Massachusetts House Bill 1444, Guardian Bill  – Muddying the Waters for Pet Owners

Massachusetts Representative Steven S. Howitt (R-Seekonk) presented H. 1444 (web page including current status)  by petition – a short bill that on first glance doesn’t reveal its true purpose. As with H. 2290, an identical bill presented in 2017, a careful analysis exposes the intent behind the bill. The opening sentence of the bill does say, “An Act changing the legal status of “pets” from personal property to “companion animals”(emphasis added).” However, nothing in the actual language to be enacted mentions property, and the companion animal terminology has never been used for this purpose. Rather a trend of many years has been to draft special laws for “companion animals” with offense definitions, classifications and penalties different from those for livestock or other animals. This use was merely a way of differentiating different types of animals and was unrelated to the standard personal property status of all animals. A different petition bill for 2019, H.1815 (web page including current status,) is titled “An Act known as the companion animal protection act of Massachusetts, deals with impounded animals and never defines or uses “companion animals” in the provisions to be enacted. In current state law, there is only one use of companion animal, in veterinary law, Chapter 112, Section 58A1/2: Dispensing of compounded drugs to companion animals by veterinarians. Thus, it is unlikely the use of this term would achieve the drafter’s purpose of elevating the legal status of pets, so there must be other clues

The first clue to the drafter’s intent is the bill’s second paragraph to be enacted, “Caregivers of “companion animals” shall be considered “guardians”. The original 1999 “Guardian Campaign” of In Defense of Animals (IDA) founder, Dr. Elliot Katz, sought to elevate the status of animals by substituting guardian for owner as a step to eliminating the property status of animals. This would change the paradigm of ownership to a “fiduciary” relationship for care of animals. No detailed framework for a legal guardianship relationship was ever worked out to do this, and proponents had to settle for “guardian” as the legal equivalent and alternate usage for owner. With greater scrutiny, the realization that guardians only have obligations but no inherent rights, public skepticism increased. IDA has now revised their own terminology to “The Founder’s Guardian Initiative” although Guardians remains one of their organization campaigns. While the legislation fell out of favor, use of the term is always a red flag for determining drafter intention.

The second clue within the bill is less apparent to readers unfamiliar with criminal sentencing guidelines. In particular, the Federal criminal “sentencing guidelines” of mandatory minimum sentences for specific drug offenses, chiefly those involving small amounts of inexpensive but illegal drugs trafficked by low level offenders. The three offenses described in H. 1440 involve allowing “companion animals” to be outside in extreme weather “which poses an adverse risk to the health and safety of“ the animals. The bill then imposes mandatory minimum sentences of confinement. Unlike “guardian,” this is a new kind of red flag to watch for in animal laws.

Massachusetts has a long list of animal cruelty statutes, but none provide mandatory minimum sentencing. Nor does the 2016 Animal Cruelty And Protection Task Force report make any reference to this idea. Rather, each offense that includes confinement in the penalty, provides only that it be for “not more than” whatever period of years. At the state level, the Massachusetts Sentencing Commission has ”concluded that for certain mandatory offenses — e.g., OUI, firearms offenses — the mandatory minimum sentence was fair and proportionate. The Commission didn’t reach the same conclusion upon its examination of mandatory drug offenses” and further noted, “Current research on mandatory minimum drug sentencing supports alternatives to mandatory sentences.” Use of mandatory minimum sentences for any animal offense would be a major policy departure for Massachusetts criminal sentencing, so that offhand inclusion in H.1444 is a serious concern.

There are no precedents or obvious reasons for using mandatory minimum sentences in these low level animal offenses, except for a 2008 Comment in the Penn State Law Review., “Justice For Dusty: Implementing Mandatory Minimum Sentences For Animal Abusers.” Similar to the hope that “guardian” would lead to better treatment of animals generally, this Comment, written by a law student, argues for creative use of mandatory minimum sentencing for animal abusers so that society takes these crimes more seriously.

The Massachusetts petition bill process probably facilitates aspirational bills that advance policy ideals rather than practical approaches, but sometimes political quirks lead to enactment of unlikely bills or copycats elsewhere. While these are challenging to identify, it is important to understand them.

Recent CFA Legislative Group Blog Posts:

1. Massachusetts: Senate Bill 114 Creating Breeder Licensing for Cat Fanciers and Rescue Regulations Proposed by MDAR. 5/16/2019
2. Docket No. APHIS-2017-0062 – Proposed Rule Comment Period Ends May 21, 2019. 5/19/2019
3. APHIS Extends Comment Period for Docket No. APHIS-2017-0062 – proposed Rule Comment Period Ends June 5, 2019. 5/21/2019

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