Can You Serve Legal Documents Via Pigeon?

It's been a while, but I'm back to answer the important questions. Today's pigeon-themed inquiry is not inspired by any news stories or current events. Instead, it popped into my head and demanded an immediate answer. Those who would like to know the answer, and learn some trivia about pigeons and related laws should read on.

As a bit of background, carrier pigeons (or homing pigeons) are pigeons that have been bred to find their way back to a fixed point even after being transported over long distances. Pigeons may be trained to carry small packages containing messages or other items. Because pigeons can only return to a fixed point, the person sending the message must have a pigeon that will return to the recipient's location. As this New York Times article details, pigeons have been used for sending messages, samples of blood, and other items over long distances, and have been employed in multiple wars to send communications from the field. In the John Wick universe, the Bowery King uses pigeons to send messages and small objects.

Naturally, this prompts the question of whether pigeons may be used to effectuate service of pleadings or documents in litigation. Case law on whether sending a document by pigeon constitutes valid service is limited. From what I could find in a cursory search, no US court has directly addressed a situation where a party has attempted to serve a legal document on someone using a pigeon. A couple courts have considered pigeon-service as a hypothetical scenario, but both appear to disapprove of the practice. 

In Geiling v. Wirt Financial Services, Inc., No. 14-11027; 2014 WL 8473822 (E.D. Mich. Dec. 31. 2014), the plaintiffs took issue with documents that had been produced in discovery that contained the plaintiffs' social security numbers, claiming that the mailing of these documents violated a Michigan state law against transmitting full social security numbers through the mail. The court noted an exception to this rule for documents sent by mail pursuant to legal discovery or process. The plaintiffs argued that this exception should not apply and the court disagreed, noting that the Michigan Court Rules envisioned that parties would produce documents in discovery through first-class mail. The court further suggested that "parties sending documents by untrustworthy means, carrier pigeon for example, could be faulted for operating outside normal discovery bounds," but not parties using standard methods to mail documents. (emphasis added). This suggests that the court would view service by carrier pigeon as a method of service outside of normal discovery practices, but a direct ruling on the issue must wait for another day.

In Seibold v. Commissioner of Dept. of Motor Vehicles, No. HHBCV136019840S; 2014 WL 565905 (Ct. Sup. Ct., Jan. 9, 2014), the court addressed whether a party had properly served an appeal by fax on the Office of the Attorney General, even though the rules required service by certified mail or personal delivery. The party claimed that because the Attorney General had actual notice of the appeal and had not been prejudiced by the failure to make proper service, her case should not be dismissed. The court rejected the plaintiff's argument, noting that at "its logical extreme" the argument would allow "service of the appeal on the agency by any means, including by a carrier pigeon, as long as the agency actually receives the appeal and is not prejudiced." (emphasis added). This, the court concluded, was not supported by statute or case law.

In summary, while courts have not directly addressed a situation where a party has attempted service using a pigeon, the disapproval of the method expressed by the few courts that have contemplated such a scenario means that it is probably is not advisable to do so.

Practically, service by pigeon is unlikely to catch on. The most apparent barrier to wide usage of homing pigeons is the fact that the person sending a document via pigeon must already have a pigeon in their possession that will return to the recipient. This suggests that a network of homing pigeons trained to deliver documents to law firms and courts must be supported by a secondary network of delivery personnel who take the pigeons from the recipients to the senders. Pigeons may be seen as redundant if a system for their physical delivery is already in place.

Another potential criticism of the practice is that even the smallest filing or item of correspondence is too large to be carried by a pigeon. The answer to this, however, is that these documents could be loaded onto tiny flash drives that could, in turn, be deposited into a pack that the pigeon can carry.

States considering permitting service via pigeon may be encouraged to learn that there are already legal barriers in place to prohibit interference with homing pigeons. In Pennsylvania, for instance, it is a summary offense to shoot, maim, or kill a homing pigeon. Similar restrictions exist in Michigan, Virginia, and Wisconsin. Laws like these may assuage concerns that interlopers will interfere with pigeons used for legal service.

New California Law on Care of Pets in Divorce Proceedings

The San Diego Union-Tribune reports that California recently passed a law (AB 22764) clarifying how courts may take into account care of pets in determining who will receive them following divorce proceedings.

The text of the new section 2605 of the Family Code (which will go into effect on January 1, 2019) is as follows:

2605. (a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal. 

(b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal. 

(c) For purposes of this section, the following definitions shall apply: 

(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter. 

(2) “Pet animal” means any animal that is community property and kept as a household pet.

Prior to the passage of this law, pets were deemed community property to be split equally among the parties to the proceedings. Now, courts have a formal basis for considering which of the parties to the divorce fed the pet, took the pet to the vet, or cared for the pet in other ways in determining which of the parties should get custody.

Notably, subsection (c)(2) specifies that this law only applies to pets that are "community property," so this law does not apply to pets that either of the parties may have had before the marriage. As for pets that both parties bought or adopted together, but before they were married, this could be complicated. If one of the parties paid for the pet, the court may well view that pet as that party's separate property. If the parties adopted the pet from a farm in northwest Iowa without making any payments, this could make things more difficult to determine. The parties could also agree in writing that a pet owned prior to the marriage is deemed community property following the marriage.

All of this seems very complicated, so the California legislature would do well to pass a law clarifying the disposition of pets obtained by two people in a relationship before the marriage. A simple solution would be preferable, such as (just off the top of my head) a law that the pet should go to the third party the married parties know from law school who frequently cares for the pet while the married parties are out of town. That law has yet to materialize, but at least for now, judges have a formal basis to consider care of pets when determining who gets custody.

Is a Parrot's Statement Hearsay?

Fox News reports on this evidence exam hypothetical come to life:

A Michigan man’s wife is now a suspect in his May 2015 murder, newly obtained police reports show, and a winged witness may have heard the dead man’s final plea. 

An African grey parrot might’ve overheard Martin Durham as he pleaded with his shooter before the killer pumped five bullets into Durham’s body. The bird, Bud, was heard saying “Don’t f------ shoot” in a video taken shortly after Durham’s death, WOOD reported. 

“That bird picks up everything and anything, and it’s got the filthiest mouth around,” Duram’s mom, Lillian Duram, told WOOD. 

It’s unclear if police have seen this video, or if the bird’s utterance is even admissible as evidence.

Would the video be admissible as evidence of the victim's last words? Possibly. There are two major evidence law issues I can spot right off the bat. The first is whether this evidence would be unduly prejudicial to a criminal defendant charged with Durham's murder. The defendant may argue that the bird's statement is unreliable or that it could have originated from a source other than the victim. These possibilities, the Defendant may argue, render the bird's statement significantly more prejudicial than probative and warrant exclusion of the evidence.

I'm not sure how a debate over this question would turn out, and I doubt that there is precedent on the issue. The far more interesting (and clear-cut) issue, however, is whether the parrot's statement is hearsay.

Weird Law of the Day: California Penal Code 598 - Hating on Swallows

Today's weird law is the strangely specific California Penal Code section 598, which states:

Every person who, within any public cemetery or burying ground, kills, wounds, or traps any bird, or destroys any bird's nest other than swallows' nests, or removes any eggs or young birds from any nest, is guilty of a misdemeanor.

This law has a decent baseline of strangeness from the oddly specific scenario of trapping birds or interfering with their nests in public cemeteries. But the exclusion of swallows' nests from the law's reach takes section 598 to the next level. Perhaps singling out swallows has something to do with their airspeed velocity, or maybe there is a different reason for this distinction entirely, but I am inclined to believe that this particular law regarding birds is not governed by reason.

UPDATE (5/6/2015)

A former classmate informed me that the law appears to single out swallows due to their unique nesting habits. Swallows tend to build mud nests in clusters, and their nests can be unsightly and damaging to property. This appears to be the basis for Penal Code section 598 singling out this particular bird.

Be warned, however, that while the destruction of swallows "nests" are not prohibited under section 598, the removal of eggs or young birds is not limited. This article from the OC Register also highlights that damaging or removing an active swallows' nest may violate the Migratory Bird Treaty Act of 1918 and that those seeking to remove nests between February 15 and September 1 can only do so with a permit from the U.S. Fish and Wildlife Service.

Weird Law of the Day: California Penal Code 597h - Animals Attached to Power Propelled Devices

Here's an interesting California law I stumbled across recently.  Penal Code section 597h states:

a) It shall be unlawful for any person to tie or attach or fasten any live animal to any machine or device propelled by any power for the purpose of causing that animal to be pursued by a dog or dogs.

(b) Any person violating any of the provisions of this section shall be guilty of a misdemeanor punishable by a fine of two thousand five hundred dollars ($2,500) or by imprisonment in a county jail not exceeding six months, or by both that imprisonment and fine.

It looks like those seeking to avoid jail time are in for a rough time, as the absence of the "not more than" or "not exceeding" phrases from the fine provision means that those paying this statute's fine will need to pay the full $2,500.00.

It is Illegal to Dye Live Chicks, Rabbits, and Ducklings in California

So says subsection (b) of California Penal Code section 599. The section in full states:

599. Every person is guilty of a misdemeanor who: 

(a) Sells or gives away, any live chicks, rabbits, ducklings, or other fowl as a prize for, or as an inducement to enter, any contest, game or other competition or as an inducement to enter a place of amusement or place of business; or 

(b) Dyes or otherwise artificially colors any live chicks, rabbits, ducklings or other fowl, or sells, offers for sale, or gives away any live chicks, rabbits, ducklings, or other fowl which has been dyed or artificially colored; or 

(c) Maintains or possesses any live chicks, rabbits, ducklings, or other fowl for the purpose of sale or display without adequate facilities for supplying food, water and temperature control needed to maintain the health of such fowl or rabbit; or (d) Sells, offers for sale, barters, or for commercial purposes gives away, any live chicks, rabbits, ducklings, or other fowl on any street or highway. This section shall not be construed to prohibit established hatchery management procedures or the display, or sale of natural chicks, rabbits, ducklings, or other fowl in proper facilities by dealers, hatcheries, poultrymen, or stores regularly engaged in the business of selling the same.

I have not had a chance to look into the legislative history behind this section, but I thought that it was interesting enough to share. Section 599 is located amid a number of other laws prohibiting other animal-related conduct, It is also worth pointing out that this conduct is a misdemeanor, meaning that somebody who carries out this conduct may face a maximum sentence of six months in jail and/or a fine of $1,000.

A final note: this particular section is limited to "chicks, rabbits, ducklings, or other fowl," and does not cover dogs, cats, or other household pets. As I have mentioned before, however, California's laws relating to animals can be a tangled and complicated subject to research. While I do not see any bans on dying dogs or cats in the statutory vicinity of Penal Code section 599, there may indeed be other laws elsewhere that prohibit that sort of conduct.

"Monkey Selfie" Photo May Venture Into Trademark Territory

During the summer of 2014, everybody on the Internet briefly became a copyright expert, scholar, or commentator as people debated the copyright status of this photo taken by a monkey:

The copyright dispute over this photo revolved around whether the photographer whose camera the monkey stole to take the picture owned the copyright for the photo. The U.S. Copyright Office concluded that the picture could not be copyrighted since it was taken by the monkey, by including a notably-specific hypothetical scenario on page 8 of this vast report.

While the U.S. Copyright Office's say may put an end to the copyright speculation, Craig Whitney of the Socially Aware Blog notes that this picture may end up making its way back to intellectual property debates in the trademark arena.

Whitney highlights this application for trademark status which features a picture that looks strangely similar to the monkey selfie photo. Whitney writes:

A company identified as Saban Capital Group Inc., based out of the British Virgin Islands, has filed an application with the U.S. Patent and Trademark Office to register a trademark in the image of a monkey for use on various types of apparel—including wedding gowns (one can only imagine the market for such an item). The company claims to have been using this image in commerce since August 16, 2010—which we understand is prior to the date that the Monkey Selfie was taken. Nevertheless, the image in question bears a striking resemblance to a certain photograph of a fetching Indonesian primate. But given that no one owns a copyright in the Monkey Selfie, it is unclear whether the Trademark Office or anyone else will seek to prevent a drawing based on the image—if that is what this is—from being registered as a trademark for use on certain apparel.

The trademark application is still in the early stages, and I don't know nearly enough about that area of law to give an informed opinion on the application's merits or whether it may be challenged. But if any law students are reading this post, it might be a good idea to flag this story just in case Intellectual Property professors are considering writing exams on some of the stranger areas of copyright and trademark law.

The Aggravating Structure of California's Animal Fight Laws

While I was writing my previous post on abnormally dangerous animals, I got caught up in some peripheral research on liability schemes for keeping wild animals. Defendants who keep wild animals are typically strictly liable for any damage those animals end up causing. According to section 507 of the Restatement (Second) of Torts, the rationale for this strict liability is that the defendants who keep dangerous wild animals "create a danger not normal to the locality in question." To put this into more understandable terms, if somebody were to keep a bear or lion in a cage, they would be liable for any damage the animal would cause upon its escape. Plaintiffs harmed by the animal would not need to show that the person keeping the animal was negligent.

This led to some tangential research into the issue of California laws relating to bears, which brought me to California Penal Code section 597b outlaws fights between animals, but it does so in a complicated and unpleasant manner. Here are several subsections of the statute:

(a) Except as provided in subdivisions (b) and (c), any person who, for amusement or gain, causes any bull, bear, or other animal, not including any dog, to fight with like kind of animal or creature, or causes any animal, including any dog, to fight with a different kind of animal or creature, or with any human being, or who, for amusement or gain, worries or injures any bull, bear, dog, or other animal, or causes any bull, bear, or other animal, not including any dog, to worry or injure each other, or any person who permits the same to be done on any premises under his or her charge or control, or any person who aids or abets the fighting or worrying of an animal or creature, is guilty of a misdemeanor punishable by imprisonment in a county jail for a period not to exceed one year, by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine. 

(b) Any person who, for amusement or gain, causes any cock to fight with another cock or with a different kind of animal or creature or with any human being; or who, for amusement or gain, worries or injures any cock, or causes any cock to worry or injure another animal; and any person who permits the same to be done on any premises under his or her charge or control, and any person who aids or abets the fighting or worrying of any cock is guilty of a misdemeanor punishable by imprisonment in a county jail for a period not to exceed one year, or by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine.

 . . .

(d) For the purposes of this section, aiding and abetting a violation of this section shall consist of something more than merely being present or a spectator at a place where a violation is occurring.

Subsection (a) comes across terribly because it makes sure to avoid addressing dog vs. dog animal fights. Those fights are addressed in California Penal Code 597.5, which takes a much harsher approach to those fights. It outlaws the training of those animals with the intent that they eventually fight, and it makes training the animals and conducting the fights felonies, rather than misdemeanors.

This explains some of the choppiness of subsection (a), though I think the statute could be more artfully drafted. But why was cockfighting not included in (a) by simply adding "cock" into the "bull, bear, or other animal" list? And why would a cock just not be an "other animal," under the original list? This would seem to make subsection (b) completely unnecessary.

I have no explanation for this odd drafting other than my own theory that lawmakers wanted to appear tough on cockfighting. Adding an unnecessary additional subsection that specifically addressed that practice was the way to exude this tough attitude.

Canada Avoids "Fish Royal" Tragedy

A few days ago, I blogged about a recently-beached whale in Canada. Inhabitants of nearby towns worried that the whale would explode, but the Canadian federal government was reluctant to remove the whale. It appears that there are now three beached whales. I noted that the scenario was eerily similar to the "Fish Royal" case in A.P. Herbert's Uncommon Law where the Crown's refusal to take action over a beached whale results in the complete abandonment of a town due to the whale's stench.

In the Fish Royal case, the first option the Crown considered was that the beached whale be sent to a museum:

[A] letter was addressed to the Director of the Natural History Museum informing him that an unusually fine specimen of Balaena Biscayensis was now lying in Pudding Bay and that the Minister was authorized by His Majesty to offer the whale to the Museum in trust for the nation, the Museum to bear the charges of collection and transport. 

On July 3rd . . . the Secretary to the Natural History Museum replied that he was desired by the Director to express his regret that, owing to lack of space, the Museum was unable to accept His Magesty's gracious offer. He was to add that the Museum was already in possession of three fine specimines of Balaena Biscayensis.

Here, Canada's federal government expressed  the towns of Rocky Harbour and Trout River will not undergo the same experience as Pudding Magna. The BBC reports:

Canada's Royal Ontario Museum will take two blue whale carcasses that washed up on the coast of western Newfoundland. 

Whales on the beaches of Rocky Harbour and Trout River were among several believed to have died in heavy ice. 

The towns did not have the resources to move the decomposing whales, which experts fears could bloat and explode. 

"The chance to preserve, study and examine up to two skeletons is a once-in-a-lifetime opportunity," the museum said in a statement.

It looks like Rocky Harbour and Trout River will avoid the stench and potential explosion of these beached whales. But now that it is in possession of two whale skeletons, this solution may not be available to future towns who seek to rid themselves of whale carcasses.

The Legal Treatment of Beached Whales

The BBC reports:

The residents of a town on Canada's Newfoundland island fear a blue whale carcass that washed up on its boardwalk last week could explode at any time. 

The 25m (81ft) whale on Trout River's rocky beach is one of several believed to have died in heavy ice weeks ago. 

Town Clerk Emily Butler says the body is bloated with methane gas caused by decomposition and will soon reek, regardless of whether it explodes. 

Local and federal authorities disagree which are responsible for its disposal.

Wondering what the stakes are in this case, I turned to the internet and found this (warning, graphic) video of an exploding whale. It would seem that the bloated whale on the shore by Trout River poses a real threat.

On reading this story, my thoughts turned immediately to the (fortunately fictional) case of Tinrib, Rumble, and Others v. The King and Queen or the "Fish Royal" case from A.P. Herbert's Uncommon Law. In that case, the inhabitants of Pudding Magna, a small town, bring a lawsuit in an attempt to prompt the Crown to remove the body of a whale which has washed up on the shores of the town. The whale was "Fish Royal" and was therefore the property of the King, so the people of the town turned to the Crown to oversee the removal of the whale.

The case describes the Crown's elusive behavior, noting that it punted at the suggestion of using the whale as a military target, and was leery of destroying the whale with explosives because it would be using public resources to destroy the government's own property. At the end of the case, the Ministry of Agriculture and Fisheries refuses to handle the matter because the whale is a mammal and not a fish. At that point, the townspeople have all left, due to the overwhelming stench of the decomposing whale.

While Herbert's Fish Royal case was a joke, The inhabitants of Trout River, and another nearby town, Rocky Harbour, are in an eerily similar situation as the townspeople in Fish Royal. Canadian federal authorities claim that they aren't responsible for removing the whale. CBC News has detailed coverage of the story, including the towns' dispute with the government:

Rocky Harbour Mayor Walter Nicolle said the government and DFO [Department of Fisheries and Oceans] are telling the communities they have to deal with the carcasses. 

Nicolle said it's a difficult task to get rid of such a big animal, and small communities like his don't have the resources. 

"We talked to DFO and they don't want to take responsibility to remove the whale. The whale is in the Rocky Harbour boundaries, so the cost should be [covered] by the town," said Nicolle. 

[Trout River restaurant owner, Jenny] Parsons said the council in Trout River is dealing with the same problem — what to do with the world's largest mammal when it washes up on your shore? 

Nicolle said the DFO won't pay to remove it, and has to grant clearance before the town is allowed to move it. 

"It's in their jurisdiction when it comes to us removing the whale, but it's in our jurisdiction when it comes to costs of removing it." 

Nicolle said time is running out for Rocky Harbour to find help getting rid of the whale, and every day the stink is getting worse.

The threat of an impending explosion makes this case even more dramatic than the Fish Royal scenario. Rumors that this is a publicity stunt for the upcoming season of 24 have not been confirmed. Hopefully the federal government gets its act together so that the citizens of Trout River and Rocky Harbour avoid the unpleasant fate of the citizens of Pudding Magna.

Washington Case Illustrates the Range of Animals That May be "Abnormally Dangerous"

According to section 23 of the Restatement (third) of Torts, if a defendant keeps a type of animal that the defendant knows is abnormally dangerous for an animal of its kind, then the defendant is liable for whatever harm that animal causes, regardless of the defendant's mindset. Kenneth Simons discusses and criticizes the development of the restatements of this tort here.

This sort of issue comes up a lot in dog-bite cases. A plaintiff suing over a dog bite can pursue a claim under a strict liability theory if he or she can prove that the defendant knew that the dog had a propensity to be dangerous. This is usually done by proving that the dog has bitten somebody in the past, although facts other than prior bites can be used to show dangerousness.

But other animals may be abnormally dangerous, including (according to at least one plaintiff) ducks. That is what the plaintiff is arguing in this interesting case coming out of Estacada, Oregon. The earlier link lays out the basic facts surrounding the case, but for a better summary, I'd recommend Kevin Underhill's post on the case at his blog, Lowering the Bar. Underhill summarizes the facts of the case:

Cynthia Ruddell alleges that she was just stepping out of her motor home "on or about May 7, 2012," when she was suddenly attacked by a local duck. The duck's onslaught allegedly caused Ms. Ruddell "to fall in her attempt to escape the duck, landing on her right outstretched hand and fracturing bones in her right wrist." She also injured her right elbow and shoulder, the complaint says, and to date has incurred somewhere around $25,000 in medical expenses.

Here's the link to the complaint itself. The plaintiff alleges that the defendant knew that the duck "had abnormally dangerous propensities in attacking people in an aggressive manner similar to how it attacked and injured [the plaintiff] . . . ."

It will be interesting to see what other evidence of attacks the plaintiff puts forward. I must admit that I'm a little bit skeptical at this point -- from a strategic perspective, it makes sense for the plaintiff to include the strict liability claim, because it leaves open the option to make that argument. But I'd be much more willing to believe this claim if the case involved a goose, rather than a duck. Metzer Farms writes about "How to Thwart an Aggressive Duck," but the aggression in those situations seems to be limited toward other ducks, rather than people. And this misleadingly-titled video, "Aggressive Ducks 1" hints that ducks may be dangerous, but the only aggressive animals I see in the video are Canadian geese.

With any luck, this case will raise serious questions over the limits of abnormally dangerous animals doctrine and go to the Oregon Supreme Court, resulting in a well-written published opinion that is included in future tort law casebooks. I can only hope that this post's critical comparison of duck vs. goose aggression makes it into the footnotes of those books.

The Rights of Animals and the Rise in Veterinarian Malpractice Lawsuits

That is the subject of this interesting essay by David Grimm at the Wall Street Journal. Grimm writes:

Felony anticruelty laws in all 50 states impose up to $125,000 in fines and 10 years in prison for anyone who abuses animals. The federal Pets Evacuation and Transportation Standards Act, passed after Hurricane Katrina, requires rescue agencies to save pets as well as people during natural disasters. Judges have been increasingly willing to treat cats and dogs like people in the courtroom, allowing custody disputes over pets and granting large awards in cases like Ms. Lohre's—including so-called noneconomic damages typically reserved for the death of a spouse or a child. In a few recent court cases, judges even gave dogs their own lawyers. 

But not everyone is cheering. Cleaners, groomers and dog walkers have been hit with large lawsuits when harm has come to family pets. And veterinarians have been particularly spooked by the rising legal status of cats and dogs. 

In 2004, a Los Angeles man won a $39,000 veterinary malpractice verdict for the death of his Labrador mix. The American Veterinary Medical Association warned that "personhood" for pets could flood the courts, drive vets out of business and ultimately harm dogs and cats by making veterinary services prohibitively expensive.

Grimm goes on to describe how personhood worries may spill over to non-pet animals like "livestock and lab rats," and that veterinarians are worried about a slippery slope in this direction. As far as livestock are concerned, I would expect that any push to give rights to animals commonly raised for consumption would be met with resistance from both the public, lobbyists, and existing federal laws that permit and regulate the treatment and slaughter of these animals.

But the essay sheds light on an interesting issue that I had not previously considered. It will be interesting to see if the trend toward more malpractice lawsuits in the veterinarian world continues, and how this might affect the overall industry.

Dog on Death Row in Australia Gets Temporary Reprieve

The Age reports:

The owner of a dog held on death row for more than a year has won a Supreme Court appeal which could save the animal's life.

Kerser was 10 months old when he was seized by Monash Council officers in December last year after being identified as an unregistered American pit bull, a restricted breed dog banned under dangerous dog laws, and was scheduled to be put down.

Under the Dangerous Animals Act 2004, a "restricted breed dog" is one of five specified breeds including "American pit bull terrier (or pit bull terrier)".
. . .

In June, the council gave Kerser a last-minute reprieve when Ms Applebee indicated that she would appeal her dog's case to the Supreme Court's common law division, judicial review and appeals list.

The case was heard before Justice Michael Croucher who then overturned the decision by Supreme Court associate judge Rita Zammit not to allow Ms Applebee to appeal the tribunal's original finding.

In his judgment handed down on Tuesday, Justice Croucher said Kerser had been seized by council officers on December 4 last year. The council gave notice to Ms Applebee a week later that Kerser had been declared an American pit bull terrier and had to be destroyed.

He said Justice Zammit erred in saying there were no grounds for appeal because the deputy president of the tribunal had decided Kerser was an American pit bull on the basis of "an overall impression" after viewing the dog.

The article goes through some of the details of Croucher's decision, noting that a general impression of the dog fell short because it did not involve "precise measurements."  Meanwhile, the Monash City Council, steamed at its legal costs, is calling for reform in dog laws, describing the existing laws as "sloppy and unworkable."  One proposed fix will put the burden of proof on the dog owner to show that the dog is not a restricted dog breed, and will limit the time for the owner to appeal a ruling that the dog is of an illegal breed.