SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION

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I Preliminary Statement, On December 2 2015 Petitioner Appellant the Nonhuman Rights Project. Inc NhRP filed a verified petition for a common law writ of habeas corpus and. order to show cause on behalf of a chimpanzee named Tommy in the New York. State Supreme Court New York County pursuant to New York Civil Practice Law. and Rules CPLR Article 70 2 This was the second petition filed by the NhRP. on Tommy s behalf Tommy II the first having been filed on December 2 2013. in the New York State Supreme Court Fulton County Tommy I Both lower. courts refused to issue the requested order to show cause. On appeal of the denial of Tommy I the New York State Supreme Court. Appellate Division Third Judicial Department Third Department affirmed the. ruling of the lower court and held that chimpanzees are not persons for the. purpose of demanding a common law writ of habeas corpus because they are. unable to bear duties and responsibilities People ex rel Nonhuman Rights Project. Inc v Lavery 124 A D 3d 148 150 53 3d Dept 2014 leave to appeal den 26. N Y 3d 902 2015, The New York County Supreme Court refused to issue the order to show. cause in Tommy II in part because it believed itself bound by Lavery stating. CPLR Article 70 governs the procedure applicable to all writs of habeas corpus. declined to the extent that the courts in the Third Dept determined the legality of. Tommy s detention an issue best addressed there R 14. Both Tommy I and Tommy II alleged that the scientific evidence contained. in accompanying affidavits demonstrated that chimpanzees are autonomous beings. entitled to be recognized as persons under the common law of habeas corpus and. within the meaning of CPLR Article 70 In addition and in response to the Lavery. holding Tommy II alleged that the scientific evidence contained in accompanying. supplemental affidavits demonstrated that chimpanzees possess the ability to. assume duties and responsibilities both within a chimpanzee community and. within a chimpanzee human community, The lower court and the Lavery court s rulings are erroneous First the. lower court fundamentally misunderstood the purpose of the common law writ of. habeas corpus which is to allow courts of competent jurisdiction to consider. arguments challenging restraint or confinement as contrary to governing law New. York courts have long allowed such challenges even when other areas of law did. not recognize the underlying substantive rights at issue while the lower court s. reasoning would summarily shut the doors of the state s judicial system to any. consideration of such challenges, Second the court in Lavery reached its conclusion on the basis of a. fundamentally flawed definition of legal personhood The court reasoned that. habeas corpus applies only to legal persons and essentially assumed that. chimpanzees cannot be legal persons Q E D Lavery 124 A D 3d at 150 52 But. that line of reasoning begged vital questions by relying on a classic but deeply. problematic and at the very least profoundly contested definition of legal. personhood as turning on an entity s present capacity to bear both rights and. duties Id at 151 52 This definition which would appear on its face to exclude. third trimester fetuses children and comatose adults among other entities whose. rights as persons the law protects importantly misunderstood the relationship. among rights duties and personhood,II THE THIRD DEPARTMENT S REASONING UNJUSTIFIABLY.
CURTAILS THE SCOPE OF HABEAS CORPUS, For centuries the New York Court of Appeals has recognized that the. common law writ of habeas corpus lies in all cases of imprisonment by. commitment detention confinement or restraint for whatever cause or under. whatever pretence People v McLeod 3 Hill 635 647 note j N Y 1842 3 In a. similar spirit the United States Supreme Court has emphasized that the writ s. scope and flexibility and its capacity to reach all manner of illegal detention. as well as its ability to cut through barriers of form and procedural mazes have. See also People ex rel Pruyne v Walts 122 N Y 238 241 42 1890 The common law writ. of habeas corpus was a writ in behalf of liberty and its purpose was to deliver a prisoner from. unjust imprisonment and illegal and improper restraint. always been emphasized and jealously guarded by courts and lawmakers Harris. v Nelson 394 U S 286 291 1969, By foreclosing any inquiry into whether the detention alleged in this case. was unlawful the lower court s reasoning confused the issue of habeas corpus. jurisdiction the question of whether and when a court has authority to entertain a. detainee s petition at all with the analytically separate issue of habeas corpus. relief the question of what substantive rights if any the detainee may invoke and. what remedy or remedies the detainee may properly seek. The court s refusal even to examine the character of Tommy s detention. rested on a misunderstanding of the crucial role the common law writ of habeas. corpus has played throughout history providing a forum to test the legality of. someone s ongoing restraint or detention This forum for review has been available. even when the ultimate conclusion is that the detention is lawful given all the. circumstances While the Third Department accurately observed that nonhuman. beings like chimpanzees have never before been provided habeas corpus relief by. New York courts 4 the court was wrong to assume that a state court s doors must. Lavery 124 A D 3d at 150 Petitioner does not cite any precedent and there appears to be. none in state law or under English common law that an animal could be considered a person. for the purposes of common law habeas corpus relief In fact habeas corpus relief has never. been provided to any nonhuman entity Since Lavery was decided the Supreme Court New. York County has ordered officials at a state university to show cause for detaining two. chimpanzees in another habeas case brought by the NhRP under Article 70 of the CPLR See. The Nonhuman Rights Project Inc v Stanley Jr M D 2015 WL 1804007 Sup 2015. be slammed shut to the plea made on a chimpanzee s behalf that the detention. complained of is contrary to law an assumption the court made on the basis of an. unexamined presumption that chimpanzees lack the requisite attributes of. personhood, Throughout history the writ of habeas corpus has served as a crucial. guarantor of liberty by providing a judicial forum to beings the law does not yet. recognize as having legal rights and responsibilities on a footing equal to others 5. For example human slaves famously used the common law writ of habeas corpus. in New York to challenge their bondage even when the law otherwise treated them. as mere things 6 Holding that Tommy and others like him are not welcome in. habeas courts is akin to holding that detained slaves infants or comatose. individuals cannot invoke the writ of habeas corpus to test the legality of their. detention based on an initial and largely unexamined conclusion about what kinds. of substantive legal rights and responsibilities those individuals might properly be. deemed to bear in various contexts Contrary to that holding New York courts. have throughout the state s history entertained petitions for writs of habeas corpus. amended in part 2015 WL 1812988 Sup 2015 16 N Y S 3d 898 903 Sup 2015 leave to. appeal den 2015 WL 5125507 N Y Sept 1 2015, E g Somerset v Stewart Lofft 1 98 Eng Rep 499 K B 1772. See In re Tom 5 Johns 365 N Y 1810 per curiam holding at a time when slavery was. legal in New York that a slave could bring a habeas corpus action against a man that he alleged. was illegally detaining him see also Lemmon v People 20 N Y 562 604 06 618 623 630 31. 1860 In re Belt 2 Edm Sel Cas 93 N Y Sup 1848 In re Kirk 1 Edm Sel Cas 315 N Y. Sup Ct 1846, from a wide variety of beings considered at the time to be incapable of bearing the.
same rights and responsibilities as most members of society including infants and. young children 7 incompetent elderly persons 8 and persons deemed insane 9. Cases like these recognize that the danger habeas corpus confronts forceful. but unjustified restraint and detention arguably in violation of applicable law can. exist even where the habeas petitioner lacks other legal rights and responsibilities. The Third Department s misguided focus on the character of these legal rights and. responsibilities to which the Supreme Court New York County believed itself. bound would immunize many forms of illegal detention from any judicial. examination whatsoever, That court s failure to distinguish between habeas jurisdiction and. entitlement to habeas relief also conflicts with the historical role of habeas corpus. in the jurisprudence of the U S Supreme Court In a series of landmark cases. gradually extending federal habeas corpus jurisdiction to detainees held at. People v Weissenbach 60 N Y 385 1875 hearing a habeas petition and concluding that the. constraint was lawful People ex rel Intner on Behalf of Harris v Surles 566 N Y S 2d 512. 515 Sup Ct 1991 In re M Dowle 8 Johns 328 N Y Sup Ct 1811 In re Conroy 54 How. Pr 432 N Y Sup Ct 1878 People v Hanna 3 How Pr 39 N Y Sup 1847. Brevorka ex rel Wittle v Schuse 227 A D 2d 969 4th Dept 1996 State v Connor 87 A D. 2d 511 511 12 1st Dept 1982, People ex rel Brown v Johnston 9 N Y 2d 482 485 1961 People ex rel Ledwith v Bd of. Trustees 238 N Y 403 408 1924 Sporza v German Sav Bank 192 N Y 8 15 1908 People. ex rel Morrell v Dold 189 N Y 546 1907 Williams v Dir of Long Island Home Ltd 37. A D 2d 568 570 2d Dept 1971 Matter of Gurland 286 A D 704 706 2d Dept 1955. People ex rel Ordway v St Saviour s Sanitarium 34 A D 363 N Y App Div 1898. Guantanamo Bay for example that Court clarified this distinction 10 In the 2004. case of Rasul v Bush 542 U S 466 470 2004 11 the Court limited its inquiry to. whether the federal courts are endowed with statutory jurisdiction under 28 U S C. 2241 to consider habeas challenges to the detention of noncitizens captured. abroad and held at the Guantanamo Bay Naval Base Without deciding whether the. Constitution requires full judicial review of detentions or indeed whether the. detainees in question were entitled to any substantive relief the Court held that. habeas jurisdiction over the petitioners challenges to their detention was proper. and the habeas petitioners were at least entitled to a decision on the merits of. their challenge Id at 485 see also LAURENCE TRIBE AND JOSHUA MATZ. UNCERTAIN JUSTICE 194 2014 hereafter Tribe and Matz. Four years later in Boumediene v Bush 552 U S 723 771 2008 the. Supreme Court held that the Suspension Clause entitled aliens designated as. enemy combatants and detained to use habeas corpus to challenge their detention. While this decision extended constitutional protection to detainees jurisdictional. right to habeas review the Court again made no decision as to the substantive. legality of the detentions at issue or as to whether habeas relief was proper Id at. See e g Richard H Fallon Jr Daniel J Meltzer Habeas Corpus Jurisdiction Substantive. Rights and the War on Terror 120 HARV L REV 2029 2034 2007 drawing analytical. distinction between jurisdictional questions involving the authority of a court to entertain a. detainee s petition at all and substantive questions involving whether the Executive has lawful. authority to detain particular categories of prisoners. Fallon and Meltzer supra note 9 at 2048, 795 12 As in these cases the jurisdictional question of whether Tommy s detention. can be challenged in the first place must not be conflated or confused with the. substantive merits of his habeas petition and the ultimate legality of his detention. III THE LAVERY COURT S RECIPROCITY BARRIER TO HABEAS. JURISDICTION IS DOUBLY UNSOUND, At the threshold the Lavery decision stemmed from that court s mistaken. view that Article 70 s13 limitation of habeas protection to legal persons should be. read to exclude all beings not capable of rights and duties Lavery 124 A D 3d at. 150 52 internal citations omitted It was that supposed incapacity that the Lavery. court and thus the lower court in this case treated as disqualifying chimpanzees as. a matter of law from entitlement to the protection of the habeas writ One need not. address the court s assumption that these great apes are automatically incapable of. being held accountable for their choices in order to challenge the court s. underlying conception of the r eciprocity between rights and responsibilities id. at 151 a conception that fundamentally misunderstands the relationship among. rights duties and legal personhood, A Legal Personhood Cannot Be Equated with the Capacity To Bear Rights.
The Court remanded to the Court of Appeals with instructions that it remand the cases to the. District Court for a decision on the merits of the habeas petition Id at 798 Five of the six. detainees in Boumediene were granted writs of habeas corpus and released See Boumediene v. Bush 579 F Supp 2d 191 198 D D C 2008 see also Tribe Matz supra. Article 70 of the CPLR sets forth the procedure for common law writ of habeas corpus. proceedings See CPLR 7001 the provisions of this article are applicable to common law or. statutory writs of habeas corpus and common law writs of certiorari to inquire into detention A. proceeding under this article is a special proceeding. N Y 3d 902 2015 The New York County Supreme Court refused to issue the order to show cause in Tommy II in part because it believed itself bound by Lavery stating 2 CPLR Article 70 governs the procedure applicable to all writs of habeas corpus

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