I have previously reported attempts by the Nonhuman Rights Project to have chimpanzees recognized as legal persons, through the vehicle of writs of habeas corpus. (here and here) Well, here we go again.
The New York Times reported yesterday that a judge in Supreme Court, New York County has signed an Order to Show Cause for a writ of habeas corpus relating to Hercules and Leo, two chimpanzees kept at SUNY Stony Brook. The petition is at least the fourth such brought by the Nonhuman Rights Project, one in each Department. The main argument made in the petitions is that chimpanzees, being undeniably sentient, intelligent beings, are “persons” within the meaning of the Great Writ of habeas corpus, and are therefore entitled to its protections. As the article properly notes, merely signing the Order to Show Cause is not an indication that the judge will ultimately grant the writ and declare the chimpanzees to be legal persons. The initial press release by the Nonhuman Rights Project trumpeted the claim that by signing the Order to Show Cause, the court necessarily recognized the humanity of Hercules and Leo. That seems an overly optimistic reading. As if to underscore that point, the judge later amended the order by striking the words “& WRIT OF HABEAS CORPUS”. Still, this is the first time one of these proposed Orders to Show Cause has actually been signed, and therefore the first time one will reach the stage of a hearing.
The petitions in the Second, Third and Fourth Departments were uniformly unsuccessful. A Fulton County judge refused to sign an Order to Show Cause regarding a chimp named Tommy, holding that a chimpanzee is not a person. The Third Department agreed, in People ex rel. Nonhuman Rights Project, Inc. v Lavery , noting that since chimps cannot bear any legal duties or be held legally accountable for their actions, it would be inappropriate to confer legal rights on them. A judge in Niagara County refused to sign an Order to Show Cause for a chimp named Kiko. The Fourth Department affirmed in Matter of The Nonhuman Rights Project, Inc. v Presti, on the basis that the petitioners did not in fact seek Kiko’s release, but merely wanted to change the conditions of his confinement. Release from confinement being the entire point of habeas relief, this meant that the petition was properly dismissed whether or not Kiko could be deemed a “person.”
The petition in the Second Department also concerned Hercules and Leo, and never got consideration on the merits in the Appellate Division. A Suffolk County judge refused to sign the Order to Show Cause, stating that the chimps were not “persons.” The Second Department dismissed the appeal on its own motion, holding that there was no appeal as of right, since the order did not decide a motion on notice, and declining to grant permission to appeal. This is itself an interesting issue, since CPLR 7011 explicitly states that “[a]n appeal may be taken from a judgment refusing to grant a writ of habeas corpus or refusing to sign an order to show cause”. The Third Department opinion in Tommy’s case noted that the judgment refusing to sign the order to show cause finally determined the matter and was therefore appealable as of right. (The Nonhuman Rights Project maintains a blog which presents its filings and the orders.)
Be that as it may, the cause of Hercules and Leo has been re-filed in Manhattan, and the tour of the Departments will be complete. The return date is May 6.