Legal Troubles are for the Birds

My friends often laugh at my passion for birding; but those of us who are birders understand and accept the occasional ribbing with good-natured humor (most of the time). For a more serious homily on offensive birder stereotypes, check out Susan's post here.

After regaling my friends about my upcoming move to a new home (only two weeks away!), my friend Janet asked "Beth, what will happen to all the birds that currently mooch off your numerous feeders? How will they know where to find you? Can you leave a trail of crumbs to the new place? This could be very traumatic for your flock…."

I got this email from Janet's husband, Andy, also a friend (I think) and a newly-minted law school graduate studying for the bar exam. Now I have to worry about being legally pursued by my backyard birds who seem to have quite a good case against me for removing the largesse they have enjoyed these past three years!

(I have edited the letter for space reasons)

Dear Ms. Russell,

It is an unconstitutional violation of the fourteenth amendment to deprive a person of life, liberty or property without due process of law. XIV amend., U.S. Const. Here, your wards (the birds) have come to rely upon your charitable contributions and that reliance is a property interest - which cannot be terminated without due process. There is also a liberty concern in whether you are requiring them to move to obtain their property.

For a violation that deprives a person of a property or liberty interest, both arguably at issue here, there must be a pre-termination hearing unless the situation can be resolved via a post-termination hearing without prejudice to the injured party. It is likely that a post-termination hearing, after you've moved their food supply to a new location, will negatively prejudice them as it will immediately deprive them of food, and will require a pre-termination hearing. Any such hearing must balance the private interests and the possibility of wrongful termination against the needs of the government.

There is a high likelihood of wrongful termination since you arbitrarily decided to move. These private interests likely outweigh the government's interest (that is, your interest) to move. Although I do not specifically address the issue, it is likely that an Eldridge hearing will hold that, at a minimum, you must continue to provide food at the present location until they agree to move or their needs are provided by other sources. You may defend by arguing that they are not citizens but you are unlikely to prevail. Termination of property rights based upon alienage classification is subject to strict scrutiny.

Though they are birds (Avian-Americans) they were likely born in the U.S. thus giving them jus soli as U.S. citizens. You may also argue that the XIV amendment only forbids state action and you are not a government entity. However, where an activity is a traditional government action by a private entity, the courts have found state action and applied the XIV amendment.

You are providing welfare, a traditional government activity, and the courts will likely find that the XIV amendment applies to you. Although I am not your attorney (in fact, I'm not an attorney at all), I'd strongly recommend settlement discussions with the birds to resolve their claims prior to a hearing or, more costly still, an action in federal court. Given the strength of the birds' position and the weakness of your defenses, the court could order you to continue feeding these birds and their progeny, forever. To ensure this result, the court could create a constructive trust after your death to ensure that your estate continues to provide support for these birds.Please let me know if you have any questions or concerns. My strong advice is to seek competent legal counsel immediately.

So it seems that since the birds are legally considered Avian-Americans (hee, hee) with all the rights and privileges afforded US citizens, it would be in my best interest to enter into mediated negotiations with them to reach a settlement!

*sigh*

I think Andy has too much time on his hands!