Update on Appeals for Tommy, Kiko, Hercules and Leo
This week marks six months since the Nonhuman Rights Project filed its first near-identical lawsuits in three New York State Supreme Courts. [Note: In New York State, the supreme courts are the lower, or trial, courts.]
In each case, we demanded that a New York Supreme Court issue a writ of habeas corpus on behalf of one or more chimpanzees, Tommy, Kiko, and Hercules and Leo. As expected, all three courts refused to issue the writs, and the NhRP appealed. However, each Supreme Court answers to a different Appellate Department, and each appeal has moved in a different direction.
Tommy’s appeal went to the Third Appellate Department in Albany. The NhRP filed its brief. Tommy’s captors then notified the Court they did not intend to file an opposing brief. Oral argument will take place either the first week of October or the third week of November. Only the NhRP will argue.
In preparation for this first oral argument, the NhRP will be holding its own moot court, in which NhRP president, Steven M. Wise, will appear in a mock law school courtroom and repeatedly argue his case before distinguished mock judges whose jobs are to pick his arguments apart.
In response to Tommy’s captors making multiple public statements that they desired to move Tommy, the NhRP repeatedly offered to assist them in moving Tommy to an appropriate sanctuary, but demanded that they agree not otherwise to move Tommy from the State of New York. They refused our offer of assistance and refused to agree not to remove Tommy from the State of New York. The NhRP has sought a preliminary injunction against them in the Third Department asking the Court to order them not to remove Tommy from New York State pending final appeals. That motion is pending.
Kiko’s appeal went to the Fourth Appellate Department in Rochester, then stalled when the Supreme Court judge refused to “settle the record.” That means the judge had to agree that the record on appeal was what the NhRP said it was. But he refused either to say the record was, or was not, settled. He refused to rule on our motion at all!
Finally the NhRP was forced to sue the judge in the Fourth Appellate Department and seek an order requiring the Supreme Court judge to rule on our request. After the Appellate Court set oral argument on our lawsuit, the Supreme Court judge changed his mind and entered an order settling the record. The NhRP then filed its brief. Kiko’s captors may now file their brief and the appeal should be set for oral argument.
Hercules’ and Leo’s appeal went to the Second Appellate Department in Brooklyn, where the judges dismissed our appeal without even letting us file a brief! Their ground was that one may not appeal from the ex parte (unopposed) denial of an order to show cause under New York law. The Albany law firm who was advising us on New York procedure had advised us to seek an ex parte order to show cause in all our cases, instead of simply asking that a writ of habeas corpus be issued. The Second Department said that was the wrong thing to do.
We are now within a week of refiling a new lawsuit directly in the Second Appellate Department in which we seek a writ of habeas corpus, but not an order to show cause, on behalf of the two chimpanzees.