Transcript Excerpt: Hearing on Personhood for Happy, an Elephant
Nonhuman Rights Project on Behalf of Happy, an Elephant v Brehany
In the Supreme Court of Bronx County, NY before Justice Alison Tuitt (September 23, 2019)
The excerpt below constitutes the heart of the oral argument that considered the merits of the NhRP's claim that Happy was "a person" entitled to a writ of habeas corpus freeing her current captivity on a 1.1 acre lot at New York's Bronx Zoo.
Happy, an elephant kept at the Bronx Zoo
Pages 56-90
Steven Wise: Now, a person, you know, is not now and never has been and never will be synonymous with human being. So, as we know for many, for centuries there are -- and in fact I think as we point out in our briefs -- during the 13th Century in England Jews were not persons. Sometimes women were not persons. Sometimes Blacks were not persons. Sometimes Native Americans or Chinese were not persons. That's -- and on the other hand we know that that it is not just humans who are persons, corporations, corporations are persons, ships are persons, The City of New York is a person. And now The Nonhuman Rights Project works outside the U.S. as well so we are aware of the fact that, for example, in the last three years in New Zealand, the Whanganui River -- W-h-a-n-g-a-n-u-i, has been declared a person. In New Zealand the national park has been declared to be a person. The Ganges River has been declared to be a person in India. Last year the Colombian Constitutional Court held that the part of the Amazon Rain Forest within the City of Columbia was a person. And what that simply means is that person it is something that that entity is seen as having more than just instrumental value, more than just value to use, but it is seen whatever it is, whether it's alive or not alive, it's seen as having inherent value in and of itself.
THE COURT: I agree with following your logic, but has there been a court that determined that an animal was a person?
MR. WISE: I'm glad you asked that question.
THE COURT: Well?
MR. WISE: Yes.
THE COURT: So am I --
MR. WISE: If there has been? There has been in Argentina, a chimpanzee named Cecilia. A writ of habeas corpus was sought on behalf of the Cecilia in Mendosa, Argentina. A writ of habeas corpus was issued. She was moved from a zoo and then ordered by the judge to be sent to a sanctuary in Brazil.
THE COURT: But did they say the chimpanzee was a person?
MR. WISE: Yes. They said she was a quote, nonhuman person --
THE COURT: Okay.
MR. WISE: -- in Columbia, and the Nonhuman Rights Project is somewhat involved in this. There is a spectacled bear there named Chucho, C-h-u-c-h-o, and, and her lawyer sought a writ of habeas corpus to have Chucho removed from the zoo and be put back in the wild. The lowest court issued the writ of habeas corpus, a higher court reversed that and then as the Constitutional Court of Columbia said it was a matter of great public importance and said I want to hear that case, and in fact the Nonhuman Rights Project was invited to submit a video arguing why Chucho should be seen as a person for rights for the purpose of a writ of habeas corpus in the Columbian Constitutional Court. In the Indian Supreme Court --
THE COURT: What happened in the Chucho case?
MR. WISE: Chucho is now in Columbia --
THE COURT: Okay.
MR. WISE: -- we sent the video about three weeks ago, and the Columbia Constitutional Court has not yet made its ruling.
THE COURT: Okay.
MR. WISE: In India, in the Nagraja case in 2014, the Indian Supreme Court said that every nonhuman animal in India was a person and had both statutory and constitutional rights. We have been to Indian and have spoken to the justice on the Indian Supreme Court and we -- that's clearly what indeed he said. And we are involved in bringing a lawsuit like on behalf of an elephant in India to test the limits of what they meant.
THE COURT: So --
MR. WISE: So the answer to that is yes.
THE COURT: -- what context was the elephant in India?
MR. WISE: The elephant -- we had not picked our specific elephant, but it will be a baby elephant.
THE COURT: No, but what led to --
MR. WISE: The Nagraja case?
THE COURT: Yes, what where the facts?
MR. WISE: The Nagraja case involved a cow. There was an Indian religious ceremony, and part of that religious ceremony people were like kicking and beating and hitting the cow. It was part of a Hindu ceremony. And a lawsuit was brought on behalf of what is called the Animal Welfare Board in Indian saying that --
THE COURT: Okay.
MR. WISE: -- that this -- these bullocks should be able to be legal persons and have certain kinds of rights. And the Indian Supreme Court stated that they did indeed have both constitutional and statutory rights in India. Not only they did, but all of India. Since then there have been two other cases, one by -- one that said horses that were being taken from northern India to Nepal were not being treated properly. They were a subject of a lawsuit and the high court of that province, and I can never, I can never pronounce the name, Taraconned, held that indeed they were persons, and also noted that every being with wings and every being who swam was also a person in that province. And then about six months ago another high court judge in another province also with respect to -- I can't remember the latest one -- said again all nonhuman animals within that province were persons who had certain kinds of statutory and constitutional rights.
THE COURT: But these are international cases?
MR. WISE: Yes.
THE COURT: There's never been a national case?
MR. WISE: Within the U.S. the only entity which I am aware that's litigating in any kind of a systematic way the question of whether any nonhuman animal should be just more than a legal thing, but should be a person, is, is The Nonhuman Rights Project. And if I could just jump to the last sentence of Judge Fahey's decision. His concurring opinion.
THE COURT: Yes.
MR. WISE: The third time that he saw, on behalf of the chimpanzee.
THE COURT: Yes.
MR. WISE: He said that -- I don't know the exact words -- it is approximately -- that it's clear that, that, that it may be arguable -- he said, it may be arguable that a chimpanzee is a person. He didn't, he didn't say it was, he just said it may be arguable. But it is certainly not a thing. And in law this is a bifurcation, one is either a thing who lacks the capacity for any kind of rights, or one is a person who has the capacity for rights. Now, one important thing that many lawyers even don't grasp, and this was also talked about in another case, I will be talking about which is Byrn versus New York Hospital, which is the, the leading case in New York on the question of how you decide who is a person and who is a thing. B-y-r-n. And the Byrn case reminded us that if you are a -- you can be a person for one thing or two things or five things, it doesn't mean that once you're a person, it means you have all the rights of every other person.
THE COURT: Okay.
MR. WISE: So, for example, in Byrn -- Byrn is also a spectacular case for showing that humans and persons are not synonyms because Byrn was a 1972 case involving a liberalization of the abortion statute. It was pre Roe v. Wade. It was just the year before Roe v. Wade, so there was a liberalization of abortion. And the question then -- somebody got an injunction -- and the question was whether a human fetus was a person, and then had, specifically, the right to life. And the New York Court of Appeals then said that a human embryo or human -- human fetus is a human, but then held it was not a person. Did not -- it did not have these rights. So the leading case in New York State on the issue of who is a person and who is not a person makes it completely clear that, that being a human had nothing to do with being a person. In fact, it says that the way that a court is supposed to determine who a person is, is by making a public policy decision. And one of the things I will talk about is why this court should make the public policy decision in favor of saying that Happy is entitled to, is entitled to a personhood for the single purpose, just for the single purpose of having a right to liberty protected by a writ of habeas corpus. And if I may also then kind of segue into something that's very related, we argue, because it's – I think it's true that in New York State the legislature already set a public policy that nonhuman animals can be persons and that they are persons and --
THE COURT: What statute is that?
MR. WISE: That's under EPTL 7-8.1. And that --
THE COURT: Okay.
MR. WISE: -- that's the Petra Statute.
THE COURT: All right.
MR. WISE: So what happened is that in 1996 you have a legislature pass -- 1996 -- pass a statute that specifically says that pet owners can set up a trust of which, which a nonhuman animal is not an honorary beneficiary, they are true beneficiaries, they have a right to a person -- if a nonhuman animal or any human being has a right to anything, then they are automatically persons and have trustees and they also have enforcers because of course the nonhuman animal can't enforce it herself. So the New York Legislature twenty-three years ago said that nonhuman animals can be -- they didn't say that they are persons, they said we are giving them rights, we are giving them rights of beneficiary. And under New York law a person beneficiary has to be a person. You have to have a right to the trust. And in New York you have that. So the real argument that we are making is that we argue that nonhuman animals already seen as persons for the purposes of the Petra Statute, now we are not asking for the first way, we are asking the nonhuman animal -- we are asking for the second right, that certain nonhuman animals there, I think it's pets and domestic animals for the Petra Statute, certain nonhuman animals that had self-developed, that are autonomous, they are extraordinarily cognitively complex, that they have complex social lives and whose, you know, whose very, very entity of Telos, T-e-l-o-s, the very entity who they are is undermined severely when they are not, when they are imprisoned against their will, they are not allowed to live the lives of an elephant. And so we are saying animals like that and that's elephants, for example, chimpanzees for example, possibly whales, but each time in order to make that kind of an argument the first thing we do is that we put in these affidavits for which we did with respect to chimpanzees, we did with respect elephants. We go all over the world to the greatest scientists that spend their whole life studying these animals. For example, for the chimpanzees we went to Jane Goodall, she is also a member The Nonhuman Rights Project and we went to, oh, chimpanzee experts all over world that then showed the chimpanzee -- for instance, we went to Joyce Poole. You will see five expert affidavits. These are scientists that have some of them spent more than fifty years in all they have done is been in the wild studying elephant behavior.
THE COURT: Let me ask you, what would the remedy be for Happy that he would not -- she would not be imprisoned in the zoo, but be taken to a sanctuary?
MR. WISE: The, the remedy for Happy is that she would be, -to be removed from the zoo and be placed in an appropriate sanctuary.
THE COURT: Now, what would make that an appropriate place for her to be as opposed to the zoo, which is in my opinion -- let me, with my limited knowledge of this -- is supposed to provide some place that is also accommodating to every animal, that's in the zoo. Is that a suitable place for them to habitate?
MR. WISE: Well, I think it is undisputed that Happy has spent approximately forty years on 1.1 acres of land.
THE COURT: Okay.
MR. WISE: Happy is an elephant. We have expert affidavits addressing that. And an elephant, if you're like a normal elephant --
THE COURT: Okay.
MR. WISE: -- a normal elephant is, especially a female elephant like Happy, is part of large herd and they have sisters and aunts, they have nieces. They are -- it's a very, very complex network, and they move as one. Our expert say -- Joyce Poole said elephants evolve to move, and what they do is they are on the move all day either foraging or engaged in a wide and deeply complex network of interactions with other elephants. That's what you need to understand.
THE COURT: Well, what would make you think that Happy, who has been there for forty years, would be able to survive in any other environment?
MR. WISE: Oh, let me don't forget I want to, I want to --
THE COURT: I mean, because --
MR. WISE: -- I don't want to forget the other one.
THE COURT: You seem to say, and I am not --
MR. WISE: I have an answer for this.
THE COURT: -- I am not disagreeing that the person should -- the personship is the real issue because if you don't get all of that, these questions are not non-existent, but signs. I have you here and I can educate myself a little bit. What would make you think that if we remove Happy, who has been here for forty years in this environment, would be able to even survive in another type of environment?
MR. WISE: Okay. If I -- let me just answer the -- let me just answer the last part of the first question that you asked, then I will answer this one.
THE COURT: Okay.
MR. WISE: Happy has lived on 1 acre of land. There is two elephant sanctuaries in the south she could go to. One is the Performing Animal Welfare Society outside of Sacramento, where she would be on dozens and dozens of rolling land. We have affidavits here. There is another one here, Tennessee Elephant Sanctuary. I can represent to the Court I have spoken to the people that run it and they, they will take Happy in a second and come get her and take her. It's almost twenty-six hundred acres and there are other elephants. Happy would become part of an artificial herd there and she would have twenty-six hundred acres.
THE COURT: Who said she would not? Let's say that there is a tribal familial structure within the elephant kingdom, who said she would be welcomed?
MR. WISE: I will answer that question. Dr. Joyce Poole said so.
THE COURT: Somebody from outside of the family would be welcomed, welcomed with no harm?
MR. WISE: Indeed. Dr. Poole says that in her --when I get this -- right in her second supplemental affidavit. Dr. Poole. And the reason she did that is one of my brother's affidavits raised the exact same issue that the Court just raised, and she has an immense amount of experience with moving and knows -- with moving elephants from places that are really bad for them to places that are really good. And she -- before the Court gets example after example after example -- for elephants even having severe problems in one place because the reason why anyone might have servers problems is because they are overcrowded, they are alone, they don't -- they are not living an elephant life. And when you move an elephant from one place to these other places, she then lists many of them and shows how they just blossomed and became part of another family and became elephants and just because, just because -- Dr. Poole might think the Court might have these sorts of questions, and if 2 I may also comment on the quality of the affidavit that my brother filed, all of our, all of our affidavits are from experts, all we did is start calling up experts all over the world saying will you write an affidavit. And so there is one from Africa, one from Norway, one from Scotland, one from England, who spend their lives, as much as their lives they can in Africa actually studying elephant behavior. Dr. Poole is and Cynthia Moss have spent fifty years in all they have studied, the study the African Elephant.
THE COURT: But not East Asian?
MR. WISE: Dr. Poole also talks about the fact she has studied East Asian Elephants as well. There is very little difference between East Asian and African Elephants.
THE COURT: I thought there was.
MR. WISE: Asian Elephants are taller, but with respect to cognition, there is very little difference, according to Dr. Poole. I am just a country lawyer so I don't know this type of stuff, but --
THE COURT: Well, I am a sitting Judge that doesn't know anything about the elephant population, but --
MR. WISE: That's why we have affidavits for the Court. And if I may? So, so --
THE COURT: Yes.
MR. WISE: -- they are unrebutted affidavits. Dr. Poole also noted, for example, that my brother's client, the Wildlife Conservation Society, has two thousand or three thousand employees. And that they have, you know, really good elephant scientists on their staff. And not a single elephant scientist has rebutted or submitted an affidavit, not a single elephant scientist in the entire world has submitted an affidavit. The only elephant scientist that submitted an affidavit are our five elephant scientists. And it is probably clear what a reputable elephant scientist is going to submit an affidavit to say it is better for Happy so live by herself on 1 acre of land in the Bronx Zoo than go to a sanctuary where she will live in a herd and be living on twenty-six hundred acres of land. There aren't any.
THE COURT: I don't know.
MR. WISE: It's just a hint, there aren't any. I believe that there aren't. So the only affidavits that my brother has submitted are ones in which he is attempting to rebut an issue that we don't bring up, which is that they are saying, oh, we treated -- we make sure that, that she is clean and that she gets fed and she has veterinary care. What they are doing is they basically treat her -- and try and make sure she doesn't die in their hands, because they do die. One of the elephants just died within the last year. And there is a litany. I can start talking about the elephants that, even Happy, Happy has lived with that then died or were killed by one of the other elephants. So --
THE COURT: Well, that's just -- isn't that just nature though?
MR. WISE: No, it's not. It's the idea that a female elephant can kill another female elephant is virtually unheard of. They are not like chimpanzees, they don't do that to each other. And Dr. Poole says the reason they would do that here is because they have become asocial. They are like living alone, living asocially. They also don't have a chance to choose who their friends are going to be. It's like, it's like I'm brought somewhere and you say you have your choice of friends for forty years --
(Counsel was directed to speak louder.)
MR. WISE: -- and that's the only choice have you, and turns out one of the three elephants that Happy was living with, those two that not only attacked her, but also killed her companion. And so all of this is in the record in our affidavit. So Happy is essentially alone. A social animal. It's like you and I being thrown into solitary confinement without doing anything and we are kept there for forty years. And just as my brother says, well, you know, they have these human caretakers, she becomes bonded, and Dr. Poole says humans, they don't, they don't do anything, they are not going to help Happy. Happy is an elephant that needs to be with elephants. And no matter how many human caretakers you have watching her and giving her food and veterinary care, the fact is she is on one acre of land, that's like a suburban back yard. I could not live on one 1.1 acre of land for forty years. The idea that an elephant goes twenty miles a day is going to live on one acre of land by herself it is not appropriate for an elephant in a place where other elephants are with twenty-six hundred acres. That's the place for an elephant. Which brings me back to the quality of the affidavit that my brother indeed has, first of all three, all three are employees of the defendant, unlike our own case, there are no independent experts. Second of all, none of them are experts, there is not a single one there who, who says that they even examined Happy or know Happy. They never said they know anything about elephants. Mr. Breheny has a Master's Degree in Biology compared to our experts that all have at least one Ph.D. and have spent their whole lives doing field work. Mr. Breheny is, you will excuse the expression, he's a suit and has been an administrator, he's been the head of Bronx Zoo for fourteen years. It's not particularly his fault. I think they said they have something like three thousand species of animals. Mr. Breheny is not an expert in three thousand species of animal. He's probably not an expert in any, and he certainly has not never stated he has any training or any expertise at all in animals. The other person, the second person is the chief veterinarian there who never says he's even met Happy, he just says that basically I hear that Happy's healthy. But they are not talking -- we are not talking about whether Happy is healthy or not, we are talking about whether Happy can live the life of an elephant because habeas corpus is not meant to protect health, it's meant to protect liberty. If they are saying she is being treated in a bad way, we don't bring a writ of habeas corpus. That doesn't address that. It addresses the legality of somebody's retention, and we are saying the retention alone is what we are talking about. And the third affidavit is simply another administrator saying whether the Animal Welfare Act is being followed, and you get something about that and all regulations in the Animal Welfare Act, but the Animal Welfare Act and regulations are the same sort of thing. How many times are you feeding the prisoner. How many times are you washing the prisoner. How many times do you wash the prisoner's trunk. How many times -- how many hours do you let the prisoner outside. How many hours do you put him back in. And then for an elephant, this is an Indian Elephant who -- New York City is a wonderful place – Indian Elephants don't belong living in New York City, you know, period. And even the Bronx Zoo knows they should not be outside. So what they then do -- she doesn't even live on 1.1 an acre of land -- they have to put her inside of a building for at least half of the year. This is not how one should treat an elephant, right? It's just not. And it's not my, it's not my opinion, it's the opinion of about five of our experts, and the opinion of Joyce Poole, including Joyce Poole, she is saying what happens when you treat them like this is that they get sick, they get aggressive, they get depressed, and they get psychotic. They become antisocial and -- however, she also says the remedy for this and then she lists all these problems, so-called problems elephants that have been taken out of, of a terrible place like Happy is in and brought to a sanctuary. That's the remedy. They just flourish overnight. You read all the time about people that have been convicted wrongly of crimes for thirty years or forty years, they don't want to stay in, they want out. And when they go out they go back and try and live the best lives they can. Happy would do -- it would be exactly the same thing for Happy.
THE COURT: Okay.
MR. WISE: I want to make sure I answered the Court's questions on that.
THE COURT: Do you have more argument, legal argument?
MR. WISE: If I may?
THE COURT: Please.
MR. WISE: Thank you, Your Honor.
Now, I want to get to the issue of, the legal issue of why this Court is not bound, and I almost, I almost talked about that, why it is not bound by the Lavery II decision and why it should not pay attention to the dicta and of it and why -- and why it's not bound by Lavery I, and why it should not pay attention to that either. I have already explained with respect to Lavery II, which is a First Department case that the Court said that without even addressing the merits of the petitioner's arguments, we are going to find that, that they, that the motion court properly declined to sign the order since these were, since these were successive habeas corpus petitions. And so that is under CPLR, 7003(b), means it's a procedural statute. So the Court affirmed, the First Department affirmed the lower department on the procedural point and therefore anything else that they said is dicta. Now, the next -- Lavery I and Lavery II are not even stare decisis for this Court because they are both grounded on demonstrable and misunderstandings of the law, and we cite case law several pages talking about the fact that an exception to a lower court being bound by even a higher court, there is an exception on the stare decisis when there's been a demonstrable misunderstanding of the law. Now, I am going to tell you what those demonstrable misunderstandings of the law are. One of them --
THE COURT: I'm ready.
MR. WISE: -- one of them is the idea that personhood, that in order to have a right, you have to be able to have a duty, to be able to bear duties. And I already talked a great deal about why Lavery I, which was then kind of automatically without any further analysis, Lavery II, why they were the first court in the world to ever do and to ever say that, and why it really makes no sense for them to do that. And the other one is that when both Lavery I and Lavery II seem to say, well, look, you have to be human, being human is a necessary condition of the rights, why that also is demonstrably missing as well, and here are the reasons why they are just not regularly demonstrably missing, but they are demonstrably missing of law.
THE COURT: Okay.
MR. WISE: The first one is they contradict the Byrn case which is, I had talked about Byrn versus New York Hospital, and at page 201 in the Byrn case, the Byrn case says, and I quote, a legal person dot, dot, dot, simply means that upon -- according to legal personality to a thing the law affords it the rights and privileges of a legal person, unquote. There is not a single word in the leading case in New York State on who is a person. And as to anybody having to be able to bear duties it says when you are a person the law affords you the rights and privileges of a legal person, it does not say that it then also – that imposes duties upon you. That's not to say it can't impose duties upon you, but it does not have to impose duties upon you, and that's what the New York Court of Appeals said at Page 201 in Byrn, which is 1972. So, it is been around now for quite some time and it's never been overruled, and it probably won't be because that's what, that's what over the last four hundred years what legal personhood has always meant in Anglo-English speaking world.
THE COURT: The fact in this case, just tell me that --
MR. WISE: The facts in Byrn?
THE COURT: Just tell me.
MR. WISE: I will tell you real quick, I will remind you, it had to do with the question of whether a fetus was a person.
THE COURT: A fetus, okay.
MR. WISE: There's a lot of cases --
THE COURT: The abortion -- the liberalization of the abortion law.
MR. WISE: Yes, indeed. If I could just do a little segue. One of the things my brother argued, he said that there was a concurring opinion, and sometimes judges have also said, well, this is really a legislative issue and that this for the legislature too because of its value. And when you work -- and that, by the way, that's not the Byrn case, that's not the majority opinion. If you go look at that concurring opinion you see that a case called Corkey, C-o-r-k-e-y, that's the first case that was cited, Corkey, that said that, and then you look and you realize that within a year, Roe versus Wade was decided, which nullifies what that concurring justice said caused the DC Circuit to reverse the Corkey case and remanded it to be revisited in light of Roe versus Wade. So, whether or not you believe in that concurring opinion, it is because of the value you have that a court can't make that kind of a decision, well, Roe versus Wade said I don't agree, and the case that concurring opinion relied upon was indeed immediately overturned.
THE COURT: Okay.
MR. WISE: Now, Byrn also said -- it's a short case, but has a lot of interesting and powerful ideas concerning who a person is.
THE COURT: Okay.
MR. WISE: Byrn also said that, Byrn also said that personhood is not a matter of quote, biological or natural correspondence, unquote. In other words, just because the fetus is a human, that human, that doesn't mean the fetus is a person or is not a person.
THE COURT: Okay.
MR. WISE: So there they say, they said the fetus even though it was human was not a person, but making a determination is not a biological issue, and -- but that's exactly what the Third Department did, and --
THE COURT: Okay.
MR. WISE: -- what the First Department did, you don't get to be the chimpanzee, you don't get to, to be a person because you are not a human being. Well, that's exactly what Byrn said you cannot do.
THE COURT: Okay.
MR. WISE: Now, Judge Fahey -- then they also said it requires a determination as to whether legal person should attach, and I will talk to you in a minute about how Judge Fahey says that that should be done as well as Byrn. So, Judge Fahey said that Lavery II, the First Department conclusions that a chimpanzee could not be considered -- I am quoting that, Lavery II is quote, conclusion that a, that a chimpanzee cannot be considered a person, and is not entitled to habeas corpus relief is in fact based upon nothing more than the premise that a chimpanzee is not a member of the human species, unquote. And that he understood directly contradicted Byrn, just as I am saying Judge Fahey's opinion as well. Judge Fahey also noted that even if it was correct, he said that, that nonhuman animals cannot bear duties, the same is true of a human infant or a comatose human adult, but nobody would impose -- it's improper to seek a writ of habeas corpus on their behalf. Now, I mentioned the People versus Graves case, that it is common knowledge that persons can and sometimes do attach to nonhuman entities, like corporations and animals and it had cited to the Presti case. Now it also then cited to Byrn. The reason I didn't mention it the first time is because I had not explained what Byrn was.
THE COURT: Yes.
MR. WISE: But it cites right after Presti, it, it cites to Byrn, and the reason it says that it is not a question of biology. In other words, in the Graves case a corporation can be, can be a person has well, but the personhood is not a matter of biology, it is a matter of public policy, and that's what the Byrn case says. In fact, Page 201 of the Byrn case says, whether the law should accord legal personality is a policy question, not a biological question, a policy question. Now -- then Judge Fahey then picks it up and he explains what the policy question, what the policy involved is and he does that at Page 157 in this Court of Appeals currents. He says that, and I quote, the better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same right or duties as a human being, but instead whether he or she has a right to liberty protected by habeas corpus. Protected. That question is one of precise, moral and legal statutes is the one that matters here. Moreover, the answer to that question will depend upon our assessment of the intrinsic nature of chimpanzees as a species, end quote. Which is exactly the argument we are making today with animals. The question as to whether or not Happy should have the right to liberty protected by a writ of habeas corpus, that is the question before you, and should depend upon the Court's assessment, the intrinsic nature of elephant as a species, which is why The Nonhuman Rights Project delivered seventy or eighty or one hundred pages of affidavits and from all the experts in the world that says exactly what, you know, who elephants are and what their extraordinary cognitive abilities are. Now, the Lavery I case then was, then was – the Lavery I case involving Tommy the chimpanzee, a Third Department case.
THE COURT: Right.
MR. WISE: Was clearly wrong in stating that the legal personhood has consistently been defined as duties, if that means the past are required, past are required, I mean that's where -- they –
(Counsel directed to speak louder.)
THE COURT: All right.
MR. WISE: -- I give them respect for saying it, but it is simply false. They, they, they literally are the first and most speaking court in the world to ever say this. It is our, our, um, legal person that has never been, not only been inconsistently defined that way it's never been defined that way as should be obvious from Byrn. I don't know if I said this, that this person -- I want to make it clear, that a person is an entity who has the capacity either for a right or for a duty, one or the other. You are a person. Now, once you are a person, you then have the capacity for either, but you do not have to have the capacity for both right and duties, which is why Byrn says when you are a person you're then entitled to the right and privileges of a person. Then some of the secondary sources that we cite, by the way, are the ones that the Court of Appeals cites in the Byrn case in order to support their argument about what a person is. So, for example, Dean Pound. Dean Pound wrote that, quote, the significance of legal personality is the capacity for rights -- and period -- it is -- he doesn't talk about the fact that you have to have duties, these are, and are the reason I am using these examples are these examples that Byrn himself used. In the Salmond on Jurisprudence, which is also what Blacks said they said, that Salmond actually said that that person means, personhood means you're capable of rights and duties, and that Blacks got it wrong. When we complained about it --
THE COURT: Yes.
MR. WISE: -- the Eleventh Edition, they quoted him correctly. Also there is John Chipman Gray who wrote at the end of the 19th Century. He had wrote the nature and sources of the law and he said what my brother says that -- I'm sorry, the Third Department says that Gray stated that, quote, the legal meaning of a person is the subject of legal rights and duties. The problem with that is they left out the following sentence, and that sentence says that, quote, one who has rights but not duties or had duties but not rights is a person. So the Third Department simply misunderstood what John Chipman Gray had been saying. He was talking about rights and duties in the way I am talking about them, that in order to be a person you can, either rights or duties will make you a person, but once you're a person then you can have both rights and duties, but you don't have to have both. And so John Chipman Gray then explained himself clearly, one who has rights but not duties or duties but not rights is a person. And he also says that, quote, if there is anyone who has rights though no duties or duties but no rights, he is, dot, dot, dot, dot, a person in the eye of the law. And in all Gray quoted, animals may conceivably be a legal person, unquote, and there may be, quote, systems now in which animals have legal rights, end quote. In fact, I already explained to the Court in Argentina and Columbia --
THE COURT: International?
MR. WISE: -- it's already happening. We'll see about the U.S. as well.
THE COURT: Okay.
MR. WISE: Now, Your Honor, there was something else that occurred with respect to, with respect to the First Department, with respect to --
THE COURT: Thank you.
MR. WISE: -- after oral arguments, the First Department is -- when we located that Blacks Law Dictionary had misquoted Salmond on Jurisprudence and said rights and duties instead of rights or duties, The Nonhuman Rights Project then immediately wrote the First Department and said we want to bring to your attention the fact that to the extent that the Third Department relied upon Blacks, Blacks
admits that it is wrong, and it is changing, it is changing its mind. And we attach the e-mail correspondence to Blacks, from Blacks, and said please read this, we filed a motion that they read the correspondence and for whatever reason that motion was denied. For whatever reason the First Department refused to provide the correspondence. Then made the same mistake that the Third Department had which I suggest they might not have made had they seen the argument between the showing that Blacks, Blacks said we made a mistake and we are going to fix it.
THE COURT: That maybe was --
MR. WISE: I'm sorry.
THE COURT: -- when was it submitted to the Court?
MR. WISE: It was submitted to the Court between oral argument and the time that they issued a decision.
THE COURT: So it was after the Court had already heard it?
MR. WISE: After they had heard it, but it was before we had learned of what happened to Blacks. As soon as we learned that Blacks had made an error and Professor Garner admitted, he immediately confirmed that with Professor Garner then made a motion post argument and pre-decision that said that please look at this because the Third Department relied upon something that the source itself says was wrong. And the reason I am bringing this to your attention, it's part of my argument to show that this Court should not rely upon the Third Department because it was demonstrably incorrect, it both violated Byrn and now they relied upon a source that itself admitted was wrong.
THE COURT: Okay.
MR. WISE: Now, the First Department also cited a case called Wartelle. Wartelle specifically cites with positively cites a secondary source in Louisiana that says a person, quote, signifies a subject of rights or duties, rights or duties. Now, I get to the third leg of what the Third Department did to show that it was demonstrably wrong. There both the misunderstandings of Lavery I and Lavery II derives in part from a gross misunderstanding of social contract theory. And the only reason that the last, alas as I am bringing it up, they are the Third Department that was one of the three rungs, the three things that they relied upon. So for, as I said, the first time in Anglo-American history the --
(Counsel was directed to speak louder.)
MR. WISE: -- they said that the ascription of rights has historically been connected with the imposition of the duties -- principal of social contracts, unquote. That was not true on that date, it is not true today, and it has never been true. Why did the Third Department say something that was demonstrably false? Well, it does cite, it cites two cases, one is called Galt, one is cited Varobarono. I won't even argue that all you have to do is look at the cases and realize they have nothing whatsoever to do with social contract or the description of the person and their rights. What they relied upon were two law review articles by a deeply reactionary Pepperdine Professor --
(Counsel directed to speak louder.)
MR. WISE: -- Richard Cupp from Pepperdine University. He makes his living arguing that nonhuman
animals should not have rights because it depends on, and deal in social contract theory that only him, he and the entire world believes in. So then on Page 18 to 20 of our supplemental memorandum that we filed, we demonstrate that the -- if you go look at the law review articles he writes, he just, he just cites himself and other law review articles, he is cited by a philosopher, Peter DeMarneffe. If you look at the situation you understand that Peter DeMarneffe does not support what he says. And another place he just cites he just cites John Locke, and cites eight chapters, one of John Locke’s books, but there is no evidence that he showed that as well. In short, Professor Cupp dispenses junk political science, junk history and junk jurisprudence. That the Third Department just accepted without looking into it themselves. And that fact is part of their demonstrable misunderstanding of the law. Judge Fahey also talked about, Page 1058 of his concurring opinion, he referred to an amicus brief filed before him by not Professor Cupp, but by seventeen North American philosophers, and they specifically address themselves to Professor Cupp, his own idiosyncratic idea of what a social contract means. Hey said in, and I quote, in their amicus brief, which went before Judge Fahey, quote, is not how political philosophers have understood the meaning of a social contract historically or in contemporary times, unquote, rather according to the seventeen philosophers, social contract creates citizens, it does not create persons. It has got nothing to do the creation of persons, has to do with the creation of citizens. And that they said social contract philosophers have never claimed, I am quoting them, not now and not in the 17th Century, that the social contract can endow a personhood on any being. So, Professor Cupp said what he is going to do, he is entitled to say whatever he has, but he should not be pushing his false ideas he made up on the court and made it, it seem that that's the law. That's not the law. And the only degree to which it is the law is because the Third Department just cited him, bless their hearts, swallowed it, but didn't do their own research, and we didn't do the research because we didn't know that they were going to say that. It was not argued. The first time we saw the argument of the social contract was in their decision, that is, Professor Cupp knew another, another reason why Lavery II, the First Department. Their misunderstanding also derives from a misunderstanding of habeas corpus, does not permit the release of a detainee from one facility to another facility. Now, Lavery II cited a case called Dawson versus Smith. Now, Judge Fahey in his concurrence stated that that was just explain wrong, they misunderstood what Dawson versus Smith said she got it opposite. There is only two main cases in the Court of Appeals on this issue. One is called, ex rel Hatzman v. Kuhlmann, and Brown v. Johnston, which is --
THE COURT: A citation?
MR. WISE: Okay. 9 New York 2d 482, and page 485, that was 1961. In Brown versus Johnston the Court of Appeals said habeas corpus was appropriate when someone's trying to, to be moved between a State prison and State hospital for the insane. That person Brown is, Brown is not trying to be absolutely free, he is moving. He is in one place and he wants to move. The question is, can you move from a prison to a -- can you be moved from a prison to a place where you're mentally ill? The Court of Appeals says yes. Habeas corpus is appropriate for that. Then twenty-four years later in Dawson versus Smith, what you have was another prisoner who was trying to move, not from one institution to another institution of a different kind, but was trying to move from one department within an institution to another institution within the same institution. And the Court of appeals says you cannot use habeas corpus to do that. So, Judge Fahey said no, the Appellate Division erred in this matter by misreading the case it relied upon, he is referring to the Dawson versus Smith case. Sorry. In the Brown versus Johnson, they erred by misreading the case relied upon in which instead stands for the proposition that habeas corpus can be used to seek a transfer to, quote, institution separate and different in nature from the facility to which the petitioner has been committed under, unquote, opposed to transfer, quote, within the facility, unquote. And then he specifically says the chimpanzee predicament, that we are trying to move a poor chimpanzee from a cage to an island in south Florida where he would live with over twenty-five other chimpanzees, one hundred miles south of where I live in Florida. He says the Chimpanzee's predicament is analogous to the former situation which is the Brown situation moving from between a jail and a mental hospital, not moving from one section. We are not asking that the Chimpanzee move from one cage inside of a horrible place being kept to another cage. Just like here we are not saying we want Happy moving from 1 acre across the way to a zoo to another acre. We are not asking for that. We are asking that Happy be moved to a completely distinctly different place, which is, well -- it is either the Tennessee Elephant Sanctuary in Tennessee or the Elephant Welfare Society in California. And again, these are not zoos, nobody charges admission, these are sanctuaries where they will be left alone as close to the wild as possible to live their lives. . . .