Jon H. Hammer v. The American Kennel Club and Brittany Club of America, a/k/a The American Brittany Club, Inc.

Plaintiff, the owner of a Brittany Spaniel dog with an undocked tail, sought to enter his dog into AKC competitions.  However, AKC standards stated that any tail substantially over four inches long would be "severely penalized."  Plaintiff contended the practice of docking a dog’s tail (which oftentimes occurs without anesthesia or even under the proper care of a veterinarian) constituted an act of cruelty in violation of Agriculture and Markets Section 353 and was an arbitrary and capricious discriminatory standard.   Plaintiff sought both declaratory relief declaring that the practice is illegal and discriminatory and injunctive relief to enjoin the practice form being applied in New York and elsewhere.   In plaintiff’s amended verified complaint, plaintiff alleged that the AKC set standards for Brittany Spaniels in competition, which included the provision, “Any tail substantially more than four inches shall be severely penalized.”   Thus, the de facto object of the standard was to preclude a Brittany with a natural, undocked tail from effectively competing in AKC competitions.

In plaintiff’s memorandum of law in opposition to defendant’s motions to dismiss the complaint, plaintiff further elaborated on the necessity of the tail to a dog and how the procedure interferes with both a dog’s ability to communicate and the dog’s balance.   The AKC standards essentially mandated animal cruelty according to plaintiff.   The requisite anti-cruelty statute in New York specifically prohibits maiming and mutilation.  Rejecting defendant-AKC’s argument that a court may not become involved in “private” enterprises, plaintiff argued that the monopolistic exercise of power by the AKC brought then into the ambit of judicial scrutiny.  

In Defense of Animals, a national non-profit animal advocacy organization dedicated to ending the abuse of animals, also petitioned the court to appear as an amicus.   In its memorandum of law in support, IDA noted the various veterinary medical associations that have denounced cosmetic docking and also discussed the painful aspects of the procedure.   This was supported by a Resolution submitted by the American Veterinary Medical Association that denounced non-therapeutic, cosmetic tail docking.

The Supreme Court of the State of New York, County of New York denied defendants motions to dismiss the case.  The court found that plaintiff had standing under Section 353 because his action was not designed to enforce a private remedy under a state criminal statute, but rather sought a determination as to whether the docking of his dog's tail to enter an AKC competition would be subject to criminal prosecution.  This case ultimately climbed the ladder of appellate process.   On February 27, 2003, the Supreme Court of New York, New York County , 304 A.D.2d 74 (N.Y.A.D. 1 Dept.,2003); 758 N.Y.S.2d 276, 2003 N.Y. Slip Op. 11491 (2003) , held that plaintiff lacked standing to obtain any of the civil remedies he sought for the alleged violation of Agriculture and Markets Law Section 353.  The Legislature's inclusion of a complete scheme for enforcement of the section's provisions precluded the possibility that the state intended enforcement by private individuals as well. 

The dissent disagreed with the majority's standing analysis, finding that plaintiff's object is not to privately enforce § 353, insofar as seeking to have the defendants' prosecuted for cruelty.  Rather, plaintiff was seeking a declaration that the AKC's standard for judging the Brittany Spaniel deprives him of a benefit of membership on the basis of his unwillingness to violate a state law and, thus, he wanted to enjoin defendants from enforcing that standard against him.

The Court of Appeals later affirmed the lower court’s decision ( 803 N.E.2d 766 (N.Y., 2003); 1 N.Y.3d 294; 771 N.Y.S.2d 493, 2003 N.Y. Slip Op. 19691 (2003).   The issue in this appeal was whether Agriculture and Markets Law § 353 grants plaintiff, who wishes to enter his dog and compete without penalty in breed contests, a private right of action to preclude defendants from using a standard that encourages him to "dock" his Brittany Spaniel's tail.  The Court of Appeals, like the lower court, concluded that it would be inconsistent with the applicable legislative scheme to imply a private right of action in plaintiff's favor because the statute does not, either expressly or impliedly, incorporate a method for private citizens to obtain civil relief.  In light of the comprehensive statutory enforcement scheme, recognition of a private civil right of action is incompatible with the mechanisms chosen by the Legislature.