The Golden Retriever Rule: Alaska's Identity Privilege for Animal Adoption Agencies and for Adoptive Animal Owners

• Citation: Vol. 21
• Publication year: 2004

§ 21 Alaska L. Rev. 77. THE GOLDEN RETRIEVER RULE: ALASKA'S IDENTITY PRIVILEGE FOR ANIMAL ADOPTION AGENCIES AND FOR ADOPTIVE ANIMAL OWNERS

Alaska Law Review
Volume 21
Cited: 21 Alaska L. Rev. 77

THE GOLDEN RETRIEVER RULE: ALASKA'S IDENTITY PRIVILEGE FOR ANIMAL ADOPTION AGENCIES AND FOR ADOPTIVE ANIMAL OWNERS

JOHN J. TIEMESSEN JASON A. WEINER ^{[*] [**]}

INTRODUCTION

II. TESTIMONIAL PRIVILEGES IN ALASKA

III. THE NEED FOR UNIFORM PROTECTION FOR ANIMAL ADOPTION AGENCIES AND ADOPTIVE ANIMAL OWNERS

IV. ALASKA LAW ON THE STATUS OF COMPANION ANIMALS

V. JURISDICTIONS ADDRESSING THE DISCOVERABILITY OF ADOPTIVE FAMILY IDENTITIES

VI. WALL V. GYURICSKO

VII. CONCLUSION

FOOTNOTES

In this Comment, the authors examine recent national and Alaskan developments regarding a limited testimonial privilege for animal adoption agencies and adoptive owners. Unlike most testimonial privileges, this new privilege e did not exist at common law and has only a limited foundation in statutes or rules of evidence. The authors conclude by noting the effect this privilege has on replevin and conversion cases involving lost animals that have been adopted by new owners.

I. INTRODUCTION

Recently, in the case of Wall v. Gyuricsko, ^[1] Judge Mary E. Greene of the Alaska Superior Court for the Fourth Judicial District continued a trend established by the Vermont Supreme Court and the Georgia Court of Appeals by refusing to require a private, nonprofit animal rescue organization to disclose the identity of the [*pg 78] adoptive family of a rescued pet. ^[2] Like the published cases on the topic, Judge Greene's opinion did not overtly declare that she was establishing a testimonial privilege. ^[3] However, the court's justification for protecting the adoptive owners' identity -- avoiding harassment of the adoptive owner and promoting the adoption of impounded dogs -- was similar to that given by other courts. ^[4]

This Comment discusses the need for uniform protection for animal adoption agencies and adoptive animal owners by looking at statistics regarding animal ownership in the United States, debates among legal scholars about the status of companion animals, and the growth of adoption agencies for animals in the United States with a focus on Alaska. The Comment then explores existing Alaska case law on the status of animals in the state. Finally, the Comment will discuss recent case law from Alaska and other jurisdictions supporting the need for a testimonial privilege prohibiting the disclosure of the identities of adoptive families by animal adoption organizations. Should the Alaska Supreme Court refuse to recognize such a privilege, protective orders under Alaska Rule of Civil Procedure 26(c) should be a matter of course in animal custody disputes. ^[5]

II. TESTIMONIAL PRIVILEGES IN ALASKA

Under federal law, witness testimonial privileges are governed by the common law as interpreted in the "light of reason and experience." ^[6] While there is reluctance to recognize new privileges, this has not stopped the federal courts from adopting new privileges as justice requires. ^[7] Alaska Rule of Evidence 501 limits testimonial [*pg 79] privileges to those provided by the Constitution of the United States, the Alaska Constitution, enactments of the Alaska Legislature, the Rules of Evidence or other rules promulgated by the Alaska Supreme Court. ^[8] Despite the seemingly more restrictive nature of Alaska Rule of Evidence 501 as opposed to the corresponding federal rule, the Alaska Supreme Court has recognized a common law privilege applying standards adopted from the federal courts. ^[9] The Allred court specifically recognized that courts may create common law privileges when they find sufficient policy justification for doing so. ^[10] The principles expounded in that case have yet to be overturned by the Alaska Supreme Court.

III. THE NEED FOR UNIFORM PROTECTION FOR ANIMAL ADOPTION AGENCIES AND ADOPTIVE ANIMAL OWNERS

Statistics show that there are approximately 68 million dogs and 73 million cats owned in the United States. ^[11] Twenty percent of these pets are obtained from shelters. ^[12] This percentage has increased significantly from just five years ago, when only 13% of cat owners and 17% of dog owners had turned to shelters. ^[13] There are an estimated 6 to 8 million cats and dogs entering shelters each year, with 3 to 4 million cats and dogs being euthanized by these [*pg 80] shelters. ^[14] Further, of the dogs and cats entering shelters, only 15% to 30% of dogs and 2% to 5% of cats are reclaimed by their owners. ^[15] In seven years, one female cat and her offspring can theoretically produce 420,000 cats. ^[16] In six years, one female dog and her offspring can produce 67,000 dogs. ^[17]

The number of animal rescue groups across the country has grown in order to handle the ever-increasing animal population. ^[18] Golden Retriever Rescue of Fairbanks has compiled one of the most complete lists available of the various shelters and organizations in Alaska that are attempting to meet the needs of those who would adopt sheltered animals. They list 24 rescue organizations in Fairbanks alone and 18 statewide rescue organizations. ^[19] Additionally, most organized boroughs and many municipalities exercise animal control powers. ^[20]

Several articles written in recent years have explained how the law has adapted to reflect the increasing role of animals as "members of the family." For example, one article argues for a shift in the tort system's valuation of companion animals. ^[21] The author cites cases from Alaska, Florida, Hawaii, Louisiana, and Texas to show that some jurisdictions will consider mental distress damages in companion animal cases. ^[22] Another article discusses how common and statutory law across the country addresses one's owner-[*pg 81] ship rights in dogs and argues that existing lost property statutes "must be changed to recognize the special property interest an owner has with her pet dog." ^[23] The author advocates recognition of a dog owner's property right under state law through registration or licensing and then the protection of that interest under the procedural safeguards of the state's lost article statute. ^[24] A third article argues that "plaintiffs whose companion animals are wrongfully killed should at least be entitled to the same kind, though not necessarily the same magnitude, of common law damages as are parents of young children wrongfully killed." ^[25]

Two articles published in the last year have continued the arguments for treating animals more in line with the place they fill in many people's lives. The first article examines the continuing debate in recent years as to whether companion animal owners should be able to recover more than the market value of their pets when they are injured or killed as a result of tortious conduct. ^[26] The author concludes that "pet owners should be compensated for any emotional suffering or loss of companionship that results from wrongful conduct against their companion animal." ^[27]

Finally, the second article notes that there is a trend toward greater integration of companion animals into households. ^[28] The article "supports and promotes the idea that there is a rational basis for changing the way that companion animals should be valued by the legal system." ^[29]

IV. ALASKA LAW ON THE STATUS OF COMPANION ANIMALS

In a state where dog mushing is the official sport and where there are such a variety of public and private animal rescue organizations, one might be surprised to find that case law and statutory law addressing the parameters of pet adoption and pet ownership is [*pg 82] limited. ^[30] However, given the relatively low value of such claims, it is not surprising that most disputes over pets are resolved without judicial intervention or recourse to the appellate courts. ^[31]

Despite the dearth of precedent in this area, three recent cases do address the status of dogs in Alaska. In the most recent, Juelfs v. Gough, ^[32] parties to a divorce were fighting over canine visitation. ^[33] The wife in the dispute argued that "a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property." ^[34] The trial court ultimately held that the original order, which awarded legal and physical custody of the dog to the husband and allowed the wife reasonable visitation rights, depended on the parties' ability to cooperate. ^[35] Because the parties could not cooperate with regard to visitation, the order granting visitation rights to the wife had to be abandoned, leaving sole custody with the husband. ^[36]

The other two reported Alaska cases addressing the legal status of pets are Richardson v. Fairbanks North Star Borough ^[37] and Mitchell v. Heinrichs. ^[38] Together, these cases establish that pets "have legal status as items of personal property." ^[39] As personal property, the Alaska Supreme Court held that the damage award in cases where a dog has been wrongfully killed should ordinarily be limited to the animal's market value at the time of death. ^[40] In addition, the Richardson court recognized a cause of action for "intentional infliction of emotional distress for the intentional or reckless killing of a pet animal in an appropriate case." ^[41] The negligent destruction of a dog by an animal shelter, however, does not rise to a level that would allow for...