By Michael Mountain
In January, the Nonhuman Rights Project filed notices of appeal in each of our three cases on behalf of chimpanzees in New York State. We filed them in three separate appellate courts according to where the original lawsuits were filed.
Tommy’s appeal was filed in the Third Judicial Department; Kiko’s appeal was filed in the Fourth Judicial Department; Hercules and Leo’s appeal has been filed in the Second Judicial Department.
Although the appeals are essentially the same in each case, each department is treating its appeal in a different way. Since these are cases of first impression, the courts appear to lack a uniform understanding of how to deal with them. One clerk told us he had never seen anything like this before.
- In the Third Judicial Department, Tommy’s appeal is proceeding normally. We have "perfected our appeal" and filed our appellate brief. (A pdf copy is here.) This brief acts as an aid to the appellate department in arguing that the lower court erred in denying our petition for a common law writ of habeas corpus. The respondent’s reply brief is due by May 19.
- In the Second Judicial Department (Hercules and Leo’s case), the court took the unique opportunity to dismiss our appeal in response to a standard motion to admit attorney Steven M. Wise pro hac vice "on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice." We immediately filed a motion asking the court to reinstate our appeal, as New York’s habeas corpus statute expressly grants us the right to appeal and the appellate court apparently relied upon the wrong statute.
- Finally, in the Fourth Judicial Department (Kiko’s case), the lower court is currently refusing to rule on our motion to settle the record, which is required before we can proceed with our appeal. New York law requires the lower court not only to rule on our motion, but to settle the record so that we may proceed with the appeal. We have just filed a mandamus action directly in the Fourth Department asking that court to order the lower court to settle the record so that we may proceed with our appeal.
In short, our Third Department appeal is proceeding normally, while two other courts appear to be confused by what we are doing. This is understandable, since no petition for habeas corpus has ever been filed on behalf of a nonhuman animal in New York State, or in any of the 50 states.
Since all four chimpanzees continue to languish in reprehensible situations, and animal welfare laws do not provide a means of relief for them, we are moving as fast as possible in all three appellate courts to address any procedural concerns the courts may have so they can give full consideration to the real issues of each case as soon as possible.