The Curiously Nonrandom Assignment of Sixth Circuit Senior Judges
In this edition of KLJ Online, Vol. 108, Clark L. Hildabrand—graduate of Yale Law School and former Law Clerk for Judge Sutton on the Sixth Circuit Court of Appeals— examines Sixth Circuit Court of Appeals assignments. Further, he analyzes potential weaknesses in the nonrandomness of the judicial assignment system. The Essay relies on data from the Sixth Circuit from 2012-2016.
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The Curiously Nonrandom Assignment of Sixth Circuit Senior Judges
Online Original | 108 KY. L. J. ONLINE | Volume 108
The Curiously Nonrandom Assignment of Sixth Circuit Senior Judges
By Clark L. Hildabrand[I]
I. Introduction
Federal judges occupy an odd position in our republic. On the one hand, these judges have an awesome responsibility to say what the law is. They enjoin presidential acts, strike down state laws, and divine the meaning of constitutional rights. On the other, our Constitution affords these legal elites life tenure, a length of service not granted either to legislators or the executive. This means that federal judges, whom the American people never elected, often will remain in office long after the president who nominated them leaves office. Strengthening the judiciary’s independence, Congress cannot reduce judicial salaries and has long declined to impeach judges when they issue unpopular decisions.
Federal judges, to be sure, tend to agree with each other in the mine run of cases.[2] But the worry remains that—at least in the most politically divisive cases—these unelected and unremovable jurists will turn into “politicians in robes.”[3] Some judges recognize that their “only source of democratic legitimacy is the perception that [they] engage in principled decision-making.”[4] The contention that certain judges do not even follow agreed-upon procedural rules challenges this perception. After all, “[p]ublic confidence in th[e] court[s] . . . is premised on the certainty that the court follows the rules in every case, regardless of the question that a particular case presents.”[5]
This Essay, therefore, examines the assignment of judges in the U.S. Court of Appeals for the Sixth Circuit to see how its assignment rules play out in practice. The first step is a review of the rules themselves. The Sixth Circuit’s history of procedural disputes—which came to a head with the publication of Judge Boggs’s Procedural Appendix in Grutter v. Bollinger[6]—and research about the nonrandomness of judicial assignment provide insight into potential weaknesses in the assignment system. Next, this Essay continues with its chief contribution: an analysis of Sixth Circuit case assignments from 2012 through 2016, a five-year period when the composition of the court remained relatively consistent. This analysis suggests that, for whatever reason, the senior judge assignment system tends to enhance the perceived partisan preferences of senior judges. In other words, senior judges nominated by Democratic presidents tend to sit with other Democratic nominees, and senior judges nominated by Republican presidents tend to sit with other Republican nominees. This preference is most pronounced among Democratic-nominated senior judges and enhances the voting strength of Democratic judges, who are a minority among the active judges on the Sixth Circuit. This Essay considers potential non-nefarious explanations for these tendencies and concludes by weighing how this dynamic will impact the Sixth Circuit as several Republican-nominated judges have taken senior status during the Trump Administration.
II. A History of Procedural Quarrels
Contrary to what one might expect, judicial assignment on the Sixth Circuit is not random, even if the circuit clerk follows the assignment rules. Nevertheless, the circuit clerk, under the direction of the chief judge, implements various procedures that should have the effect of approximating randomness. The Sixth Circuit “sits over two-week periods scheduled so as to afford all judges at least five weeks between sittings.”[7] “The clerk prepares the calendar for a session before the composition of panels” during these two weeks “is determined.”[8] To approximate randomness, “[t]he clerk balances the calendars by dividing the cases as evenly as possible among the panels according to case type and the district of origin.”[9] There is no wheel that churns out a randomly-assigned three-judge panel for each discrete case. After the circuit clerk divides the cases into groups, the judges are “assigned to panels during the sitting weeks using an automated routine which searches the court’s database to determine which active judges have the longest intervals between sitting pairing.”[10]
While not exactly random for each individual case, this common practice “attempts to equalize co-sits” and “is the functional equivalent of taking a coin and placing it on heads once, then placing it on tails once, and so on, instead of actually tossing it. That is, the practice uses a nonrandom process to create results that are meant to be consistent with randomness.”[11]
But there is a catch. Although “[a]ll active judges are scheduled to sit four consecutive days during one of the two sitting weeks,”[12] senior judges can pick and choose which sittings they attend. To earn his pay each year, a senior judge must perform work that “in the aggregate equals at least 3 months[’] work” of an active judge.[13] Senior judges in the Sixth Circuit have the discretion to work as much or as little as they want the other three quarters of the year. One senior judge may keep an almost full caseload while another teaches a law school class and visits grandchildren.[14] In several circuits, “[t]he calendar preferences of senior judges [a]re given particular weight—a senior judge’s request to sit during a given week in a given month might be accommodated—to encourage those judges to provide as many days of service as possible.”[15] And on the Sixth Circuit, the automated assignment system assigns senior judges after active judges are already in place: “The automated program first pairs active judges based on intervals between pairings and then adds senior circuit judges and visiting judges to pairings, again determined by the longest interval between pairings with either judge in the assembled pairs.”[16]
Despite the best efforts of the assignment system, this process might produce nonrandom results if senior judges tend to sit more or less frequently during the same weeks as certain active judges. For example, a senior judge may enjoy sitting with a judge who is a former clerk or who comes from the senior judge’s own city. The senior judge could then build his sitting calendar around when his judicial friend is likely to hear cases as well.
Additional procedural quirks might add to the nonrandomness of merits case assignment. “In cases not yet assigned to a merits panel, substantive motions are assigned to randomly assembled panels drawn from among active and senior circuit judges and visiting judges designated to sit with the court.”[17] This mostly[18] random assignment system led to problems in Grutter v. Bollinger.[19] That case touched on a politically sensitive issue: affirmative action. “In August 1999,” a Sixth Circuit panel “consisting of Circuit Judges Daughtrey and Moore”—both Democratic appointees—and a visiting senior district court judge “decided an appeal concerning the rights of certain parties to intervene in the district court case underlying the [later Grutter] appeal, but did not address the merits of the case.”[20] When the cases returned to the Sixth Circuit, “a question could have arisen regarding whether these appeals, seeking review of cases already returned to the district court by a panel of this court, were ‘must panel’ cases” under 6th Cir. I.O.P. 34(b)(2).[21] This procedure allows “the original panel [to] determine to hear the appeal or whether it should be assigned to a panel at random.”[22] Under the current rules, “[w]here it is necessary to bring in a new judge to complete the panel,” such as when a panelist was a visiting judge or has retired, “the clerk will draw a name from among the active judges not already on the panel.”[23]
That is not what happened in Grutter. Instead, then-Chief Judge Martin—also a Democratic-nominated judge—decided to augment these panels “by the addition of” himself, “not a randomly chosen judge.”[24] This panel heard all further motions regarding these appeals and sat on an en banc petition, which the circuit clerk normally circulates after fourteen days to the entire court,[25] for five months.[26] During those five months, two Republican-appointed judges took senior status.[27] This delayed circulation of the en banc petition allowed the entirely Democratic-appointed panel to have the case heard before an en banc court that consisted of only three Republican-appointees, and the Democratic-appointed panel won out with a five to four en banc vote.[28] Judge Boggs, frustrated with the lack of procedural transparency, aired these dubious procedural moves by publishing a Procedural Appendix at the end of his dissent.[29] Otherwise, the public would never have learned about the procedural inconsistencies.
III. The Parameters of the Study
This Essay, therefore, analyzes the assignment of all Sixth Circuit judges—both active and senior—in continuous service from 2012 through 2016 to query whether any procedural abnormalities are occurring behind the scenes. A previous study of all federal circuit courts from 2008 to 2012 found that the Sixth Circuit tended to pack Republican appointees onto three-Republican panels and that divided panels (consisting of both Democratic- and Republican-appointees) leaned Democratic more often than simulations would expect.[30] As former-Judge Posner explained using the opposite set of circumstances, this is what one would expect if a liberal chief judge wanted to waste Republican votes and maximize the effectiveness of Democratic votes.[31]
Although the previous analysis of all circuit courts did not produce statistically significant results for the Sixth Circuit,[32] this Essay uses an approach tailored to the Sixth Circuit. For starters, this Essay uses the political party identification of the president who initially nominated each judge as a proxy for ideology rather than the president under whose watch the judge was ultimately appointed.[33] This change reclassifies Judge White as Democratic and accurately reflects the political compromise between President George W. Bush and Senate Democrats that allowed Michigander Judges White and Kethledge to assume their seats on the Sixth Circuit.[34]
Next, this Essay uses the five years from 2012 through 2016 due to the stability of the Sixth Circuit during this timeframe. Fifteen active judges (six Democratic nominees and nine Republican nominees) and eight senior judges (four from each party) heard cases throughout the five-year period. One senior judge retired from judicial service in 2012, but she participated in only nineteen opinions that year that made their way onto Westlaw.[35] Judge Martin (the Chief Judge during Grutter) retired directly from active service in 2013 in the midst of an investigation into his travel expense reimbursements.[36] Nonetheless, his 517 cases are consistent with the findings of this Essay: active judges have a slight tendency to sit with active judges of the opposite party but a strong tendency to sit with senior judges of their own party.
That brings us to the last major deviation of this Essay from prior study. Unlike other studies, this Essay does not rely on oral argument information from calendar docket sheets.[37] Such an approach would have the weaknesses of failing to capture non-argument cases and potentially overstating the significance of a panel organized to hear arguments in a single must case.[38] Instead, this Essay looks to panel assignments in all Sixth Circuit opinions available on Westlaw.[39] This Essay determines the number of times each Sixth Circuit judge paired with another—a key consideration in the circuit’s assignment system—and then averages out the number of cases by ideological category and active/senior status. This approach accounts for random fluctuations among pairings and the fact that chief judges take a reduced caseload due to their administrative responsibilities. On the whole, Democratic active judges had about the same average cases per judge as Republican active judges: respectively, 887.17 and 891.67 cases per judge. Democratic senior judges sat a tad more frequently and accounted for 53.65% of total case assignments to Republican senior judges’ 46.35%.[40]
This approach adds a different viewpoint on case assignments but, of course, has its own weaknesses. En banc assignments count as a panel assignment for each judge on the en banc panel. This increases the number of cases for active judges across the board, however, and there appear to have been no more than twenty relevant en banc opinions during this period. Additionally, this approach might overstate the importance of cases with multiple iterations or orders or fail to include various unpublished decisions not on Westlaw. This approach, nevertheless, addresses the non-argument cases to a greater degree than an alternative docket-sheet approach. The Essay is not a comprehensive statistical study but provides insight into the most salient features of nonrandomness in Sixth Circuit case assignment.
IV. Apparent Nonrandomness of Senior Judge Assignment
This Essay finds that active judges pair in mostly random ways even though senior judges do not. Table 1 summarizes the statistics for active judges nominated by a Democratic president.
Table 1: Active Democratic Nominee Statistics
The second column (“Total Cases”) counts every time a judge participated in an opinion. Chief Judge Cole, for example, participated in 727 opinions issued from 2012 through 2016. I then counted how many times the active judge participated in a case with each other active judge and aggregated the numbers by political party of the president nominating the other judges. Thus, Democratic active judges paired with Chief Judge Cole 362 times while Republican active judges paired with him 681 times. This averages to 72.4 pairings per other Democratic active judge (the third column) and approximately 75.667 pairings per Republican active judge (the fourth column) for Chief Judge Cole. The fifth column (“Active Judge Average Difference”) is the difference between these two averages. To finish the example, Chief Judge Cole averaged about 3.267 more pairings per Republican active judge than he averaged with other Democratic active judges.
Table 1 demonstrates that Democratic active judges tend to sit slightly more often with Republican active judges than with other Democratic active judges, which is expected given that the average Republican sits slightly more frequently than the average Democrat. Democratic active judges average only 2.63 more pairings per Republican active judge than per Democratic judge. Using a hypothesis that ideology does not impact pairings in either direction and wherep is significant when less than 0.05, a paired two-tailed t-test shows that the results are not statistically significant. The two-tailed p-value here is 0.338, well outside the realm of statistical significance.
Table 2 gives the equivalent information for active judges nominated by a Republican president but with negative active average differences showing a tendency to sit with Democratic active judges.
Table 2: Active Republican Nominee Statistics
Again, Republican active judges have the slightest of tendencies to sit with active judges of the opposite party. Out of all the pairings that result from an average of 891.67 cases per Republican active judge, a Republican active judge is likely to average only 0.69 more pairings per Democratic active judge than per other Republican active judge. If p is significant when less than 0.05, the two-tailed p-value of 0.716 is not at all statistically significant.
The assignment system thus seems to work well for assigning active judges to sit with other active judges. A couple Democratic judges (Judges Moore and Clay) and several Republican judges (Judges Batchelder, Gibbons, Sutton, and Griffin) even bucked the overall trends for their sets.[41]
The same cannot be said for senior judges. Table 3 gives the statistics for the rates at which Democratic senior judges sit with active judges, with positive numbers representing tendencies to pair with other Democratic judges.
Table 3: Senior Democratic Nominee Statistics
Democratic senior judges are far more likely to pair with Democratic active judges than with Republican active judges. This effect is consistent for all four Democratic senior judges regardless of how many cases they participated in. For example, Judge Daughtrey, the Democratic senior judge with the most sittings, averaged only 52.444 pairings per Republican active judge despite averaging 74.833 pairings per Democratic active judge. If pis significant when less than 0.05, then these pairing differences were statistically significant with a two-tailed p-value of 0.033.
Peering into the panel assignments for Judge Daughtrey even further reveals the effect of this preference on panel ideological balances.[42] Excluding two en banc cases and one evenly split must panel that Daughtrey sat on, Table 4 gives the expected and actual ideological breakdown for Judge Daughtrey’s 501 three-judge panels.[43]
Table 4: Judge Daughtrey Three-Judge Panel Statistics
Judge Daughtrey’s panels had a Democratic majority 74.85% of the time, which is roughly what we would expect if the Sixth Circuit had an even ideological balance. But Democratic nominees had a seven to nine minority among active judges until August 2013 and a six to nine minority after Judge Martin’s resignation. For Judge Daughtrey, the Sixth Circuit might as well have had at least one more active Democratic judge. Her pairings also maximized ideological sway with far more two-Democrat panels than we would expect even if the Sixth Circuit were evenly divided.
A chi-squared test for normality shows that Judge Daughtrey’s pairings were not consistent with a normal distribution. Such a test compares the actual sitting statistics with the expected sitting statistics and considers the likelihood that deviations are simply random. Here, the chi-squared p-values were 0.003159 if an even split is expected; 0.003164 compared to the 7–9 split; and 0.000003 compared to the 6–9 split. All of these p-values indicate that the pairings were not normally distributed.
Nevertheless, Judge Daughtrey’s odd pairings are not the result of, say, Chief Judge Cole assigning himself to sit with Judge Daughtrey in otherwise evenly divided panels to maximize her voting power. Since Chief Judge Cole became chief judge in August 2014 and through the end of 2018, all 45 of Chief Judge Cole and Judge Daughtrey’s non-en banc panels were three-Democrat panels. The opposite was true for other Democratic senior judges. From August 2014 through 2018, Judges Merritt (35 times), Gilman (35 times), and Keith (12 times) had a total of 82 pairings with Chief Judge Cole on three-judge panels. Three of the pairings resulted in three-Democrat panels: two of these pairings came from a single must panel case,[44] and the third pairing was from a long-running death penalty case which Chief Judge Merritt was assigned to years earlier.[45] The remaining 79 pairings with Chief Judge Cole resulted in two-Democrat panels. Chief Judge Cole finally wound up on a three-Democrat panel with a senior judge other than Judge Daughtrey in March 2019 when Judges Keith and Clay joined Chief Judge Cole to deny a stay pending appeal for Gun Owners of America, Inc.’s challenge of the bump stock ban.[46]
Part of the misbalance for Judge Daughtrey comes from her pairing only sixteen times with Judge Batchelder and three times with Judge Boggs (two of which were en banc cases and one of which was a must panel originating from a 2004 decision). Judge Batchelder paired with Judge Daughtrey fewer times than with any other senior judge even though Judge Daughtrey had the second highest case total among senior judges. Since October 2007, during the time Judge Boggs was chief judge, it appears that Judges Boggs and Daughtrey have sat together for, at most, one Westlaw decision[47] that is not an en banc, death penalty, or must panel case—each of which is a category that the Sixth Circuit assignment procedures treat separately from the normal process. This lone 2009 decision, however, was in an appeal docketed in 2006 and argued in 2007. Unless there is a fluke in the automated assignment system or a highly improbable event is occurring, it appears someone is deliberately separating Judges Boggs and Daughtrey, possibly as part of the “avoiding acrimony” approach to assignment that some circuit judges have described.[48]
All four Republican senior judges also have an affinity for ideologically similar active judges as seen in Table 5, where positives indicate a Republican lean.
Table 5: Senior Republican Nominee Statistics
Accounting for the fact that Republican senior judges sat in fewer cases overall than Democratic senior judges (401.75 average cases to 465 average cases), Republican senior judges still had a smaller average difference in ideological pairings. The Republican senior judge pairing results had a two-tailedp-value of 0.066 and thus, unlike the Democratic senior judge results, were not statistically significant if statistical significance is where p is less than 0.05. The ideological pairing trend is stronger for Democratic senior judges than for Republicans.
Nevertheless, the pairing statistics still suggest that Republican senior judges tend to sit more frequently with Republican active judges. The two-tailed t-test assesses the hypothesis that pairings do not vary by ideology in either direction. A one-tailed t-test, in contrast, looks for a correlation in one direction. In other words, a one-tailed t-test assesses the hypothesis that judges tend to pair with ideologically similar judges. With such a one-tailed t-test, the results become statistically significant and produce a p-value of 0.033.
Interestingly, the Republican senior judge with the largest sample of cases (Judge Siler) had the least random assignments among Republicans while the Republican judge with the smallest sample of cases (Judge Norris) had the most random assignments among all senior judges. This runs counter to the intuition, if case assignment is truly random, that increasing the sample size would tend to decrease variances that would create the impression of nonrandomness.
V. Looking Ahead to the Future of the Sixth Circuit
The Sixth Circuit’s apparent nonrandom assignment of senior judges may begin to favor Democratic-nominated judges less and less. Since the conclusion of the time period analyzed in this Essay, President Trump has appointed five active judges (Judges Bush, Larsen, Nalbandian, Readler, and Murphy) to replace five Republican Sixth Circuit judges who took senior status (Judges Boggs, Batchelder, Rogers, Cook, and McKeague) and one active judge (Judge Thapar) to fill Judge Martin’s long-vacant seat. The death of senior Judge Keith, who tended to hear many cases with his former clerk Judge Clay, will further dilute the Democratic pool of judges. The effect of this transformation in the Sixth Circuit remains unseen and will depend on how often the newly senior judges choose to sit. But if the experience of 2012 through 2016 is any guide, the propensity of senior judges to sit with active judges nominated by a president of the same party might enhance the ideological influence of these Republican senior judges. Plus, Judge Daughtrey’s tendency not to sit with Judges Boggs and Batchelder will become less of a factor in strengthening Judge Daughtrey’s Democratic-pairing lean as new active judges—without any bad blood—have replaced Judges Boggs and Batchelder in the assignment process.
[I] I would like to thank my wife for providing comments on this Essay and the editors of the Kentucky Law Journal Online for their edits. All views expressed in this Essay are my own.
[2] See, e.g., Jeffrey S. Sutton, A Review of Richard A. Posner, How Judges Think, 108 Mich. L. Rev.859, 862–66 (2010) (noting the high rate of unanimity on the circuit courts of appeals).
[3] Id. at 860.
[4] Grutter v. Bollinger, 288 F.3d 732, 753 (6th Cir. 2002) (en banc) (Moore, J., concurring).
[5] Id. at 815 (Batchelder, J., dissenting).
[6] Id.at 810–14 (Boggs, J., dissenting). For a study of the controversy created by the allegedly nonrandom assignment of liberal Fifth Circuit judges to desegregation cases, see Jonathan L. Entin, The Sign of ‘the Four’: Judicial Assignment & the Rule of Law, 68 Miss. L.J.369 (1998).
[7] 6th Cir. I.O.P. 34(a)(1).
[8] Id. I.O.P. 34(a)(2).
[9] Id. I.O.P. 34(a)(3).
[10] Id. I.O.P. 34(a)(1).
[11] Mark K. Levy, Panel Assignments in the Federal Courts of Appeals, 103 Cornell L. Rev.65, 104 (2017).
[12] 6th Cir. I.O.P. 34(a)(1).
[13] 28 U.S.C. § 371(e)(3).
[14] See generally Frederic Block, Senior Status: An ‘Active’ Senior Judge Corrects Some Common Misunderstandings, 92 Cornell L. Rev. 533(2007); Albert Yoon, As You Like It: Senior Federal Judges & the Political Economy of Judicial Tenure, 2 J. Empirical Legal Stud.495 (2005).
[15] Levy, supra note 11, at 68–69.
[16] 6th Cir. I.O.P. 34(b)(1).
[17] 6th Cir. I.O.P. 27(a)(1).
[18] As with merits panels, senior judges do not have to participate each quarter of the year in the motions panel process. And active judges can sometimes take a quarter off from motions panel service, so the pool of judges for the motions panels is not consistent.
[19] 288 F.3d 732 (6th Cir. 2002) (en banc).
[20] Id. at 811 (Boggs, J., dissenting).
[21] Id.
[22] 6th Cir. I.O.P. 34(b)(2).
[23] Id. I.O.P. 34(b)(3). Senior judges also remain assigned to all subsequent proceedings in death penalty cases that they previously participated in but can elect not to receive new death penalty case assignments. Id. I.O.P. 22(b)(1).
[24] Grutter, 288 F.3d at 811 (en banc).
[25] See 6th Cir. I.O.P. 35(d)(2).
[26] Grutter, 288 F.3d at 811–13.
[27] Id. Similar motions-panel shenanigans have occurred on the Seventh Circuit. See Alison Frankel, At 7th Circuit, Unseen Judicial Mechanics Drive Decisions: New Paper,Reuters (Dec. 3, 2014), http://blogs.reuters.com/alison-frankel/2014/12/03/at-7th-circuit-unseen-judicial-mechanics-drive-decisions-new-paper/[https://perma.cc/X5DQ-2VFB] (“The merits case was not, however, randomly assigned to a new panel of appellate judges as it would be in most federal circuits. Posner, Kanne and Rovner – the same three judges who had previously dismissed Motorola’s case based just on motions briefing – opted to retain authority over Motorola’s merits appeal.”). And certain Sixth Circuit judges have misused their power to issue single-judge stays, see 6th Cir. I.O.P. 22(d), and avoided the normal merits panel process to undermine implementation of the death penalty. See Jonathan Adler, Sedley Alley’s Last-Minute Stay, Volokh Conspiracy (July 17, 2006), http://volokh.com/posts/1153144938.shtml [https://perma.cc/MLV8-GWUB] (recounting Democratic-appointee Judge Merritt’s single-judge stay on the eve of an execution and various en banc maneuverings).
[28] Grutter, 288 F.3d at 735.
[29] Id. at 810-14 (Boggs, J., dissenting).
[30] Adam S. Chilton & Marin K. Levy, Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals, 101 Cornell L. Rev.1, 39, 53 (2015).
[31] Richard A. Posner, Divergent Paths: The Academy & the Judiciary 243 (2016).
[32] See Chilton & Levy, supra note 30, at 41.
[33] Id.at 4–5 (using the appointing president).
[34] See Neil A. Lewis, Deadlock on Appeals Court Judges Ends, N.Y. Times (June 13, 2008), https://www.nytimes.com/2008/06/13/washington/13brfs-DEADLOCKONAP_BRF.html [https://perma.cc/VHE8-5PU2].
[35] Cf. In re Vertrue Inc. Mktg. & Sales Practices Litig., 719 F.3d 474, 476 n.** (6th Cir. 2013) (“Judge Kennedy participated in oral argument in this case but did not participate in this decision due to her retirement.”).
[36] See Debra Cassens Weiss, 6th Circuit Judge Retired Amid Probe of Travel Expenses; Allegations Referred to DOJ, ABA J. (Jan. 21, 2014), http://www.abajournal.com/news/article/6th_circuit_judge_retired_amid_probe_of _travel_expenses_allegations_referre/ [https://perma.cc/NZ5A-FWFM].
[37] Chilton & Levy, supra note 30, at 24–25.
[38] Id. at 26–28.
[39] I searched all opinions available in Westlaw’s Sixth Circuit opinion archive using the Advanced Search’s Panel option to isolate which judges participated in deciding each case. This search does not include three-judge redistricting cases where the chief judge assigns a circuit court judge to lead a panel that includes two district court judges. The two most recent redistricting cases involved Democratic Sixth Circuit Judges Moore and Clay leading 2–1 Democratic panels in ruling against the Republican-created maps of, respectively, Ohio and Michigan. See Ohio A. Philip Randolph Inst. v.Householder, 2019 WL 1969585 (S.D. Ohio May 3, 2019); League of Women Voters of Mich. v. Benson, 2019 WL 1856625 (E.D. Mich. Apr. 25, 2019).
[40] A few of the thousands of opinions misspelled the panelists’ names, which affected how Westlaw listed the panelists. For 2012 through 2016, this Essay has identified three opinions that spelled “Daughtrey” as “Daughtery,” one opinion that spelled “Daughtrey” as “Daughtry,” and four opinions that spelled “Suhrheinrich” as “Surheinrich.” This Essay correctly categorizes the pairings in these cases despite the obvious scrivener’s errors.
[41] While most active judges tend to sit with judges nominated by presidents of the opposite party, these judges tended to sit more frequently with judges nominated by presidents of the same party.
[42] Judge Daughtrey sat infrequently with Judge Martin (16 times) and sat more frequently with visiting Republican Judges Zouhary (15 times), Cleland (11 times), and Maloney (14 times) than with visiting Democratic Judge Economus (6 times). And senior judges rarely sit with each other due to the assignment procedures; Judge Daughtrey did not sit with two of the three other Democratic senior judges (Judges Gilman and Keith) and one of the four Republican senior judges (Judge Norris) during this time period. These tendencies, if anything, should have tilted Judge Daughtrey’s panels in a Republican direction.
[43] The % Total Active Cases and % Total Both Active and Senior Cases statistics include only active and senior judges on the Sixth Circuit during the entirety of 2012 through 2016. Thus, these figures do not include Judges Kennedy and Martin or the assorted judges who sat by designation on the Sixth Circuit.
[44] Tackett v. M & G Polymers USA, LLC, 811 F.3d 204 (6th Cir. 2016) (Chief Judge Cole paired with both Judges Keith and Merritt).
[45] Issa v. Bradshaw, 904 F.3d 446 (6th Cir. 2018) (Chief Judge Cole and Judge Merritt joined Judge Moore).
[46] Gun Owners of America, Inc. v. Barr, 2019 WL 1395502 (6th Cir. Mar. 25, 2019).
[47] Ortiz v. Jordan, 316 F. App’x 449 (6th Cir. 2009) (ruling, over a Judge Daughtrey dissent, that prison officials were entitled to qualified immunity).
[48] Levy, supra note 11, at 90.
Concessions Causing Detrimental Impacts on the Original Vision of National Parks
In this edition of KLJ Online, Vol. 107, Kelsey Bryant’s Note discusses concessions at National Parks (lodging, restaurants, and entertainment services) and how they are detrimental to park preservation and the original vision for the parks.
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Student Note | 107 KY. L. J. ONLINE | Volume 107
Concessions Causing Detrimental Impacts on the Original Vision of National Parks
Kelsey Bryant[I]
“Scenery is a hollow enjoyment to the tourist who sets out in the morning after an indigestible breakfast and a fitful night’s sleep on an impossible bed.”[2]
I. Introduction
Stephen T. Mather, the first Director of the National Park Service (NPS), created this vision for National Park concessions.[3] The present-day Commercial Services Program maintains this vision since Mather’s quote is displayed on the home page of their website today.[4] The NPS promises its visitors that they will get to travel and experience the land and water that John Wesley Powell and Lewis and Clark once traveled[5] with the luxuries of a resort and “high-quality visitor services”[6]—a comfortable bed to lay your head on at night, convenient meals, and even transportation to go wherever you want.[7] This might seem like a great way to experience the wonders of our national parks, but these hospitality benefits come at some cost.
Professor Joseph L. Sax illustrates that the Park Service created a vision geared toward “the windshield tourist”[8] and comfort for visitors, where concessionaires create illusory wilderness experiences that do not showcase the real rigors and power of nature to people.[9] After World War II, there was an accelerated use of national parks that continues to increase.[10] At this time, policies started to develop that encouraged tourism and public use of the parks, specifically the establishment of concessions that accommodated visitors through lodging, restaurants, and entertainment services.[11] By approving concession demands and fulfilling park visitors’ desires for integral features such as hotels, cabins, and laundromats in almost every national park, problems of congestion, and the resulting increase in facilities and services, threaten the parks’ ability to achieve their original purpose.[12]
Although the Park Service has broad discretion in its concession management,[13] there is significant debate about whether it is exercising that discretion wisely in light of the agency’s mission. With these continuing pressures, debates regarding park use will continue, and questions of where to draw the line for concessionaires should be a priority to our NPS. This Note argues for urgent reevaluation of concessions management by the NPS. Even though today’s visitors demand more services and entertainment, new boundaries and policies should be implemented that encourage the priority of preservation in our National Parks.
Section I briefly examines the history of national parks, along with how concessions became increasingly popular and attracted new crowds of people. This section also includes a discussion of the overarching debate in which the national park concessions issue lies: whether the primary purpose of national parks is preservation or use and enjoyment. Section II explores specific problems within national park concessions that confront national park preservation today that our government can get in front of, such as the ongoing fight against water bottle sales in national parks. Finally, Section III of this Note proposes a legislative solution to solve the issue of concessions having such a detrimental impact on the original vision of the parks system.
II. Background
A. History of National Parks
Most of the nineteenth century was devoted to allocation and privatization of lands, but the conservation movement soon sparked federal policy to incorporate the idea that some lands should be retained by the public.[14] Starting in 1817, the federal government allocated public lands containing live oak and red cedar for naval construction and then, in in 1832, reserved Hot Springs, Arkansas, which was known for its medicinal value.[15] Contributing to this movement, the Supreme Court in United States v. Gratiot upheld federal leasing of lead mines.[16]
The first significant success for allocation of land for preservation purposes was Abraham Lincoln and Congress’ decision in 1864 to place Yosemite Valley and Mariposa Big Tree Grove under the protection of California.[17] Conservationists and naturalists, such as John Muir, Clarence Dutton, and John Wesley Powell, were able to reach the public by advocating for protection through published writings that became the driving force behind the creation of several national parks.[18] Eight years later, Congress and Ulysses S. Grant made history when they reserved two million acres of public land to create Yellowstone National Park.[19]
The proliferation of national parks showcased the “contemporary intellectual, social, and economic changes” of the public appreciation for the natural wilderness, a longing to “escape the increasingly urban places that resulted from industrialization, and the popularization from the automobile.”[20] The sparked awareness and need for preservation resulted in the founding of the Appalachian Mountain Club in 1876, described as “one of the first private conservation organizations” with a goal to preserve and protect eastern wilderness areas.[21] The federal government followed the movement by establishing the United States Geological Survey in 1879, a bureau within the Department of the Interior (DOI) responsible for surveying and mapping lands in national territories.[22] President Roosevelt created five new national parks during his administration along with many other sources of public lands, such as national forests and monuments.[23]
Even though Yellowstone was named a national park in 1872, the NPS was not founded until 1916.[24] During this gap of time, the parks lacked centralized management and duties were shifted between the Departments of War, Agriculture, and Interior.[25] According to provisions of an 1894 Act, the Secretary of the Interior was to make regulations providing “for the preservation . . . of all timber, mineral deposits, natural curiosities, or wonderful objects within said park.”[26] The Interior struggled to protect the parks from abuses such as private commercial interests that took advantage of the parks and the public.[27] These private commercial interests saw “profit potential in the parks and began to exploit their resources,” often without being monitored.[28] Consequently, national parks lacked protection and funding, sparking doubts for their future.[29]
The passage of the Antiquities Act in 1906, which gave the President authority to declare national monuments, resulted in a substantial increase in national parks.[30] By 1916, the Interior Department was responsible for fourteen national parks and twenty-one national monuments, although Congress still lacked an organization or policy guidance that would manage them.[31] Preservationists did not push for park service reformation until the defeat of the Hetch Hetchy Valley in Yosemite National Park.[32] In order to provide water and power to San Francisco, Congress passed legislation allowing Hetch Hetchy Valley to be dammed, causing preservationists to become alarmed and support the creation of a “comprehensive management scheme.”[33]
Finally, there was a breakthrough in 1916 when Congress passed and President Woodrow Wilson signed the NPS Organic Act, which created the NPS within the DOI.[34] Congress gave the NPS a mission to manage the parks in a manner that would “conserve the scenery and natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[35] This mission statement created an ongoing pressure for NPS, because it left a responsibility to the Park Service to provide for use and enjoyment of the parks and, importantly, to do so in a way that would leave them unimpaired for the enjoyment of future generations.
B. Concessions
The continued existence of the parks depended on the number of people who utilized them, pushing preservationists along with railroad officials to be interested in how to increase park tourism and outdoor recreation.[36] However, to counter the influence of the emerging utilitarian philosophy, greater use of the parks was needed to continue their existence.[37] Therefore, the scenic preservation was compromised by building additional roads, hotels, and other visitor facilities.[38] Self-defeating management coupled with the need for increased use led to the creation of the Organic Act.[39] This gave the Secretary of the Interior authority to make rules and regulations as necessary for use and administration of national park areas and also gave the Secretary power to develop various visitor facilities in the parks through concessionaire leases.[40]
By the end of World War II, park visitation had exceeded all expectations to the point that the Park Service was unable to accommodate all visitors.[41] Throughout the 1950s and 1960s, Congress allocated over one billion dollars to the Park Service to provide accommodations for the increased number of visitors.[42] However, by 1965 Congress’s ideals started to shift and so stated that the Park Service should only allow concessions within parks if they were “consistent…with preservation…[of] park values.”[43] The National Park Concessions Policy Act of 1965 (hereinafter “The Act”) was an effort to deal with park amenities with a preservation-based policy: “[i]t is the policy of Congress that the development [of public accommodations] shall be limited to those that are necessary and appropriate for public use and enjoyment . . . and are consistent to the highest practicable degree with the preservation and conservation of the areas.”[44]
Even though the Act seems focused on preservation, it has brought many challenges in balancing the Park Service’s need to provide adequate services and facilities for park supporters while protecting the parks for future generations.[45] Practices allowed by the Act resulted in less money being spent on protection and preservation.[46] The Act also provided businesses with “long-term contracts, exclusivity, bidding advantages and the opportunity to profit from any expenditures made on park facilities if they entered into concessions with the Park Service.”[47]
After the Park Service encountered an array of problems, Congress enacted the National Parks Omnibus Management Act of 1998 (hereinafter “The Omnibus Act”).[48] The Omnibus Act included “provisions designed to reform the concessions industry, promote local fund raising activities, demand fiscal accountability by park managers, encourage cooperative agreements with universities and the scientific community, and establish new criteria for the admission of new parks to the system.”[49] The Omnibus Act supposedly ended all of the preferential rights concessionaires had enjoyed under the Concessions Policy Act.[50] For instance, the Concessions Policy Act authorized the parks to retain concession fees themselves[51] rather than sending the fees straight to the general treasury fund as required under the Omnibus Act.[52] Even though the Omnibus Act was a step in the right direction, there are still problems that arise out of concessions, such as overcrowding of visitors.[53] This causes an increasing amount of wear and tear on the parks including traffic jams, pollution from off-road vehicles, and pollution from scenic overflights.[54]
C. Preservation v. Use and Enjoyment
The Organic Act deliberately entails a conflicting “dual mandate” that creates tension between preserving an area and managing it for public use and enjoyment.[55] The dual mandate provides two priorities for park management that NPS must balance depending on the current needs of the park.[56] Historically, the NPS “championed preservation over economic use,” but the demanding pressures of “recreational and cultural responsibilities” led to a shift.[57] This Note showcases how the dual mandate requires balance, but preservation should be the dominant goal of national parks and dictate the policies surrounding concessions.
From prior cases, it is obvious that judicial review and other such tools of ensuring compliance with the Organic Act are not powerful enough to “moderate the anthropogenic pressures that risk the long-term impairment of our national parks.”[58]The NPS lacks a statutory amendment that explicitly clarifies that the NPS favors the conservation mission, prioritizing preservation over potentially damaging use and enjoyment.[59] Unlike the Wilderness Act or the Wild and Scenic Rivers Act, which are well-known to give clear priorities to preservation and natural resource values, national parks are left continually fighting the battle of those in favor of preservation versus those who seek to only enjoy or use the land, no matter how much damage the activity creates.
Development of concession facilities falls under the use prong of the dual mandate.[60] Concessions in parks contribute to the overabundance of crowds, promoting increased use of parks or new types of accommodations or recreation.[62] Rather than just providing the necessary amenities for the public to enjoy the “scenery, natural objects, and wildlife” while visiting the parks, concessionaires tend to overreach their goals, harming any environment in their path.[63] Certain types of concession facilities or means of use are unnecessary to the public. Even though Congress adopted the “necessary and appropriate” language in the Concessions Policy Act of 1965, Congress did not define these terms, giving no teeth to this provision.[64]
III. Problems that Exist in National Parks Due to Less Restrictive Policies on Concessions
Congress needs to address the continual management and regulation challenges faced by the NPS. In particular, underfunding continues to plague the national parks, as problems such as overcrowding, encroaching development, and pollution tend to add to the deteriorating budget.[65] The increasing pressure on the NPS by visitors and recreational users has industrialized many of the parks, in turn creating long-term environmental harm as well as management and budget deficiencies.[66] Below are examples of concessions that continue to cause harmful effects to the national parks that should be limited or even eliminated in order to preserve the original vision for national parks.
A. What’s in Our National Parks’ Trash Cans?
Since National Parks attract millions of visitors from around the world, one consequence of national park concessions is the 100 million pounds of garbage a year those visitors generate, which mostly ends up in landfills.[67] The National Parks Conservation Association recently put together a report on what is in the trash cans in national parks.[68] Most of what the Association found is what you would find in your household trash and recycling bins; “[p]lastic bottles, paper cups, plastic bags, food [sic] and food wrappers” are some common examples.[69] Unfortunately, the NPS currently has little control over what people bring in or even buy from concessionaires in the national parks. Statistics show that 82% of visitors at national parks consume food or drinks while in the parks and only about half (53%) purchase these items within the park.[70]
National Parks could save significant expenses if they did not have to spend their resources removing substantial amounts of trash. The NPS has to use taxpayer dollars to manage the burden of disposing and recycling all plastic, including plastic water bottles.[71] Dealing with the removal of trash takes away from funding other services. The Yellowstone National Park environmental protection specialist concedes that the park “spends half a million dollars annually to remove 3,000 tons of trash that enter the park each year.”[72] Similarly, Denali National Park “spends about $75,000 a year to get rid of the 140 tons of garbage that visitors bring into the park.”[73] Unfortunately, large quantities of trash and costs associated with the removal process render constant maintenance challenging.[74]
Even though energy use and fuel consumption are the main causes of climate change, landfills are also to blame.[75] Landfills produce 20% of the potent greenhouse gas called methane, which has been proven to cause “[twenty-five] times more global warming than carbon dioxide.”[76] Since most waste from national parks ends up in landfills, this is a starting point where our government can make a difference in our environment.[77] National parks such as Alaska’s Denali are as far away as fifty miles from the closest recycling plant, which is sometimes not even able to handle Denali’s large amounts of recycling loads.[78] Therefore, eighty percent of Denali’s trash ends up in landfills.[79] However, recycling usually only delays plastic’s inevitable destination: a trash can.
As we all have seen at some point, much of pollution and trash end up harming and even killing some of our Earth and parks’ most precious species. Much of our pollution, which the parks contribute to, has been “discovered in the mouths of whales and bellies of dead seabirds that mistook it for food.”[80] Some of these species are even on the Endangered Species List, which the NPS is supposed to prioritize and do everything in its power to obey and promote their protection.[81] Also, pollution often affects the visitor experience, blinding travelers to the aesthetic beauty of the park. As we saw in the study above, concessions add to this pollution by serving their food and drinks in disposable materials such as plastic water bottles. It is contradictory to allow concessions to aid the pollution problem by serving waste products to NPS visitors.
i. The Water Bottle Controversy
By reversing a ban on bottled water sales at national parks, was the Trump administration attempting to reduce plastic pollution, or was there another goal?[82] Does this move reflect the NPS commitment to providing a safe and world-class visitor experience? Does it demonstrate that corporate agenda and lobbying always win, or that plastic pollution is not a global problem, or that our government is not concerned about climate change? By reversing this ban, our government sent visitors a contradictory message that the Green Parks Plan, a strategic NPS plan centered around sustainability and recycling, is not taken seriously.[83]
The ban’s reversal was approved three weeks after David Bernhardt was approved as Deputy Secretary of the Interior.[84] Bernhardt is a prior lobbyist with Brownstein Hyatt Farber Schreck, a law firm that represents Nestle Water (Nestle distributes Deer Park brand as well), one of the most dominant water bottle distributers in the United States.[85] This conflict made many senators question Bernhardt’s bias during his confirmation hearing, because his past corporate affairs contradict the DOI’s goal and “regulations to promote clean air and water.”[86] Publicists exposed that the Trump administration (specifically the DOI), including Bernhardt, coincidentally worked with the same industry to sell their brand of water in the parks.[87]
The water bottle industry’s arguments against the ban focused on the health and safety of the three hundred million annual visitors to the NPS’s 411 sites.[88] When the plastic water bottle ban was in place, the NPS spent millions of dollars constructing a sufficient amount of water stations at which people could fill their own water bottles for no cost.[89] Parks such as Zion National Park also sell reusable bottles that visitors are able to take home, and those sales increased by seventy-eight percent when the ban took place.[90] Therefore, these parks have proved the water bottle industry wrong, as the parks are able to supply purified water to its visitors and even continue to make a profit despite worry amongst some critics.[91]
The decision to ban water bottles was ultimately based on the statistic that at least fifty billion plastic water bottles are thrown away by Americans annually.[92] About twenty billion oil barrels were used to produce this high quantity of water bottles, the production of which emitted greenhouse-gas pollutants.[93] The Interior Department spoiled a successful and popular “opportunity to improve the environment on the millions of acres that parks occupy,”[94] sending out a damaging and contradictory message to America that portrays where their priorities lie. The ban could decrease plastics going to the landfills, help reduce the amount of greenhouse gases generated by the manufacture of plastic bottles, reduce litter, protect wildlife against plastic ingestion, and save visitors money via free refilling stations.[95]
B. Turn Off Your Engines
Air pollution in national parks continues to increase as vehicles, snowmobiles, jet skis, terrain vehicles, and airplane/helicopter oversights emit nitrous oxide and hydrocarbons.[96] These are all examples of transportation that concessionaires rent out to visitors for additional amenities and activities in the parks. Such air pollution has damaged the scenic beauty of the parks and disturbed plant and animal life. In the face of significant overcrowding, some parks such as Grand Canyon National Park and Zion National Park have prohibited automobiles to try to lessen the congestion and pollution.[97] In the recent past, the NPS, in an effort to alleviate the harmful effects of gas emissions, banned snowmobiles in Yellowstone and Grand Teton National Park.[98]
Just like snowmobiles, Congress found that scenic over flights that concessionaires sell contribute to noise pollution and negatively impact the air quality and wildlife.[99] From April to September 2015, about 650 tourists took advantage of the helicopter oversight concession.[100] The helicopters burden 99.75 percent of Glacier National Park’s visitors, yet only to allow tourists to see a miniscule piece of the park.[101] The NPS’s Natural Sounds and Night Skies Division have proven through many studies that aircraft noise negatively burdens surrounding wildlife as well.[102]
Sounds plays a significant role in ecosystems, as many activities such as “finding desirable habitat and mates, avoiding predators, protecting young, and establishing territories are all dependent on the acoustical environment.”[103] Furthermore, studies show noisy environments cause animals stress; they have found that species such as the Sonoran pronghorn try to stay away from areas disturbed by military jets, and the gleaning bat is not able to hunt because of the noise from roads.[104] These effects should be carefully considered when humans generate noise in national parks, as these sounds can have negative implications on the well-being and vitality of wildlife populations within a park or even an entire ecosystem.
In 2000, Congress passed the National Parks Air Tour Management Act, which required the FAA and NPS to create a detailed plan for each park that hosts more than 50 overflights annually.[105] The agencies were then responsible to “incentivize quieter technology, limit flights, even ban them altogether.”[106] However, the problem is that the FAA has sole authority over civilian air travel in the United States and is the leading agency under the Act; since the Act does not give a deadline for the agencies to follow, there has not been a single plan implemented since its passage, leaving no change in the conduct of the overflight concessionaires.[107] In a 2006 Government Accountability Office report, the DOI blamed the Act’s lack of progress on the agencies’ differing mission and policies.[108] The agencies have not followed Congressional intent to carry out the Act’s purpose and just put the responsibility of figuring out the significance of noise pollution on the back burner. Sadly, air pollution in some of the western parks has reached the same drastic levels as those in Los Angeles.[109] A domino chain of effects for both animals and humans is created when human-caused noise sources stress the interconnecting system of resources that the wildlife depends on for survival. Visitors also seek natural sounds, as they travel to escape their loud and urban lives.
IV. Preserve National Parks’ Ordinary Goals
The idea that a variety of concession services and amenities are necessary in order to attract tourists, to ensure that national parks’ existence is not threatened, has faded. From the overcrowding tourists that fill each park, it is evident that parks are no longer at the mercy of providing extensive concession services. In order to get a gratifying experience, visitors, Congress, and even the Park Service believe that the parks should be full of the modern amenities they enjoy on a daily basis, such as “fast food, laundromats, shopping facilities, and electronic entertainment.”[110] In light of these increasing pressures from the public, the national parks need “reinforcement of a national re-commitment to conservation.”[111]
A. Small Change with a Huge Impact
The needed change in national parks “depends directly on the inconsistent generosity of Congress, the strength of advocacy organizations, the disposition of the current President, and political winds.”[112] An amendment should be put in place that clearly and explicitly prioritizes conservation of the parks’ resources, landscape, and wildlife first, and promotion of human enjoyment second. It is obtainable for both goals to be compatible, but the law should require that conservation take priority in every decision made. Rather than to promote commercialism and tourism, the Organic Act can be construed to support this interpretation since the enjoyment clause entails a condition on any use that the parks remain “unimpaired” for the future.[113] Also, the fact that the “conservation” clause is before the “use” clause, indicates legislators emphasized preservation and conservation as the primary goal.[114]
A simple amendment to change the language of the Organic Act would clarify priorities of the dual mandate and take away the tension between preservation and use and enjoyment. The amendment would add that conservation and preservation are given the highest priority at all times and that use and enjoyment should be compatible with the goal of preservation. This will give the NPS and courts a clear road map to resolve and control the present and continual conflicts that center around the dual mandate. The change would result in less litigation over concession policies because the mandate would be clear in the future and the NPS would be able to limit harmful human impacts and have conservation as its paramount focus. Our focus needs to be on conservation for future generations since we only get one chance at succeeding at that task.
An objection may be from those who disagree with this Note’s view that preservation is paramount in the Organic Act and believe the dual mandate does not place conservation as a higher priority than enjoyment. Critics who take this stance view that the dual mandate was intentionally to create flexibility for the NPS, legislators, and courts. Thus, both goals of the Act are “interdependent and simultaneous” and prioritizing one above the other would contradict with the “valid political compromise that must be respected.”[115] Critics of preservationists also argue that putting conservation ahead of enjoyment is “elitist and undemocratic.”[116] Preservationist Joseph Sax has been criticized for this in his own works such as when he stated that “access to the national parks should be limited to those who have the sensitivity and willingness to encounter nature of its own terms.”[117] These are all valid objections that have been made previously by many critics, and as such, it is unlikely that such a reform of the Organic Act will be easily accomplished and passed even if there is a progressive Congress in place. However, this idea and debate needs to be expressed by the public and organizations, as it might be our only hope to achieve a final resolution of the ongoing issue.
B. A Step in the Right Direction
Another simple proposal to alleviate the tension of the dual mandate consists of the administration, at a minimum, adopting policies that err on the side of preservation. Instead of sending out a message, as our government has previously done by revoking the ban of water bottles in certain national parks, the public, national parks, and government need to be building a foundation. In order to start making this movement, it is essential that the NPS engage the public by informing them of the importance of preserving our national parks for the future. It is also important that national advocacy organizations that support conservation of national parks, such as the Sierra Club, keep the public informed and involved in the movement. This could consist of different community programs that promote protection of the parks, such as clean up groups, educational programs, and replanting different species of plants. This will help our legislators see the need and desires of the public – that the public wants a change in priorities of the Organic Act.
If such a clarifying amendment were enacted, it would allow the NPS and national parks individually to enact policies to aid the problems discussed previously. For example, parks could mandate that there should be no disposable waste served by concessionaires (plastic, paper, etc.) or even reissue the plastic water bottle ban they already started. They would also be able to limit off road vehicles and oversight tours to a minimum or even eliminate them if such policy is necessary to preserve the wildlife and noise pollution within the parks.
V. Conclusion
Many problems such as waste and noise pollution, gas emissions, the daily wear and tear from overcrowding of tourists, and unnecessary concessions are putting the preservation of national parks in jeopardy.The two goals of conservation and enjoyment of the parks have caused many conflicts throughout the national parks’ history, as the Organic Act mandate requires the NPS to accommodate both objectives. This Note takes the position that a simple amendment to the Organic Act that clarifies that preservation is of the utmost priority will take away the duality tension. In furtherance, an amendment such as this will allow the parks and the NPS to achieve successful policies such as the banning the sale of water bottles in the parks. This would send out a message to the public that the purpose of the parks is to be preserved for future generations. As such, it is up to the public, advocacy organizations, the NPS, and Congress to continue to fund and reform our national parks so that the concession industry acts in a more accountable and effective manner with the purpose of preservation at the forefront at all times.
[I] J.D. Candidate 2019, University of Kentucky College of Law.
[2] U.S. Dep’t of the Interior, Commercial Services Program, Nat’l Park Serv., https://www.nps.gov/orgs/csp/index.htm [https://perma.cc/TQY7-DU39] (last updated Oct. 30, 2018).
[3] Id.
[4] Id.
[5] Joseph L. Sax, Mountains Without Handrails: Reflections on the National Parks 98 (1980).
[6] See U.S. Dep’t of the Interior, supra note 2.
[7] See generally Ensuring High Quality Visitor Services, Nat’l Park Serv., https://www.nps.gov/subjects/concessions/index.htm [https://perma.cc/DTQ4-HWG6] (last visited May 25, 2019).
[8] A “windshield tourist” is an individual who traverses the park without leaving their car.
[9] See Sax, supra note 5, at 99–100.
[10] Michael Mantell, Preservation and Use: Concessions in the National Parks, 8 Ecology L.Q. 1, 2 (1979).
[11] Id. at 2–3.
[12] Id. at 3.
[13] See U.S. Dep’t of the Interior, Ensuring High Quality Visitor Services, Nat’l Park Serv., https://www.nps.gov/subjects/concessions/index.htm [https://perma.cc/KS3Q-GGP4] (last updated Oct. 10, 2018) (“[T]he Commercial Services Program administers 500 concession contracts….”).
[14] James Rasband et al., Natural Resources Law and Policy 146 (3rd ed. 2016).
[15] Id.
[16] United States v. Gratiot, 39 U.S. 526, 538–39 (1840).
[17] “Yo-Semite Valley,” and “Mariposa Big Tree Grove,” ch. 184, 13 Stat. 325 (1864). California later re-ceded the land to the federal government.
[18] Brief History of the National Parks, Library of Congress, https://www.loc.gov/collections/national-parks-maps/articles-and-essays/brief-history-of-the-national-parks/ [https://perma.cc/ZTS8-U9JR] (last visited Oct. 17, 2017).
[19] Yellowstone National Park Protection Act, ch. 24, 17 Stat. 32 (1872).
[20] Brief History of the National Parks, supra note 16.
[21] Id.
[22] Id.
[23] Theodore Roosevelt and Conservation, Nat’l Park Serv., https://nps.gov/thro/learn/historyculture/theodore-roosevelt-and-conservation.htm [https://perma.cc/932Y-7KVY (last updated Nov. 16, 2017).
[24] Brief History of the National Parks, supra note 16.
[25] Id.; U.S. National Parks–In the Beginning, Nat’l Geographic (May 26, 2010), https://www.nationalgeographic.com/travel/national-parks/early-history [https://perma.cc/HVM8-JW7D].
[26] The Lacey Act of 1894, ch. 72, § 4, 28 Stat. 73 (codified at 16 U.S.C. § 26 (1976)).
[27] U.S. National Parks–In the Beginning, supra note 23.
[28] Id.
[29] See Rasband et al., supra note 12, at 146.
[30] Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev.473, 488–89 (2003).
[31] Rasband et al., supra note 12, at 146—47.
[32] Richard J. Ansson Jr. & Dalton L. Hooks Jr., Protecting and Preserving out National Parks in the Twenty First Century: Are Additional Reforms Needed Above and Beyond the Requirement of the 1998 National Parks Omnibus Management Act?, 62 Mont. L. Rev. 213, 218 (2001).
[33] Id.
[34] National Park Service Organic Act of 1916, ch. 408, 39 Stat. 535 (1916) (codified as amended at 54 U.S.C.S. § 100101 et seq.).
[35] Id.
[36] Mantell, supra note 8, at 10.
[37] Id.
[38] Id. at 12.
[39] Id. at 13.
[40] National Park Service Organic Act of 1916, ch. 408, § § 2, 3, 39 Stat. 535 (1916) (codified as amended at 54 U.S.C.S. § 100101 et seq.).
[41] Mantell, supra note 8, at 17.
[42] Id. at 22.
[43] Id. at 28.
[44] National Park Concessions Policy Act of 1965, ch. 6, 79 Stat. 969 (codified as amended at 54 U.S.C.A. § 101912 (b) (2018)).
[45] Alfred Runte, National Parks: The American Experience, 173 (2d ed. 1987).
[46] Id.
[47] Ansson & Hooks, supra note 32, at 220.
[48] National Parks Omnibus Management Act of 1998, Pub. L. No. 105–391, 112 Stat. 3497 (codified as amended at 54 U.S.C.S. § 100701 et seq. (2018)).
[49] Ansson & Hooks, supra note 32, at 222–23.
[50] 16 U.S.C.A § 5952(7) (1998);Concessions Policies Act of 1965, Pub. L. No. 89-219, § 4, 79 Stat. 969.
[51] Concessions Policies Act of 1965 § 4.
[52] 16 U.S.C.A. § 407(c) (1998).
[53] See Michael Satchell, National Parks in Peril, U.S. News & World Rep. (July 21, 1997), https://www.usnews.com/news/articles/2016-08-19/national-parks-in-peril.
[54] Id.
[55] Denise E. Antolini, National Park Law in the U.S.: Conservation, Conflict, and Centennial Values, 33 Wm. & Mary Envtl. L. & Pol’y. Rev. 851, 861–62 (2009).
[56] See id.
[57] Id. at 863–64.
[58] Id. at 885.
[59] Id. at 885, 912.
[60] Id. at 36.
[62] Id. at 36.
[63] Id.
[64] Concessions Policies Act of 1965, Pub. L. No. 89-219, § 4, 79 Stat. 969.
[65] Antolini, supra note 3, at 876–87.
[66] Id. at 877–80.
[67] Greta Weber, Iconic National Parks Move to Eliminate Landfill Trash, Nat’l Geographic (June 29, 2015), http://news.nationalgeographic.com/2015/06/150629-zero-landfill-national-parks-yosemite-grand-teton-denali/ [https://perma.cc/59RB-EBUG].
[68] Jamie Varner, What’s in National Parks’ Trash Cans–and What You Can Do, Nat’l Parks Conservation Ass’n (Aug. 16, 2016), https://www.npca.org/articles/1289-what-s-in-national-parks-trash-cans-and-what-you-can-do [https://perma.cc/UAA3-V3R4].
[69] Id.
[70] Id.
[71] Darryl Fears, National Parks Put a Ban on Bottled Water to Ease Pollution. Trump Just Sided with the Lobby that Fought It., The Washington Post (Aug. 17, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/08/17/national-parks-banned-bottled-water-to-ease-pollution-trump-just-sided-with-the-lobby-that-fought-it/?utm_term=.e9b5fc5104d9 [https://perma.cc/KR3D-JACPhttps].
[72] Chris Valencia, As Park Attendance Grows, so Does Trash, Univ. Miami Sch. of Commc’n (May 6, 2008), http://www.ournationalparks.us/park_issues/as_park_attendance_grows_so_does_trash problem/ [https://perma.cc/R4KF-9R74].
[73] Id.
[74] Id.
[75] Weber, supra note 65.
[76] Id.
[77] Id.
[78] Id.
[79] Id.
[80] Fears, supra note 71.
[81] Endangered Species in our National Parks, Nat’l Park Reservations (Aug. 9, 2016), https://www.nationalparkreservations.com/endangered-species-in-our-national-parks/ [https://perma.cc/4RHH-VC57]; 16 U.S.C. § 1536 (2012).
[82] Fears,supra note 69.
[83] Kurt Repanshek, Traveler’s View: Lost in the Water Bottle Ban Debate Is National Park Service Leadership, Nat’l Parks Traveler (Aug. 21, 2017), https://www.nationalparkstraveler.org/2017/08/travelers-view-lost-water-bottle-ban-debate-national-park-service-leadership [https://perma.cc/PV6T-575S].
[84] Fears, supra note 69.
[85] Id.
[86] Id.
[87] Id.
[88] Id.
[89] Id.
[90] Id.
[91] See id.
[92] Id.
[93] Id.
[94] Id.
[95] Repanshek, supra note 83.
[96] Ansson & Hooks, supra note 32, at 224.
[97] Id. at 224.
[98] Id.
[99] Id. at 225.
[100] Ryan Wichelns, For National Parks, Helicopter Tours are a Noisy Problem, Backpacker (Feb. 28, 2017), https://www.backpacker.com/news-and-events/national-park-helicopter-tours [https://perma.cc/MUQ2-M99S].
[101] Id.
[102] U.S. Dep’t of the Interior, Effects of Noise on Wildlife, Nat’l Park Serv., https://www.nps.gov/subjects/sound/effects_wildlife.htm [https://perma.cc/5MBY-LDQX] (last visited Jan. 15, 2018).
[103] Id.
[104] Id.
[105] Wichelns, supra note 98.
[106] Id.
[107] Id.
[108] U.S. Gov’t Accountability Off., GAO-06-263, National Parks Air Tour Management Act: More Flexibility and Better Enforcement Needed 12 (2006).
[109] Tony Barboza, An ‘F’ in Air Quality: California National Parks Top the List for Worst Pollution, Los Angeles Times (July 28, 2015), https://www.latimes.com/local/lanow/la-me-ln-parks-air-quality-20150727-story.html [https://perma.cc/2RSD-ZXRD].
[110] Mantell, supra note 10, at 49.
[111] Antolini, supra note 53, at 912.
[112] Id. at 882.
[113] National Park Service Organic Act of 1916, ch. 408, 39 Stat. 535 (codified as amended at 54 U.S.C.S. § 100101 et seq.).
[114] See id.
[115] Antolini, supra note 55, at 916.
[116] Id. at 917.
[117] Id.
Metaphors on Trademark: A Response to Adam Mossoff, “Trademark as a Property Right”
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Metaphors on Trademark: A Response to Adam Mossoff, “Trademark as a Property Right” Download
Response Piece | 107 KY. L. J. ONLINE | Volume 107
Brian L. Frye[1]
“Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.”[2] – Benjamin N. Cardozo
I. Introduction
There are two kinds of “intellectual property” scholars: those who use scare quotes and those who don’t.[3] Some scholars believe that intellectual property is just another kind of property, which the law should treat the same as any other kind of property.[4] But others believe that “intellectual property” has little or nothing in common with physical property and see the term “property” as little more than a misleading metaphor.[5] The disagreement between these two schools of thought is probably strongest when it comes to trademarks, which lack many of the “property–like” features of patents and copyrights, most notably alienability.
Adam Mossoff is decidedly in the property camp.[6] In his provocative but rather quixotic essay, “Trademark as a Property Right,” he claims that trademark simply “is” a property right. He observes that trademark can be conceptualized as a form of property right and notes that when 19th century courts initially created trademark doctrine, they often relied on analogies to physical property.[7] Mossoff shows that many features of historical and contemporary trademark doctrine can be analogized to use–rights in physical property, especially easements appurtenant and riparian rights.[8] Accordingly, he argues that trademarks should be defined as a form of use–rights, and receive similar treatment.[9]
I agree with Mossoff’s descriptive claim that trademarks can be and have been analogized to certain forms of physical property rights. His doctrinal and historical arguments are compelling. But the fact that courts have analogized trademarks to use–rights in the past does not obligate them to continue using the analogy.[10] And the fact that trademarks can be analogized to use–rights does not imply that courts must rely on that analogy. It depends on your theory of trademarks.
People can and do reasonably disagree about whether and why trademarks are justified. Consequentialist theories hold that trademarks are a means to an end, and deontological theories hold that trademarks are an end in themselves.[11]Mossoff’s normative claims are decidedly deontological— specifically Lockean. He argues that business owners are entitled to own trademarks associated with the commercial goodwill they labored to create.[12] But consequentialist theories don’t ask whether people are entitled to own trademarks. They ask whether good things happen when people are allowed to assert trademark rights.
Accordingly, whether you find Mossoff’s normative claims appealing will depend on your own normative premises. He is unlikely to convince consequentialists, unless he convinces them to change their premises.
Mossoff’s essay also makes an epistemological claim, arguing that we should analogize trademarks to use–rights because it will help us better understand how trademarks can and should work.[13] Is he right? Maybe. At the very least, his analogy has some purchase on trademark history and doctrine. Surely, both deontological and consequentialist theories can benefit from a more robust understanding of the historical development of trademark law. But it is unclear how “tradition” could provide any consequentialist justification for trademark doctrines that produce undesirable results.
II. Mossoff’s “Property Theory” of Trademarks
As he must, Mossoff recognizes that the prevailing theory of trademarks is utilitarian.[14] The overwhelming majority of courts and scholars assume that a trademark is “a regulatory entitlement whose function is to increase social welfare by reducing consumer search costs.”[15] In theory, modern trademark law “amounts to little more than industrial policy.”[16] However, the paradigmatic problem with trademark doctrine is its failure to regulate competition efficiently.[17]
Mossoff objects to the utilitarian theory of trademarks. He argues that trademarks can and should be “defined as a property right.”[18] Or rather, he argues that courts and scholars should adopt a Lockean theory of trademarks and conceptualize trademarks as a kind of “property” right analogous to physical property rights.
Mossoff begins by explicitly rejecting utilitarianism and proclaiming his fealty to the “Lockean property theory.”[19] He then observes that the historiography of trademark law is dominated by the utilitarian perspective.[20] While contemporary trademark scholars generally recognize that 19th century courts often adopted a “goodwill–as–property” theory of trademark, they describe a gradual transition to an “unfair competition” theory of trademark.[21] Mossoff disagrees, arguing that trademarks can and should be described in Lockean terms.[22]
While Mossoff disclaims any intention to provide an “intellectual history” of trademark law, he traces the origin of trademark law to the emergence of the concept of commercial goodwill in the early 19th century.[23] He argues that 19th century courts and scholars defined goodwill as the “reputational value” of a commercial enterprise and saw trademarks as a way of using that goodwill.[24] In other words, they saw the exclusive right to use a trademark as a function of the exclusive right to own the goodwill associated with a commercial enterprise.[25] This is consistent with Lockean property theory, which defines property as “the right to exclusive use of the fruits of one’s productive labors.”[26] Goodwill is property because it consists of an exclusive right to the reputational value of a commercial enterprise. But what about trademarks?
According to Mossoff, trademarks are also property, albeit a different kind of property. He argues that trademarks are a form of “use–right” or “usufruct” inherent in commercial goodwill.[27] In property law, a use–right is a property right “necessarily derived from or attached to an accompanying property right.”[28] If goodwill is a property right, and trademarks inhere in goodwill, then trademarks are analogous to a use–right in goodwill.
Mossoff explains his use–right theory of trademarks by analogy to paradigmatic use–rights like riparian rights and easements appurtenant.[29] An easement appurtenant is “a use–right derived from and attached to a dominant estate that permits use of another servient estate.”[30] For example, a right to cross someone else’s land in order to reach your own land is an easement appurtenant. Mossoff argues that a trademark is a property right “appurtenant” to commercial goodwill because it consists in an exclusive right to use a mark, but only in relation to the commercial goodwill it signifies.[31]
Mossoff shows that courts have routinely referred to trademarks as “property” rights “appurtenant” to goodwill.[32] He shows that it is possible to analogize particular features of trademark doctrine to the property doctrine of easements appurtenant. For example, the owner of an easement appurtenant cannot convey it separately from the estate to which it is attached, because doing so would transform it into an “easement in gross.”[33] Likewise, a trademark owner cannot convey it separately from the goodwill to which it is attached, because doing so would transform it into a “trademark in gross.”[34] Moreover, like all use–rights, a trademark exists and is enforceable only insofar as it is actually used in commerce.[35]
As Mossoff observes, this parallelism is obviously not a coincidence. Courts describe trademarks in terms of use–rights because they derived trademark doctrine in substantial part from the doctrine of use–rights.[36] Accordingly, he argues that courts and scholars should continue to analogize trademarks to use–rights. By implication, he argues that they should adopt a theory of trademarks modeled on the Lockean property theory rather than a utilitarian theory.
III. Trademark “Ownership” & Its Discontents
I found this essay intriguing, but also puzzling. Mossoff convincingly shows that trademarks can be analogized to use–rights in physical property. He provides a compelling argument that the viability of that analogy is not an accident, but a function of the historical development of trademark doctrine. In other words, trademarks resemble use–rights because courts modeled them on use–rights.
But he wants to do more. He wants to show that trademark “is” a property right. Rather, he wants to show that trademarks should be defined as a kind of “property” and afforded the same kinds of exclusive rights as physical property.[37]
He does not achieve that goal. And I do not see how he possibly could, given the nature of his claims.
Mossoff argues that the utilitarian account of trademarks as regulatory entitlements that promote consumer welfare is wrong, because trademarks look like use–rights, and trademark doctrine sprung from the brow of property doctrine.[38] But that misses the point. The project of utilitarianism is not to describe the law as it is, but as it should be. Utilitarians can cheerfully concede all of Mossoff’s points, because they do not care about legal doctrine for its own sake— they care about its results. In other words, Mossoff cannot effectively challenge the utilitarian theory of trademarks because he is not speaking its language.[39]
Mossoff explicitly endorses the Lockean theory of property, which provides that people are entitled to exclusive ownership of the fruits of their labor.[40] If one accepts the Lockean theory of property, it follows that people are entitled to own anything analogous to Lockean property, including trademarks associated with the goodwill in their business.
But utilitarians are consequentialists, who reject Mossoff’s Lockean premise. According to utilitarians, property is purely instrumental, and the purpose of trademarks is only to increase net social welfare. While Mossoff’s arguments will surely speak to those who accept the Lockean theory of property, it is not clear whether they have anything to offer utilitarians, at least with respect to his normative claims.
Indeed, as Mossoff recognizes, other trademark scholars have identified the historical use of commercial goodwill as a justification for conceptualizing trademarks as a form of property.[41] Those scholars argued that the use of “property” metaphors gradually diminished as utilitarian premises began to dominate trademark theory. Mossoff makes a convincing case that trademarks were not actually conceptualized as property in goodwill but “use–rights appurtenant to” goodwill.[42] From a utilitarian standpoint, who cares? It just doesn’t matter what kind of property metaphor you use if the metaphors lead to bad results.
IV. Trademark as Metaphor
Mossoff also makes a valuable contribution by showing that trademarks can be and have been analogized to use–rights in physical property. Whether or not you think trademarks should resemble use–rights, it may be a helpful way of describing trademark doctrine and how it has evolved over time.
Legal reasoning loves analogies. Indeed, analogical reasoning is arguably the paradigmatic form of common law legal reasoning.[43] The very concept of “precedent” requires analogical reasoning. If a case supplies a rule, analogical reasoning enables a court to apply the rule.[44]
And yet, analogical reasoning has both strengths and weaknesses.[45] It can clarify by enabling people to express ideas more efficiently and effectively. Nothing is more rhetorically powerful than a compelling analogy. But it can also obscure by encouraging people to ignore the practical consequences of adopting a policy. A powerful analogy can normalize an objectively undesirable outcome. Analogies are valuable when they facilitate the expression of an unfamiliar concept in familiar terms. They are dangerous when they enable the use of familiar terms to justify bad decisions.[46]
As I have previously explained, intellectual property metaphors are often unhelpful.[47] Accordingly, the question is whether Mossoff’s analogy to use–rights clarifies or obscures our understanding of trademarks.[48] I am convinced that his analogy helps to clarify our understanding of the historical development of trademark doctrine and why it has adopted certain principles, including the rejection of “trademarks in gross.” But I am not convinced that it helps to clarify our understanding of what trademarks should look like today.
Mossoff’s analogy probably helps explain why most people think trademarks are justified. He is hardly alone in accepting Lockean property theory. While utilitarianism dominates the academy, Lockeanism surely dominates the electorate. And Mossoff provides a convincing explanation of why people who accept Lockeanism tend to think trademarks are normatively justified. He makes explicit a previously unarticulated analogical relationship and helps explain why trademark law took its present form.
But is that form justified? If you accept Mossoff’s Lockean theory of property, then you should ask whether contemporary trademark doctrine is justified as a way of protecting a legitimate right to the fruits of labor. Whether trademarks resemble use–rights in physical property seems entirely irrelevant. Surely, under Lockean property theory, the justification for a property right depends on its intrinsic, metaphysical qualities, not merely its similarity to some other property right. Maybe trademarks are justified on Lockean terms, but can a mere analogy actually prove it?
By contrast, if you accept a utilitarian theory of property, then Mossoff’s entire normative premise is irrelevant. As a practical and political matter, utilitarians should pay attention to why Lockeans think trademarks are justified. But they have no reason to accept those justifications. For utilitarians, Mossoff’s analogy simply provides a helpful way of explaining how trademark law went wrong. If the purpose of trademark doctrine is to enshrine inefficient and unjustified property metaphors where they do not belong, then utilitarians should happily discard it in favor of more efficient doctrines.
5. Conclusion
In sum, Mossoff’s essay makes a valuable contribution to scholarship on Lockean theories of intellectual property. Specifically, his use–right analogy provides a helpful way for Lockean theorists to explain how trademarks fit into a Lockean framework. But Mossoff’s analogy does not and cannot show that trademarks must be conceptualized in Lockean terms. For utilitarians who believe that trademarks are merely a means to the end of promoting consumer welfare, Mossoff’s analogy is of formal and historical interest, but no more.
[1] Spears–Gilbert Associate Professor of Law, University of Kentucky School of Law. J.D., New York University School of Law, 2005; M.F.A., San Francisco Art Institute, 1997; B.A, University of California, Berkeley, 1995. Thanks to Ramsi Woodcock and David A. Simon for helpful comments.
[2] Berkey v. Third Ave. Ry. Co., 155 N.E. 58, 61 (1926).
[3] However, as Ed Timberlake has observed, “Though the number of types of ‘intellectual property’ scholars may be few, innumerable are the unrelated subjects thrown into this conceptual junk drawer.” Ed Timberlake (@TimberlakeLaw), Twitter (Sept. 7, 2018, 11:14AM).
[4] See, e.g., Adam Mossoff, Intellectual Property and Property Rights ix (Adam Mossoff, ed. 2013).
[5] Id. at ix.
[6] See Mossoff, supra note 4.
[7] Adam Mossoff, Trademark as a Property Right, 107 Ky. L.J. XX, 3 (2018).
[8] Id. at 4.
[9] For a thoughtful review of Mossoff’s essay, see Camilla Alexandra Hrdy, Adam Mossoff: Trademarks As Property, Written Description (Sept. 5, 2017, 9:52 PM), https://writtendescription.blogspot. com/2017/09/adam-mossoff-trademarks-as-property.html.
[10] See Mossoff, supra note 7, at 4–5 (highlighting how earlier courts recognized that trademark is a “property right”).
[11] See Intellectual Property, Stanford Encyclopedia of Philosophy, October 10, 2018, at https://plato.stanford.edu/entries/intellectual-property/ (discussing theories of copyright).
[12] See Mossoff, supra note 7, at 4.
[13] Id. at 3.
[14] Id. at 2–3.
[15] Id. While Mossoff consistently refers to this as a “legal realist” theory of trademarks, it is more properly characterized as a “utilitarian” theory of trademarks, or more specifically, a “welfare economic consequentialist” theory of trademarks. Legal realism is a descriptive theory about how law actually works, and does not imply any particular normative theory. Of course, utilitarianism and other consequentialist normative theories are common among legal realists.
[16] Mark P. McKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev. 1839, 1843 (2007).
[17] See, e.g., Mark A. Lemley, The Modern Lanham Act and the Death of Common Sense, 108 Yale L.J. 1687, 1688 (1999).
[18] See Mossoff, supra note 7, at 3.
[19] Id. at 6.
[20] See id. at 6–7.
[21] Id. at 7–8.
[22] Id. at 10–11.
[23] Id. at 11–12.
[24] Id. at 14–15.
[25] Id. at 15–16.
[26] Id. at 17.
[27] Id. at 20–21. A “usufruct” is a “legal right of using and enjoying the fruits or profits of something belonging to another.” Merriam Webster, Usufruct, https://www.merriam-webster.com/dictionary/ usufruct (last visited Oct. 20, 2018).
[28] Id. at 21.
[29] Id. at 21.
[30] Id. at 22 (citing the Restatement (Third) of Property: Servitudes § 1.2(1) (Am. Law Inst. 2000)).
[31] Id. at 23–25.
[32] Id. at 24–25.
[33] Id. at 29–30.
[34] Id. at 29–32.
[35] Id. at 33.
[36] Id. at 37.
[37] See Camilla Alexandra Hrdy, Adam Mossoff: Trademarks As Property, Written Description (Sept. 5, 2017, 9:52 PM), https://writtendescription.blogspot.com/2017/09/adam-mossoff-trademarks-as-property.html (“In other words, Mossoff's main contribution here is not actually the goodwill–to–trademark linkage. Rather, it is his extensive use of the historic case law and detailed application of Locke's labor theory to justify a trademark as property.”).
[38] See Mossoff supra note 7, at 32.
[39] See, e.g., Lemley, supra note 17.
[40] John Locke, Second Treatise of Government § 27 (C. B. Macpherson ed., Hackett Pub. Co., Inc. 1980) (1690).
[41] Mossoff, supra note 12, at 7–9 (discussing Robert G. Bone, Hunting Goodwill: A History of the Concept of Dilution in Trademark Law, 86 B.U. L. Rev. 547, 569–72 (2006); Mark P. McKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev. 1839 (2007)).
[42] Mossoff, supra note 17, at 23–27.
[43] See generally, Lloyd Weinreb, Legal Reason: The Use of Analogy in Legal Argument (2005); Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741 (1993).
[44] See generally, David A. Simon, A Philosophy for Moral Rights?: The Self, Society, & the Author-Work Relation, Chapter 4: Failed Analogies to Explain the Relation Between Author and Work (unpublished dissertation) at 6.
[45] Id. at 7–10.
[46] Id.
[47] Brian L. Frye, IP as Metaphor, 18 Chap. L. Rev. 735 (2015).
[48] See generally, Simon, supra note 44 (asking whether various analogies clarify or obscure the nature of the author–work relationship).
CAFA Removal and Jurisdiction: Basic Overview and Practice Points
CAFA Removal and Jurisdiction: Basic Overview and Practice Points
Article | 107 KY. L. J. ONLINE | May 20, 2018
Megan Niespodziany [1]
Traditionally, when a defendant finds itself being sued in a class action lawsuit, there are two avenues for removal to federal court: traditional diversity grounds and federal question grounds.[2] The implementation of the Class Action Fairness Act (CAFA) provides additional avenues for accomplishing removal.
I. Parameters
With the enactment of CAFA, Congress significantly expanded federal courts’ jurisdiction over class actions and mass actions. The primary CAFA provisions are found in 28 U.S.C. § 1332(d)(B). This section defines a class action under CAFA as “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action.”[3] It is important to note that the class action must have been brought by the plaintiff under Federal Rule of Civil Procedure 23 or a similar state statute using the typical class action language (commonality, typicality, numerosity, and so on).[4] If the action is brought under some other statute, it is not removable under CAFA, but may be removable under diversity or federal question grounds.[5]The most important points about CAFA removal and jurisdiction involve a relaxed diversity requirement and a heightened amount in controversy requirement. Under CAFA, a removing defendant must only show that at least one plaintiff is diverse from at least one defendant instead of showing complete diversity.[6] CAFA also increased the amount in controversy requirement from $75,000 to $5 million, and the $5 million amount can now be satisfied by aggregating each plaintiff’s claim amount—something not permitted under traditional diversity rules.[7] The amount in controversy can be shown by demonstrating several types of damages, including compensatory, statutory, and punitive damages, as well as equitable relief.[8] Attorney’s fees can also be included when authorized by statute. [9]There are differences among circuits when it comes to the burden of establishing the amount in controversy. In the Fourth Circuit, the defendant must establish the jurisdictional amount by a preponderance of the evidence when damages are unspecified, as opposed to the legal certainty a plaintiff enjoys when initially invoking federal jurisdiction by filing in federal court.[10] In the Seventh Circuit, courts employ a legal impossibility standard which makes this circuit very removal-friendly.[11] In the Tenth Circuit, a defendant will satisfy the amount in controversy requirement if it can show the amount is not legally certain to be less than the jurisdictional amount.[12]CAFA and traditional diversity jurisdiction can be plead in a removal proceeding in the alternative.[13] In addition to expanding federal class action jurisdiction under CAFA, Congress also simply provided an additional method for class action removal, as the multiple avenues for removal are not mutually exclusive. Moreover, a class does not yet have to be certified in order for defendants to remove under CAFA.[14] Similarly, post-removal events such as denial of class certification do not divest the court of jurisdiction.[15]Traditional methods for determining citizenship apply under CAFA; however, there is one exception. 28 U.S.C. § 1332(d)(10) provides that an unincorporated association is “a citizen of the State where it has its principal place of business and the State under whose laws it is organized.”[16] This is the standard generally reserved for corporations under traditional removal statutes.
II. Primary Exceptions/Exclusions
There are certain class actions and subject matters that that cannot be removed under CAFA. These excepted actions include claims arising solely under:
A covered security as defined by the Securities Act of 1933 and the Securities Exchange Act of 1934;
Relation to the internal affairs or governance of a corporation or other business entity and brought under the laws of the state in which the business entity is organized or incorporated; or
Relation to the rights, duties and obligations related to any security as defined by the Securities Act of 1933 and associated regulations.[17]
There are three other exceptions under CAFA that require or allow a federal court to decline jurisdiction. These three exceptions include (1) the home state controversy exception,[18] (2) the local controversy exception,[19] and (3) the interest of justice exception.[20] The home state controversy exception mandates federal courts decline jurisdiction if two-thirds or more of the members of a proposed plaintiff class and the primary defendants are citizens of the state where the action was originally filed.[21] The local controversy exception mandates federal courts decline jurisdiction where several criteria are met:
Greater than two-thirds of the members of all proposed plaintiff classes are citizens of the state in which the class action was originally filed;
At least one defendant is a defendant:
From whom significant relief is sought by members of the plaintiff class;
Whose alleged conduct forms a significant basis for the claims asserted; and
Who is a citizen of the state in which the action was originally filed.
The principal injuries resulting from the alleged conduct were incurred in the State in which the action was originally filed; and
During the three year period preceding the filing of the class action, no other class action has been filed asserting the same or similar allegations against any of the defendants on behalf of the same or other persons.[22]
The interest of justice exception, sometimes called the discretionary exception, allows a federal court to decline jurisdiction when greater than one-third, but less than two-thirds, of the members of the proposed plaintiff class and the primary defendants are citizens of the state in which the class action was originally filed.[23] The court may do so after considering the following factors:
Whether the claims asserted involve matters of national or interstate interest;
Whether the claims asserted will be governed by the laws of the state where the action was originally filed or by the laws of other states;
If the class action has been pleaded in a manner that seeks to avoid federal jurisdiction;
If the action was brought in a forum with a distinct nexus to the class members, alleged harm, or defendants;
The number of citizens of the state in which the action was originally filed in all proposed plaintiff classes is substantially larger than the number of citizens from any other state, and the citizenship of the other members of the proposed class is dispersed among a substantial number of states.[24]
Additionally, should there exist a statutory bar to removal separate from the CAFA provisions, it is clear in most circuits that those removal bars will apply to bar removal under CAFA. In other words, CAFA’s removal statute does not seem to impliedly repeal other statutory bars,[25] although there could be room to argue this is not the case. For example, in Passarella v. Ginn Co., the court held that the bar to removal under 15 U.S.C. § 1719, dealing with the Interstate Land Sales Full Disclosure Act (ILSA) was impliedly repealed by CASA because CASA was more recently enacted and provided a more general removal right for qualifying class actions.[26]
III. Pitfalls and Special Considerations
The following includes some pitfalls and special considerations that may be encountered when removing a CAFA class action to federal court:
Plaintiffs attempt to plead around CAFA jurisdiction in many ways—some of these are permitted and some are not. First, plaintiffs are not permitted to disclaim a recovery greater than $5 million prior to class certification in order to avoid CAFA jurisdiction.[27] Regarding splitting up a class action into several smaller class actions, circuits are divided. The Sixth Circuit suggests that this practice would be allowed if the segmentation was not arbitrary and not meant to solely frustrate CAFA, while the Eighth Circuit holds that aggregation of amounts from separate class actions is not permitted because the statutory language of CAFA did not contemplate such a scenario.[28] Plaintiffs can permissibly structure the putative class in a way that will invoke either the local controversy or home state controversy exceptions described.
The law is unclear when determining whether a federal judge must dismiss or remand to state court when they realize neither they nor the state court have jurisdiction, making remand futile. This debate is centered on 28 U.S.C. § 1447(c) which states that a case shall be remanded if it appears the court lacks jurisdiction prior to final judgment. The First, Fifth, and Ninth Circuits have recognized the “futility exception” which supports dismissal rather than remand of a case that lacks viable state claims.[29] Other circuits have rejected the “futility exception” and support a more literal read of 28 U.S.C. § 1447(c).[30] If a defendant is in the latter group, they could end up having to re-litigate the dispositive finding that a class plaintiff lacks jurisdiction, wasting time and money.
CAFA provides that a district court’s order denying CAFA jurisdiction is appealable— this is a large departure from traditional rules regarding the appealability of remand orders.[31]
There are several traditional removal rules that do not apply when a class action is removed under CAFA. Therefore, if defense counsel is attempting to remove under multiple bases, they will need to ensure that the traditional rules are satisfied. These rules include (1) the requirement that removal happen within one year, (2) the rule that no defendant can be a citizen of the forum state, and (3) the rule that all defendants must consent to removal.[32]
Finally, it can be counter-intuitive for removing counsel to tally potential damages in order to reach the $5 million threshold for CAFA jurisdiction, especially when it comes to punitive damages. Putting statements on the record that punitive or other damages may exist that the plaintiff class has not alleged can be dangerous. It is also obviously not a position any attorney wants to put their client in, regardless of whether or not these statements are legally binding.
IV. Conclusion
CAFA is still in its infancy, and there is still much to be learned and gaps will continue to be discovered. The above points are only some of the issues to be considered when attempting to remove a class action to federal court through CAFA. Always consult the rules in your circuit prior to determining whether removal is best for your client.
[1] Megan Niespodziany is a member of Dinsmore & Shohl LLP’s litigation practice group in Lexington, Kentucky, where she focuses on commercial litigation and commercial disputes. Her experience includes litigation surrounding contract disputes, coal related litigation, banking litigation, and class actions. She is experienced in all aspects of the litigation process, including motion practice and discovery. She is a graduate of the University of Kentucky College of Law.
[2] See 28 U.S.C. §§ 1331-1332.
[3] 28 U.S.C. § 1332(d)(1)(B) (2011).
[4] See, e.g., Zuniga v. Bernalillo Cty., 319 F.R.D. 640, 645 (D.N.M. 2016); Fed. R. Civ. P. 23.
[5] See, e.g., West Virginia v. CVS Pharm., Inc., 646 F.3d 169, 172 (4th Cir. 2011) (refusing to exercise CAFA jurisdiction over an action brought under a West Virginia statute that regulated pharmacy practice and state consumer protection acts, neither of which involved “provisions providing for a typical class action, such as provisions addressing the adequacy of representation, numerosity, commonality, and typicality requirements”).
[6] 28 U.S.C. § 1332(d)(2) (2011); see Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021 (9th Cir. 2007).
[7] 28 U.S.C. § 1332(d)(2) (2011); see, e.g., Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 571 (2005) (superseded by statute on other grounds) (recognizing that CAFA "abrogates the rule against aggregating claims").
[8] See, e.g., Oshana v. Coca-Cola Co., 472 F.3d 506, 512 (7th Cir. 2006) (where plaintiff’s complaint alleged a variety of types of damages, including compensatory, punitive, and attorney’s fees).
[9] Baker v. Equity Residential Mgmt., L.L.C., 996 F. Supp. 2d 1,7 (D. Mass. 2014) (explaining that an exception to the general rule of not including attorney’s fees in calculation of damages is when allowed by state statute).
[10] Bartnikowski v. NVR, Inc., 307 Fed. Appx. 730, 734 (4th Cir. 2009).
[11] Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 831 (7th Cir. 2011).
[12] Ullman v. Safeway Ins. Co., 995 F. Supp. 2d 1196, 1215 (10th Cir. 2013).
[13] See, e.g., Gentry v. Hyundai Motor Am., Inc., 2017 U.S. Dist. LEXIS 8609, *167 (W.D. Va. 2017); Stell v. Gibco Motor Express, LLC, 2016 U.S. Dist. LEXIS 61124, *4-7 (S.D. Ill. 2016).
[14] Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805, 806-07 (7th Cir. 2010).
[15] Id.
[16] 28 U.S.C. § 1332(d)(10) (2011).
[17] 28 U.S.C. § 1332(d)(9) (2011).
[18] 28 U.S.C. § 1332(d)(4)(B) (2011).
[19] 28 U.S.C. § 1332(d)(4)(A) (2011).
[20] 28 U.S.C. § 1332(d)(3) (2011).
[21] 28 U.S.C. § 1332(d)(4)(B) (2011).
[22] 28 U.S.C. § 1332(d)(4)(A) (2011).
[23] 28 U.S.C. § 1332(d)(3) (2011).
[24] Id.
[25] See, e.g., Marquez v. GNS & Assocs., 2017 U.S. Dist. LEXIS 101211, at *15 (S.D. Ala. June 27, 2017) (explaining that the 28 U.S.C. § 1445(c) removal bar for claims arising under worker’s compensation applies with CAFA because the CAFA removal statute, § 1453, “does not cite § 1445(c), reference § 1445(c)’s subject matter as being repealed, or contain a general repealing clause.”); see also Yalley v. Liberty Life Assur. Co., 2017 U.S. Dist. LEXIS 117217, *5-6 (N.D. Cal. 2017) (holding that the 28 U.S.C. §1445(c) removal bar for claims arising under worker’s compensation applies with CAFA because § 1445(c) is the more specific statute and is not therefore “implicitly controlled by CAFA’s general statement of jurisdiction or of the process for removal”).
[26] Passarella v. Ginn Co., 637 F. Supp. 2d 352, 355 (D.S.C. 2009).
[27] Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1348-49 (2013).
[28] Compare Freeman v. Blue Ridge Paper Prods., Inc., 551 F.3d 405, 407-09 (6th Cir. 2008) (“Our holding is limited to the situation where there is no colorable basis for dividing up the sought-for retrospective relief into separate time periods, other than to frustrate CAFA. . . . But where recovery is expanded, rather than limited, by virtue of splintering of lawsuits for no colorable reason, the total of such identical splintered lawsuits may be aggregated.”) with Marple v. T-Mobile Central LLC, 639 F.3d 1109, 1110-11 (8th Cir. 2011) (“In light of the CAFA's detailed instructions for determining jurisdiction and aggregating class member claims within a class action, we think Congress would have similarly outlined how courts should aggregate between class actions had it intended for courts to do so.”).
[29] See, e.g., Boaz Legacy, L.P. v. Roberts, 628 F. App’x 318, 320 (5th Cir. 2016) (per curiam); Bell v. City of Kellogg, 922 F.2d 1418, 1425 (9th Cir. 1991); Maine Ass’n of Interdependent Neighborhoods v. Comm’r, Maine Dep’t of Human Servs., 876 F.2d 1051, 1054-55 (1st Cir. 1989). In some instances, courts assert that the futility exception has been overruled, however this often appears in dicta and should be approached with caution. For example, some courts have said that Int'l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72 (1991) overruled the futility exception, but this is not entirely correct. The Court in Int’l Primate explained that “uncertainties . . . preclude a finding that a remand would be futile” because “[w]hether NIH is correct in arguing that either it or one of its officers will be deemed an indispensable party in state court turns on a question of Louisiana law, and we decline to speculate on the proper result.” Id. at 89. Although the Court reflects a preference for a literal reading of § 1447(c), the basis of its holding that remand is appropriate on the fact that state law would determine the outcome. Id.
[30] E.g., Hill v. Vanderbilt Capital Advisors, LLC, 702 F.3d 1220, 1225-26 (10th Cir. 2012); Coyne v. Am. Tobacco Co., 183 F.3d 488, 496-97 (6th Cir. 1999); Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 410-11 (11th Cir. 1999); Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208, 213 (3d Cir. 1997); Roach v. West Virginia Reg'l Jail & Correctional Facility Auth., 74 F.3d 46, 49 (4th Cir.1996); Smith v. Wisconsin Dep't of Agriculture, 23 F.3d 1134, 1139 (7th Cir. 1994). Confusion lies here, again, with Int’l Primate, as discussed. A lot of these cases rest upon Int’l Primate, but the holding in that case was based on the fact that remand was not, in fact, futile. See supra, note 29. It can be argued that the Court’s assertion that the futility exception is not viable, if this assertion can even be said to exist, appears in dicta.
[31] 28 U.S.C. §§ 1453(c) (2011); 28 U.S.C. 1447(d) (2011).
[32] 28 U.S.C. § 1453(b) (2011).
Kentucky - Legal Animal Abuse Or Weak Protection Laws?
Kentucky - Legal Animal Abuse Or Weak Protection Laws?
Article | 106 KY. L. J. ONLINE | May 8, 2018
Gabrielle J. Fulton[1]
“Mankind’s true moral test, its fundamental test (which lies deeply buried from view), consists of its attitude towards those who are at its mercy: animals.”[2]
I. Introduction: A Slap on the Wrist
Imagine discovering a critically mangled, grossly underweight eight-month-old dog on the side of the road. Envision the dog with multiple gunshot wounds to the face, left in this condition to die an excruciatingly tortuous death over six–seven days. This was the case with Lad, a border collie from Daviess County, Kentucky.[3] Lad was shot in the mouth several times before finally running away from home.[4] By the time he was found, approximately one week after he was intentionally mutilated, a massive infection had set in and most of his lower jaw had to be removed.[5] After a grueling four-month recovery battle, Lad passed away.[6] Matthew Wade Beauchamp, Lad’s owner, was charged with felony torture of a dog.[7] However, a few days before Beauchamp’s trial was to begin, the Commonwealth’s Attorney for Daviess County accepted a plea agreement.[8]The prosecution did not believe they could secure a conviction in Beauchamp’s trial due to Kentucky’s problematic felony torture statute, Ky. Rev. Stat. Ann. § 525.135, which defines “torture” as “the intentional infliction of or subjection to extreme physical pain or injury, motivated by an intent to increase or prolong the pain of the animal.”[9] Kentucky prosecutors have highlighted the weakness of the statute because a conviction of torture should be attainable whenever an animal is subjected to extreme physical pain, injury, and suffering regardless of whether it was “motivated by an intent to increase or prolong the pain of the animal”.[10] Matthew Beauchamp was responsible for the inhumane and unimaginable death of Lad and walked away with no jail time.[11]Unfortunately, this is a common occurrence in Kentucky. In another example, Larry Browning was charged with animal cruelty after forty-nine horses were found deceased on his property in Pendleton County.[12] Like Beauchamp, Browning walked away with no jail time.[13] In addition, the plea agreement raised doubt as to the effectiveness in preventing Browning from having other horses in his possession.[14] These are just two examples of the inadequate protections afforded to the animals of Kentucky. Not surprisingly, for the eleventh year in a row, Kentucky has ranked last in the Animal Legal Defense Fund’s (ALDF) Animal Protection Laws Rankings.[15]This Note begins by recognizing the incongruence between society’s declarations and commitment for its animals versus its actual treatment of animals. Section two addresses the need to shift towards more humane standards and examines the reasons animals receive abysmal protections in the legal system. Section two also addresses the need to recognize animals as more than mere “property” and explores the correlation between animal cruelty and human violence. Section three identifies Kentucky as having the weakest animal protection laws in the nation. Section three also introduces the ALDF’s annual study. It compares and contrasts Kentucky’s animal protection statutes with those of Illinois (the state with the highest ranking in the ALDF’s study for the past decade). Section three outlines Illinois’ definitions and standards of care for animals, its felony provisions, and its broad enforcement authority as compared to those of Kentucky. Section four seeks to ascertain the causes for the harsh treatment of animals in Kentucky. This Section addresses the state’s legislative processes and procedures and explores how local governments may be sending the message that animal protection is unimportant in Kentucky. Finally, in Section five, this Note pleads for change in Kentucky’s laws to improve overall animal welfare by strengthening current laws.
II. Shifting Society’s Perception of Animal Protection
Americans love their animals. A majority of households contain at least one animal.[16] Recent surveys demonstrate that 68 percent of United States households own a pet, equivalent to 84.6 million homes.[17] In 2016, Americans spent an estimated $66.75 billion dollars on their pets.[18] One poll found that half of all American pet owners consider their pets as much a part of the family as any person in the household.[19] In 2011, 51% of those polled said that they purchase holiday gifts for their pet, a relatively stable number.[20]We live in a society that appears to care deeply about animal welfare. However, our society’s actual treatment of animals often stands in stark contrast to its declarations about our regard for their ethical status. As one scholar states, “[c]ruelty is incompatible with a caring, moral society where empathy is a venerable quality.”[21] Nonetheless, society has the potential to better animals’ lives by enacting and enforcing higher standards for them.[22]
II.A. Animals as Mere Property
One of the biggest hurdles in protecting animals in the legal system is that they have historically been considered personal property under the law.[23] Animals are viewed as commodities that we own and have no value other than that which we, as property owners, assign to them.[24] This means, among other things, that laws do not recognize an animal as a victim to a crime, and thus an animal’s suffering or harm is not seen as being compensable.Regarding domestic animals, a person may have “as absolute a dominion and property as over any other useful and valuable chattel.”[25] With respect to wild animals, property may be acquired by possession of the animal or by ownership of the land on which the animal is found.[26] Thus, the property status of animals renders any balancing required under the humane treatment principle or animal welfare laws useless, because what is really being balanced are property owners’ interests against the interests of their animal property.[27] This balance will rarely, if ever, end in the animal’s favor.[28]Gary Francione, a distinguished animal theorist, states that “[b]ecause animals are merely property, we are generally permitted to ignore their interests and to inflict the most horrendous pain and suffering or death on them when it is economically beneficial to us.”[29] For example, in Kentucky, it is legal and considered humane to terminate a dog’s life by gunshot to the head. In Ammon v. Welty, the Ammons inhabited sixty-three acres of farmland, where they let their pet dog, Hair Bear, roam the property without restraint.[30]An annoyed neighbor picked up Hair Bear and delivered him to the county dog warden, where Hair Bear was shot and killed.[31] The warden testified he routinely destroyed impounded dogs by shooting them in the head.[32] While the Ammons argued that Hair Bear was valued as a beloved and devoted pet, the court held that Hair Bear had no market value.[33] In its holding, the court stated, “[t]he affection an owner has for, and receives from, a beloved dog is undeniable. It remains, however, that a dog is property, not a family member.”[34] Additionally, the court stated that “[a]lthough dogs are considered property, the protection afforded them under the law is uniquely limited.”[35]Modern courts recognize that personal pets generally do not fit within the traditional property law principles.[36] A pet fits somewhere between a person and a piece of personal property.[37] For decades, animal activists have tried to chip away at this property status as a means of attaining some kind of rights for animals.[38] It is up to legislatures to prescribe regulations abridging the recognition of animals as mere property. Recognizing animals as more than mere property and providing more protections to animals would not only benefit animals, but would promote a more caring, less violent society.
II.B. Link Between Animal Abuse and Human Violence
Several studies demonstrate enhanced animal protection laws could significantly impact society by decreasing human violence. As one scholar states, “[t]he [l]ink between violence to human and animal victims is undeniable.”[39] Cruelty to animals has been associated directly or indirectly with violent crime, including sexual homicide, homicide, and rape..[40] Large numbers of violent criminals begin as animal abusers.[41] One study showed that 75% of prison inmates charged with violent crimes had an early record of animal cruelty.[42] Additionally, adults who abuse animals commonly abuse their spouses and their children, as well as elderly people for whom they are caring.[43] The FBI now officially recognizes a link between animal abuse and violent crime and has begun collecting data on animal abuse.[44] John Thompson, deputy executive director of the National Sheriffs’ Association states, that “[i]f somebody is harming an animal, there is a good chance they also are hurting a human.”[45] Thompson went on to say that “[i]f we see patterns of animal abuse, the odds are that something else is going on.”[46] Putting an end to animal cruelty has the potential to drastically reduce the percentage of violent crime.Anthropologist Margaret Mead once noted, “[o]ne of the most dangerous things that can happen to a child is to kill or torture an animal and get away with it.”[47] Take Andrew Golden for example. The 11-year-old ambushed and killed three kindergarten kids as well as two adults.[48] Golden trained by shooting dogs.[49] Kip Kinkle, a 15-year-old, killed both his parents and shot 24 children at his school, killing two.[50] Kinkle tortured animals as a pastime.[51] Michael Carneal, 14, killed three girls at a prayer meeting and shot five others.[52] He threw cats into bonfires.[53] Finally, Luke Woodham, 16, killed his mother and three children and shot seven more.[54] He tortured his own dog to death.[55] According to a 2014 study, 43-50% of school shooters started out by torturing animals.[56]Children are naturally born with a love for animals, but factors in the home environment play a major role in creating violent individuals.[57] Domestic violence has been found to be closely associated with animal cruelty.[58] As Dr. Harold Hovel notes in his article about animal abuse and human violence, “[d]omestic violence is the breeding ground for future violent and non-violent crimes.”[59] Astonishingly, the connection between child abuse and animal abuse is 70-80%.[60] Children that have been exposed to domestic violence at a young age are seven to nine times more likely to participate in animal cruelty, and are also more likely to abuse their own children in the future.[61] Not surprisingly, some states have implemented statutes increasing penalties for abuse committed in front of a minor. [62]As studies have repeatedly shown, children exposed to domestic violence resort to animal cruelty as an easy way of “getting back at the world.”[63] Animal cruelty is one of the first reactions they have to their abuse experience.[64] Fighting animal cruelty can save many lives, prevent human and animal suffering, help protect children and elders from domestic violence, and lead to far less human violence overall.[65]
III. The Pinnacle of Animal Protection
On January 17, 2015, in Frankfort, Kentucky, multiple children were arrested for animal cruelty after a video surfaced of the suspects forcefully kicking an aged Italian Greyhound named Opal.[66] One viewer watched, was appalled, and stated, “I mean, she went up in the air and just come [sic] down and . . . . just her little legs.”[67] Opal, who was nearly sixteen years at the time, did not offer a growl, bark, or even a sniff.[68] In fact, she was loved by the community, and was known not to have a mean bone in her body.[69] When Susan Malcomb watched the video online, she was disturbed by the joy she saw in the kids’ faces as they continued to brutally kick Opal.[70] Although Franklin County Sheriff Pat Melton has announced that the juveniles in the video will be charged, he urged citizens who were outraged to use their passion and encourage Kentucky lawmakers to enact more effective animal cruelty laws.[71]. For Susan Malcomb, and others like her, the lack of swift prosecution is only the beginning of the systematic disappointment that she will experience. In the unlikely event the children are even convicted of animal cruelty, Kentucky’s appropriate criminal charge, the maximum penalty they will face is “one (1) year in jail and/or a fine not exceeding $500” as a Class A misdemeanor.[72]
Though the country as a whole could benefit from enhanced animal protection laws, the state of Kentucky arguably needs the most work in fostering animal welfare. According to a recent study conducted by the ALDF, Kentucky ranks last out of the 50 states for its animal protection laws, for the eleventh year in a row.[73] Kentucky’s sentencing policies and statutes reflect its deficiency as the worst ranked state for animal protection law. In response to the Frankfort incident, Sheriff Milton proclaimed, “I know we just ranked 50th in the nation with some of the worst animal cruelty laws. Let’s use our passion and harness all the energy we’ve mustered for this and use it to change laws and make it easier to investigate and prosecute.”[74]In order to devise its annual report, the ALDF comprehensively surveys animal protection laws of the Unites States and territories.[75] The report assesses the strength of each jurisdiction’s animal protection laws and assigns a score based on fifteen different categories of animal protection.[76] These categories include: general prohibitions, penalties, exemptions, mental health evaluations and counseling, protective orders, cost mitigation and recovery, seizure/impoundment, forfeiture and post-conviction possession, non-animal agency reporting of suspected animal cruelty, veterinarian reporting of suspected animal cruelty, law enforcement policies, sexual assault, fighting, offender registration, and “ag gag[77]” legislation.[78]For the past eleven years, ALDF has ranked Kentucky last out of the 50 states for its animal protection laws.[79] This is for a number of reasons, including:
Kentucky’s only felony provisions are for cruelty and fighting, both against only select animals[80];
Kentucky does not have any felony provisions for neglect or abandonment[81];
the state’s animal protection statutes contain inadequate definitions and standards of basic care[82];
there are no increased penalties when abuse is committed in the presence of a minor or involves multiple animals[83];
Kentucky does not require mental health evaluations or counseling for offenders[84];
there is no statutory authority to allow protective orders to include animals[85];
there is no cost mitigation or recovery provisions for impounded animals and there is no court ordered forfeiture provisions[86];
there are no restrictions on future ownership or possession of animals following a conviction[87];
there are no provisions for select non-animal-related agencies/professions to report suspected animal abuse[88];
veterinarians are prohibited from reporting suspected cruelty or fighting[89]; humane officers lack broad law enforcement authority[90];
there are no provisions for sexual assault;[91] and
there are inadequate animal fighting provisions.[92]
Illinois, in contrast, has earned the highest ranking in ALDF’s report for ten consecutive years.[93] Though the state still has room for improvement, Illinois’ animals are protected by a full range of statutory protections, including, but not limited to: numerous felony provisions, increased penalties for repeat abusers, and mandatory health (psychiatric) evaluations.[94] Illinois’ Humane Care for Animals Act (the “Act”) is found in Chapter 510, Act 70 of I.L.C.S.[95] In identifying the weakness, loopholes and other shortfalls of the animal protection laws in Kentucky, one need look no further than their close neighbor Illinois to compare.
III.A.1 Illinois Statutes Provide Adequate Definitions/Standards of Care
One strength of Illinois’ animal protection laws is the definitions and standards of care implemented in the Act.[96] Further, Illinois’ anti-animal cruelty laws provide protection for all animals, not just companion animals, such as cats and dogs. An “animal” is defined as “every living creature, domestic or wild, but does not include man.”[97] The Act goes on to define owner’s duties in 510 Ill. Comp. Stat. Ann. 70/3 and mandates each owner provide for his animals sufficient, good quality, wholesome food and water; adequate shelter and protection from the weather; veterinary care and humane care and treatment.[98] Section three goes on further to define the proper tethering of a dog outdoors.[99]Additionally, the Act goes on to define humane euthanasia[100], proper disposition of seized animals[101], cruel treatment[102], aggravated cruelty[103], animal torture[104], and many other aspects of animal cruelty. Providing clear definitions and standards of care supports the backbone of the animal protection laws in Illinois, however, the state takes the protections of animals even further.
III.A.2 Illinois Contains Numerous Felony Provisions for Animal Cruelty
Another reason Illinois ranks so highly in ALDF’s rankings is the state’s multitude of felony provisions available for offenders.[105] The Act contains felony provisions for cruelty, neglect, fighting, abandonment, and sexual assault.[106] It also contains increased penalties for offenders with prior convictions of animal abuse or animal hoarding.[107] The prohibitions are not limited to select species but apply to “every living creature, domestic or wild.”[108] The Act also includes provisions for psychological counseling, and even mandates it on certain occasions.[109]The requisite anti-cruelty provisions are listed at 510 Ill. Comp. Stat. Ann. 70/3.01, 3.02, and 3.03. Under Section 3.0 of the Act, a person convicted of aggravated cruelty is guilty of a Class 4 felony.[110] A second or subsequent violation is a Class 3 felony.[111] Under Section 3.03, a person convicted of animal torture is guilty of a Class 3 felony.[112] Finally, a person who uses an animal in entertainment in violation of certain subsections of 70/4.01 is guilty of a Class 4 felony for the first offense, with subsequent offenses being a Class 3 felony.[113]Although it is not part of the Act, 720 Ill. Comp. Stat. Ann. 5/12-35 makes sexual conduct or sexual contact with an animal guilty of a Class 4 felony.[114] If the offender violates this section in the presence of a person under 18 years old or causes the animal to suffer serious physical injury or death, the offender is guilty of a Class 3 felony.[115] In addition, the court is permitted to order the defendant not to reside in any household where animals are present, forfeit all animals, and undergo a psychological evaluation or counseling.[116]Though a first offense for cruel treatment under Section 3.01 of the Act is a misdemeanor, courts take first offender violations seriously. For example, in People v. Thornton, the defendant was convicted under Section 3.01 as a first offense and sentenced to ten days incarceration, two years probation, 200 hours of community service, and restitution totaling $3,572.83.[117]Under Illinois law, an offender who is found guilty of a misdemeanor on multiple occasions often faces enhanced punishment and may even be guilty of a felony for subsequent violations.[118] For example, a first offense under Section 3.01 is a misdemeanor, however a second or subsequent conviction of cruel treatment to an animal rises to a Class 4 felony.[119] Additionally, upon conviction for violating this Section and many others, the court may order a psychological or psychiatric evaluation and is even required to do so if the offender is a juvenile or a companion animal hoarder.[120] Under Section 4, no person may sell, barter, or give away any rabbit, baby chick, duckling or other fowl which has been subject to artificial coloring.[121] Baby chicks or ducklings may not be sold, given away as pets or novelties, or awarded as prizes.[122] “A person convicted under this Section is guilty of a Class B misdemeanor”; however, “[a] second or subsequent violation is a Class 4 felony, with every day that a violation continues constituting a separate offense.”[123] The repeat offender provisions in the Illinois serve as a deterrent to future abuses.One of Illinois’ many strengths in its animal protection laws include its numerous options of felony provisions. Additionally, Illinois statutes are strong because they contain provisions enhancing the charges for repeat offenders, give courts the option, and sometimes require, psychological counseling for offenders. It is also important that the law is inclusive of prohibitions to all animals, not just companion animals. These are just a few examples of why Illinois ranks so highly with regard to its animal protection laws.
III.A.3 Illinois Has Broad Enforcement Authority
Illinois statutes provide for broad enforcement and wide-ranging authority to protect its animals. For example, law enforcement officials, state’s attorneys, and animal control officials all have the authority to investigate humane care allegations.[124] Pursuant to 510 Ill. Comp. Stat. Ann. 70/10:Upon receiving a complaint of a suspected violation of this Act, a Department investigator, any law enforcement official, or an approved humane investigator may, for the purpose of investigating the allegations of the complaint, enter during normal business hours upon any premises where the animal or animals described in the complaint are housed or kept, provided such entry shall not be made into any building which is a person’s residence, except by search warrant or court order.[125]Common complaints under this section may include violations for owner’s duties, animal hoarding, cruel treatment, aggravated cruelty, animal torture, confinement in motor vehicle, and depiction of animal cruelty.[126] Any law enforcement officer making an arrest under Sections 3.01–3.03 may lawfully take possession of some or all of the companion animals in the possession of the offender.[127] Additionally, an officer may order security for companion animals and animals used for fighting purposes.[128]An example of an officer’s broad authority is found in Thornton. In that case, officers responded to complaints of a dog that had been barking continuously inside of an apartment for several days.[129] The apartment manager informed the police that she had been inside the apartment, where she found a dog inside of a cage so small that the dog could not stand up.[130] She stated that the bottom of the cage was covered in urine and feces, there was no sign of food or water, the dog was very thin, had blood on its paws, and was shaking and continuously making whimpering and yelping sounds.[131]Based on this information, the officers immediately entered the defendant’s apartment to “check on the well being of the dog.”[132] The defendant argued that the officers unlawfully entered his apartment without a warrant.[133] The defendant argued that Section 10 of the Act specifically prohibits entry into a resident without a warrant to investigate a complaint regarding animal cruelty.[134] The court held that the police were justified in entering the apartment without a warrant because of an emergency regarding the condition of the dog.[135] The court stated that the language in Section 10 of the Act, which states that “entry shall not be made into any building which is a person’s residence, except by search warrant or court order,” is “plainly intended to make it clear that the extraordinary exception to the general warrant requirement for investigatory searches of nonresidential premises set out in Section 10 does not extend to residential premises.”[136] The court found nothing in Section 10, which suggests “that this language means that the few specifically established and well-delineated exceptions to the general warrant requirement for entry into residential premises are not applicable under the Act.”[137]In addition, the court found that the emergency exception of the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to situations involving the mistreatment of animals.[138] The court held that:In this case, the totality of the circumstances known to the officers at the time of their entry into defendant's apartment was sufficient for the officers to reasonably believe that an emergency was at hand which required their immediate assistance. The tenant in the apartment above defendant's apartment told the officers that a dog had been yelping in defendant's apartment continuously for two or three days. Efforts by Nissen, the manager of the apartment complex, to contact defendant were unsuccessful. Thus, the officers knew that the yelping had persisted for several days, but did not know when, or if defendant might return to his apartment to tend to the distressed animal.[139]Another capacity in which law enforcement is delegated broad authority to act on animal cruelty is found under Section 7.1 of the Act. Under that Section, an animal control officer, law enforcement officer, or investigator who has probable cause to believe that any animal has been unlawfully confined in a motor vehicle has the authority to enter the vehicle by “any reasonable means under the circumstances after making a reasonable effort to locate the owner or other person responsible.”[140] Section 7.1 therefore is important because it allows officers to rescue animals who are trapped within automobiles.
III.B. The Worst of the Worst – Kentucky
As previously mentioned, Kentucky’s deficiency in statutes and sentencing policies reflect its bottom-tier ranking in the ALDF’s annual study. Kentucky’s animal protection statutes are contained in Chapter 525 of the Kentucky Revised Statutes. Astonishingly, Chapter 525 is titled: “Riot, Disorderly Conduct, and Related Offenses.”[141] Chapter 525 includes offenses such as loitering, public intoxication, and unlawful assembly [142] The chapter associates the highest form of animal cruelty with “riot, disorderly conduct, and related offenses” as if animal cruelty in its highest form is simply disorderly conduct.
III.B.1 Kentucky Lacks Adequate Definitions/Standards of Care
Kentucky’s statutes require clearer definitions and currently fail to address the most basic aspects of animal suffering.[143] For example, Ky. Rev. Stat. Ann. § 525.125 fails to include an express requirement that “shelter” must be provided for an animal.[144] Although failure to provide adequate shelter in extreme temperatures might result in a charge of “cruel neglect,” the case would be more difficult to prove.[145] Additionally, it is imperative that “shelter” in cold weather is defined as to allow the animal to maintain its natural body temperature.[146] In contrast, while the Illinois statute does not contain a fixed definition for “shelter,” 510 Ill. Comp. Stat. Ann. 70/3 provides that shelter must be adequate to protect the animal from weather conditions.[147] Because Kentucky law lacks basic care definitions, many counties have trouble prosecuting things as simple as the need to provide shelter for an animal.[148]“Animal”, as defined under Ky. Rev. Stat. Ann. § 446.010, includes “every warm-blooded living creature except a human being.”[149] This definition leaves cold-blooded animals, such as reptiles, fish and amphibians completely unprotected. In November 2016, Lexington-Fayette Animal Care & Control (LFACC) worked on a case in which the owners of six snakes moved out and abandoned their pets inside the home.[150] When LFACC investigated the premises, only four of the snakes were found alive.[151] They were underweight and emaciated, had no water or heat source, and had all suffered from upper respiratory infections and mouth rot.[152] LFACC was unable to bring charges against the previous owners of the snakes due to Ky. Rev. Stat. Ann. § 446.010’s failure to identify reptiles as “animals.”[153]
III.B.2 Kentucky Lacks Adequate Felony Provisions
Kentucky limits felony penalties to cruelty and neglect in very exclusive circumstances. Penalties are further limited to specific species of animals.[154] Any act of cruelty or abuse against an animal (with the exception of dog fighting and torture of a cat or dog resulting in serious physical injury or death), no matter how extreme, is a misdemeanor and cannot rise to the level of a felony until a subsequent offense is committed.[155] Under Ky. Rev. Stat. Ann. § 525.125, cruelty to animals in the first degree is a Class D felony.[156] However, this section is severely restricted and only applies “whenever a dog is knowingly caused to fight for pleasure or profit” or when “any person who knowingly owns, possesses, keeps, trains, sells, or otherwise transfers a dog for the purpose of dog fighting.”[157] In other words, this provision relates to only dogs and excludes all other animal fighting. Kentucky’s torture statute is similarly restrictive. Torture of only a dog or cat is simply a misdemeanor and only rises to a Class D felony for subsequent offenses if “the dog or cat suffers physical injury as a result of the torture” or “if the dog or cat suffers serious physical injury or death as a result of the torture.”[158]Cruelty to any animal other than a dog or cat is just a misdemeanor in Kentucky. A person is guilty of animal cruelty in the second degree if he or she intentionally or wantonly subjects an animal to mistreatment through abandonment; participates in causing it to fight for pleasure or profit; mutilates, beats, tortures an animal other than a dog or cat;[159] torments, fails to provide adequate food, drink, space, or health care; or kills any animal other than a domestic animal killed by poisoning.[160] The maximum sentence for cruelty to animals in the second degree is a mere twelve months in jail, and fines do not exceed $500.[161] Torture of a dog or cat is a Class A misdemeanor for first offenders and a Class D felony for each subsequence offense if the dog or cat suffers physical injury as a result of the torture, and a Class D felony if the dog or cat suffers serious physical injury or death as a result of the torture.[162]Furthermore, offenders of animal cruelty laws face minimal punishment in Kentucky. For example, in United States v. Chamness, nine dogs died as a result of being abandoned in severely uninhabitable living conditions provided by the defendant.[163] The carcasses of the dogs were found in various states of decomposition at the defendant’s residence.[164] Four of the dogs’ remains were found sealed inside of a storage container containing air holes in the lid to facilitate breathing.[165] Because of Kentucky’s limited felony provision, the defendant did not face a single felony charge for any of the cold-hearted, inhumane deaths.[166] The defendant was found guilty of nine counts of cruelty to animals in the second degree.[167] However, the judge imposed a sentence of merely two years probation, demonstrating the sort of minor penalties that animal abusers face in Kentucky.[168]In contrast to Kentucky’s sole felony provision, Illinois contains felony penalties for cruelty, neglect, fighting, abandonment and sexual assault.[169] Astoundingly, Kentucky is one of nine states where having sex with animals is not a crime.[170] Unless a sexually assaulted animal is physically injured, the offender cannot be adequately prosecuted.[171] Additionally, Illinois’ principal statutory protections apply to most animals, compared to Kentucky’s felony provision confined to solely dog fighting.[172] Illinois is not the only state with superior felony provisions. Oregon, Maine, California and Rhode Island, ALDF’s top ranking states, all contain principal protections applying to most animals.[173] Kentucky should take note of these exceptional provisions, as Kentucky’s felony provisions are only available for cruelty and fighting, both against only select animals.[174]
III.B.3 Kentucky’s Humane Officers Lack Broad Enforcement Authority
Pursuant to Ky. Rev. Stat. Ann. § 436.605, only animal control officers and agents of humane societies maintain the powers of peace officers, except for the power of arrest, “for the purpose of enforcing the provisions of the Kentucky Revised States relating to cruelty, mistreatment, or torture of animals, provided they possess the qualifications required under KRS 61.300.”[175] This statute provides that when an animal control officer or agent believes an act of cruelty, mistreatment, or torture of animals is being committed, after the officer makes an oath of such belief, the judge shall issue a search warrant to search the premises.[176] Pursuant to the statute, “[i]f an animal control officer or an officer or agent of a society or association for the prevention of cruelty to animals finds that an act of cruelty, mistreatment, or torture of animals is being perpetrated, the officer or agent shall summon a peace officer to arrest the offender or offenders and bring them before the court for trial.”[177]Moreover, many states place a statutory duty on veterinarians to report suspected cruelty.[178] Fifteen states require veterinarians to report suspected abuse.[179] Some states allow veterinarians to report suspected cruelty.[180] Twenty-seven states provide immunity to veterinarians who report suspected animal abuse.[181] However, in Kentucky, veterinarians are prohibited from the voluntary reporting of suspected animal cruelty or fighting without a waiver from the client, court order, or subpoena.[182] Thus, a veterinarian is essentially required to be complicit in acts of animal abuse or neglect unless an investigation is somehow initiated.Kentucky law contains no provisions requiring any non-animal-related agencies or professionals to report suspected animal cruelty, has insufficient humane agent provisions, and has no duty mandating peace officers to execute animal protection laws.
IV. Reasons Animals Are Unprotected In Kentucky
In order to begin the process of implementing change and enhancing the protections provided to Kentucky’s animals, one must first ascertain the reasons for the state’s inadequate laws. A number of Kentucky’s legislators and humane officers have stated that Kentucky’s legislative process and the inadequacy of local governments to dedicate resources to animal protection, among other things, significantly contribute to the state’s poor stance on animal protection laws.[183]
IV.A. Legislative Process
Animal welfare bills are extremely difficult to move through legislation.[184] An average of 5-9 years is generally required to move animal bills through legislation.[185] One reason for this is that animals are in competition with other critical human issues, which are pertinent in Kentucky.[186]Vicki Deisner, the Midwest Legislative Director for the ASPCA, believes that the poverty statistics in the state and the effort of Kentucky people to pursue better livelihoods, decent salaries and community services are the types of issues that animals are competing with.[187] Animals have an increased opportunity of protection if animal bills are connected somehow with human issues, such as domestic violence.[188] Furthermore, parts of Kentucky maintain the traditional view that animals are property to be “utilized.”[189] Some legislatures reflect these same views and may not view animals as important enough to protect beyond current laws written to protect property.[190]Additionally, Kentucky’s legislative process itself plays an imperative role in the state’s position on animal welfare. In Kentucky, the Generally Assembly meets annually.[191] In even-numbered years, sessions may not exceed sixty legislative days.[192] In odd-numbered years, session may not exceed thirty legislative days.[193] In response to House Bill 143, which was recently introduced to ban the sexual assault of a pet dog or cat, Daisy Olivo, spokesman for former House Speaker Jeff Hoover, said that although Hoover is against bestiality, he strongly believes that the short, 30-day legislative session should be reserved for “serious, economy-related bills.’”[194]The length of Kentucky’s session is short compared to other states.[195] For example, Ohio and Michigan have no limits on their session length.[196] States that have no limit on the length of their legislative session, such as Ohio and Michigan, have an ample amount of time to realize priorities.[197] These states have time to present bills and to hear out all interested parties.[198] Thirty or sixty days, in contrast, is simply not enough time to get things accomplished.Furthermore, animal welfare may be viewed as a progressive movement within the broader social sector. Lobbying groups in Kentucky have had a significant impact on animal protection legislation. Certain groups, including hunting, farming, and dog breeding groups, lobby extensively against animal welfare legislation.[199] According to some legislators, these groups fear a potential “slippery slope” if animal welfare laws are passed.[200] In other words, these groups are concerned about possible limitations on their activities. Hunting groups have opposed animal welfare bills for fear they could lead to a ban on hunting, while farmers have expressed concern they could run afoul of bestiality laws while artificially inseminating livestock.[201]Gender differences may also contribute to the lack of animal protection laws getting moved through legislation. Although the role gender plays in enacting legislation would greatly benefit from further research, it is important to note its impact. As Katie Brophy argues, “male legislators by [and] large have little interest whatsoever in animal protection issues.”[202]“Anecdotal evidence suggests that men are a harder sell when it comes to promoting awareness of animal welfare issues.”[203] Studies demonstrate that women are more sympathetic than men towards animal welfare and are less supportive of animal research.[204] Additionally, studies have shown that significantly more women than men contribute their work to animal welfare organizations and to work in animal law.[205]Because women are arguably more progressive when it comes to animal welfare issues, the number of men in the Kentucky legislature may be concerning. For example, in 2016 only 15.9% of Kentucky’s legislature consisted of women.[206] This number is down from 2015, in which 16.7% of the seats consisted of women.[207] The number of women on the Kentucky legislature has been consistently declining since 2012.[208]In improving Kentucky’s stance on animal welfare, amending the legislative process and procedures and contributing more energy to animal law is a crucial step in the progression.
IV.B. Local Governments Send Message Animal Protection is Unimportant
By failing to adequately implement and address local animal laws, local governments are also sending the message that animal welfare is not an important issue. Many animal welfare advocates agree that Kentucky’s animal shelter situation is a starting point for addressing the state’s inadequate animal protections. Over 50% of Kentucky’s animal shelters are not in compliance with animal shelter laws.[209] In one-third of Kentucky’s animal shelters, it is debatable whether or not they are even in compliance with animal cruelty laws.[210]Many local governments are unwilling to spend money on appropriate shelters. In a recent study conducted by veterinarian students from Lincoln Memorial University College of Veterinary Medicine, the students found that personnel at over 90% of Kentucky shelters identified the lack of funding from county governments to be a major problem in adequately operating shelters.[211] A number of issues arise from the lack of funding by local governments.Without proper funding, shelters are unable to provide adequate staff to manage their operations.[212] Employees lack the basic training required to adequately care for the animals.[213] Employees are unable to attend training because the cost of travel to receive training is prohibitive.[214] For these reasons, many shelters rely on volunteers or inmates to care for the animals.[215] Such lack of permanent well trained employees results in inconsistent and undependable staff to care for the animals.[216]Additionally, without adequate funding, local shelters do not have the resources to conduct research, write proposed changes, and lobby legislation. In an interview with Susan Malcomb, President of the Lexington Humane Society, Malcomb stated that if the biggest adoption agency in central Kentucky, the Lexington Humane Society, cannot free up people to lobby legislation, no one else likely has the ability to participate in legislation either.[217]The state’s animal overpopulation problem could easily be addressed with proper funding. With adequate funds, shelters could implement efficient spay and neuter programs and decrease the number of animals that wind up in shelters. Numerous studies have shown that successful spay/neuter programs result in fewer animals ending up in shelters “leading to a significant reduction in the overall cost of sheltering unwanted or stray animals and improvement in overall public health and safety.”[218]Furthermore, local governments do not provide adequate enforcement in promoting animal welfare. Most county attorneys utilize part-time positions on top of running their own private practice.[219] This essentially means that county attorneys will take care of the required business that relates to the county, and will put off matters relating to animal cruelty, investigation, or prosecution. [220]Studies show that self-regulation by counties concerning compliance with shelter laws is insufficient “and that additional enforcement provisions are necessary to ensure compliance cross [sic] the state.”[221] In order to address the statewide animal welfare issue, it is imperative that counties address animal welfare issues. By not taking animal welfare issues seriously, local governments are sending the message that animal protection laws are insignificant and unimportant. If local county governments are unwilling to implement adequate animal welfare regulations, then trying to effect change on a statewide level is virtually impossible.[222]
V. Conclusion: A Slippery Slope
Recognition of the correlation between animal abuse and the resulting tendency for disregarding human suffering must be recognized in Kentucky. A failure of laws to protect animals from abuse and neglect allows this depraved behavior to go unchecked. As previously mentioned, there is a distinct correlation between those who abuse animals and those who pose a threat to other humans. Punishing animal offenders protects humans from violence. In order to catch up to society’s values, Kentucky must provide more adequate protections to animals. The top tier states in ALDF’s rankings, among others, have felony provisions for cruelty, neglect, fighting, sexual assault, and abandonment, while Kentucky law contains only a single animal abuse felony for dog fighting.[223]In the rare circumstance an offender is convicted, Kentucky courts are not required to seize the animal from the abuser.[224] Courts are not required to restrict future ownership of animals after a conviction.[225] Moreover, courts do not mandate mental health evaluations for animal abusers.[226] In contrast to Kentucky, Illinois’ animal cruelty statute allows courts to order a convicted person to forfeit the animal.[227] A court may also order that the convicted person not own any other animals for a reasonable period of time.[228] Other Illinois statutes provide that courts may order convicted persons to undergo psychological or psychiatrist evaluations.[229] Illinois’ torture statute mandates such evaluations.[230]The top ranked states’ statutes in ALDF’s study provide for adequate definitions and standards of care, higher penalties for repeat abusers, forfeiture of abused animals, mandatory reporting of suspected cruelty, and many more provisions that Kentucky lacks. Kentucky does not have any felony provisions for neglect or abandonment. Kentucky’s statutes contain inadequate definitions and standards of basic care.[231] Kentucky has no law that increases penalties when abuse is committed in the presence of a minor or involves multiple animals.[232] Kentucky law does not require mental health evaluations or counseling for offenders. [233]There is no statutory authority to allow protective orders to include animals.[234] There are no cost mitigation or recovery provisions for impounded animals.[235] Court-ordered forfeiture provisions are limited to certain species. [236]There are no restrictions on future ownership or possession of animals following an offender’s conviction.[237] There are no provisions granting agencies/professions immunity from reported suspected animal abuse, and in fact veterinarians are prohibited from reporting suspected animal cruelty.[238] Finally, humane officers lack broad law enforcement authority.[239]Kentucky’s current statutory stance on animal protection is unacceptable. The state’s animal protection laws could be strengthened by increasing available felony provisions, providing adequate definitions of standards of care, allow veterinarians and other professions to report suspected animal abuse, mandating mental health evaluations for offenders, among many other statutory implementations.Kentucky’s legislature must work to reverse the recognition of animals as mere property. In doing so, the legislature should take animal issues more seriously. More diversity should be encouraged in the legislature and women should be not only supported, but encouraged to take an active role in the political process. Local county governments must address inadequate shelters and provide proper funding. Spay/neuter funding could decrease the number of unwanted animals who end up in shelters, or on the streets posing a risk to public health and safety. Kentucky must improve local county governments and their policies toward animal welfare. In order for the state to improve as a whole, it is imperative that local governments begin enhancing their regulations, otherwise change will not transpire.Kentucky has a long way to go in improving its ranking as the worst state for animal protection laws. Because of the state’s “glaring lack of adequate animal protection laws, the Bluegrass State has had the unenviable distinction as ‘best state in the country to be an animal abuser’ for [ten] years in a row.”[240] As of now, Kentucky’s laws make it difficult to seek justice. The good news is, Kentucky has nowhere to go but up.[241]
[1] University of Kentucky College of Law, J.D. expected May 2018. I would like to thank my mom for instilling in me her love and appreciation for animals as well as Sable, Badger and Ruger for showing me the capacity animals have in showing love and appreciation for their rescuers. I would like to dedicate my note to all the animals that will never belong to a family and will have to face euthanasia while many more are bred to please a selfish society.
[2] Milan Kundera, The Unbearable Lightness of Being 289 (1999).
[3] Nina Golgowski, Collie Shot in Face in Kentucky Dies Four Months After Jaw Removed, Owner Charged, New York Daily News (Jun. 12, 2014, 4:15 PM), http://www.nydailynews.com/news/national/collie-shot-face-kentucky-dies-months-jaw-removed-owner-charged-article-1.1827553.
[4] Id.
[5] Id.
[6] Id.
[7] Source: Owner Charged in Shooting of Collie in Daviess Co., KY, 14 WFIE news (last visited Mar. 17, 2017), http://www.14news.com/story/25146393/indictment-in-shooting-of-collie-in-daviess-co-ky.
[8] Lad, The Arrow Fund: Targeting Animal Cruelty (Aug. 25, 2014), http://thearrowfund.org/lad/.
[9] Ky. Rev. Stat. Ann. § 525.135 (West 2017) (emphasis added).
[10] Interview with Kathryn Callahan, Kentucky State Director (Feb. 28, 2017).
[11] See Lad, supra note 8; Daniel Hurst, Pretrial Diversion in Kentucky, Hurst & Hurst, Attorneys at Law (Mar. 4, 2014), https://www.hurstandhurstlaw.com/pretrial-diversion-in-kentucky/.
[12] See Interview with Kathryn Callahan, supra note 10..; See ‘Worst case of animal abuse’ ends in probation, Cincinnati.com (Jan. 29, 2015), https://www.cincinnati.com/story/news/2015/01/28/pendleton-county-animal-cruelty/22483809/.
[13] Id.
[14] Id.; Sara Celi, 49 Dead Horses Found on Pendleton Co. Farm, FOX19 Now (last visited Mar. 17, 2017), http://www.fox19.com/story/25185880/breaking-dead-horses-found-in-pendleton-county.
[15] 2017 U.S. Animal Protection Laws Rankings, Animal Legal Defense Fund, http://aldf.org/wp-content/uploads/2018/01/Rankings-Report-2017_FINAL.pdf.; See also For 10th Year, KY Ranked Worst State in U.S. for Animal Protection Laws, WTVQ San Francisco, (January 12, 2017) https://www.wtvq.com/2017/01/12/10th-year-ky-ranked-worst-state-u-s-animal-protection-laws/.
[16]2017 U.S. Animal Protection Laws Rankings, Animal Legal Defense Fund, http://aldf.org/wp-content/uploads/2018/01/Rankings-Report-2017_FINAL.pdf.
[17] Pet Industry Market Size & Ownership Statistics, American Pet Products Association, http://www.americanpetproducts.org/press_industrytrends.asp (last visited Jan. 20, 2017).
[18] Id.
[19] Poll: Americans Consider Pets Part of the Family, Associated Press (updated June 23, 2009 at 10:50 AM), http://www.nbcnews.com/id/31505216/ns/health-pet_health/t/poll-americans-consider-pets-part-family/#.WHjqwbHMyu5.
[20] Sue Manning, AP-Petside.com Poll: Many Pets Can Expect Holiday Gifts From Owners; Toys and Treats Lead List of Favorites, Associated Press (Nov. 8, 2011), http://ap-gfkpoll.com/featured/holiday-gifts-topline.
[21] Dr. Harold Hovel, The Connection Between Animal Abuse and Human Violence, New York State Humane Association (2015), http://www.nyshumane.org/wp-content/uploads/2016/02/Connection_Animal_And_Human_Abuse.pdf.
[22] See Vicki Deisner, ASPCA, Presentation Regarding Regional Legislation and National Trends for Animal Welfare (2012).
[23] Penny Conly Ellison, Can Courts Consider the Interests of Animals? The Legal Intelligencer (Dec. 19, 2016), http://www.thelegalintelligencer.com/home/id=1202775104873/Can-Courts-Consider-the-Interests-of-Animals?mcode=1202615324341&curindex=0&slreturn=20170011191238.
[24] Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? xxiv (2000).
[25] 4 Am. Jur. 2d Animals § 3 (2017).
[26] Id.
[27] Francione, supra note 22.
[28] Francione, supra note 22 at xxiv-xxv.
[29] Francione, supra note 22 at xxv.
[30] Ammon v. Welty, 113 S.W.3d 185, 186 (Ky. Ct. App. 2002).
[31] Id.
[32] Id.
[33] Id. at 187.
[34] Id.
[35] Id.
[36] 4 Am. Jur. 2d Animals § 4 (2017).
[37] Id.
[38] See generally, Deisner, supra note 22.
[39] 2015 U.S. Animal Protection Laws Rankings, Animal Legal Defense Fund, http://aldf.org/wp-content/uploads/2015/12/Rankings-Report-2015.pdf.
[40] Animal Abuse and Human Abuse: Partners in Crime, PETA, https://www.peta.org/issues/companion-animal-issues/companion-animals-factsheets/animal-abuse-human-abuse-partners-crime/.
[41] Id.
[42] Belinda Abraham, When Kids Kill, LinkedIn (Sept. 26, 2017), https://www.linkedin.com/pulse/when-kids-kill-belinda-abraham/.
[43] Randall Lockwood, Making the Connection Between Animal Cruelty and Abuse and Neglect of Vulnerable Adults, The Latham Letter (2002), http://nationallinkcoalition.org/wp-content/uploads/2013/01/ElderAbuse-Lockwood-.pdf.
[44] Tracking Animal Cruelty, FBI (Feb. 1, 2016), https://www.fbi.gov/news/stories/-tracking-animal-cruelty.
[45] Id.
[46] Id.
[47] Hovel, supra note 21, at 14.
[48] Id. at 15.
[49] Id.
[50] Id.
[51] Id.
[52] Id.
[53] Id.
[54] Id.
[55] Id.
[56] Id. at 16.
[57] Id. at 5, 12, 14.
[58] Id. at 25-29.
[59] Id. at 20.
[60] Id. at 26.
[61] Id. at 26.
[62] Child Witnesses to Domestic Violence, Child Welfare Information Gateway, 1-2, (2016), https://www.childwelfare.gov/pubPDFs/witnessdv.pdf.
[63] Hovel, supra note 21, at 14.
[64] Id.
[65] Id. at 4.
[66] Gil Corsey, Children Charged with Animal Cruelty After Viral Video Surfaces Showing Dog Kicked in Face, WDRB (Jan. 13, 2017, 6:45 PM), http://www.wdrb.com/story/34255262/children-charged-with-animal-cruelty-after-viral-video-surfaces-showing-dog-kicked-in-face.
[67] Id.
[68] Id.
[69] Id.
[70] Telephone Interview with Susan Malcomb, President of Lexington Humane Society. (Jan. 16, 2017).
[71] See 2 Juveniles Arrested in Connection to Video Showing Dog Being Kicked, LEX18, (Jan. 13, 2017, 12:22 PM), http://www.lex18.com/story/34241472/owner-upset-after-teen-kicks-dog.
[72] Ky. Rev. Stat. Ann. § 525.130 (West 2017); Animal Cruelty Laws State by State, Stray Pet Advocacy (2003), http://www.straypetadvocacy.org/PDF/AnimalCrueltyLaws.pdf.
[73] Best and Worst States for Animal Protection Laws, 2017 Report Released, Animal Legal Defense Fund (Jan. 18, 2018), http://aldf.org/press-room/press-releases/best-worst-states-animal-protection-laws-2017-report-released/.
[74] Corsey, supra note 66.
[75]ALDF Rankings, supra note 15, at 3.
[76] Id.
[77] “Ag-gag” legislation is designed to silence whistleblowers from revealing animal abusers on industrial farms by criminalizing acts related to investigating daily activities on industrial farms, such as “recording, possession or distribution of photos, video and/or audio at a farm.” What Is Ag-Gag Legislation?, ASPCA, http://www.aspca.org/animal-cruelty/farm-animal-welfare/what-ag-gag-legislation (last visited Feb. 24, 2017).
[78] ALDF Rankings, supra note 15, at 20.
[79] ALDF Rankings, supra note 73.
[80] ALDF Rankings, supra note 15, at 19.
[81] Id.
[82] Id.
[83] Id.
[84] Id.
[85] Id.
[86] See id. at 4, 12, 19 (explaining that Kentucky has court ordered forfeiture laws for only equine).
[87] Id. at 19.
[88] Id.
[89] Id.
[90] Id.
[91] Id.
[92] Id.
[93] Best and Worst States for Animal Protection Laws, 2017 Report Released, Animal Legal Defense Fund, (Jan. 18, 2018). http://aldf.org/press-room/press-releases/best-worst-states-animal-protection-laws-2017-report-released/.
[94] Animal Legal Defense Fund, Supra note 15.
[95] 510 Ill. Comp. Stat. Ann. 70/1(West 2018).
[96] See generally 510 Ill. Comp. Stat. Ann. 70/2–2.10 (West 2018).
[97] 510 Ill. Comp. Stat. Ann. 70/2.01 (West 2018).
[98] 510 Ill. Comp. Stat. Ann. 70/3 (West 2018).
[99] Id.
[100] 510 Ill. Comp. Stat. Ann. 70/2.09 (West 2018).
[101] 510 Ill. Comp. Stat. Ann. 70/3.06 (West 2018).
[102] 510 Ill. Comp. Stat. Ann. 70/3.01 (West 2018).
[103] 510 Ill. Comp. Stat. Ann. 70/3.02 (West 2018).
[104] 510 Ill. Comp. Stat. Ann. 70/3.03 (West 2018).
[105] ALDF Rankings, Supra note 15, at 11.
[106] Id.
[107] Id.
[108] 510 Ill. Comp. Stat. Ann. 70/2.01(West 2018).
[109] ALDF Rankings, Supra note 15, at 11.
[110] 510 Ill. Comp. Stat. Ann. 70/3.02 (West 2018).
[111] Id.
[112] 510 Ill. Comp. Stat. Ann. 70/3.03 (West 2018).
[113] 510 Ill. Comp. Stat. Ann. 70/4.01(West 2018).
[114] 510 Ill. Comp. Stat. Ann. 5/12-35 (West 2018).
[115] Id.
[116] Id.
[117] People v. Thornton, 676 N.E.2d 1024, 1026 (1997).
[118] See, e.g., 510 Ill. Comp. Stat. Ann. 70/3.01 (West 2018).
[119] Id.
[120] Id.
[121] 510 Ill. Comp. Stat. Ann. 70/4 (West 2018).
[122] Id.
[123] Id.
[124] Animal Law Awareness for Law Enforcement and Other Governmental Agencies, https://agr.state.il.us/AnimalHW/LawEnforcementTraining.pdf.
[125] 510 Ill. Comp. Stat. Ann. 70/10 (West 2018).
[126] Supra note 124.
[127] 510 Ill. Comp. Stat. Ann. 70/3.04 (West 2018).
[128] 510 Ill. Comp. Stat. Ann. 70/3.05 (West 2018).
[129] Thornton, 676 N.E.2d at 1026.
[130] Id.
[131] Id.
[132] Id. at 1027.
[133] Id.
[134] Id.
[135] Id.
[136] Id.
[137] Id. at 1027–28.
[138] Id. at 1028.
[139] Id.
[140] 510 Ill. Comp. Stat. Ann. 70/7.1 (West 2017).
[141] Ky. Rev. Stat. Ann. T. L, Ch. 525.
[142] See id.
[143] Callahan, supra note 10.
[144] Id.; Ky. Rev. Stat. Ann. § 525.125 (West 2017).
[145] Callahan, supra note 10.
[146] Id.
[147] 510 Ill. Comp. Stat. Ann. 70/3 (LexisNexis 2017).
[148] Callahan, supra note 10.
[149] Ky. Rev. Stat. Ann. § 446.010 (LexisNexis 2017).
[150] Malcomb, supra note 70. (referencing conversation with Jai Hamilton).
[151] Id.
[152] Id.
[153] Id.; Ky. Rev. Stat. Ann. § 446.010(2) (West 2017).
[154] Ky. Rev. Stat. Ann. § 446.010(2) (West 2017).
[155] See Ky. Rev. Stat. Ann. § 525.125 (West 2017); Ky. Rev. Stat. Ann. § 525.130 (West 2017); Ky. Rev. Stat. Ann. § 525.135 (West 2017).
[156] Ky. Rev. Stat. Ann. § 525.125 (West 2017).
[157] Id. (emphasis added).
[158] Ky. Rev. Stat. Ann. § 525.135 (West 2017).
[159] Torture of dogs and cats is covered by Ky. Rev. Stat. Ann. § 525.135 (West 2017).
[160] Ky. Rev. Stat. Ann. § 525.130 (West 2017).
[161] Ky. Rev. Stat. Ann. § 532.020 (LexisNexis 2017); Ky. Rev. Stat. Ann. § 534.040 (LexisNexis 2017).
[162] Ky. Rev. Stat. Ann. § 525.135 (West 2017).
[163] United States v. Chamness, No. 5:11-CR-00054-R, 2012 WL 3109494, at *1 (W.D. Ky. July 31, 2012).
[164] Id.
[165] Id.
[166] See id.; see Ky. Rev. Stat. Ann. § 525.125 (West 2017).
[167] .Chamness, 2012 WL 3109494, at *1.
[168] Id.
[169] ALDF Rankings, supra note 15.
[170] Andrew Wolfson, Bill would ban sex with pets, not other animals, courier-journal (Jan. 10, 2017), http://www.courier-journal.com/story/news/politics/ky-legislature/2017/01/09/bill-would-ban-sex-pets-not-other-animals/96262280/.
[171] Callahan, supra note 10.
[172] ALDF Rankings, supra note 15.
[173] Id.
[174] Id.
[175] Ky. Rev. Stat. Ann. § 436.605 (West 2017).
[176] Id.
[177] Id.
[178] Rebecca F. Wisch, Table of Veterinary Reporting Requirement and Immunity Laws, Animal Legal & Historical Center (2015), https://www.animallaw.info/topic/table-veterinary-reporting-requirement-and-immunity-laws.
[179] Dr. Marty Becker, It’s against the law for a veterinarian to report animal abuse in Kentucky, (Nov. 20, 2014), https://www.drmartybecker.com/news/law-veterinarian-report-animal-abuse-kentucky/.
[180] Id.
[181] Id.
[182] Ky. Rev. Stat. Ann. § 321.185 (West 2017) (this is in place to protect client confidentiality).
[183] Malcomb, supra note 70.
[184] Telephone Interview withVicki Deisner, Midwest Legislative Director, ASPCA (2017, Jan. 16).
[185] Id.
[186] Id.
[187] Id.
[188] Id.
[189] Callahan, supra note 10.
[190] Id.
[191] Legislative Branch of Government, Legislative Research Commission, http://www.lrc.ky.gov/legproc/lbranch.htm (last visited Feb. 19, 2018).
[192] Id.
[193] Id.
[194] Wolfson, supra note 170.
[195] Legislative Session Length, National Conference of State Legislatures (Dec. 2, 2010), http://www.ncsl.org/research/about-state-legislatures/legislative-session-length.aspx.
[196] Id.
[197] Deisner, supra note 184.
[198] Id.
[199] Callahan, supra note 10.
[200] Id.
[201] Wolfson, supra note 170.
[202] Telephone Interview with Katie Brophy, Former President, Animal Legal Defense Fund (Jan. 17, 2017).
[203] Lukey1, Do Men Care Less About Animals Than Women?, Vancouver Sun (Nov. 24, 2010 04:23 PM), http://vancouversun.com/news/community-blogs/do-men-care-less-about-animals-than-women.
[204] Harold A. Herzog, Gender Differences in Human-Animal Interactions: A Review, Anthrozoos (Feb. 13, 2007), http://wpmedia.vancouversun.com/2010/11/gender.pdf.
[205] Claire Sterling, Is Animal Welfare “Women’s Work”?, ASPCA (Nov. 11, 2015), http://www.aspcapro.org/blog/2015/11/10/animal-welfare-womens-work.
[206] Women in State Legislatures for 2016, National Conference of State Legislatures (Sep. 20, 2016), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2016.aspx.
[207] Women in State Legislatures for 2015, National Conference of State Legislatures (Sep. 4, 2015), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2015.aspx.
[208] See Women in State Legislatures for 2014, National Conference of State Legislatures (Apr. 1, 2014), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2014.aspx; Women in State Legislatures: 2013 Legislative Session, National Conference of State Legislatures (Nov. 8, 2013),http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2013.aspx; Women in State Legislatures: 2012 Legislative Session, National Conference of State Legislatures (Sep. 17, 2012), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-2012.aspx.
[209] Cynthia L. Gaskill et al., 2016 Study of Current Conditions of Kentucky County Animal Shelters and Degree of Compliance with Kentucky Animal Shelter Laws 1 (2016).
[210] Malcomb, supra note 70.
[211]Gaskill, supra note 209, at 14.
[212] Malcomb, supra note 70.
[213] Gaskill, supra note 209, at 17.
[214] Id.
[215] Id. at 19.
[216] Id.
[217] Malcomb, supra note 70.
[218] Gaskill, supra note 209, at 17.
[219] Malcomb, supra note 70.
[220] Id.
[221] Gaskill, supra note 209, at 16.
[222] Malcomb, supra note 70.
[223] ALDF Rankings, supra note 15, at 11; Ky. Rev. Stat. Ann. § 525.125 (West 2017).
[224] Kristen Kennedy, Realty Check: Why Kentucky is in the Dog House for Animal Abuse, WKYT (Feb. 08, 2012), http://www.wkyt.com/home/headlines/Kentucky_worst_in_nation_at_fighting_animal_abuse_138760019.html.
[225] Samantha D. E. Tucker, No Way to Treat Man's Best Friends: The Uncounted Injuries of Animal Cruelty Victims, 19 Animal L. 151, 158 (2012) (describing laws on owning future pets after being convicted of animal abuse).
[226] Id.
[227] 510 Ill. Comp. Stat. Ann. 70/3.04 (West 2018) (a new version of this statute is effective June 1, 2018, however it does not change the provision allowing a court to order a convicted animal abuser to forfeit their animals).
[228] Id.
[229] See 510 Ill. Comp. Stat. Ann. 70/3.01, 70/3.02 (West 2018).
[230] 510 Ill. Comp. Stat. Ann. 70/3.03 (West 2018).
[231] ALDF Rankings, supra note 15, at 11.
[232] Id. at 12.
[233] Id.
[234] Id.
[235] Id.
[236] Id.
[237] Id.
[238] Id.
[239] Id.
[240] Stephan Otto, Crime & Punishment in Kentucky, Animal Legal Defense Fund (Oct. 26, 2009), http://aldf.org/blog/crime-punishment-in-kentucky/.
[241] Malcomb, supra note 70.