Volume XLIlI • Number 2 March/April 2010

ProtectingLaws Animals

March 2010 Maryland Bar Journal 1 2 Maryland Bar Journal March 2010 Published bimonthly by the Volume XLIII • Number 2 March/April 2010 Maryland State Bar Association, Inc. The Maryland Bar Center 520 W. Fayette St. Baltimore, Maryland 21201 Features Telephone: (410) 685-7878 (800) 492-1964 Laws Protecting Animals Website: www.msba.org Executive Director – Paul V. Carlin Lawyer-Legislator Seeks Better Laws to Protect Animals 4 Editor – Janet Stidman Eveleth Assistant to the Editor – Jason Zeisloft By Janet Stidman Eveleth Attention Lawyers: Sit, Stay, Plan 12 Design – Jason Quick by Barbara Graham and Diana Gary Advertising Sales – Network Publications Subscriptions: MSBA members receive What is the Scope of the Duty to Provide the maryland bar journal Veterinary Care? 18 as $20 of their dues payment goes to By Susan J. Hankin publication. Others, $42 per year. Postmaster: Send address change to the maryland bar U.S. v. Stevens: The Heart of Protecting Animals 24 journal, 520 W. Fayette St., By Alan S. Nemeth Baltimore, MD 21201. Are Your Neighbors Attacking and Abusing Your Pets? 30 The Maryland Bar Journal welcomes articles on topics of interest to By: Glenn H. Meyer Maryland attorneys. All manuscripts must be original work, Attack On Birds 34 submitted for approval by the Special Committee on Editorial By Lindsay C. Cooper Advisory, and must conform to the Journal style guidelines, which are Compassion for Animals: A Religious Tradition 36 available from the MSBA headquar- By Christine Gutleben ters. The Special Committee reserves the right to reject any manuscript submitted for publication. Changes in State Judicial Processes For Foster Care Children 42 Advertising: Advertising rates will be By Priya Sharma furnished upon request. All advertis- ing is subject to approval by the Editorial Advisory Board. Law and Literature: Truth in Fiction and Law 46 By James M. Kramon Editorial Advisory Board Elizabeth M. Kameen, Chair James B. Astrachan Departments Courtney Blair Ann Norman Bosse Practice Tip Marcella A. Holland Louise A. Lock Enforceability of Venue and Forum-Selection Clauses 50 Victoria Henry Pepper Mary Langdon Preis Ethics Docket MSBA Officers (2009-2010) Unsolicited Requests by Third Parties for Advice Concerning President - Thomas C. Cardaro Animal Rights Law 53 President-Elect - Thomas D. Murphy Secretary - Henry E. Dugan, Jr. Attorney Grievance Commission Treasurer - John Patrick Kudel Spanning the States 54

Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered.

March 2010 Maryland Bar Journal 3 4 Maryland Bar Journal March 2010 Lawyer- Legislator Seeks Better Laws to Protect Animals

Animal abuse is on the rise in this country By Janet Stidman Eveleth and many of the worst offenders are right here in Maryland. In recent years there has been a rash of vicious and ghastly crimes against ani- mals in this state and some of the worse perpe- trators are children. Last summer juveniles in Baltimore City were responsible for setting both a kitten and a pit bull puppy on fire. The kitten was rescued and survived; the puppy had to be euthanized. Stronger laws are needed to protect animals from abuse.

March 2010 Maryland Bar Journal 5 Animal abuse is on the rise in this but it is one of the most serious because Legislature may be able to make the country and many of the worst abuses against animals underscore law more effective and workable for offenders are right here in Maryland. the problem of escalating violence in the sake of the person and the animals In recent years there has been a rash today’s society. McComas fears animal with respect to animal hoarding. of vicious and ghastly crimes against cruelty points to a deeper and more McComas is troubled about the animals in this state and some of the troubling trend. There appears to be growing trend of animal cruelty, but worse perpetrators are children. Last a direct link between a child’s vio- there is a broad spectrum of animal- summer juveniles in Baltimore City lence toward animals and that child’s related issues that fall under “animal were responsible for setting both a kit- tendency toward violence directed at welfare” and it is only one area of ten and a pit bull puppy on fire. The human beings in the future. interest on her long list of legislative kitten was rescued and survived; the McComas cites a recent Johns priorities. McComas, an energetic and puppy had to be euthanized. Stronger Hopkins University study which indi- effective member of Maryland’s House laws are needed to protect animals cates that “if there is cruelty to animals of Delegates for the last seven years, from abuse. by minors, there is more likely to be serves as a watchdog of the more vul- These horrific cases, and the string sociopathic behavior in those minors.” nerable populations, like the elderly of animal abuse incidents reported Thus, in some cases, the roots of vio- and their family caretakers, children with alarming frequency on the eve- lent behavior toward humans can be and animals. She is also concerned ning news, have triggered public out- traced back to violence toward ani- about the fiscal crisis, the health care rage. Many citizens are calling for mals. McComas reports that “one of crisis and all of the other crises con- tougher animal cruelty laws and this the questions asked on a psychiatric fronting the 2010 Legislature. outcry has reached the ears of elected interview is ‘Did you abuse animals as In a recent interview with the officials, including state legislators. a child?’ because it can be a barometer Maryland Bar Journal, Delegate Susan One member of the Maryland General of future behavior.” K. McComas, a strong, committed and Assembly’s House of Delegates, Animal hoarding is another, yet dif- compassionate lawyer-legislator and Susan K. McComas, a lawyer-legisla- ferent example of animal abuse. There accomplished solo practitioner, can- tor from Harford County, is already have been several cases capturing the didly offered insight into her interest working with a contingency of leg- media’s attention in recent months in animals and her pursuit of animal islators to explore ways to better including one in Delegate McComas’ welfare bills in the Legislature. She protect animals from the mounting own jurisdiction. Last summer a shared her perspective on legislative threat of animal cruelty. woman in Harford County with men- progress to date, MSBA’s Animal Law To pursue these protections, tal health issues housed over 40 cats. Section’s valuable legislative role and Delegate McComas and other legisla- Several other incidents, respectively her role as one of the few lawyer- tors are working with a consortium of dealing with a multitude of cats and legislators remaining in the Maryland humane societies and animal welfare dog and a menagerie of pets, were General Assembly. organizations and now, with a group uncovered in the state. While these of dedicated volunteer lawyers from incidents are labeled animal cruelty, it the Maryland State Bar Association’s is hard to compare them with the hei- Background Animal Law Section. These energet- nous cruelty undergone by the kitten Lawyers were always well respected ic attorneys lend their knowledge, and puppy. in the McComas’ family. “We had var- expertise and legal skills to legislators “We are seeing more animal hoard- ious legal issues in my family, ranging to help advance measures that bet- ing cases,” explains McComas. “but from property and estate to domestic, ter protect animals in the state. The these have a psychological compo- so there was always a lawyer around Section views animal cruelty as a top nent. Obviously the person does not and he was the person who helped us legislative priority. intend to be mean or hostile to the solve our problems.” Consequently, Animal cruelty is just one of many animals yet is harming the animals McComas wanted to be a lawyer from legislative issues relating to animal because of his or her mental state. We an early age. welfare currently under consideration need to find an effective treatment for She received her B.A. from Johns by the Maryland General Assembly, these folks.” She is hopeful that the Hopkins University in 1974 and grad-

6 Maryland Bar Journal March 2010 March 2010 Maryland Bar Journal 7 uated from the University of Wyoming and personal injury cases who, for the Assembly. “I had worked in the leg- College of Law in 1980. While attend- last seven years, has also served as islator as an aide and had thoroughly ing law school, she served as a file a member of the House of Delegates enjoyed it,” she recalls. “I was just a clerk for the Wyoming House of in Maryland’s General Assembly. file clerk, but it was a very interesting Representatives, a legal intern for the Today, this busy lawyer-legislator dynamic and environment.” Wyoming Department of Health and juggles two virtual full-time jobs. “When I returned to Maryland, I Social Services, a legal researcher for This energetic lawyer-legislator is would sometimes go visit the Senate the National Organization of Social able to maintain this balance because in the 1970s and just sit in and listen. I Security Claimants’ Representatives “there is an ebb and flow” in her par- enjoyed the debate; it is a marketplace and an intern for Wyoming’s Albany allel workloads. “We now have pro se of politics and ideas.” McComas served County’s Legal Services. forms so the general practice of law on the Board of Town Commissioners After admittance to the Maryland has changed a great deal. Solos seem for Bel Air, Maryland for a number of Bar in 1980, McComas became a to get the more difficult cases where years. Then she wanted to see what District Court Commissioner before parties can not resolve the issues by state government was like so she ran joining the Law Offices of Bruce J. filling out the forms. Generally speak- for a seat in Maryland’s legislature Gilbert as an associate in 1984, han- ing, I do not think the volume of and won. dling civil law cases. The following cases is as high. Therefore, at times A member of the Maryland General year McComas hung out her shingle I am essentially running a part-time Assembly’s House of Delegates since and opened a solo practice which she law practice” which accommodates January 8, 2003, McComas serves on still maintains today, in addition to her substantial workload as a lawyer- the House Judiciary Committee as her work as a lawyer-legislator. legislator. well as its family law subcommit- McComas is a solo practitioner She became intrigued with govern- tee. She chaired the Harford County handling domestic cases, custody, ment service during her tenure as a Delegation in 2008-09 and serves as the divorce, visitation, wills and estates file clerk in the Wyoming General Treasurer of the Women Legislators of

8 Maryland Bar Journal March 2010 March 2010 Maryland Bar Journal 9 Maryland. The lawyer-legislator is a She has always loved animals. leagues. “I encountered a rather sur- member of the Maryland Veterans “When I was six, I was very sick prised and elusive Legislature.” Now, Caucus, the Maryland Rural Caucus with the flu,” she recalls. “For one five years later, animal welfare has and the National Conference of dollar, my mother purchased a little come a long way in the Maryland State Legislatures and serves on its gray tabby kitten to cheer me up. She General Assembly, but has much fur- Legislative Effectiveness Committee. said she never saw me as astonished ther to go. At the local level, McComas was or pleased before or after that feline a member of the Harford County introduction.” Republican Central Committee, from McComas was fascinated. “Cats Animal Law Legislative 1998-2002, a member of the Board of and dogs are always absorbed in the Landscape Directors of the Sexual Assault/Spouse moment. They manage to take it all in. The 2010 animal law legislative Abuse Resource Center, from 1982- They bring so much joy to the young landscape mirrors an interesting 1989, and currently serves as Vice Chair and the old that we need to protect mix of legislators because this “bi- of the Claims Committee of the Local them just for their intrinsic value to partisan issue” spans the spectrum Government Insurance Trust. She is also make us more human.” She sees a pet of the Maryland General Assembly. a member of the Maryland Municipal as so much more than property to its “Several animal welfare issues actu- League and was President of its Cecil/ owner. “They deserve more than the ally unite a contingent of Democratic Harford Chapter in 1989-1990. value of a couch or chair,” she asserts. and Republican legislators,” reports In her local community, McComas The McComas family is currently the McComas. “Quite often, liberals and has served as Commissioner for proud owners of two “alley” cats from conservatives join forces on any given Harford County’s District Court and animal rescue, Rattoo and Engine Joe. animal-related legislative proposal, Chair of the Bel Air Town Commission When this lawyer-legislator started but, there are also diehard polar oppo- and is a member of the County’s law school in the mid 70s, neither sites.” Commission for Women. McComas is domestic violence nor animal law was Today, McComas finds that animal also a member of the State Council on on the curriculum. Animal law was welfare has a more organized, cohe- Child Abuse and Neglect and served not even on the radar screen. Actually, sive center. “In the past, bills might on the Governor’s Work Group on the delegate became involved in this come in to solve a particular problem. Young Drivers in 2005 and the Task issue by happenstance. Now it is more centered on moving Force to Study Identity Theft from “In 2005, I had a constituent who an agenda. I think there is a concern 2005-07. became involved in animal law,” though, that has been echoed by some McComas is a member of the McComas remembers. “She had lost of the more conservative members, Maryland State Bar Association, chair- her cat due to what she perceived was that there is an attempt to grant per- ing its Special Committee on Lawyer negligence by a veterinarian. She felt sonhood to animals. “This is not the Referral in 1989-90, and a member of very strongly about this and was con- agenda and will not be the agenda.” the Harford County Bar Association vinced that the damage award at the Traditionally, about one legislative and the Maryland Criminal Defense time was way too low. So, what we proposal addressing some aspect of Attorneys’ Association. did was go in with a legislative pro- animal law passes each session. This posal, HB 941, to raise the amount of is the “rule of thumb” according to the compensatory damage award for McComas. “But, animal law carries Animal Welfare persons tortiously causing an injury certain connotations and still has trou- When Susan K. McComas joined or a death of a pet from $5000 to ble getting respect in the Maryland the Maryland General Assembly in $7500. “It took us two years, but we General Assembly. Its reception January 2003, as a member of the ultimately succeeded in raising the among legislators is, at best, luke- House of Delegates representing damage award. warm.” Harford County, animal law was not This was McComas’ introduction “It is too easy to make jokes about on her radar screen, nor was it on to animal law. But her success was it,” McComas continues. “People den- the Legislature’s. But McComas has overshadowed by the reception she igrate it. They consider supporters to always had a soft spot for animals. received from her legislative col- be extremists feeling animals are more

10 Maryland Bar Journal March 2010 important than people. So when a leg- people’s lives.” She is pleased that in a public service effort to get the islator champions any animal cause, Section members know what needs word out that “cruelty to animals is a he or she often pays a price.” to be changed in the law to help leg- barometer for serious problems.” This courageous lawyer-legislator islators, and their clients, accomplish Moreover, she would like to see “us champions animal welfare causes “what they want to do for animals.” (the Section) do some stuff to protect anyway “because she likes animals.” “If there are problems with the animals. We need to have more public But, McComas has paid the price. law in terms of animal welfare,” she service sensitization. We also need to “You are ridiculed and the remarks explains, “the Section’s attorneys fol- promote ‘spay and neuter’ programs are often derisive and unnecessary.” low relevant cases where there are so we do not have all of these home- Yet, there is growing support for cer- problems and track situations where less animals around who are there to tain animal causes in the Legislature, the law needs to be changed to protect be victimized. This is causing part of and this group often calls on support animals. It has been very helpful in the problem because, if animals have from MSBA’s Animal Law Section. providing the witnesses to testify at a good home, they are less likely to On animal related legislative issues, legislative hearings; sometimes they be victimized than if they are on the McComas draws expertise and sup- wait hours and hours to testify on a street” at the mercy of others. port from members of the Animal bill.” As an example, she cites animal “MSBA’s Section is a great Law Section. Created in 2006, this law domestic violence bill, tradition- resource,” McComas stresses. “These group of 175 attorneys now serves as ally called late in the day. dedicated professionals know where a vital resource and plays a visible role One thing Delegate McComas the law needs to be changed to protect in Maryland’s legislature on many would like to see is the Animal animals. So now, in addition to the animal-law legislative proposals. Law Section expanding its scope to animal welfare groups like humane include public education and pub- societies, we have lawyers skilled in lic service, especially with regard to the law, who share their expertise to Valuable Role of MSBA young people and violence to animals. help the betterment of animals.” Animal Law Section Specifically, she points to the recent McComas commends the Section When it comes to legislative issues that horrific incidents of animal abuse in for all of its efforts in the legislature, touch on animal welfare, McComas Baltimore City where the kitten and but cautions, “Still, we can not expect relies heavily on various animal advo- Pitt Bull puppy were set on fire. them to change the legislature over- cates and humane societies for exper- “I would hope the Animal Law night. It takes time.” tise. “These groups have some real Section might look at partnering with experts and they see things that can juvenile services entities in communi- be put in place to help protect the ani- ties where we are seeing these hor- Conclusion mals,” she explains. rific attacks on animals, to see what This dynamic lawyer-legislator faces Now, there is a relatively new can be done to ameliorate this,” she re-election later this year and is hope- group, MSBA’s Animal Law Section, asserts. “Our children are becoming ful that she will be given another which has proven to be a valuable more violent and they are de-sensi- four years because she would like to asset to McComas and many other tized by harming animals. The next advance measures to prevent cruelty legislators. “The Section has been ‘animals’ they harm could well be to animals and seek better protections most supportive and is now a great human beings.” for animals under the law. At the legislative resource on animal welfare. “I think we need to be working same time, she will continue to tackle These attorneys are dedicated profes- on these issues now to see what can the myriad of pressing societal issues, sionals who are interested in the law.” be done to stop this violence in its like child abuse and neglect, elder “The fact that the Maryland State tracks.” She is not certain that raising care, healthcare and all of the others Bar Association has an Animal Law the penalties for these offenses will facing the 2010 Legislature. Section is a very positive develop- help. “We need to make these kids ment,” continues McComas, “and a not do it in the first place.” Therefore, Janet Stidman Eveleth is the Director of Communications for the Maryland State reflection that the legal system under- she would like the Section to explore Bar Association and the Editor of the stands the importance of animals in partnering with local communities Maryland Bar Journal.

March 2010 Maryland Bar Journal 11 Attention lawyers: sit, stay, plan By Barbara Graham and Diana Gary

Maryland Statute On October 1, 2009, Maryland joined forty-four other states in creating legally enforceable trusts specifically for the benefit of animals. With the ever growing trend of pet ownership, lawyers must now ask clients, “Do we need to plan for your pets?” The Maryland statute mirrors the language of Section 408 of the Uniform Trust Act of 2000. §14-112 of the Estates and Trusts Article Both statutes provide broad policy allowing pet trusts but no details or guidance on how to carry out the wishes of the deceased pet owner. Statutes and case law in other states may provide some direction about how Maryland courts will interpret the statute. Several states including Virginia, specify that the trust shall be liberally construed in order to carry out the general intent of the transferor. VA. Code Ann. § 55-544.08 Maryland does not. Maryland practitioners therefore need to provide as many details as pos- sible when drafting the pet trust to assure that the deceased pet owner’s wishes are fulfilled.

12 Maryland Bar Journal March March 2010 2010 March 2010 Maryland Bar Journal 13 “Animal Alive” Like Maryland, the vast majority of state statutes, use the word “animal” instead of pet; however, Maryland does not define “animal” in its statute. Washington defines animal as “a non- human animal with vertebrae,” which would exclude many sea creatures, insects and spiders, but little else. (Wash. Rev. Code § 11.118.010(2001)). In contrast, Delaware defines animal as “any nonhuman member of the ani- mal kingdom but shall exclude plants and inanimate objects.” (Del. Code Ann. Title 12, § 3555(g) (2006)). This expansive definition would include every conceivable pet, from hermit crabs and tarantulas to farm animals (but not a pet rock). Further, New Jersey’s statute allows a trust for “domesticated animals.” (N.J. Stat. Ann. § 3B:11-38 (2001)). Whether Maryland’s statute covers domesticated animals generally con- sidered livestock is an open but impor- by name or photo, and, depending on the Will created a valid pet trust under tant question. For example, goats may species, by tattoo, ear tag, leg band or Tex. Property Code Ann. § 112.037 be kept for their milk and sheep may microchip. Animals that are not indi- (2005); however, it failed because there be kept for their wool, yet owners vidually identified, such as those ani- was no clear evidence that a benefi- often consider these types of animals mals born or acquired after creation of ciary cat was alive when Stange died. as their pets. Think petting zoo. The the pet trust but before the pet owner’s The only evidence presented was tes- savvy practitioner might refer to these death, can be “readily identified” by timony that “a big black cat” which animals as “pet animals” in the client’s detailed descriptions of the species and “looked like one of the cats owned by pet trust and describe them so they are breed, or by reference to such docu- Stange” was on her property. individually identifiable. ments as adoption certificates, veteri- As in Texas, a Maryland court nary records, or county licenses. would probably conclude that the Failure to properly identify the ben- language used in Stange’s Will or Identify the Animals eficiary animals may lead to litiga- testimony regarding a “big black cat” Language such as “all my pets” used tion or invalidation of the pet trust. is an insufficient description for iden- in a pet trust invites confusion and For example, Ms. Stange executed a tification purposes under the statute. may frustrate the pet owner’s intent. holographic Will in 1999 and directed In summary, all animals owned by Washington is the only state to address that her brother live in her house and the client must be clearly identified the issue of animal identification in its take “care of my cats, numbering ten, in the pet trust provisions or better, statute. (Wash. Rev. Code § 11.118.020 and any more that may come along.” by an attachment to the Will or Trust, (2001)). The statute suggests that “ani- , No. 04-07-00253-CV (Tex. App. 2008). to avoid amending such instruments mals that are to be benefitted by the The administrator of the estate filed a whenever a new pet enters or leaves trust may be individually identified.” declaratory judgment action to deter- the picture. It is equally important Animals intended to be included in the mine the beneficiaries under Stange’s that all of the intended beneficiaries trust could be “individually identified” Will. The probate court determined that be identified after the owner’s death.

14 Maryland Bar Journal March 2010 Who’s Alive Trustees, Pet Caregivers recommended that the Trustee be dif- In Maryland, “[a] trust may be created and Trust Protectors ferent from the Pet Caregiver. Why? for one or more animals alive during Pet Caregiver. The pet owner must There are no trust police. By naming the lifetime of the deceased owner.” thoughtfully select the right indi- the same person, there are no checks The question remains as to whether an viduals to oversee the care of all com- and balances to ensure the pets are animal in gestation would be covered panion animals. The first individual being adequately cared for and that under the deceased owner’s pet trust. to be selected is the Pet Caregiver, the money is being spent specifical- Colorado’s statute addresses the issue who has physical custody of the pets. ly for each animal’s welfare. Again, and specifically states that an animal’s In picking the Pet Caregiver, the key alternate trustees should be named. offspring in gestation is a valid ben- considerations are the person’s will- As an added protection, the pet trust eficiary of the trust. (Colo. Rev. Stat. ingness to assume the responsibili- should specify who receives formal § 15-11-901(2) (1995).) Yet again, the ties associated with caring for the accountings and when. devil is in the details of the pet trust. type of pet, and the person’s abil- If the pet owner specifies his or her ity to provide a stable home in the Trust Protector. The client should also intent to include offspring in gesta- manner that the client finds accept- consider naming a Trust Protector. tion as beneficiary animals, the trustee able. Ideally, several alternate Pet This person’s role is to provide spe- would be bound by the terms of the Caregivers should be selected, and cialized investment skills and money trust, and a court would likely enforce a “no kill” sanctuary, life care orga- management of the trust funds. The the trust provisions. nization e.g. North Shore Animal Trust Protector will never take physi- League or Animal Haven or breed cal custody of the animals and never rescue named as a last resort if all the directly serves as trustee in managing Trust Creation Pet Caregivers selected are unwilling the funds. The protector is strictly or unable to serve for the duration of an added layer of oversight over the Will or Trust all the pets’ lives. trust funds. Though not needed in There are two basic ways to plan for The instructions left in a pet trust most cases, a Trust Protector could clients’ pets in the event of incapacity for the Pet Caregiver should be as be extremely useful for larger trusts. or death: (1) by creating a pet trust detailed as a parent leaving for a in their Last Will and Testament or long trip would provide to a child (2) in their Revocable Living Trust. care provider. The information Standing If a client chooses to plan for some should include the obvious – vet, Maryland’s statute grants standing to companion animals by creating a pet groomer, pet sitter – as well as any “a person having an interest in the trust in the Will, the lawyer should other specifications – “my cats are welfare of an animal” to ask “the court consider including special instruc- to never to be allowed outdoors,” or to appoint a person to enforce the trust tions in the client’s durable power “Smokey doesn’t like the poodle at or to remove a person appointed.” of attorney that authorizes the agent the dog park.” California extends standing to “any to care for the pets and to spend nonprofit charitable organization that the client’s money on pet care dur- Trustee. The client must also name a has as its principal activity the care of ing the client’s incapacity. If a client Trustee to manage the trust funds. If animals.” Cal. Prob. Code § 15212 (c) instead chooses to create a Living the client fails to do so, the Maryland Although Maryland’s language differs Trust, pet trust provisions need only pet trust statute permits the court from California’s, it is expected that to be added, as incapacity provisions to appoint a Trustee. The Trustee, those appointed in the pet trust, the Pet are already built into the document. whether individual or corporate, not Caregiver, Trustee, and Trust Protector, Because pets are legally classified as only must be willing to administer would have standing under Maryland’s property by the state, attorneys draft- the property for the benefit of the statute. It remains to be seen, however, ing Living Trusts must also remem- animals and to expend the time and whether Maryland courts will interpret ber to include the pets when assign- effort necessary to check on the ani- the statute broadly to include standing ing tangible “personal property” to mal’s care, but also to deal with trust for residuary heirs or disinterested ani- the Living Trust. administration matters. It is highly mal welfare organizations.

March 2010 Maryland Bar Journal 15 Funding The Court allotted $5,000 per month to for maintenance of the property. Neither Maryland nor any other Trouble’s caretaker, and allowed annu- This $1.2 million is more than half state with a pet trust statute lim- al expenses of $100,000 for security of her entire estate, but would not its the amount of money permitted (Trouble received several kidnapping exceed the amount required for the to fund the trust. Maryland, along and death threats), $8,000 for groom- use intended. Would this be deemed with a majority of states, does autho- ing, $1,200 for food, and $18,000 for reasonable? Probably. Assume PC had rize courts to reduce the amount of veterinary care. The Court also consid- no horses, but only two dogs and a assets held in trust for the animals to ered the amount of the pet trust rela- cat. Would a Maryland court find it the extent that the value of the trust tive to Helmsley’s entire estate, finding reasonable to maintain a residence on exceeds the amount required for the that Trouble’s trust was less than ten eight acres for fifteen years for the care use intended by the trust. Hawaii’s percent of Helmsley’s estate. of two dogs and a cat? Probably not. statute limits the court’s power. Animal owners with the resources The court may reduce the trust funds to fund a trust will be looking to their only after finding that the amount lawyers for guidance. How much TERMINATION OF exceeds the amount required and “the money is adequate? What will a court THE TRUST court finds that there will be no substan- find reasonable? How do you mini- tial adverse impact in the care, main- mize the chances that heirs will chal- Post-Death Expenses tenance, health, or appearance of the lenge the trust? The answers depend Maryland follows most states in ter- designated domestic or pet animal.” on the type of animals, the number of minating the trust upon the death Haw. Rev. Stat. § 560:7-501 (2005). In animals, their life expectancies, and of the last surviving animal. Only essence, the courts will be determining the standard of living the animals are Virginia specifically allows for post- what amount of money, and possibly accustomed to. death expenditures: “funds from the real estate, is reasonable considering By specifically identifying in the trust may be applied to any outstand- the number and type of animal ben- trust documents the reasons for set- ing expenses of the trust and for burial eficiaries. The highly publicized Leona ting up the trust and the steps taken or other postdeath expenditures(VA. Helmsley case is instructive. to compute the amount being placed Code Ann. § 55-544.08A (2005)). Final Leona Helmsley died in August in the trust, courts will have bet- veterinary bills, and burial or crema- 2007, worth an estimated $3 billion to ter understandings of the client’s tion costs, may amount to thousands $8 billion. She had one deceased child intentions. The trust that spells out of dollars. If the Maryland pet owner and four living grandchildren. In her anticipated expenses for food, shelter, specifies his or her intent to autho- Will, Helmsley disinherited two of grooming, veterinary care, extraor- rize such post-death expenses, a court her grandchildren, yet left $12 million dinary veterinary expenses, burial or would likely permit the payment of in trust for “Trouble,” her then 5-year cremation fees, payments to caregiv- such expenses out of trust funds. old Maltese. She directed Trouble’s ers, and funds for professional board- custodian to provide care for Trouble ing or a pet sitter will more likely be “at the highest standard.” Her remain- found to be reasonable than a trust Remainder Beneficiary ing estate would pass to her charitable provision for one large, lump sum. A remainder beneficiary of the trust trust. The disinherited grandchildren For example, potential client (PC) should always be clearly identified. challenged Leona’s Will. has two adult children who live out It is suggested that the Trustee or Pet Ultimately, the trust lawyer gave of state. PC lives on eight acres in Caregiver not be named as the residu- custody of the dog to a third party and Maryland with six horses, two dogs, ary heir because that person may have settled with the disinherited grand- and a cat. She wants her housekeeper less incentive to keep pets healthy and children. What about the $12 million and longtime friend to live in the alive. Instead the client might con- for Trouble? The Court considered the house and care for all of her animals sider a non-profit organization that lifestyle of the dog, heard expert tes- after her death. She proposes to place focuses on the welfare of animals as timony on Trouble’s health problems, $1.2 million in a pet trust, which she the residuary heir, as this heir will be veterinary needs and life expectancy, expects would provide fifteen years of less likely to challenge the trust than and reduced the pet trust to $2 million. care for her animals, as well as funds children or other close relatives.

16 Maryland Bar Journal March 2010 Tax Consequences dends and capital gains earned in a pet trust are subject to regular trust Inheritance and Estate Taxes income tax rates (Revenue Ruling Several taxes are imposed on the 76-486). One of the major problems Maryland pet trust. First, Maryland, with the tax scheme on pet trusts is along with a handful of states, still that the net income will be taxed at employs a ten percent inheritance tax federal trust rates. Why is this a prob- on transfers at death to individuals lem? Trusts reach the highest federal not considered to be close relatives. tax rate of 35 percent at only $11,150 of Because of the newness of Maryland’s net income, while an individual must pet trust law, it has not yet been net $372,900 before being taxed at this declared as an exempt transfer from high rate. inheritance taxes. Thus, whatever To avoid income being taxed at amount is placed in the pet trust may high trust rates, most standard trusts be subject to this ten percent tax. allow for income to be distributed to This issue was actually ruled on in heirs, shifting the income to lower (95 N.E.2d 779 (Ohio Ct. App. 1950)), taxed individual rates. However, the where the appellate court held that IRS has held that an enforceable , Ohio could not levy a tax on a bequest regardless of whether any distribu- intended for the care of a dog because tions are made to the Pet Caregiver the property was not passing for the for the benefit of the pets. Revenue use of a “person, institution or corpora- Ruling 76-486 Depending on the size tion.” How Maryland handles the same of the pet trust and the types of invest- issue remains to be seen. Meanwhile, if ments (e.g. income-generating securi- clients wish to fund a pet trust for the ties), the net income being taxed in a amount, the provisions should spe- pet trust could be substantial. cifically state that any inheritance taxes The second income tax problem with are paid from the residuary estate and pet trusts is that the only expenses not from the trust itself. allowed as deductions are profession- The second tax in Maryland is the al fees such as trustee commissions, state death tax, which assesses tax on accountant fees, attorney fees, and Conclusion investment management fees. Expenses estates having a net value of over $1 Pets have become an increasingly incurred for the care of the pet like Pet million. Whatever assets being used to important part of the modern fam- Caregiver fees, veterinarian care, and fund the pet trust will be included in ily and are often regarded as valued pet sitting fees are not deductible. the net estate calculation, which means members of the family. Maryland leg- the amount set aside for the pet trust islators have recognized this. Today, may be reduced to pay the trust’s por- Liability Insurance Maryland pet owners can take a num- tion of any state estate taxes. Again, it ber of steps in the estate planning The final matter to include in the is important to identify in the client’s process to ensure that their dogs, cats, pet trust is to require that the Pet Will or Living Trust whether the pet birds, horses, goats, and, yes, even Caregiver obtain adequate liability trust or the residuary estate is respon- iguanas, are well cared for and happy insurance to cover any bad behavior sible for paying the taxes. even after the pet owner is no longer by the animals or defend lawsuits the able to enjoy their companionship. animals’ actions may cause. The Pet Income Taxes Caregivers can obtain liability insur- Ms. Graham has been practicing criminal defense and animal law in Rockville for The final tax imposed on a Maryland ance or increase their homeowner’s 18 years and may be reached at brgra- trust is the income tax, federal and coverage, both of which can be legiti- [email protected]. Ms. Gary practices mately paid by the trust. estate and tax law in Rockville and may state. Like any trust, interest, divi- be reached at [email protected].

March 2010 Maryland Bar Journal 17 What is the Scope of the Duty to Provide Veterinary Care?

Anyone who has watched Animal Planet’s Animal Precinct will recog- nize this familiar scenario: a special investigator from the ASPCA arrives at a defendant’s home, discovers a dog with an obvious medical condition, determines that the dog is not receiving what the officer believes to be needed medical care, seizes the dog, takes it to the ASPCA to be treated, and arrests the owner on charges of animal cruelty. See, e.g., People v. Arroyo, 777 N.Y.S.2d 836, 846 (N.Y. Crim. Ct. 2004). What these compelling stories do not address, however, is the extent to which such seizures and arrests are supported by the state animal cruelty laws.

18 Maryland Bar Journal March 2010 By Susan J. Hankin

March 2010 Maryland Bar Journal 19 Not all state laws require that own- York Criminal Court rejected the argu- How Much Care ers provide their animals with veteri- ment that the affirmative duty to pro- is Necessary? nary care. Even when they do, it is by vide “necessary sustenance” includes Such lack of guidance was the subject no means clear what level of care is veterinary care. , 777 N.Y.S.2dat 842. of a recent class action suit challeng- required. Another question left unan- Some cases have, however, found ing the constitutionality of DC’s ani- swered by these statutes is whether, a limited duty to provide such care mal cruelty lawSeveral animal owners when an owner does seek care for an within the statute’s prohibition joined in challenging the law after their animal, there are any instances where against an “omission or neglect” pets were seized, underwent veterinary her choices for how that animal should that causes or permits “unjustifiable treatment that the owners considered be treated can be overridden. physical pain, suffering or death.” unnecessary and were not returned The duty to provide veterinary care, N.Y. Agric. & Mkts. Law § 350(2) to the owners until they agreed to to the extent that it exists, can be found (McKinney 2004); ,874 N.Y.S.2d 723 pay for the treatment. , 480 F. Supp. in animal cruelty statutes. State crimi- (N.Y. Crim. Ct. 2008); ,No. 50556(U), 2d 16 (D.D.C 2007). In the case of two nal laws prohibiting cruelty to ani- slip op., 2008 WL 724724 (N.Y. Crim. of the plaintiffs, Humane Society law mals—which includes both abuse and Ct. Jan. 3, 2008) enforcement officers seized their dogs neglect—have provided the primary Animal cruelty statutes in Maryland, from parked cars. means in which our legal system has the District of Columbia and Virginia According to the complaint, one protected animals. Many of these stat- all contain explicit provisions requir- dog was “‘forcibly sterilized’” against utes not only prohibit abusive treat- ing some level of veterinary care. its owner’s will, and the other was ment of animals, but they also impose Maryland’s law, for example, prohibits only returned to its owner when she affirmative duties on people who care a person with custody of an animal “‘agreed to pay ... [for] unnecessary for animals. California, for example, from “unnecessarily fail[ing] to pro- medical treatment.’” . at 19 (quot- makes it a misdemeanor for an owner vide the animal with ... necessary vet- ing plaintiffs’ amended complaint). to permit the animal to be without erinary care ... .” Md. Code Ann., Crim. A third dog, which had cancer, was “proper care and attention.” Cal. Penal Law § 10-604(a)(5) (LexisNexis Supp. seized from the owner’s home and was Code § 597f(a) (West 1999). 2009). The District’s law contains near- not returned until he consented to and Another provision requires animal ly identical language, though it omits agreed to pay for “‘radical treatment’” depositaries to “provide the animals the second “necessary.” D.C. Code § in the form of “‘major cancer sur- with necessary and prompt veterinary 22-1001(a)(1) (Supp. 2009). gery.’” (quoting plaintiffs’ amended care, nutrition, and shelter, and treat Virginia’s law varies in two ways: complaint). In the suit, these owners them kindly.” Cal. Civ. Code § 1834 it does not place the affirmative duty claimed that the statute was unconsti- (West Supp. 2009). While the “treat only on the animal’s owner or cus- tutionally vague, that it failed to pro- them kindly” provision may be unique todian, and it limits the affirmative vide sufficient procedural safeguards to California, laws imposing affirma- obligation, with an offense occurring and that it was enforced arbitrarily. tive duties for proper housing, vet- when “[any person] deprives any ani- at 18. erinary care and feeding of animals are mal of necessary food, drink, shelter Addressing these and other issues becoming increasingly common. or veterinary treatment ... .” Va. Code in the Humane Society’s Motion to Ann. § 3.2-6570(A)(ii) 2008) (emphasis Dismiss, the court concluded that nei- added). What is not clear, however, ther “‘ unnecessarily’” nor “‘proper’” Implicit vs. Explicit Duties to is under what conditions veterinary was so indefinite as to make the provi- Provide Veterinary Care care would be considered “necessary,” sion, “‘unnecessarily fails to provide The affirmative duty to provide veteri- what constitutes an emergency, and in the [animal] with proper food, drink, nary care can be explicit in the statute’s all cases, what level of care might be ... veterinary care, shelter, or protection language or it can be interpreted from required. Would an owner, for exam- from the weather’” unconstitutionally more general language in the stat- ple, be required to spend money that vague. . at 30, 33 (quoting D.C. Code ute. In New York, for example, where she might not have on “necessary” § 22-1001(a)). It did, however, uphold is set, there is no explicit language veterinary care? the plaintiffs’ procedural due process that requires veterinary care. The New challenge, which was based, in part, on

20 Maryland Bar Journal March 2010 the amount of discretion that the stat- ute gives to Humane Society enforce- ment officers and the statute’s failure to “‘prevent involuntary medical treat- ment.’”. at 31, 36. This case, which is still pending, raises fundamental ques- tions of how much medical care is nec- essary and who gets to decide. , 577 F. Supp. 2d 82 (D.D.C. 2008) (dismissing plaintiffs’ motion for partial summary judgment). Several New York cases may give limited guidance as to what level of care might be found “necessary.” New York law, as noted above, does not contain an explicit requirement for vet- erinary care, and one court has found that no such duty was implied in the statute’s language. , 777 N.Y.S.2d 836 (N.Y. Crim. Ct. 2004). Guided in part by “current standards of morality with respect to pet owners’ duty to provide medical care for their animals,” at 837, the court found that the statute’s lan- guage prohibiting “unjustifiable physi- cal pain” was too vague to criminalize the failure to provide medical care to a pet dog with a large cancerous tumor, and thus granted the defen- dant’s motion to dismiss. at 844. The court was especially reluctant to read such a duty into the statute when fundamental questions, such as how much care need be provided, remained unanswered. In calling on its legislature to take the lead if there was to be a requirement to provide vet- erinary care, the court pointed to stat- utes in Pennsylvania and Maryland as examples of states where depriving an imply a duty to provide medical care, court’s reluctance to imply a duty to animal of veterinary care was explicitly and the defendants’ motions to dismiss provide medical care was in part based made a crime (though the language in were denied. found that allowing on the recognition that some owners neither statute answers the “how much a cat’s tumor to go untreated could could not afford it, the court suggested care” question). at 845. violate the cruelty statute, especially that owners unable to finance needed In contrast to, two subsequent deci- where, unlike , there was a “pattern of care could surrender the animals to the sions found sufficient distinctions neglect.” No. 50556(U), slip op., 2008 ASPCA. at 3. to conclude that the same language, WL 724724, at 3–4 (N.Y. Crim. Ct. Jan. Similarly, in the defendant’s motion “unjustifiable physical pain,” did 3, 2008). And in contrast to , where the to dismiss was denied where his choice

March 2010 Maryland Bar Journal 21 might be having the animal humanely euthanized. While these choices might sometimes be troubling, it would be hard to argue that they run afoul of any state’s animal cruelty laws. Some decisions to euthanize an animal may, however, be so extreme as to warrant intervention. The most problematic reason why euthanasia is chosen in veterinary medicine is often dubbed “convenience eutha- nasia” because it occurs when the decision seems to be made purely for the convenience of the animal’s own- ers. Clinton R. Sanders, , 10 Soc. F. 195 (1995). Bernard Rollin, an ethicist at Colorado State Veterinary School, reports that the request to euthanize healthy animals is the most stress- ful and “demoralizing part of com- not to have his dog’s tumor treated cies of the animal, unless the animal panion animal practice.” Bernard E. was alleged to have caused the dog to is undergoing appropriate treatment.” Rollin, 54 (2d ed. 2006). “suffer needlessly” in violation of the § 750.50(1)(K). Even with this level Some of the real examples of con- cruelty statute. 874 N.Y.S.2d 723, 731 of specificity, however, there is much venience euthanasia that he cites are (N.Y. Crim. Ct. 2008). One of the defen- room for debate. What still remains just horrific: “clients going on vaca- dant’s arguments in this case centered unclear is the extent to which “appro- tion and not wanting to pay boarding on the claim that the statute should priate treatment” can be a function of fees, or clients tired of an adult dog not be read to criminalize the failure to the owner’s ability to pay. and wanting a puppy, or clients who provide such extensive and expensive have redecorated and the dog doesn’t treatment as the ASPCA undertook for match the color scheme ... .” at 53–54. his animal. This again raises the funda- Can Owners’ Treatment Laws against animal cruelty, mental question of how much care is Choices Ever Be Overridden? particularly those with provisions required. at 733. As the DC and New York cases dem- requiring veterinary care, may pro- Even among statutes that require onstrate, owners who choose no vide some basis for challenging such veterinary care, there is little guid- treatment for their animals may be owner treatment choices. These laws ance beyond that bare requirement. subject to prosecution, especially in already provide the place where we, Recent amendments to Michigan’s states like Maryland where there is as a society, have determined that statute on crimes against animals give an explicit, affirmative duty to pro- certain behavior towards animals will a bit more guidance than most state vide veterinary care. What is less not be tolerated, and they could be laws by requiring that animals receive clear, however, is the extent to which used to limit these extreme treatment “adequate care,” which includes “vet- the may be circumscribed by such choices by clarifying the provisions erinary medical attention in order to laws. Treatment choices, including that require proper veterinary care. maintain an animal in a state of good the ultimate choice to euthanize an Currently, among the cruelty stat- health.” Mich. Comp. Laws Ann. §§ animal, are sometimes made for eco- utes that explicitly address veterinary 750.50(1)(a), (2)(a) (West 2004). The nomic reasons. care, some specifically exempt owner final phrase is further defined as “free- An animal may have a treatable choices for humane euthanasia. dom from disease and illness, and in condition, but if its owner cannot For example, Nebraska’s statute on a condition of proper body weight afford, or chooses not to spend the offenses against animals requires ani- and temperature for the age and spe- money on, the treatment, one option

22 Maryland Bar Journal March 2010 mal caretakers to provide “care as tect ... property”). The final clause, states’ cruelty statutes allow courts is reasonably necessary for the ani- despite the unfortunate choice of to require the forfeiture of abused mal’s health,” but specifically allows “disposing,” can be read as encour- animals or similarly prohibit future “[h]umane killing ... upon the own- aging owners to find other homes for ownership of an animal from own- er’s request ... .” Neb. Rev. Stat. §§ their unwanted animals or at least to ers who abuse them., D.C. Code §§ 28-1008(1), 28-1013(6) (2008). Similarly, take them to a shelter that will pro- 22-1001(a)(2)(B), (D) (Supp. 2009). Alabama exempts from its cruelty vide better care for them. Animals that are removed from prohibitions “[a]ny owner of a dog or The statute also contains an excep- abusive owners can be re-homed cat who euthanizes the dog or cat for tion for “accepted veterinary prac- through shelters or animal rescue humane purposes.” Ala. Code § 13A- tices.” § 1325(b). While, at first, this groups. Thus, denying an owner the 11-246(2) (LexisNexis 2005). Unlike exception may appear to sanction choice to euthanize a healthy animal Nebraska’s and Alabama’s laws, stat- the killing of a healthy animal at and then finding another home for utes in Maryland, D.C. and Virginia the owner’s request, it more likely the animal is essentially another way do not contain exemptions for owner- allows for input from the veterinary of confiscating an animal to protect it requested euthanasia. Maryland’s cru- profession—and even for evolving from what can be characterized as a elty statute does exempt from its pro- standards—as to what is deemed form of abuse: viewing that animal as hibitions “customary and normal vet- acceptable. If most veterinarians, as disposable property. erinary ... practices,” Md. Code Ann., has been reported, truly object to The Delaware statute could serve as Crim. Law § 10-603(1) (LexisNexis performing convenience euthanasia, a model of how to use cruelty laws to 2002), which may or may not include then the procedure cannot easily be challenge the truly egregious owner owner-requested euthanasia. characterized as an “accepted veteri- choice of euthanizing a healthy ani- At least one statute does contain nary practice.” If nothing else, such mal. The statute’s language contains language that could support an argu- language could certainly support a enough leeway to allow owner inter- ment that convenience euthanasia veterinarian’s refusal to comply with ests, even financial ones, to trump the violates anti-cruelty law. Delaware, an owner’s request to euthanize a animal’s interest, while discouraging like a number of other states, requires healthy animal. the killing of a healthy animal when animal owners to provide “[p]roper One argument against this inter- other options exist for the animal. It veterinary care.” Del. Code Ann. tit. pretation is that it raises the question allows for veterinarians to challenge 11, § 1325(a)(11) (2007). But, unlike of what happens to the unwanted an owner’s choices that go against in other states, an animal owner in animals. Some veterinarians reluc- accepted practices, and it contains Delaware is guilty of cruelty when he tantly acquiesce to owner-request- provisions to protect animals from “unnecessarily kills ... any animal ... ed euthanasia of a healthy animal being owned by people who would .” § 1325(b)(4). The statute expands because they cannot take on caring treat them in this way. Criminalizing on “unnecessarily” to include killing for the animals that the owner no behavior involving treatment choice “if the act is not required to termi- longer wants, and they do not want through cruelty statutes requires a nate an animal’s suffering, to protect to be responsible for what may hap- careful balance. Legislators drafting the life or property of the actor or pen to these unwanted animals. Here, these statutes need to leave room another person or if other means of again, animal cruelty statutes’ pen- for other options where euthanasia disposing of an animal exist which alty provisions provide some useful choices or decisions not to treat ought would not impair the health or well- guidance. to be left to the owner’s discretion or being of that animal ... .” In Delaware, for example, violators may be based on their inability to pay This language appears to contain a of the cruelty prohibitions, includ- for treatment. clear prohibition of killing a healthy ing that against unnecessary killing, Ms. Hankin is an Associate Professor at animal merely for the owner’s conve- are prohibited from owning or pos- the University of Maryland School of Law, nience (“not required to terminate ... sessing an animal for five or fifteen where she teaches a seminar on Animals and the Law. She may be reached at suffering”), while allowing the flexi- years, depending on whether the [email protected]. bility to make such choices to prevent crime is a felony or a misdemeanor. a true financial hardship (“to pro- §§ 1325(c)&(d). A number of other

March 2010 Maryland Bar Journal 23 24 Maryland Bar Journal March 2010 U.S. v. Stevens: The Heart of Protecting Animals

By Alan S. Nemeth

In Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court considered the constitutionality of a number of local ordinances designed by the city to prevent the church from performing animal sacrifices. The City of Hialeah wanted to force the church, which practiced the Santeria reli- gion, out of its jurisdiction. The city wanted to use the church’s practice of animal sacrifice as the tool to achieve that goal.

March 2010 Maryland Bar Journal 25 The Supreme Court held that initially designed to combat crush place in the State; and those ordinances were unconsti- videos – fetish videos in which small tutional as a violation of the 1st animals are crushed by women, often (2) the term “State” means each Amendment. was not an instance of in high heels, to provide sexual stim- of the several States, the District animal protection that merely hap- ulation to their viewers. Arguably, of Columbia, the Commonwealth pened to infringe upon the church’s others may just enjoy watching of Puerto Rico, the Virgin Islands, 1st Amendment religious freedoms. things get killed in a cruel manner. Guam, American Samoa, the It was a freedom of religion case in The statute was signed into law by Commonwealth of the Northern which animal protection was used as President Clinton in 1999, with the Mariana Islands, and any other a tool to specifically inhibit religion. intention of combating crush videos. commonwealth, territory, or pos- In the end, was lessabout animal However, as written, 18 U.S.C. § 48 session of the United States. welfare than it was about the neu- covers all depictions of animal cru- trality of the ordinances and their elty. The statute reads as follows: Is 18 U.S.C. § 48 overbroad? targeted effect upon the church. is a Does it infringe upon protected 1st constitutional law case with the pro- (a) Creation, sale, or possession.— Amendment rights? Does the excep- tection of animals at its very heart. Whoever knowingly creates, sells, tion protect it from being overbroad? (No. 08-769) is a case that pits or possesses a depiction of animal the 1st Amendment’s guarantees of cruelty with the intention of plac- freedom of speech against content ing that depiction in interstate or Facts that portrays abject cruelty to ani- foreign commerce for commercial Bob Stevens owned a company mals. We know that all speech is not gain, shall be fined under this called Dogs of Velvet and Steel, as guaranteed absolutely. Given this, title or imprisoned not more than well as a website called Pitbulllife. should animal cruelty, as depicted 5 years, or both. com. Through these ventures, he in films and videos of animals being sold tapes of dogfights and of dogs treated in a cruel manner by humans (b) Exception.--Subsection (a) attacking other animals, such as via dog fighting, dog and other ani- does not apply to any depic- pigs. He further actively advertised mal fighting, crush videos and so on, tion that has serious religious, these tapes for sale in an under- enjoy the same 1st Amendment pro- political, scientific, educational, ground dogfighting magazine. tection as other protected speech? journalistic, historical, or artistic Federal and Pennsylvania law Or, should animal cruelty videos value. enforcement officials, investigating be aftorded no protection akin to Stevens, agreed to purchase three child pornography, fighting words, (c) Definitions.--In this section– of his videotapes: “Pick-A-Winna: obscenity, etc.? How should the con- A Pit Bull Documentary,” “Japan stitution balance legitimate works (1) the term “depiction of ani- Pit Fights,” and “Catch Dogs and that happen to show animals being mal cruelty” means any visual Country Living.” The first two tapes killed against those works that only or auditory depiction, including contained footage of dog fights go to satisfy a blood lust that could any photograph, motion-picture staged in the U.S. and in Japan. The be analogized to a prurient interest film, video recording, electronic third tape contained graphic foot- analysis? Do laws enacted to pro- image, or sound recording of con- age of dogs being used to hunt wild tect animals from cruelty and abuse duct in which a living animal is boar and of the dogs being trained to constitute a compelling governmen- intentionally maimed, mutilated, hunt on a farm with domestic pigs as tal interest that would allow those tortured, wounded, or killed, the stand-ins for the boar. All three laws to both survive a strict scru- if such conduct is illegal under videos were narrated and contained tiny review and to pass constitu- Federal law or the law of the State commentary by Stevens. tional muster, even though some 1st in which the creation, sale, or pos- After additional investigation, Amendment rights may be curtailed? session takes place, regardless of including a search of Stevens’ home, The statute that is being consid- whether the maiming, mutilation, which yielded additional copies of ered is 18 U.S.C. § 48. The law was torture, wounding, or killing took the tapes, other dogfighting para-

26 Maryland Bar Journal March 2010 phernalia, as well as records show- age, or in any way condone dog supervised release. He subsequently ing sales of the videos throughout fighting,’ [but rather] such images appealed to the 3rd Circuit. In July the U.S and abroad, Stevens was demonstrate ‘what made our breed 2008, the court, sitting en banc, over- indicted in March 2004 on three [pitbulls] the courageous and intel- turned Stevens’ conviction by a 10-3 counts of “knowingly selling depic- ligent breed that it is.’” He states vote after making the determination tions of animal cruelty with the that the footage in “Japan Pit Fights” that 18 U.S.C. § 48 violated Stevens’ intention of placing those depictions merely elucidates how dogfighting 1st Amendment right to free speech. in interstate commerce for commer- is more humane in Japan than it is Oral arguments in front of the U.S. cial gain, in violation of 18 U.S.C. § elsewhere. Lastly, he stresses that Supreme court were held on October 48.” The government did not allege the footage used in “Catch Dogs” 6, 2009. that Stevens was involved in the was for the purposes of demonstrat- underlying animal cruelty or that he ing proper and improper training was present at the incidents of the techniques for hunting dogs. Arguments cruelty. In November 2004, Stevens argued The crux of the government’s argu- According to his Brief in that his indictment should be dis- ment for the constitutionality of 18 Opposition, Stevens is a 69-year-old missed because the provisions of U.S.C. § 48 focuses on two main author and documentary producer 18 U.S.C. § 48 was a violated his themes. First, the government argues with no prior criminal record who 1st Amendment rights and that it that 18 U.S.C. § 48 does not regu- “does not promote, encourage, or in was overbroad and vague under the late speech that is protected under any way condone[s] dogfighting.” 5th Amendment. The District Court the 1st Amendment. Depictions of He defends the material in “Pick- denied that motion. In January 2005, cruelty to animals, the government A-Winna,” footage from dogfights Bob Stevens was convicted of all argues, fall outside the realm of from the 60’s and 70’s, by stating three counts and was sentenced to 37 protected speech and should, there- that it “’do[es] not promote, encour- months in prison plus three years of fore, be viewed constitutionally akin

March 2010 Maryland Bar Journal 27 to fighting words under, words of incitement under , defamation under , obscenity under , and child pornog- raphy under . Second, it argues that 18 U.S.C. § 48 is not constitutionally overbroad, but is rather is narrow- ly tailored to address a compelling governmental interest – that of cur- tailing cruelty to animals. Stevens takes the opposite approach to the same basic themes in analyzing the constitutionality of 18 U.S.C. § 48. He argues that the speech in question here, namely the depictions of dog- fighting and of dogs attacking other animals, is constitutionally protected speech and that new, unprotected categories of speech cannot simply be created. Furthermore, he argues that the government does not have a compelling interest in combating animal cruelty and, therefore, does not allow for it to curtail the speech in question. He further argues that 18 U.S.C. § 48 is overbroad and not narrowly-tailored.

Maryland Attorney Participation Maryland attorneys have partici- pated in the U.S. Supreme Court’s consideration of by signing on to amicus briefs. Maryland Attorney General Doug Gansler, along with twenty-five of his fellow attorneys general, filed an amicus brief in sup- port of the government’s position. The argument of the attorneys gen- Third Circuit Court of Appeals and crimes in any market. eral is two-fold. First, 18 U.S.C. § 48 hold that 18 U.S.C. § 48 is facially Animal cruelty crimes should provides an indispensible tool which constitutional. States have a com- not pay because, first, they are states can use to combat cruelty to pelling interest in § 48 because it devastating to the interests of animals. Second, the 3rd Circuit erred vitally assists efforts to deter and states. All fifty states and the in finding that combating cruelty to enforce their own animal cruelty District of Columbia have long animals is not a compelling govern- laws by keeping perpetrators (and prohibited animal cruelty and mental interest. They wrote in part: downstream distributors) from backed up these laws with sub- advertising, selling, and profit- stantial enforcement efforts and This Court should reverse the ing from depictions of their vile economic investments to com-

28 Maryland Bar Journal March 2010 bat and stamp it out. Animal fighting and draws large num- was not. Furthermore, the Statement crime task forces and other ini- bers of youth into these heinous of Interest in the professors’ amicus tiatives have sprouted across the activities. Moreover, adults that brief referenced the MSBA’s Section nation at all levels of govern- abuse animals tend often to abuse on Animal Law, along with fourteen ment. Animal law programs in their children. Here again, there other animal law sections or com- academia proliferate, furthering are too many tragic examples. mittees, as evidence that animal law awareness, detection, and pros- Based on the amici states’ experi- is a recognized field of law and is of ecution of these crimes. These ence, relaxing societal restraints growing import nationwide. efforts would be undermined if a and legitimizing the activities of right to openly profit from depic- animal cruelty purveyors sub- tions of animal cruelty crimes stantially threaten the wellbeing Conclusion were to exist. and mores of the next generation. Combating animal cruelty is a Second, states have found In sum, animal cruelty is a seri- compelling governmental interest. enforcement of cruelty laws excep- ous menace that demands tools Animal cruelty not only affects the tionally difficult with respect to like § 48 to assist state enforce- animal that is the subject of the those animal cruelty crimes most ment efforts. Also, the adage that cruelty, but the existence and per- often depicted, marketed, and crime should not pay has spe- petuation of that cruelty debases sold, such as animal fighting, pro- cial importance in this context. our society. It often sets the stage for duction of “crush videos,” and The amici states urge this Court cruelty to and crimes against people. hog-dog rodeos. Sophisticated to reverse the Third Circuit and St. Francis of Assisi said, “if you producers of these depictions to recognize a compelling state have men who will exclude any of often can easily conceal their acts, interest in § 48. G-d’s creatures from the shelter of especially given their connections compassion and pity, you will have with larger organized crime out- When asked to comment for this men who will deal likewise with fits and gangs. Significant and article on Maryland’s position with their fellow men.” expensive hurdles exist even regard to this case, Gansler said, Numerous studies and crime sta- where sufficient evidence exists “animal abuse is a horrific problem tistics have shown this to be the case. to prosecute the actual acts of cru- that impacts everyone. Maryland Clearly, combating animal cruelty is elty. Prosecutions often require supports Section 48 as effective fed- a compelling governmental interest, animals, the primary evidence, to eral legislation to combat the escalat- as it not only raises the level of our be fed and housed for substantial ing interstate and foreign trafficking society, but also serves as a preven- periods of time and demand the of depictions of animal cruelty.” tative measure in combating other participation of forensic and vet- A group of law professors that crimes against society. The defini- erinary professionals as experts. teach animal law at law schools tion of “depiction of animal cruelty” Finally, animal cruelty devas- throughout the country also submit- combined with the exception in the tates communities. Serious crimes ted an amicus brief. Valerie Stanley law make 18 U.S.C. § 48 a narrowly- such as gang activity, gambling, of the University of Maryland School tailored statute. Therefore, 18 U.S.C. drug dealing, and violent felonies of Law, as well as this author, of the § 48 is constitutional on its face and are closely associated with animal University of Baltimore School of as applied to Stevens. Will the nine cruelty. Young people are par- Law, signed the amicus brief along justices rule likewise? A ruling is ticularly affected by this activity. with forty-three other animal law expected within a few months. Youth that commit acts of animal professors. The professors’ brief Mr. Nemeth teaches animal law at the cruelty tend to commit increas- was not in support of either party Washington College of Law/American ingly serious violent crime against but rather argued in support of the University and the University of people, of which there are many concept that combating animal cru- Baltimore School of Law. infamous and tragic examples. elty is, in fact, a compelling gov- Compounding this problem is ernmental interest and that the 3rd that pop culture glorifies animal Circuit erred when it held that it

March 2010 Maryland Bar Journal 29 Are Your Neighbors Attacking and Abusing Y our Pets? By Glenn H. Meyer

Most people are not aware of the new technol- complaint. Many cases involve a barking dog and ogy to address animal behavior that is currently rather than seek a legal determination of whether being used to abuse animals. Although mar- the dog is, in fact, barking excessively, these neigh- keted for legal purposes, these devices are being bors take the law into their own hands. Further, used by some like any weapon, in tortuous and there is no guarantee for manufacturers that rec- even illegal ways. ommend these devices be used as a trespass Some are being marketed by manufacturers that against neighbors’ property that the purchasers recommend their use against neighbors’ animals. are of “ordinary sensibilities, tastes and habits,” Those who use these devices are not authorized to and may not even be sadistic. See , 173 Md. 641, enforce laws and may not even have a legitimate 645 (1938)

30 Maryland Bar Journal March 2010 March 2010 Maryland Bar Journal 31 No one condones excessive barking. www.ultimatebarkcontrol.com/testi- Anyone who has been in a dog kennel monials.htm But others do not agree knows what truly excessive barking is. with such enthusiasm. The July 2007 However, some will not tolerate even issue of The Whole Dog Journal carries one bark and would declare it exces- an article on controlling dog bark- sive. They would be indignant at the ing that recommends that “electronic mere fact that they live next to a dog anti-barking devices” not be installed that wants to be heard now and then. because “We are hearing reports that Rather than choose to live in a neigh- these can be quite aversive, perhaps borhood that restricts dog ownership, even painful, for the dogs at which they seek to restrict others’ dog owner- they are directed.” The Whole Dog ship by self- help. Journal, Vol.10, No. 7, July 2007. The reason few know about these devices is that manufacturers often The Devices make them practically invisible in Currently ultra-sonic and high fre- the neighborhood. In addition, most quency bark-stoppers, high pitched of the sound punishing devices are sound dog repellers, and other devices inaudible or barely audible to human that use sound to punish a dog when ears, yet they can create “discomfort” it barks are on the market. Some are in animals, particularly dogs, even es, you need highly technical sound hand held and some are placed in the when used at some distance. Many equipment. Some are even disguised as owner’s back yard and set to activate of the devices were designed to keep birdfeeders. after a certain number of barks. Some vicious dogs from attacking people. Even when such a device is discov- are audible to human ears and others They were not designed to be used on ered, proving cruel use, or that the use claim not to be. Animal abusers can animals that are tethered nearby and is responsible for harm to animals, even obtain a beef flavored device cannot escape. Manufacturers have is difficult. Providing witnesses and that can be swallowed by the animal discovered a booming market for photographic documentation is also and then activated by a cell phone to these devices that can be purchased difficult, especially when the offender cause gastric pain. with anonymity on the internet. knows you are trying to document One such device, the Good Neighbor To discover these devices in use, you attacks. If an attack occurs the dog Barker Breaker, advertises that you need to know what they sound like, should be taken immediately to an can “mount Good Neighbor Barker that is, if you can hear them. The noise animal neurologist to examine the Breaker on your property, near your of some is high pitched, like a construc- ears, before any damage has a chance neighbor’s barking dog.” The unit tion vehicle backing up. One victimized to heal. Affidavits should be obtained has a built in microphone that listens owner said the sound he heard from a from any witnesses before the neigh- for barks and emits a sudden, high- hand held device sounded like a beep- bors move or their memories fade. pitched sound that “distracts the dog ing smoke alarm. Some devices claim Although the manufacturers all and stops annoying barking” within to be inaudible to humans. The Dog claim that high frequency sound a range of 40 feet. It further advertises Chaser sold by Self-Defense Weapons. devices have been tested and are that it can even be used “while you’re com claims their ultrasonic technology safe, no record of credible and veri- away!” http://www.amtekpet.com/ weapon is ‘audible to dogs but not to fiable testing is available. While no products.html. humans.” www.selfdefenseweapons. independent studies of these sound Animal owners may not know that com/dog-chaser.htm. This advertiser devices as they relate to canine pain these devices exist, but their attack- does not recommend that the device exist; a Japanese study concludes that ers do. In one manufacturer’s group be used on neighbors’ dogs but only high-frequency sounds affect human of satisfied testimonials, a customer for self-defense. Many other manufac- brain activity. Tsutomu Oohashi, et quotes “We are telling other neigh- turers, however, fail to mention this al., Inaudible High-Frequency Sounds bors about your device!” http:// restriction. To discover the silent devic- Affect Brain Activity: Hypersonic Effect,

32 Maryland Bar Journal March 2010 , The Journal of Neurophysiology, Vol. and the burden of proving “pain” can such neighborhood nuisance activity. 83, No. 6, June 2000, pp. 3548-3558 be as heavy as proving the act actually Where malicious intent can be proved Electronic shock collars, by anal- took place. a complaint could also include punitive ogy, have been on the market for a How do dogs affected by high fre- damages. In addition to civil liability, long time and are assumed to be safe. quency sound devices act? The may if proof of pain can be obtained, the However, a recent article indicates hide under furniture, walk low to the attacker may be guilty of criminal ani- that these more common devices may ground or shiver. One dog owner who mal cruelty and if repeated offences can not be so safe. Would an electric shock witnessed a neighbor’s hand held noise be proven, the attacker may be guilty of to your pet on a fairly regular basis device attack his tethered dog, has said criminal harassment. be harmful? The article notes that the dog was writhing on the ground What can you do to protect your some dogs are affected negatively and frothing at the mouth before he animal? Be watchful of your neighbors by electric containment systems and could stop the attack. Another wit- and pets. If your pet shows hearing exhibit “learned helplessness” behav- ness to the attack confirmed that the problems, hides under the bed, avoids ior, and/or the ceasing of normal dog dog continued foaming at the mouth an area of the lawn that it used to fre- behavior. Pat Miller, The Whole Dog and was so weak it had to be helped quent or avoids a neighbor, you should Journal, February, 2006, pp 18-20. The into the house. In this case, criminal be suspicious. If your neighbors spend article provides personal accounts charges were brought for animal cru- a lot of time outdoors standing around, describing bad experiences that can elty. However, the attacker was able particularly when your pet is out, you occur with these systems of behavior to avoid punishment because the state should be suspicious. Listen for any modification. Id. p. 21. could not prove through expert wit- high pitched noises, especially when ness testimony that the device caused your dog barks. pain to the dog. Testing cannot be Count the number of barks and The Law done in the state of Maryland without determine whether you are hearing These technological devices are new and violating the law. an unusually low number of barks for no laws on the books specific to these It is surprising that manufacturers the situation. Many of the devices are devices regulate or stop their use. Some of these devices open themselves to set to act upon a certain number of enforcers of animal cruelty laws who are civil liability for nuisance and trespass barks. Address these issues with your aware of these devices may see the devic- claims and allow themselves to be seen veterinarian and x-ray your dog if you es as a way of eliminating complaints as deep pockets. While true that in see unusual behavior. You might even and costly hearings. With so many seri- many cases the animal is legally val- want to have your dog’s ears checked ous cruelty cases being brought before ued at a few dollars of personal prop- prior to such attacks so that a case can enforcement agencies, these devices may erty, to most animal owners, a pet is be made for causation later. Finally, not seem cruel to these authorities. With worth more than mere personal prop- write your elected representatives and even most pet owners unaware that they erty and certainly worth more than animal rights organizations to address are being used, it is the animals that the one dollar valuation assumed for legislation regarding these devices. suffer from municipal neglect and pet pets. Many states, including Maryland, County agencies, not neighbors, are owner ignorance. are re-considering the value placed on authorized to enforce animal laws. This It is unlikely that any criminal laws pets. Some states are also beginning to new style neighborly justice is largely address these devices in the United allow claims for intentional infliction of unknown by the general public and States. No statute or case law in the emotional distress; Maryland has not commonly ignored by law enforce- state of Maryland is directly on point. done so yet. ment and animal control organizations. New laws may be needed to address Damages could, however, include However, ignoring the problem will this technology and the abuses it can actual costs incurred to stop the attack- invite responsive self-help measures encourage. The animal cruelty laws in er, the cost of a security system to by pet owners leading to a breach of most county codes are usually enforced replace the dog trained by the attacker the peace. by county agencies that are poorly not to bark and warn the owner of funded. In Maryland, the animal is a criminal activity, and the decrease in Mr. Meyer is an attorney practicing in Owings Mills, Maryland. cruelty statute uses the term “torture,” re-sale value of a home because of

March 2010 Maryland Bar Journal 33 Attack By Lindsay C. Cooper OnBirds Animal Abuse and Poultry Farms

The human race has sunk low. Very low. The Humane Methods of Slaughter Act requires that slaugh- Last year, three employees of a West ter be carried out only by “humane Virginia poultry farm were indicted on methods” to prevent “needless suf- animal abuse charges. They were accused fering.” 7 U.S.C.A. § 1901, et. seq. The Act protects livestock, not birds, of stomping on turkeys’ heads, twist- even though birds consist of over ing turkeys’ necks, and banging a tur- ninety percent of slaughtered ani- key’s head against metal scaffolding. One mals in this country. According to marylandshore.com, Maryland’s employee simulated the rape of a turkey Eastern Shore is the largest supplier hen that he had pinned against the floor. of chickens and poultry products for This employee was sentenced to serve both Purdue and Allen Foods. In an effort to create poultry indus- one year in jail for animal cruelty. His try regulations, Senator Robert Byrd two coworkers pleaded guilty to cruelty of West Virginia, recently stood on charges. These are the first convictions of the floor of the Senate and stated: turkey farm workers on cruelty-to-animal “Egg-laying hens are confined to charges in this nation’s history. There are battery cages. Unable to spread their wings, they are reduced to nothing no other laws protecting birds in the poul- more than egg-laying machines…. try industry. Animal cruelty abounds. It is sicken- ing. It is infuriating. Barbaric treat- ment of helpless, defenseless crea- tures must not be tolerated even if these animals are being raised for food – and even more so, more so.

34 Maryland Bar Journal March 2010 Such insensitivity is insidious and monly accepted practices. A poultry and independent scientists. There can spread and is dangerous. Life farm can easily defend its accepted is a strong belief that the risk of a must be respected and dealt with treatment of birds claiming it is in pandemic outbreak of a strain of the humanely in a civilized society.” compliance with the law, as there avian flu that could spread between are none. humans is greatly enhanced by the The only statutory effort made The treatment of birds in the food use of industrial poultry confine- to somewhat protect birds in the industry may impact our health. ment methods. food industry was the Farm Animal To prevent infections from open The European response to the abu- Stewardship Purchasing Act (H.R. wounds, the birds are given antibiot- sive treatment of battery hens came 1726), introduced to the House by ics, which we consume when eating in 1999 when the EU Council of representative Christopher Shays the meat. There is controversy in the Agriculture Ministers agreed to ban (R-Ct.) and fifteen co-sponsors in scientific community over whether the use of conventional battery cages Birds 2006. If made into law, the Act this consumption creates an antibi- from 2012. The Laying Hens Directive would prohibit the federal govern- otic resistance in our bodies, making (Council Directive 1999/74/EC), for- ment from purchasing any prod- it more difficult for us to fight off bade the introduction of newly built uct derived from a protected animal infections. Naturally, the opponents battery cages from 2003, and from unless the animal is raised with: (1) to this concept are from the food or that date, conventional battery cages adequate shelter which allows the drug industry, and the proponents were enlarged from 450 to 550 square animal to stand, lie down, walk, and are independent scientists. centimeters per bird. There is also turn around completely and fully There is a similar debate in the a new requirement for “enriched” extend all limbs or wings without use of hormones to encourage birds, cages, providing that hens must have touching any part of an enclosure especially broiler hens, to be larger at least 750 square centimeters per or other animal; (2) daily access to than normal. Apparently, it has been hen, and that a nest, littler and perch- adequate food and water; (3) ade- illegal to use hormones in poultry es will still be allowed. quate veterinary care; and (4) in the for over 35 years. Representatives In conclusion, we, as attorneys case of a mammal, the offspring of of the poultry industry state that are held to a high moral standard a dam that was kept in compliance birds are large due to nutrition and in our profession. We should like- with such provisions during preg- natural selection. Despite the ille- wise hold ourselves to the same nancy. Essentially, the only animals gal use of hormones, it is unclear high moral standard in our personal relieved from such suffering would whether poultry farmers are still lives. The inexcusable abuse of birds be those raised to feed people in fed- using them to garner profit. It is used in the food industry is rampant erally funded programs such as fed- also still unclear whether our health and it could affect our health. This eral prisoners. The bill was referred will be affected by ingesting poultry article does not address the abuse to five committees, but no committee containing these hormones. There is of other birds raised for food, such made a report on it and the bill died. additional discussion regarding the as the abhorrent treatment of ducks The bill has not been reintroduced. use of pesticides on birds to avoid raised for foie gras. If you are inter- The conditions of birds on poultry bug bites and resulting infections ested in pursing animal rights on a farms are deplorable. Battery cages (such as the avian flu), and whether professional or personal level, the are so small that hens’ mangled our consumption of poultry sprayed Animal Law Section of the Maryland feet actually grow around the wire with pesticides affects our health. State Bar Association is a wonderful mesh floors. The birds live in filth. Questions have also been raised resource that will provide you with These conditions cause the birds to as to the cause of poultry contami- support to make a change. experience stress and they peck at nation, such as E. coli, salmonella Ms. Cooper, an associate at Schlachman, each other and factory farm workers. and the avian flu, and whether they Belsky & Weiner, P.A., concentrates her To avoid injury to the workers, the result from the cramped conditions practice in personal injury law and com- plex civil litigation. ends of the birds’ beaks are seared on poultry farms. Again, the debate off using a hot knife. These are com- lingers between the poultry industry

March 2010 Maryland Bar Journal 35 Compassion for Animals: A r e l igi o u s t r a d i t i o n

By Christine Gutleben

or Christmas 2008, I received a rare, out of print book titled, as a gift The book, published in 1906, has three sections: (1) Fon the condemnation of animal fighting by religious leaders, (2) animals in the lives and stories of saints, and (3) a compilation of writings by notable religious figures – including several cardinals and archbishops - on a range of animal welfare issues with content dating as far back as the fifth century. It is said, for example, that St. Philip Neri (1515-1595), “could not bear the slightest cruelty to be shown to animals under any pretext whatever.” Following this, we read a prayer written to the Saint by Cardinal John Henry Newman (1801-1890): “teach me to look at all I see around me after thy pat- tern as the creatures of God. Let me never forget that the same God who made me, made the whole world, and all men and animals that live in it.”

36 Maryland Bar Journal March 2010 Compassion for Animals:

March 2010 Maryland Bar Journal 37 This gem of a book embodies the in which, “we may best measure our tions and businesses as a result of longstanding legacy of care and con- advancement in holiness…. [is by] Wilberforce Wilberforce’s inspiration. cern for animals that is a part of so love, kindness, and meekness, towards The Clapham Group, a talented con- many religious traditions. The seem- our fellow-creatures.” He believed in sulting firm in Burke, Virginia, “pro- ing reluctance to address animal cru- a direct link between the manner by motes the good, true and beautiful in elty on the part of religious leaders which humans treat animals and how the public arenas of politics, policy and today is not consistent with Christian humans treat each other. Wilberforce pop culture.” Modeling themselves history. Neither the church’s forefa- was not alone in this opinion. St. after Wilberforce’s circle, The Clapham thers nor the faithful political figure- Francis of Assisi (1181 – 1226) said Evangelicals, the Clapham Group swere were hesitant to express their that if anyone “exclude any of God’s is committed to a number of social desire to protect animals. Kindness to creatures from the shelter of compas- causes, including animal protection. animals was a virtue and an expres- sion,” that the same person would The Clapham Group has thus sion of a compassionate and reverent also treat human beings that way helped us bring the message of ani- soul. I hope the church will reconnect (St. Bonaventure, Life of St. Francis). mal compassion to faith communities with this history and find its voice His contemporary, C.S. Lewis (1898 and leaders across the country. We again for animals. – 1963), wrote that the cruel treat- have also been fortunate to work with In the following pages, I share the ment of vulnerable “beasts” might the Palmetto Family Council, a South example of William Wilberforce (1759 lead to the cruel treatment of vulner- Carolina affiliate of James Dobson’s -1833), the British Parliamentarian with able human beings, namely, “imbe- organization, Focus on the Family. deep personal piety, who founded the ciles, criminals, enemies or capitalists” Palmetto Family Council’s mission world’s first organization dedicated (C.S. Lewis, The Problem of Pain). As a is to “defend and strengthen South to animal protection – the Society for result of this insight, Wilberforce both Carolina Families.” Inspired by the the Prevention of Cruelty to Animals led the parliamentary fight to abolish work of Wilberforce, they broadened (SPCA), the touching images of com- slavery in England and supported their scope to include animal protec- passion for animals illustrated in animal protection legislation from its tion concerns. The Council recent- ancient religious art, and historical and introduction in 1800. ly published the first booklet in its contemporary religious statements on Wilberforce understood the impor- “William Wilberforce Monograph animal welfare. With these various tance of creating an organization dedi- Series,” Dominion Stewardship: A examples, I will attempt to reveal the cated to animal welfare that would Biblical View of Animals. dynamic and persistent Christian tra- sustain his legislative efforts, and dition of compassion for animals. so, along with clergyman, Arthur Broome, and others, he founded the Animals in Religious Art SPCA. The first years of the SPCA’s The depiction of animals in religious William Wilberforce: existence were financially difficult, art provides us with another oppor- The Animal Advocate but, by 1840, Queen Victoria was a tunity to reflect on their importance. I share the example of William sponsor of the organization and made One of my favorite images is St. Giles Wilberforce for two reasons. As one it the Royal Society for the Prevention and the Hind (c.1500), by Master of of the founders of the animal pro- of Cruelty to Animals (RSPCA). In St. Giles in Paris, France. The story tection movement, he has a unique 1866, the American Society for the behind this touching painting at the place in the cause’s history. As an Prevention of Cruelty to Animals National Gallery in London describes admired religious figure, Wilberforce (ASPCA) was formed in the United St. Giles as a hermit living in the represents the power of faith to sig- States, in New York, and similar orga- Forest of Nismes in France. nificantly change the direction of gov- nizations formed in dozens of cities The Saint made friends with a hind ernment and history, and thus serves after that. or doe who visited him often. When as an inspiration to many current-day As Faith Outreach Director for St. Giles discovered that a prince, evangelicals. The Humane Society of the United accompanied by several bishops, was Wilberforce wrote in, A Practical States, I have formed many partner- pursuing the hind, he protected her by View of Real Christianity, that the ways ships with faith-based organiza- taking the prince’s arrow in his hand.

38 Maryland Bar Journal March 2010 The image is of St. Giles, almost hug- moment when, one afternoon, a limp- animal welfare is not a modern day ging the hind, with an arrow in the ing lion enters St. Jerome’s monastery. invention. As noted already by the back of his hand, and several bishops While the other monks scatter, St. work of the religious figure William kneeling in front of him in prayer. Jerome welcomes him and heals his Wilberforce, and the presence of ani- Today, St. Giles is the patron Saint of limp. It is said that on the death of mals in religious art, a concern for ani- disabled people. the saint, the lion grieved. The image mals has always belonged within the Another favorite is Saint Anthony depicts St. Jerome on one knee, hold- realm of faith. There is, perhaps, noth- Abbot Blessing the Animals, the Poor, and ing the lion’s paw and blessing it. ing more evident of the long-standing the Sick (1400-1410), by Master of St. Several, subsequent paintings of St. religious concern for animals than Veronica in Germany. It is currently Jerome also include animals. the many and various official state- in the J. Paul Getty Museum in Los These are just several examples ments on animal welfare issued by Angeles, California. The image is of from an entire category of religious every, major religious denomination St. Anthony Abbot on a small elevated art that depicts animals involved in in the U.S. Each denomination’s state- platform and he is blessing the ani- the life of faith. These paintings dem- ments are based on scripture and the mals and people that surround him. onstrate an attention to animals on the writings of the significant historical The animals are in the forefront of the part of religious leaders and artists, figures within their traditions. I have painting, and among them are deer, and they suggest that animals were selected two denominations to discuss sheep, ducks and roosters. The depic- considered to be worthy of serious, in this paper (visit humanesociety.org tion of the animals is stirring because, spiritual consideration. for a more complete list). as with people, they are standing in The United Methodist Church, a attention, awaiting their blessing. mainline protestant denomination St. Jerome and the Lion (1452), by Official Religious Statements in the U.S., has approximately eight Gozzoli, at the Museo Civico di San on Animal Welfare and a half million members. One of Francesco in Montefalco, Italy, is a Contrary to what certain industries the church’s founders, John Wesley striking painting that captures the would have us believe, concern for (1703-1791), believed that God’s love

March 2010 Maryland Bar Journal 39 for animals ought to be our example and inspired us to show mercy to all His creatures:

Nothing is more sure, than that as ‘the Lord is loving to every man,’ so ‘his mercy is over all his works;’ all that have sense, all that are capable of pleasure or pain, of happiness or misery. In consequence to this, ‘He openeth his hand, and filleth all things living with plenteousness. He pre- pareth food for cattle,’ as well as ‘herbs for the children of men.’ He provideth for the fowls of the air, ‘feeding the young ravens when they cry unto him.’ ‘He sen- deth the springs into the rivers, that run among the hills, to give drink to every beast of the field,’ and that even ‘the wild asses may quench their thirst.’ And, suitably to this, he directs us to be tender of even the meaner creatures; to show mercy to these also (Wesley, Sermon 60).

John Wesley wrote at length about God’s love for animals in his ser- mons. He also believed that animals shared fully in the past perfection of Eden and will share fully in the future perfection of God’s renewed and support the natural fertili- which animals depend. earth. ty of agricultural soil, promote Wesley’s writings on animals laid the diversity of flora and fauna, We support regulations that pro- the groundwork for a robust set of and adapt to regional conditions tect the life and health of ani- official statements on animal wel- and structures—a system where mals, including those ensuring fare issues adopted by the United agricultural animals are treated the humane treatment of pets and Methodist Church today. On agri- humanely and where their living other domestic animals, animals culture, for example, the church sup- conditions are as close to natu- used in research, and the painless ports practices that fulfill our stew- ral systems as possible (Book of slaughtering of meat animals, fish, ardship responsibilities by promoting Discipline, 115). and fowl. We encourage the preser- sustainability, cultural diversity and vation of all animal species includ- the humane treatment of animals. The Church also supports regula- ing those threatened with extinc- tions that protect the well-being of tion (Book of Discipline, 99-100). We support a sustainable agricul- pets, research animals, farm animals, tural system that will maintain wild animals, and the habitats on These are just two statements,

40 Maryland Bar Journal March 2010 among many, on animals, adopted Prayers like this one helped to animals to suffer or die needlessly” by the United Methodist Church. establish a Catholic concern for ani- (Part 3, Section 2, Chapter 2, Article Building on the writings of the mal welfare to the present day. Many 7, 2:2416). And, the U.S. Conference church’s most significant historical centuries later, Pope John Paul II, of Catholic Bishops has addressed figure, John Wesley, the denomina- in his speech for the Celebration of factory farms: “[We] question certain tion established a firm commitment the World Day of Peace, noted that farming practices such as the opera- to animal protection. “Respect for life and for the dignity of tion of massive confined animal feed- The Roman Catholic Church, the the human person extends also to the ing operations. largest denomination in the United rest of creation, which is called to join We believe that these operations States, with sixty-seven million mem- man in praising God” (Peace with God should be carefully regulated and bers, has an incredible tradition of the Creator, Peace with all of Creation, monitored so that environmental concern for animals. Many of the paragraph 160). Shortly after, Pope risks are minimized and animals are church’s most admired figures, from Benedict XVI, when he was Cardinal treated as creatures of God.” (For St. Francis of Assisi to St. Thomas Ratzinger, said the following: I was Hungry and You Gave Me Aquinas, have expressed the impor- Food: Catholic Reflections on Food, tance of merciful treatment towards Animals, too, are God’s creatures Farmers, and Farmworkers, 31). God’s creatures. As a result of these and even if they do not have the As evidenced by these statements, writings, and the support for animal same direct relation to God that Catholic doctrine asserts that domin- compassion in Scripture. The Roman man has, they are creatures of his ion must be exercised as a form of Catholic Church has issued many will, creatures we must respect service and love, mirroring God’s official statements on animal welfare as companions in creation …. own service to and love for creation, and has addressed issues such as fac- (Man) should always maintain his including the animals within cre- tory farms and species extinction. respect for these creatures, but ation. As far back as the mid-fourth cen- he knows at the same time that tury, St. Basil of Caesarea (330 – he is not forbidden to take food 379 CE), prayed for forgiveness for from them. Certainly, a sort of Animal Welfare: past sins against “our brothers the industrial use of creatures, so that A Christian Tradition animals” and for a future in which geese are fed in such a way as The noted examples of William humans achieve fellowship with “all to produce as large a liver as Wilberforce, animals in religious art living things:” possible, or hens live so packed and denominational statements on together that they become just car- animal welfare, reflect the religious The earth is the Lord’s and the icatures of birds, this degrading of tradition of concern for animal well- fullness thereof. O God, enlarge living creatures to a commodity being. The Humane Society of the within us the sense of fellowship seems to me in fact to contradict United States did not invent the con- with all living things, our brothers the relationship of mutuality that cept of animal welfare, nor did any the animals to whom thou hast comes across in the Bible. (Joseph other animal protection organization. given the earth as their home in Cardinal Ratzinger, God and the The cause of animal welfare was cul- common with us. We remember World: A Conversation with Peter tivated and developed by ethically with shame that in the past we Seewald, (San Francisco: Ignatius and religiously minded people who have exercised the high dominion Press, 2002), 78-79). spoke plainly and honestly about of man with ruthless cruelty, so the sentience of our fellow creatures, that the voice of the earth, which In addition to these statements by their ability to suffer and the need to should have gone up to thee in St. Basil, Pope John Paul II and Pope reflect God’s grace in our dealings song, has been a groan of travail. Benedict XVI, the Catechism of the with them. May we realize that they live, not Catholic Church says that animals, for us alone, but for themselves “By their mere existence they bless Ms. Gutleben is Director of Faith Outreach for The Humane Society of the United and for thee, and that they have [God] and give him glory…. It is States, the nation’s largest animal protec- the sweetness of life. contrary to human dignity to cause tion organization. She may be reached at [email protected] .

March 2010 Maryland Bar Journal 41 CHANGES IN STATE JUDICIAL PROCESSES FOR FOSTER CARE CHILDREN

By Priya Sharma Last year, Congress determined that the states’ judicial processes for children in foster care must change in order for states to receive Title IV-E funds. Specifically, the new federal requirements, Title IV, Part E: Federal Payments for Foster Care and Adoption, which took effect October 1, 2008, dictate that “in any permanency hearing held with respect to the child, including any hearing regarding the transition of the child from foster care to independent living, the court or administrative body conducting the hearing consults, in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child.” 42 U.S.C. § 675(5) (C)iii. The vague terms of this new legal require- ment have caused extensive confusion among child welfare attorneys, the courts, and other child welfare stakeholders in Maryland. This article analyzes some of the issues relating to the federal law and assesses how the law interplays with existing Maryland law pertaining to chil- dren in foster care.

42 Maryland Bar Journal March 2010 To Whom Does the to consult with the court would only require the children to be present at Law Apply? apply to those children residing in their permanency planning hearings Courts in Maryland generally agree approved foster homes or child-care to consult with the court? that the court must consult once a institutions. According to the Administration year with all children who are in Maryland law specifically requires for Children and Families which the custody of social services and that at least every 12 months at a exists within the United States placed in foster care in order to com- permanency planning hearing, the Department of Health and Human ply with the new federal require- court must “consult on the record” Services “any action that permits the ments that became effective October with all children in an out-of-home court to obtain the views of the child 2008. However, one open question is placement “in an age appropriate in the context of the permanency whether children who are in the cus- manner.” Md. Code Ann. Courts & hearing could meet the requirement. tody of a relative but placed under Judicial Proceedings § 8-323. This Section 475(5)(C)(ii) of the Act tasks an Order of Protective Supervision includes children that are placed the State with applying procedural to the Department of Social Services with relatives, as they are living safeguards to ensure that the con- or children who remain in the cus- in an out-of-home placement. Md. sultation occurs. However, the stat- tody of their parents under an Order Code Ann. Family Law § 5-501. ute does not prescribe a particular of Protective Supervision to the Therefore, although the federal law manner in which the consultation Department of Social Services must does not require a court consultation with the child must be achieved also consult with the court in order for children placed in the custody which provides the State with some to fulfil the federal requirements for of their relatives under an Order discretion in determining how it will the State of Maryland to receive fed- of Protective Supervision, state law comply with the requirement. We eral payments. does require them to be present in do not interpret the term “consult” The answer can be deduced from court once a year. to require a court representative to the Act. The federal requirement Another question which has sur- pose a literal question to a child or appears in Title IV, Part E entitled faced is whether the federal require- require the physical presence of the “Federal Payments for Foster Care ment applies to children over the child at a permanency hearing.” and Adoption” which dictates that age of 18. Unlike many other states, However, the child’s views on his any state that makes foster care main- Maryland allows children between or her permanency or transition plan tenance payments for a child who the ages of 18 to 21 to remain in foster must be obtained by the court for is placed in a foster home (i.e., an care if they meet certain requirements. consideration during the hearing. For approved foster home or a child- COMAR 07.02.10.11. According to example, a report to the court in care institution) and has an appropri- the law, if a child remains in foster preparation for a permanency hear- ate case plan regarding each child, care after the age of 18, the federal ing that clearly identifies the child’s is eligible for federal money. The requirements will apply to those chil- views regarding the proposed perma- express purpose of Part E is intended dren up to the age of 21. 42 U.S.C. § nency or transition plan for the child to “enable each State to provide, in 675(8)(B). could meet the requirement. Also, an appropriate cases, foster care and attorney, caseworker, or guardian ad transitional independent living pro- litem who verbally reports the child’s grams for children who otherwise What Does the Law views to the court could also meet would have been eligible for assis- Specifically Require? the requirement. Information that is tance under the State’s plan approved The federal law states that in “any provided to the court solely regard- under Part A.” 42 U.S.C. § 670. permanency hearing held with ing the child’s best interests is not Part A allows states to “provide respect to the child….the court or sufficient to meet this requirement. assistance to needy families so that administrative body conducting the Ultimately, if the court is not satis- children may be cared for in their hearing consults…with the child fied that it has obtained the views own homes or in the homes of rela- regarding the proposed permanen- of the child through these or any tives.” 42 U.S.C. § 601. It seems logi- cy or transition plan for the child.” other mechanism, it could request cal then that the legal requirement 42 U.S.C. § 675(5)(C)iii. Does this that the child be present in the court-

March 2010 Maryland Bar Journal 43 room, or make other arrangements consultation must be appropriate for their future. It is the court’s job to to obtain the child’s views on his/ the child’s age, developmental stage, help put that child at ease so the con- her permanency or transition plan.” and unique background, all of which sultation is as stress-free as possible Administration for Children and vary among children. Some children for the child. Families, Child Welfare Policy Manual are disabled and non-verbal, and for 8.3C.2c (2007). these children, as well as the very In Maryland, most local jurisdic- young ones, it is obvious that the Where Should the Child tions have begun to comply with court can do little more than observe Meet With the Court? this requirement by having all chil- the child. If the child is required to come to dren appear in court at alternating For older, developmentally on tar- court, where should the consultation six month permanency planning get children it follows logically that take place? In Baltimore County, the hearings to consult with a judge or the child’s demeanor and informa- policy differs among masters. Some master. This process allows both tion obtained from the child’s coun- meet with the children in chambers the federal law and Maryland state sel should provide the court with a prior to the hearing. Some interview law requirements to be satisfied. As sense of how to efficiently engage the child in the courtroom during the noted, Maryland state law requires the child. While some children are hearing. An issue which has arisen that children attend court once a year amendable to disclosing such infor- regarding consultations in chambers to consult with the court. Md. Code mation, others may not want to is whether the conversation between Ann. Courts & Judicial Proceedings share certain details of their lives. the master or judge and the child § 8-323. Asking neutral, open-ended ques- must be recorded and/or reported to However, requiring children tions is the best way to proceed so the other parties after the consulta- to attend court for a consultation the child can choose what they want tion. In Baltimore County, masters has given rise to several questions. to disclose. Also, asking children have been given hand-held recorders Specifically, when children are pres- to choose between parents (foster so that the consultations taking place ent in court, how does the consulta- parent vs. biological parent; mother in chambers can be recorded. tion occur? Does this mean that the vs. father) is always discouraged as If a child is particularly nervous or court speaks directly to the child it puts the child in a very awkward the nature of the hearing is especially or through their attorney? Does this position, especially if those parties contentious, it may be best for the mean that the child should be viewed are present. It is highly preferable child to meet with the judge or mas- or interviewed? Who should be pres- to simply ask the child how they are ter alone, either in chambers, or in ent during the consultation with the adjusting to their placement in lieu a closed courtroom. A child is more child? How does the consultation of asking them to choose. likely to share his or her concerns occur with children who are non- It should be remembered that par- with a master or judge if there is not verbal? Further, how does the court ticipating in a hearing is a stressful a room full of people listening to the interview a disabled child who is experience for adults, let alone chil- consultation. unable to be brought to the court, e.g. dren. Many of the youth are experi- a child who is confined to a bed or encing the court process for the first hospital? Is it necessary for the judge time. Others are too young to com- When Should the or master to travel to the child’s prehend the legal process. The situ- Consultation Take Place? placement to consult with the child? ation may also cause a lot of conflict The point in a case during which May the court appoint an official for children who may be seeing their this consultation needs to take place other than a judge or master to inter- parent after a long period of time if has also been debated among child view the child? the parent is not maintaining regular welfare attorneys. The majority of Just as the law is vague in terms contact with their child. Children cases involving children in foster of how the federal requirement can are especially sensitive to stress, and care in Maryland begin with a shel- be fulfilled, there are also no federal they will undoubtedly know if their ter hearing, followed by an adjudica- or state guidelines for interviewing parents, attorneys, and social work- tion/disposition hearing, a review the children in court. Essentially, the ers are engaged in conflict regarding hearing, then a permanency plan-

44 Maryland Bar Journal March 2010 ning hearing, and there after review hearing after the adjudication, as allows the court to consider the posi- hearings every six months. Some all hearings after the adjudication tion of the person who is at the core jurisdictions docket review hear- involve permanency planning. of all child welfare hearings. If chil- ings at intervals more frequent than dren can share some of their insight every six months routinely or by with the court, undoubtedly they and agreement of the parties. The review Why Was This the court system will benefit. hearings continue until a perma- Requirement Enacted? nent placement for the child has Unlike Maryland, some states do not been located and the court’s juris- require that each child be appointed Conclusion diction terminated, or until the child his own attorney. Even if an attorney Ultimately, the federal requirement ages out of the system, which under is appointed for the child, the attorney gives assurance that states are pro- Maryland law is age 21. COMAR is not always mandated to visit with tecting children in foster care. The 07.02.10.11. Consequently, many of the client in his placement, as is the federal requirement, in its vague- these cases continue for years. requirement in Maryland. The result ness, allows the states to develop a According to 42 U.S.C. § 675(5)(C) is that states other than Maryland plethora of ways to satisfy the “con- i, the first hearing to discuss the per- may lack the requisite checks and sultation” requirement, thereby put- manency plan must occur 12 months balances to ensure the child’s safety, ting in place an important practice after a child has entered foster care. and the courts have no opportunity and simultaneously giving the states A child has been deemed to have to consider the child’s position as some power as to how to develop entered foster care on (i) the date to his permanency plan. Further, in the practice. Maryland has chosen to of the first judicial finding that the jurisdictions where an attorney is not adhere to this requirement by requir- child has been subjected to child appointed to represent the child, an ing the court to consult with the child abuse or neglect; or (ii) the date that in-court consultation with the child in an age-appropriate manner on the is 60 days after the date on which the provides the court with a second record at least every twelve months child is removed from the home. 42 opinion, in addition to the assigned with the specifics of the procedure U.S.C. § 675(5)(F). Such permanency social worker, as to the child’s posi- depending upon the local practice in planning hearings must continue to tion and adjustment to the out-of- each jurisdiction. occur once every 12 months for as home placement. For states that lack Maryland has not yet created any long as the child remains in foster these requirements, it is critical to exceptions for children who are very care. 42 U.S.C. § 675(5)(C)i. Thus, have the court consult with the child young, mentally or physically dis- review hearings, which occur every to ensure that the child is placed in a abled, or for those older children six months after the adjudication, safe and stable environment. who do not wish to engage in the always include a review of the per- Another possible reason for the new court process. While the intent of the manency plan in order to satisfy this law is to empower the child. Children federal statute is admirable, it should requirement. in foster care often feel voiceless. not be interpreted without regard to The federal law mandates that This is one reason many states have each child’s individual needs. Further children in foster care must consult elected to appoint an attorney to guidance from the Maryland legisla- with the court regarding their per- represent children in civil abuse and ture could be helpful to address these manency plan once every 12 months. neglect proceedings. Ensuring that important issues so that the courts Maryland law dictates that such chil- the child’s voice is heard regarding can adhere to federal and state law dren must attend court once a year his or her plan for permanency is while applying it equally to all chil- to discuss their permanency plan. another important way to empower dren and acting in their best interests. 42 U.S.C. § 675(5)(C)i. Md. Code the child. Furthermore, courts are Ms. Sharma is a staff attorney with the Ann. Courts & Judicial Proceedings often making life altering decisions Law Offices of Darlene A. Wakefield, P.A. § 8-323. It follows then that pursuant without actually hearing directly to federal and state law it is appro- from the person who will be the most priate for these children to consult affected by these decisions. with the court once a year at any Having the child’s perspective

March 2010 Maryland Bar Journal 45 q Law and Literature Series Truth in Fictionand

By James M. Kramon Law

Lawyers who read fiction must think when seamlessly reconstructed to form that its characters and events are unreal, about truth in several ways. a new whole, may present a reality that that they are creations of the author’s Despite the lofty purport of the oath never was. The “best” lawyers, those imagination. The domain of fiction, by taken by witnesses in legal proceedings most sought by clients and most gener- the reality-based standard of law, is – “to tell the truth, the whole truth, and ously compensated, are often remark- untruth, people and events that never nothing but the truth” – lawyers do ably good at this. If they were not were. Empirical untruth is intrinsic to not always deal with truth in a holistic practicing law, they would doubtless fiction; empirical untruth in law results way. Lawyers are advocates for clients. make fine alchemists. from crafty use of the legal process. When “the whole truth” does not serve Truth in fiction is different. Fiction It would be absurd, however, to a client’s needs (which is frequently does not begin with the premise that conclude that writers of fiction are not so), we may deconstruct the truth and people and situations are presented in concerned about truth. The measure reassemble it selectively. This requires accord with reality. To say that some- of truth in fiction (and in creative separating elements of the truth which, thing is a work of fiction is to announce endeavors generally) is not empiri-

46 Maryland Bar Journal March 2010 Truth

cal truth, as it is for lawyers. Truth ever, fiction writers must meet the read fiction to engage reality. in fiction is subjective, an allegiance second requirement of the oath wit- The requirements of truth that sat- to what is required by the story itself nesses take; they must tell “the whole isfy the subjective constraints of fic- rather than the exigencies of advo- truth.” Works of fiction require writ- tion writers differ from those faced cacy. Pablo Picasso’s pithy observa- ers to present situations and charac- by lawyers. Our clients are often bet- tion that “Art is a lie that makes us ters that are complete, that are realis- ter served by presenting themselves realize truth” applies to fiction as well tic to readers. Truth in the imagined and their activities with less than full as visual art. world of fiction aspires to reality. candor. Depending upon a lawyer’s Unlike witnesses in legal proceed- Truth in the real world of law is often view of “the limits of advocacy,” law- ings, the characters created by fiction determined by the needs of clients. yers may take refuge in the license writers are not held to “the truth” Although it has been said that people for distortion of empirical truth and “nothing but the truth.” Within read fiction to “escape” reality, many afforded by the “adversarial process” the constraints of their craft, how- lawyers I know (myself included) rationale. This rationale, specious at

March 2010 Maryland Bar Journal 47 times, suggests that when lawyers information to present the essence of influential jurisprudential treatise on both sides of a controversy have a matter. The concept of fraud recog- ever written by an American, rede- a thumb on the scales of truth, the nizes that inchoate truth may be tan- fined law “as a human institution process of legal truth-seeking is bal- tamount to untruth. It is law’s recog- born of human needs, not as a con- anced. Lawyers are thus unshackled nition that meaningful truth partakes ceptual structure shaped by the ordi- from the solitary truth-seeking bur- of the need for holism, the need to nances of metaphysics and logic.” den borne by writers of fiction. integrate – as in a good work of fic- (Holmes, Oliver Wendell, (1881); The legal process qualifies its tol- tion – relevant pieces of information. Harvard University Press (1963) erance of the disintegration of truth There was a time when law and (Introduction by Mark DeWolfe through the concept of “fraud.” fiction did not pursue different paths Howe)). Holmes envisioned law as Fraud in legal matters includes not to truth. For centuries truth in both evolving in light of scientific and only providing false information law and fiction was founded upon technological knowledge and not as but also failing to provide sufficient belief in a cosmology. Early American the product of philosophical ideas. lawyers inherited the English concept By introducing the concept of that law is discovered, not manu- man-made law, Holmes unwitting- factured. ( Blackstone, Sir William, ly put the reins of the truth-seek- (1765); The University of Chicago ing buggy squarely in the hands Press (1979)). They explored the land- of lawyers who, ever-ensnared by scape of law as one might explore the clients, increasingly found truth’s topography of an alien land. Verities, new malleability hospitable to their whatever they might be, were not needs. By the end of World War II, susceptible of alteration because they America having survived the Great were not found in the known world. Depression and conquered fas- Similarly, early American fic- cist efforts across both its oceans, tion writers found truth in a spiri- American lawyers had become giddy tual order. E.L. Doctorow describes with the belief that truths could be Herman Melville’s (1851) as a “pro- whatever they wanted. cession of ideational events” con- In an increasingly industrialized stituting “a kind of cosmology... and arms-length society, law’s tradi- .” (Doctorow, E.L., , The Kenyon tional reliance on understandings of Review, New Series Vol. XXVI. No. people no longer worked. Contracts 3 55, 63 (2004)). Melville was not could no longer be predicated upon concerned about empirical truth for a “meeting of the minds,” as in its own sake. Every detail in , from inherited English law, since in many Ahab’s stump to the great white instances parties no longer met. whale to the sea itself, is a metaphor In matters involving legal fault, it for universal truth. The novel relent- became impossible, in the absence lessly pursues cosmic truths as the of intimacy, to tell what a party did relentlessly pursues the leviathan. or did not intend to do. Modernity A pair of intellectual tsunamis in dislodged the predicates of law’s the late 19th and early 20th centu- long-standing reliance on determin- ries fractured the ability of lawyers ism as the touchstone of rights and and fiction writers to rely upon the responsibilities. concept of universal truths. Oliver Post-industrial law needed an Wendell Holmes, writing at the objective measure of truth and it dawn of the Industrial Revolution, found it in the “reasonable man” radically changed the nature of law’s concept. This sweeping hypothesis, search for truth. Holmes, in the most which came to apply in virtually every

48 Maryland Bar Journal March 2010 aspect of American civil law, was Random House (1964)). would be artistically inexcusable. It a wholesale abandonment of law’s There is no better example of how is because Joyce has been loyal to efforts to understand motivations of law and fiction differ in the pursuit his technique and . . . has honestly specific people. The “reasonable man” of truth than James Joyce’s (1922). , attempted to tell fully what his char- standard asks only what a hypotheti- now a fixture of the literary canon, acters think about, that he has been cal typical person would have under- was censored in its original serial the subject of so many attacks. . . .” stood and intended. It eschews con- form in both the United States and , 5 F.Supp. 182, 183 (S.D. N.Y. 1933). cern for what is or is not in the minds the United Kingdom. Its references The decision in was an unmiti- of particular individuals. to sex and bodily functions were gated victory for “the whole truth” While lawyers struggled to accom- thought to be obscene. to which many modern fiction writ- modate legal principles to new Aside from its Homeric organiza- ers aspire. The censors had focused, technologies, especially the social tion and its street map of Dublin, seriatim, on passages in the book they upheaval that accompanied the rail- is simply a day-in-the-life story: considered to be “dirt for dirt’s sake.” road Levy, Leonard W., , Harvard Leopold Bloom spends June 16, 1904 . at 184 But Judge Woolsey would University Press (1957)), writers of doing rather ordinary things and not play the game of deconstruct- fiction struggled to accommodate encountering rather unremarkable ing truth. “Each word of the book,” the revolution that was occurring people. An objective description of he found, “contributes like a bit of in psychology. Although not the Bloom’s day would be tedious. The mosaic to the detail of the picture first to explain the unconscious, its reality of events such as going to a which Joyce is seeking to construct.” . signal protagonist was, of course, drug store, eating lunch or engag- For those who do not accept the lack the Austrian neurologist Sigmund ing in inane chatter on a street cor- of generosity some modern lawyers Freud. Freud’s theories opened path- ner would hardly be worth writing afford the concept of truth, Judge ways for exploring the unconscious, about. But this is hardly “the whole Woolsey’s decision in offers hope for particularly through dreams. (Freud, truth” of Bloom’s day. a richer understanding. Sigmund, , Franz Deuticke (1899)). If anything worthwhile has ever Law and fiction depend on the Unlike lawyers, the “whole truth” come from a contest over whether pursuit of truth, but in different demanded of fiction writers by the a book is obscene, the federal court ways and for different purposes. new teachings of psychology pre- in New York’s decision in favor of Writers of fiction are not tethered to cluded them from objectifying peo- Random House’s efforts to bring reality as are lawyers, but they bear ple’s behavior and required them into the United States did just that. fiction’s solitary burden of subjec- to recognize the perplexities and The 1933 decision of United States tive truthfulness. Lawyers do not idiosyncrasies of imperfect people. District Judge John M. Woolsey was enjoy fiction writers’ freedom to The art of fiction found no safe not only a sorely needed correction explore truth subjectively, but they haven in the hypothetical (and, iron- of the state of American law con- are relieved by the legal process ically, fictional) world of the “rea- cerning censorship but also a book from sole responsibility for objective sonable” man. As American law- review of of such eloquence that it is truth. I suppose it is fair to say that yers moved outward on the crest included in some American editions. truth is not easy for practitioners of of science and technology, writers Judge Woolsey, a great admirer of either craft. Perhaps lawyers read of fiction such as Joyce, Proust and serious literature who read , reread fiction precisely because its writ- Virginia Woolf moved inward to selected passages numerous times, ers are liberated and constrained explore the unconscious limitations and consulted with anonymous in ways that differ from those we of people. By the time American law- experts concerning it, confronted the confront. yers had convinced themselves that matter of truth in fiction head-on: they were masters of the universe, “If Joyce did not attempt to be hon- Mr. Kramon is Of Counsel to the Baltimore law firm Kramon & Graham, P.A. He may fiction writers, as William Faulkner est in developing [his] technique. . . be reached at [email protected]. famously remarked, were grappling the result would be psychologically with the “experiences of the human misleading and thus unfaithful to his heart.” (Faulkner, Fant and Ashley, , chosen technique. Such an attitude

March 2010 Maryland Bar Journal 49 Enforceability of Venue and Forum-Selection Clauses

In an article published in the any court in which Borrower is sub- in the United States District Court September/October 2004 issue of ject to jurisdiction by suit upon such of the Eastern District of Virginia. this Journal, this writer discussed judgment that service of process Defendants filed a motion to dis- several issues and cases regarding is effected upon Borrower as pro- miss under Federal Rule of Civil the application and interpretation vided in this Note or as otherwise Procedure 12(b)(1) and 12(b)(3) for of forum-selection clauses that are permitted by applicable law. lack of subject matter jurisdiction and nearly universally incorporated into With respect to procedur- improper venue. 2009 WL 855730 a variety of contracts. , four recent al matters related to the perfec- (March 30, 2009). cases clarified many of the principles tion and enforcement of Lender’s The issue before Judge Lee was addressed in that essay. rights against the Collateral this whether the forum selection clause In 2007, Sandy Spring Bank and Agreement will be governed by was permissive or mandatory, and Advanced System Services, Corp. federal law applicable to Lender if permissive, whether the court had and other related parties, entered and to the extent not preempted subject matter jurisdiction over the into agreements for a loan that con- by federal law the laws of the claim of Sandy Spring and wheth- tained the following jurisdictional Commonwealth of Virginia. In all er venue was proper in the Eastern and forum-selection language: other respects this Agreement will District of Virginia. be governed by federal law appli- The court denied the motion and Borrower irrevocably submits cable to Lender and to the extent held that the clause was permissive, it to the Jurisdiction of any state or not preempted by federal law had jurisdiction and venue was proper. federal court sitting in the State of the laws of the State of Maryland The court first noted that a motion Maryland of any suit [,] action or without regard to its conflicts of to dismiss under 12(b)(1) based upon proceeding arising out of or regard- law provisions. However if there jurisdiction shifts the burden on the ing to this Note. Borrower irrevo- ever is a question about whether plaintiff to prove that subject mat- cably waives to the fullest extent any provision of this Agreement is ter jurisdiction is proper, and that a permitted by law any objection that valid or enforceable the provision forum-selection clause is treated at a Borrower may have now or hereaf- that is questioned will be governed motion to dismiss under 12(b)(3). ter have to the laying of venue of by whichever state or federal law The court found the forum-selection any such suit [,] action or proceed- would find this provision to be clause was permissive because it did ing brought in any such court and valid and enforceable. The loan not contain language mandating juris- any claim that any such suit[,] action transaction that is evidenced by the diction in Maryland, it merely con- or proceeding brought in any such Note and this Agreement has been ferred jurisdiction in Maryland with- court has been brought in an incon- applied for considered approved out making it exclusive. It doing so, venient forum. Final judgment in and made and all necessary loan it said that the language “irrevocably any such suit [,] action or proceed- documents have been accepted by submits to the jurisdiction” did not ing brought in any such court shall Lender in the State of Maryland. clearly intend for Maryland to be the be conclusive and binding upon only forum for litigation. Borrower and may be enforced in Sandy Spring sued the obligors Furthermore, the court noted that

50 Maryland Bar Journal March 2010 the clause in question was a hybrid clause. It did not place mandatory limits on both parties. Jurisdiction in Maryland was mandatory only if defendants were sued in Maryland, which they were not. The opinion concluded that the par- ties’ intentions with regard to jurisdic- tion and the choice of law clause are not binding on the court since forum clauses involve procedural issues and that choice of law clauses require application of substantive federal law to determine if the clause is manda- tory or permissive-two separate and distinct concepts. In the second case, the court resolved a “battle of forms” to deter- mine if a venue and forum-selection clause was enforceable against the defendant. 605 F.Supp.2d 722 (E.D. Va. 2008).The Defendant had filed a motion to dismiss for improper venue. After holding that the clauses in issue were part of the contract between the parties, the court then turned to whether the forum-selection clause was enforceable-issues which this writer explored in the previous article. The court said the forum-selection clause is unreasonable and unen- forceable only if one of the following is present in the case: (1) it was the result of fraud or overreaching; (2) trial in the contractual forum would be gravely difficult and inconve- nient for the complaining party and would for all practical purposes be deprived of his day in court; or (3) enforcement would contravene a strong public policy of the forum in which suit was brought. Since the plaintiff did not assert fraud or overreaching, and could not meet any of the other tests, the court denied defendant’s motion to dismiss. Another case discusses an unusual forum-selection clause. The parties

March 2010 Maryland Bar Journal 51 entered into an agreement in which tory, not permissive. One interesting these issues will continue to be litigated the forum selection clause required question not raised by the parties by resourceful and imaginative counsel. only that the sole venue for any liti- was whether federal or state law gation should be in Loudoun County, would have any significance in the Virginia. This was a geographic- case. The court mentioned the issue Mr. Wolpert practices complex commer- cial and bankruptcy litigation matters in specific restriction, with no reference but did find it necessary to address Bethesda, Maryland. He can be reached at to a specific court with the geograph- it because they “implicitly” assumed [email protected]. ic area. The United States District federal law applied. Court for the Eastern District of It is expected that notwithstanding Virginia was called upon to remand the guidance provided in these cases, to a state court. It first determined that the clause was not ambiguous. It then addressed whether the restric- tion applied to all courts physically located in the designated boundary or all courts having jurisdiction over The the area in question. There is a split Advertising of authority in the circuits in constru- ing the clause, but the court held that if a venue provision does not contain a reference to a sovereignty, then a geographic restriction permits Index litigation in either the state or fed- eral courts for that geographic region. Accordingly, it denied the motion to remand to the state court. The final ABA Members Retirement Program...... 9 case, , also from the Eastern District of Virginia, involved a forum selec- tion clause in an agreement between Dugan, Babij & Tolley...... Cover 3 the parties which required that “the proper jurisdiction and venue of any such lawsuit shall be the courts of the Gelman, Rosenberg & Freedman...... 51 Commonwealth of Virginia.” The Defendant filed a motion to dismiss on the grounds of improper venue, Guaranteed Subpoena Service...... Cover 2 asserting that only a Virginia state court and not the federal district court was the proper venue. In grant- KatzAbosch...... 51 ing the motion, the court discussed the interplay between the Federal Rules of Civil Procedure and statuto- ry requirements of venue, the appli- Special Counsel, Inc...... 7 cability of the case, and after pars- ing the language of the provision, and use of the terms often found in West, a Thomson Business...... Cover 4 such clauses, such as “shall”, “only”, “exclusive”, “proper” “preferred” or “primary”, found it to be manda-

52 Maryland Bar Journal March 2010 Unsolicited Requests by Third Parties for Advice Concerning Animal Rights Law

From time to time the Animal Law as permitted in Rule 7.1. The member law for that person’s employer, but Section receives unsolicited requests must make clear to the inquirer that would not be permitted to engage in by third parties which may seek legal the member is not acting on behalf of any private practice of law unrelated advice. Based on further communica- the Animal Law Section, but instead is to his/her corporate employment. See tion between this Committee and the acting as a private attorney. Rule 5.5(d); Maryland Occupation & Animal Law Section, the Animal Law The member must adhere to all appli- Business Code, Sec. 10-206(d). Section would like to circulate such cable Rules of Professional Conduct Even if the member in question is requests to its Section members through that would apply in such an instance to admitted to practice law in the State of the listserv. Thereafter, any member of govern a private attorney/client rela- Maryland, such a member would have the Animal Law Section would be free tionship. If an attorney/client relation- to comply with the applicable statutes to contact the third party in the mem- ship is established, and should there and rules (including, but not limited ber’s capacity as a private attorney and be a fee arrangement, the member to, compliance with Rule 16-601 et. not on behalf of the Animal Law Section should make clear to the inquirer that seq. pertaining to the establishment because the Animal Law Section does no part of the fee will be shared with of attorney trust accounts) before that not, as an entity, render legal advice in the Animal Law Section. Of course, it member could engage in any private response to such inquiries. would be more laudatory should the practice, whether on a fee or pro bono Any individual member of the Animal member render services on a pro bono basis. Even if the member were to so Law Section who contacts such an basis. See generally, Rule 6.1 of the comply, the member would have to inquirer would proceed with the inquir- Rules of Professional Conduct. ascertain whether there would be any er on the same basis as any attorney/ Included in your inquiry to the Ethics conflict between the member’s duties client relationship. Thus, while it might Committee was an e-mail from one to the corporate employer and the legal be desirable if the Animal Law Section of the Animal Law Section members assistance sought to be rendered to the member volunteered to render legal who was receptive to assisting a third Inquirer to the Animal Law Section. advice on a pro bono basis, the member party inquirer seeking legal advice, Finally, the Committee understands and inquirer would be free to establish but expressing concerns over the fact that the MSBA neither operates nor an attorney/client relationship on a fee that this member works as an in-house supports any lawyer referral programs. basis as well. Based on the foregoing, corporate counsel, does not have a If the current activities of your commit- your inquiry to the Ethics Committee is private office, does not carry malprac- tee constitute a lawyer referral program, whether there are any ethical problems tice insurance and does not otherwise then you are required to obtain the prior associated with such a procedure. engage in the private practice of law. approval of the Board of Governors As long as an Animal Law Section It is not clear whether this member is before continuing these activities. member’s initial contact with the admitted to practice law in the State of For members of the Maryland Inquirer is not in person, by tele- Maryland. If the member is not admit- State Bar Association, Opinions of the phone or real-time electronic contact, ted to practice law in Maryland, but Committee may be obtained from the the Ethics Committee believes that the is admitted to practice law in another Committee’s web site: www.msba.org. Animal Law Section member can oth- United States jurisdiction, then such a erwise contact the third party inquirer person would be permitted to practice The Ethics Committee

March 2010 Maryland Bar Journal 53 Spanning The States

Periodically I report on the issues on a case, and withdraw when there addressed by discipline counsel in is a lack of time or competency]” other states. A Missouri article dealt with pros- Upcoming The period January to June 2009 ecuting attorneys who had previ- found a number of interesting articles. ously been acquitted of criminal Counsel in the District of Columbia charges and the subsequent ability published an article on “Dealing with to prosecute the misconduct in a Maryland Contraband “ This problem occurs disciplinary case. Other articles dis- when an attorney comes into posses- cussed “Unbundled Legal Services”; sion of such material. “Obedience” the right way to leave one’s law firm; Bar Journal dealt with responsibilities of subor- office sharing involving ethical and dinate attorneys (the converse of our malpractice issues; file retention; for- Kimmel & Silverman case). “Suing mer client conflicts; and e-mail com- your client” and the interplay of rule munication with clients and e-mail Intellectual of professional conduct 1.6 discussed disclaimers. that issue. Nebraska’s articles examined the Property Georgia’s articles dealt with issues of dealing with clients who returning the file to the client (or for- fail to pay; “Don’t check your eth- May/June 2010 mer client) and the risk involved in ics at the Deposition Room Door:; outsourcing legal work. and “Attorney Lies Outside of the International Indiana addressed subjects of emo- Practice of Law.” tional entanglement with a client; Lawyers are interested in ethi- Law “the affect of credit card payments cal matters. Attorneys have much by clients on the attorney’s trust to read these days. An eye-catching July/August 2010 account”; and the top ten 2008 pro- article on ethical subjects may help fessional responsibility stories. fellow members of the bar. I found Energy Law Minnesota discipline counsel this group which I collect semi-annu- authored an article on admonitions ally for the National Organization of September/October 2010 issued to attorneys. the subject of Bar Counsel to meet that objective. non-refundable retainers (gosh, this is a recurring theme); “Identifying Court your client”; “Even a flat fee must Technology be reasonable”; “Reporting the mis- conduct of others”; and “Three New November/December 2010 Year’s Resolutions to Make - and Keep [calling clients, make a decision

54 Maryland Bar Journal March 2010

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