This is the latest in a series of habeas corpus petitions, uniformly unsuccessful but notable nonetheless, brought by the Nonhuman Rights Project in an effort to have various captive chimpanzees recognized as “persons.” The strategy is that granting habeas relief to chimps necessarily entails recognition of their personhood, since habeas relief is available only to “persons.” As with the others, this petition has been dismissed, but this time not without achieving the minor victory of having obtained a hearing on the merits.
As I have noted in previous posts, (here and here and here )this is the fourth attempt the Project has made to implement the strategy, each of the previous petitions having been filed and dismissed in a different Department. The previous attempts were all rejected at the inception, the judges refusing even to sign the initial orders to show cause. Two Appellate Division cases have affirmed the refusals. The Third Department held, in People ex rel. Nonhuman Rights Project, Inc. v Lavery, 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. The Fourth Department affirmed the dismissal in Matter of The Nonhuman Rights Project, Inc. v Presti, on the basis that habeas relief would not lie, regardless of whether a chimp is a “person,” since the Project wanted only to change the place of his confinement and not to release him.
The petition here is actually the second concerning Hercules and Leo, two chimps being held at SUNY Stony Brook. A previous petition involving the same chimps was presented to the Supreme Court in Suffolk County, and refused on the grounds that chimps are not “persons.” The Second Department dismissed petitioner’s appeal on its own motion, on grounds of non-appealability, without discussing the merits. By re-commencing the petition in New York County, the Project has completed the tour of the Departments.
Justice Jaffe issued an extensive and thoughtful opinion, ruling in the Project’s favor on all of the procedural issues (of which more below), and neatly summarizing the state of the law on personhood. She eventually found herself constrained to dismiss by the Third Department precedent in Lavery, holding directly that chimps are not “persons” and not entitled to habeas relief. To that extent and as regards the Project’s basic aim, the decision has nothing new. I find it interesting that she saw no reason to rely on the Fourth Department holding in Presti that a petition which does not seek actual release must be dismissed irrespective of “personhood.” Along the way, however, there were a number of threshold issues which should be noted. If the Project appeals, as it has in the past, and if any of the threshold issues are resolved against it, they might be dispositive without necessitating a decision on the merits. On the other hand, resolution of these issues in the Project’s favor would facilitate continued efforts, possibly leading to a Court of Appeals hearing.
Most significant, to my mind, is the preclusive effect of the dismissal of the initial petition regarding Hercules and Leo. The Project does not contend that any facts of substance have changed since then. Why should it be allowed to circumvent that ruling with another petition, hoping to find a more sympathetic judge? Justice Jaffe found that there is no bar to successive habeas petitions, and that there is no preclusive effect. Moreover, she did not find the first dismissal to have been a final judgment on the merits. She found no requirement that the successive petitions be presented to the same judge as the first.
Does the Project have standing to bring the petition on behalf of Hercules and Leo, with whom (which?) is has no connection? Justice Jaffe found that there is no standing requirement in habeas proceedings, which may be brought by any person.
Is New York County a proper venue for a habeas proceeding where the confinement is in Suffolk County? Justice Jaffe found that CPLR 7002 (allowing the writ to be presented to the Supreme Court in the county where the person is detained, or to any justice of the Supreme Court) allowed the petition to be presented to the Supreme Court in New York County; and that CPLR 7004 (petitions for discharge from “state institutions” must be made returnable in the county where the person is detained, and in other cases must be returnable in the county of detention) did not require the order to show cause to be made returnable in Suffolk County.
If the matter proceeds to the First Department, and survives the threshold issues, we might have another appellate statement on the underlying personhood issue, as in Lavery. Or, the court might simply follow the Fourth Department in Presti, holding that there is no point in granting the chimps’ release from SUNY Stony Brook, merely to allow them to be kept in a different facility lacking any superior fundamental right to do so.
(Note: The link to the opinion has been updated to link to the Official Reporter’s website.)