Declassifying Animals as Property by Loretta Baughan
ALERT: It's BACK! March 2013
update April 6th, 2010
Assembly bill is AB793, hearing was held on Thursday, March 11, 2010
Senate bill is SB580, hearing scheduled for Tuesday, April 6, 2010
When doesn't "no" mean "no"? If it is a key component to advancing the radical agenda of Animal Rightists, "no" never means "no". You could say their motto is "never say never" because they never give up these anti-Constitutional efforts to attack those who choose to own animals. If we are to preserve our right to own animals, we must be vigilant in defeating these efforts.
Wisconsin State Senator, Tim Carpenter, is spearheading this attempt to recycle the failed bill. Currently, he is seeking co-sponsors for LRB 1643/1, banking on hopes newly elected legislators, unfamiliar with the destructive consequences of the bill, will buy into it based on the "feel good" sales pitch. That's why it's so important for citizens to waste no time in contacting both their Senator and Assembly representatives to urge them to withhold their support and reject LRB 1643/1. Please feel free to refer them to this article or print it out and send it to them.
Here's the original article, which entirely applies to Senator Carpenter's "new" legislation:
"It's for the animals!" seems to be a common justification used by some people for supporting animal rights legislation - even if that means we are sacrificing personal freedom. Of course, most people rightly care about animals and support their welfare. But "animal rights" is a Trojan horse of another color.
What about the people?
Should Legislators support and pass bills based solely on emotions? Absolutely NOT. Legislation should be carefully considered and based on factual need, not emotional rhetoric or special interests agendas. Legislators are charged with the responsibility to uphold the Wisconsin Constitution. In Article I., Declaration of Rights, it provides for "equality and inherent rights" (1) Equal Protection is guaranteed. (2) The people have a right to Due Process. Case law has clearly established:
"In a procedural due process claim, it is not the deprivation of property or liberty that is unconstitutional; it is the deprivation without due process of law." (3)
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"In particular, it is their goal to destroy the property status of animals in the Wisconsin State Statues, a fact that is clearly identified in DCHS's Board of Directors Meeting minutes dated January 21, 2009. (4) Declassifying animals as property and abolishing the owner's property rights has long been an agenda item for HSUS and other radical animal rights fanatics."
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AB793 and SB580 are twin bills that were written by the Humane Society of the United States (HSUS) for the Dane County Humane Society (DCHS) with an objective of accomplishing a "complete rewrite of Chapter 173". In particular, it is their goal to destroy the property status of animals in the Wisconsin State Statues, a fact that is clearly identified in DCHS's Board of Directors Meeting minutes dated January 21, 2009. (4) Declassifying animals as property and abolishing the owner's property rights has long been an agenda item for HSUS and other radical animal rights fanatics.
In spite of having a name designed to give donors and the general public the impression that the organization somehow oversees local humane societies or animal shelters across the country, the wealthy Humane Society of the United States does not. HSUS is a greedy, self-serving, jet-setting, lobbying PAC that begs money from the animal loving public and uninformed corporate partners. HSUS pays 41 of their leaders six-figure salaries, spends millions on their fund-raising machine, and according to their tax returns, "less than one-half of one percent of their $100 million budget to hands-on pet shelters". (16) Like the child who got caught with his hand in the cookie jar, HSUS makes disingenuous claims insisting that they do help local animal shelters. But the fact is that they have the gall to charge struggling shelters for that "help" - with their fees ranging between $4,000 and $20,000! (17)
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"Hello? Wasn't this country's judicial system founded on the principle of "innocent until proven guilty"? This outrageous bill turns that upside-down as animal owners are to be viewed as "guilty until proven innocent". Under AB793/SB580, a murderer will have more rights than an animal owner."
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I have to wonder how many donors to HSUS - or the Dane County Humane Society, for that matter - actually know that their money is being spent to advance the fanatic animal rights agenda? Shouldn't there be a "Truth in Fund Raising Law" that demands transparency of every organization that claims to be a charity?
Who would support a bill designed to effect a loss of property rights for Wisconsin animal owners? State Representatives Mark Pocan, Terese Berceau, Spencer Black, Ed Brooks, Gary Alan Hebl, Sandy Pasch and Sondy Pope-Roberts in the Assembly and Senators Fred Risser, Tim Carpenter, Jon B. Erpenbach and Mark Miller.
"It is the case that animals cannot have the full panoply of rights while they remain the property of humans."--Liberalism, Property and the Legal System, The Political Theory of Animal Rights by Robert Garner, pg 53 (2005)
Besides surgically and effectively removing animals from the realm of property law in Wisconsin, this bill is a deceitful effort to make several other changes to our law. AB793 and SB580 create a new legal definition that would only apply to animal-related situations. Why? Because HSUS and DCHS desire to lessen the legal standard for factual based evidence in order to initiate a "legal" seizure of animals. Subjective language deliberately weakens the law to allow "circumstances" (happenstance) or "belief" (ideology, philosophy, dogma, opinion, estimation, theory) as a basis to effect action... and I'd like to know who decides what is considered "reasonable"?
"Reasonable grounds to believe" means a set of facts and circumstances that in their entirety are sufficient to justify a reasonable person's belief." (5)
The danger in this is that it protects animal activists who wish to conduct unwarranted raids on farmers and pet owners - even to the point of protecting those who may be deliberately targeting or harassing animal owners. Effectively, if a person owns animals, they have just lost their Constitutional right of Equal Protection under the law.
This piece of legislation repeals 173.12 (1m) to (3) of the state statutes. In this section, our current law sets fair requirements for the handling of any animal that is considered to be evidence in an alleged animal fighting crime directing that "the animal shall be retained in custody". If the charges are dismissed or the owner is found not guilty, the animal "shall be returned to the owner". There are directives for the disposal of animals that were involved in fighting and provisions for the placement of the animal(s)... "after the owner's conviction".
The elimination of these provisions clears the way for humane societies and so-called animal protection organizations, such as HSUS, to legally sell, distribute, sterilize, or euthanize animals, as they see fit, that come into their possession prior to when the owner has their day in court. If the charges are determined to be baseless or the rightful owner is found innocent, the person will have no lawful right to reclaim their animal(s). However, this is in conflict with Wisconsin State Statutes 968.20 because it specifically refers to the portions of 173.12 for handling animal cases that HSUS & DCHS are trying to eradicate with their bill. (18)
Clearly, this unconstitutional effort to declassify animals as property, depriving the rightful owner of Equal Protection and Due Process is discriminatory and reprehensible.
But I've only scratched the surface of this Trojan horse.
The "reasonable grounds" definition comes into play in Section 10. 173.21 (1)(a): "There are reasonable grounds to believe that the owner has mistreated the animal in violation of ch. 951 or has violated s. 951.08." So if the facts get in the way, opinion, theory, suspicion... or even less... is all that's needed to proceed!
The bill adds a new condition to existing requirements for the release and return of the animal to it's owner; that it be implanted with a microchip for identification. However, thanks to public outcry, this provision was removed with an Amendment.
In an informal survey of veterinary clinics around the state, I found that prices to microchip an animal vary widely ranging from $25 to as high as $112 (with an office call), per animal. This stipulation could impose a financial hardship, especially if the person has a number of animals they are forced to chip.
The decision of whether or not to microchip an animal belongs solely to the owner and should not be mandated by any government entity. The idea of microchipping animals is not without ethical consideration - and even, a small measure of risk. Cancerous tumors have been noted in scientific reports in dogs, cats, rats and mice, associated with implanted microchips. (10)(11)(12)(13) Other issues such as chips migrating to other areas of the body (14), transponder failure rate (15), failure of electronic scanners and the effect of electromagnetic interference are confirmed by the FDA. Several brands of microchips are being implanted in Wisconsin. Although there are universal scanner devices, most that are currently in use at shelters or in veterinarian clinics are not.
The following provision, 173.22 (1), was amended, change in bold type:
"A person claiming that an animal that he or she owns was improperly taken into custody under s. 173.13 (1) (a) 3., 4., 5., 6. or 8. or is wrongfully withheld under s. 173.21 (1) may seek return of the animal by petitioning, no later than the 7th day after the day in which the animal was taken into custody, for an order from the circuit court for the county in which the animal was taken into custody or in which it is held."
That's right. The owner has just a one-week window of opportunity to petition the court for the return of their animal(s) and in 173.22 (2)(a), the onerous is placed on the person to serve a copy of the petition upon the humane officer, law enforcement officer or town/city/county and whoever has physical custody of the animal, which is currently the responsibility of the court.
But a newly created statutes, 173.17 (2) puts a roadblock in the rightful owner's path:
"A humane officer, law enforcement officer, political subdivision, or person contracting under s. 173.15 (1) is not required to disclose information concerning a person into whose custody an animal was ultimately released unless ordered to do so by a court."
Furthermore, 173.23 (3) creates circumstances that require an accused animal owner to pay up-front costs for the care of their confiscated property. If they are unable to do so, they will be considered to have abandoned their animals and will immediately lose ownership rights (and quite possibly be subjected to additional charges under AB747/SB555, another piece of animal rights legislation currently under consideration). The accused citizen is deprived of their property without due process of law. This amounts to extortion in addition to being unconstitutional.
Under our Constitution's Due Process clause and related case law, we read:
"Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted." (6)
"Actions for the forfeiture of property that are commenced by the government and driven in whole or in part by a desire to punish may violate the guarantees against excessive punishment." (7)
Without the people's Constitutionally guaranteed right of Due Process, an animal owner who suffers the loss of their property would indeed be subjected to an excessive "cruel and unusual punishment". Hello? Wasn't this country's judicial system founded on the principle of "innocent until proven guilty"? This outrageous bill turns that upside-down as animal owners are to be viewed as "guilty until proven innocent". Under AB793/SB580, a murderer will have more rights than an animal owner. Depriving a person of their property... their animals... before they have had their day in court removes the person's right to Equal Protection and Due Process. This is wrong. And it is in direct conflict with our Constitution:
"Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws." (8)
The bill, in effect, allows humane societies, animal shelters and other groups or individuals to gain legal ownership of these animals, which they can then sell at a profit, euthanize, surgically sterilize or dispose of as they see fit. If the accused is found "not guilty" in a court of law, they cannot reclaim their animal(s) because the changes HSUS and DCHS desire to make are specifically designed to strip animal owners of their property rights and make any effort to recover them virtually impossible.
If this vindictive bill is allowed to become law, law-abiding Wisconsin farmers and pet owners will be at risk of false charges instigated by animal rights activists. Particularly disturbing is the fact that it will only take an accusation of wrongdoing to wreck havoc on the lives of good citizens and put many into financial ruin. Pet and livestock breeders stand to loose their valuable bloodlines. Some may lose irreplaceable pedigrees carefully developed with great care and expense over decades, a lifetime or even through generations of their families. What recourse would a wrongly accused animal owner have to remedy this injury? Case law speaks to the issue:
"The constitutional guaranty of a remedy for injuries to person and property does not give a constitutional right to sue the state in tort. There is no right of a citizen to hold the sovereign substantively liable for torts, and the state, being immune from suit without its consent, may define the conditions under which it will permit actions against itself." (9)
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Take action:
- Contact your Wisconsin State Assembly Representative asking them to OPPOSE LRB 1643/1 and any sister bill
- Contact your Wisconsin State Senator asking them to OPPOSE LRB 1643/1
- Keep informed on the status of these bills, find committee details, legislator contact info and other legislation affecting animal owners at the Dog Federation of Wisconsin (DFOW) website
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If the State Legislature decides to allow this harmful bill to become law, it is only fair and just that they have the foresight to realize that their action will result in innocent people suffering the consequences of an unjust loss of their animals. And, in acknowledging that fact, the State needs to provide a remedy for these wrongs by defining "the conditions under which it will permit actions against itself". Of course, I'm not holding my breath.
"For now, it is only necessary to note that it is possible to chip away at the property rights of the owners of animals, and envisage a future where the property status of animals is deemed unacceptable. Crucially, though, at that point it will be unnecessary to formally abolish the property status of animals because legislative activity will have already made it redundant."
--Liberalism, Property and the Legal System, The Political Theory of Animal Rights by Robert Garner, pg 53 (2005)
"The moment the idea is admitted into society that property is not as sacred as the law of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence."
--Founding Father John Adams, 2nd President of the United States (1735-1826)
sources:
(1) WISCONSIN CONSTITUTION , ARTICLE I., DECLARATION OF RIGHTS, Equality; inherent rights. SECTION 1. [As amended Nov. 1982 and April 1986] All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed. [1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982; 1983 J.R. 40, 1985 J.R. 21, vote April 1986]
(2) The state and federal constitutions provide identical procedural due process and equal protection safeguards. County of Kenosha v. C. & S. Management, Inc. 223 Wis. 2d 373, 588 N.W.2d 236 (1999), 97−0642.
(3) In a procedural due process claim, it is not the deprivation of property or liberty that is unconstitutional; it is the deprivation without due process of law. Arneson v. Jezwinski, 225 Wis. 2d 371, 592 N.W.2d 606 (1999), 97−1867.
(4) "Tom Springer, an attorney at law firm Whyte Hirschboeck Dudek, provided a legislative summary on the following three points: 1) Lowery pitbull case, 2) bill draft and 3) what direction was taken. Has been working with Leslie Hamilton on Chapter 173 weekly; She has experience working with person drafting the bill Met with drafter, Leslie and Alice (HSUS) about 3 - 4 months ago Presented draft to Leslie but she added three or four updates Latest draft was a complete rewrite of Chapter 173", Dane County Humane Society, Board of Directors Meeting, January 21, 2009
(5) SECTION 1. 173.01 (4) of the statutes is created to read: 173.01 (4) "Reasonable grounds to believe" means a set of facts and circumstances that in their entirety are sufficient to justify a reasonable person's belief., LRB−0677/2 & LRB-4273/1
(6) WISCONSIN CONSTITUTION, ARTICLE I., Excessive bail; cruel punishments. SECTION 6. Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted.
(7) Actions for the forfeiture of property that are commenced by the government and driven in whole or in part by a desire to punish may violate the guarantees against excessive punishment. State v. Hammad, 212 Wis. 2d 343, 569 N.W.2d 68 (Ct. App. 1997), 95−2669.
(8) WISCONSIN CONSTITUTION, ARTICLE I., Remedy for wrongs. SECTION 9. Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and
without delay, conformably to the laws.
(9) The constitutional guaranty of a remedy for injuries to person and property does not give a constitutional right to sue the state in tort. There is no right of a citizen to hold the sovereign substantively liable for torts, and the state, being immune from suit without its consent, may define the conditions under which it will permit actions against itself. Cords v. State, 62 Wis. 2d 42, 214 N.W.2d 405.
(10) Tumors in long-term rat studies associated with microchip animal identification devices.
Elcock LE, Stuart BP, Wahle BS, Hoss HE, Crabb K, Millard DM, Mueller RE, Hastings TF, Lake SG.
Bayer Corporation, Toxicology Department, Stilwell, Kansas 66085, USA.
"Tumors surrounding implanted microchip animal identification devices were noted in two separate chronic toxicity/oncogenicity studies using F344 rats. The tumors occurred at a low incidence rate (approximately 1 percent), but did result in the early sacrifice of most affected animals, due to tumor size and occasional metastases. No sex-related trends were noted. All tumors occurred during the second year of the studies, were located in the subcutaneous dorsal thoracic area (the site of microchip implantation) and contained embedded microchip devices. All were mesenchymal in origin and consisted of the following types, listed in order of frequency: malignant schwannoma, fibrosarcoma, anaplastic sarcoma, and histiocytic sarcoma. The following diagnostic techniques were employed: light microscopy, scanning electron microscopy, and immunohistochemistry. The mechanism of carcinogenicity appeared to be that of foreign-body induced tumorigenesis.," Experimental and toxicologic pathology : official journal of the Gesellschaft für Toxikologische Pathologie, 2001 Feb;52(6):483-91.
(11) Fibrosarcomas Associated with Passive Integrated Transponder Implants
T.E. Palmer, J. Nold, M. Palazzolo, and T. Ryan; Covance Laborotories, Inc., Madison Wisconsin 53704
"In a 104-week dietary study conducted in 400 male and 400 female B6C3F1/Cr1BR VAF/Plus mice, subcutaneous tumors associated with the implanted transponder were observed in 16 animals (2%) between weeks 79 and 105. All tumors were observed in the dorsal shoulder region at or near the implantation site. Some masses became large enough to inhibit the animal's access to its feed jar... Two animals had metastases to regional lymph nodes or to the lungs."
(12) Implanted Microchips Cause Cancer by Jane Williams GFN contributing writer, American Family Voice (1/2007),
(13) Chip Implants Linked to Animal Tumors by Todd Lewan, The Associated Press, Saturday, September 8, 2007;
(14) Veterinary and comparative orthopaedics and traumatology : V.C.O.T., 2009;22(1):63-5. Surgical removal of a microchip from a puppy's spinal canal.
Smith TJ, Fitzpatrick N Fitzpatrick Referrals, Halfway Lane, Eashing, Surrey GU7 2QQ, UK.
"A 1.6 kg, six-week-old Tibetan Terrier was admitted with a 12-hours history of acute onset of progressive tetraparesis following insertion of a microchip to the dorsal cervical region. Neurological examination indicated a lesion to the Ce(1) to Ce(5) spinal cord segments. Radiographic examination confirmed the intra-spinal location of a microchip foreign body at the level of the second cervical vertebra. Microchip removal was achieved following dorsal hemi-laminectomy; significant intra-operative haemorrhage was encountered. The puppy was ambulatory at day seven. Follow-up telephone interview 18 months postoperatively confirmed that the patient had made a good recovery although it had a mild residual right-sided torticollis.
(15) Electronic identification with injectable transponders in pig production: results of a field trial on commercial farms and slaughterhouses concerning injectability and retrievability.
Lambooij E, Langeveld NG, Lammers GH, Huiskes JH
DLO-Institute for Animal Science and Health, branche Zeist, the Netherlands
1995 Dec;17(4):118-23
"The results show that in phases 1 and 2 1.6% to 7.3% of the transponders were unreadable at retrieval in the slaughter line, which is significantly (p ,0.05) higher than the required maximum loss of 1%. The 1.6% failure rate in phase 1 involved transponders from a single supplier. Loss of identification was associated with rejection after injection, expulsion during inflammation and technical failure. Three weeks after injection on average 0.6% of the piglets had an observable inflammation and at the time of retrieval pus was found around, on average, 1.2% of the transponders. An average of between 37% and 88% of the transponders were retrieved in the slaughter line from the base of the ear in phases 1 and 2. The other transponders were retrieved medial or caudal to this position. This positional variation meant that it was not consistently possible to remove the transponder from the carcass within the required 4 second time period. It was concluded that the systems should be improved before recommending their introduction on a large scale, because the variation in readability and location is too high."
(16) Shouldn't the Humane Society do better?, HSUS 2008 tax record, HUMANEWATCH.ORG
(17) The HSUS ASC Program: Helping Shelters Help Communities
(18) Wisconsin State Statue 968.20: Return of property seized. (1) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership.
If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband or property covered under sub. (1m) or (1r) or s. 173.12, 173.21 (4), or 968.205, returned if:
(a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or
(b) All proceedings in which it might be required have been completed.
(2) Property not required for evidence or use in further investigation, unless contraband or property covered under sub. (1m) or (1r) or s. 173.12 or 968.205, may be returned by the officer to the person from whom it was seized without the requirement of a hearing.
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Loretta Baughan is the founder, editor and publisher of Spaniel Journal. She is an award winning professional photographer, webdesigner, owner of
Autumnskye, LLC. Loretta is a member of the Dog Federation of Wisconsin and is active in legislative issues involving animals. She resides in northern Wisconsin, with her husband, Steve, and their three children.
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