whose dog, “Old Drum” had been shot by a neighbor. The defendant did not so much deny the shooting as he disputed the $150 value the plaintiff sought in damages. For his closing argument, Senator Vest stated as follows:

“Gentlemen of the jury: the best friend a man has in the world may turn against him and become his worst enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that man has, he may lose. It flies away from him, perhaps when he needs it the most. A man’s reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads.

The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous… is his dog.

Gentlemen of the Jury: a man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer, he will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens. If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight against his enemies, and when the last scene of all comes, and death takes the master in its embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even to death.”

The jury deliberated less than two minutes. The record becomes quite sketchy here, but some witnesses claim the plaintiff, who had been asking $150, was awarded $500 by the jury. The Missouri Supreme Court denied cert.  There is a statue erected of Old Drum in the Johnson County Square that stands to this day.

Legislation and Acts of Irresponsibility

by ENCW, posted in Animal Law

In 2009, the Illinois legislature introduced identical bills simultaneously in both the House and the Senate regarding the licensing of dog breeders.  The bills, as proposed, were problematic in multiple ways, ways that would adversely affect all dog breeders and would impose onerous burdens on responsible breeders as well as irresponsible breeders.  In spite of multiple revisions and improvements, neither bill reached the floor for a full vote in either chamber in that legislative session.

Legislation affecting dog breeders is being proposed all over the country right now.   These bills vary dramatically in their specifics.  And there are bills that seek to impact diverse issues regarding dogs, not just dog breeding.  The issues introduced in the Illinois legislature included banning cropping and docking except in the cases of medical necessity, prohibiting the use of gas chamber (carbon monoxide/carbon dioxide) euthanasia except by licensed veterinarians, allowing courts to prohibit contact with animals belonging to protected parties in orders of protection, requiring cross reporting between state agencies investigating child abuse and neglect and animal abuse and neglect, and making it a felony to be a spectator at a dog fight.

Suffice it to say that virtually all breeders responsibly involved in purebred dogs object to laws that are overly burdensome, poorly written and targeted at the wrong breeders.  On the other hand, tougher laws and better enforcement are needed to improve the treatment of animals.  Under current federal law, it is considered humane to keep a dog the size of a Beagle in a cage the size of a dishwasher, and never, ever let it out its entire life.  We need to do better.

There is a bright line between commercial breeders (puppy mills), backyard breeders and responsible breeders.  Within the fancy, there is no bright line test to verify that an individual breeder is ethical and responsible. Not every breeder adheres to the same standards of care, the same scrutiny of puppy buyers, the same rigorous examination of breeding stock, the same willingness to accept dogs back after placement, or the same ability to put the welfare of the dogs produced over financial considerations.

There are dog breeders who are active in their kennel clubs, who show regularly, participate in performance events, finish champions and enjoy all of the prestige that goes along with those activities.  And some of those breeders keep their dogs in cages more than 23 hours per day.  Some of them have more dogs than are permitted in their municipalities so they do not vaccinate for rabies because rabies vaccines must be reported to the county.  I have heard of a prominent breeder of a northern breed in another state who has “euthanasia parties” where she puts to sleep those dogs that are retired from the ring and from breeding.  There are breeders and handlers who perform unlicensed surgeries without anesthesia.

Many breeders fail to adequately socialize their dogs, resulting in dogs that are shy or shy/aggressive to a fault.  In 2007, a Sloughi bit the race secretary at a lure coursing trial so severely that the woman required reconstructive surgery to her hand.

There is the unforgivable ignorance of genetics.  Many dog breeders lack a fundamental understanding of Mendelian genetics.  The superstitious clinging to mythology regarding genetic defects will cause the ultimate demise of some breeds, and breeders who choose to bury their heads in the sand, hoping that Tinkerbell will appear with a healthy dose of fairy dust to wish away genetic diseases and the propensity to bite people may be the worst abusers of all.

Who makes an issue of these people?  Where does the responsibility of each and every breeder to the betterment of his breed require him to give voice for the welfare of the dogs that cannot speak for themselves?  Why do breeders so seldom call their colleagues out on violating the code of ethics of their parent clubs?  Why do they not make criminal complaints when they know or have reason to know about situations of neglect or abuse?  Why is there such pervasive recalcitrance that breeders turn blind eyes to the misdeeds of their friends and acquaintances and the suffering of the dogs in their care?

Dog breeders do not want to be legislated, but as a group, we have failed to police our own.  If dog breeders acknowledged the problems that we all know exist, we could participate in creating solutions to those problems.  We could focus our efforts and the national dialogue on the real offenders, the entities responsible for the most egregious mistreatment of breeding dogs:  puppy mills and backyard breeders.

The solution to eliminating puppy mills is no great mystery.  Stop the sale of puppies in pet stores.  Without pet stores, puppy mills have no clients.  Why aren’t breeders working harder to educate consumers about what is behind pet store puppies?  And why are we not working harder to pressure stores like Petland to follow in the wake of its more ethical competitors, PetSmart and Petco, by voluntarily refusing to sell puppies?

The current movement in the legislatures nationwide has not been hijacked from breeders.  Breeders have been sleeping at the wheel by choosing to remain, at best, reactive, leaving the problems unaddressed, and passing the buck.  If we want to have a voice in proposing solutions, we need to shake off our collective coma, acknowledge the problems that exist, and face them in a frank and productive way.

Tinkerbell is not going to appear with a tonnage of fairy dust to fix this.  We are going to have to step up to the plate ourselves.  Otherwise, we deserve to be legislated with burdensome laws and we will be.