by John M. Simpson.
The Connecticut Appellate Court recently rejected yet another attempt by the animal rights group Nonhuman Rights Project, Inc. (NHRP) to free an elephant in private ownership through the device of a petition for habeas corpus. Nonhuman Rights Project, Inc. v. R. W. Commerford & Sons, Inc., No. AC 42795 (Conn. App. May 19, 2020).
We have reported on this litigation in prior posts (here and here). In the first iteration of the case (Commerford I), a habeas petition was filed on behalf of three elephants (Beulah, Karen and Minnie) owned by a private exhibitor in Connecticut and was denied at the trial court level. The lower court’s ruling was affirmed by the Appellate Court on the grounds that:
- NHRP, which sought to establish itself as the “next friend” of the elephants, had no standing because the elephants themselves had no standing in the first instance. The elephants had no standing because they lacked a legally protected interest that possibly could be affected.
- There was no indication that habeas relief had ever been intended to be used for animals.
- There was no common law instance of an animal bringing any kind of cause of action.
- There was nothing to suggest that the Connecticut legislature intended that the habeas statute apply to animals.
Perhaps more fundamentally, the Appellate Court concluded in Commerford I that the notion that an elephant has “rights” is incompatible with the “social compact theory” that underlies human legal institutions:
[Commerford I] discussed the social compact theory, pursuant to which “all individuals are born with certain natural rights and that people, in freely consenting to be governed, enter a social compact with their government by virtue of which they relinquish certain individual liberties in exchange for the mutual preservation of their lives, liberties, and estates.” … [Commerford I] explained that elephants and other nonhuman animals are “incapable of bearing duties and social responsibilities required by such social compact.”
Slip op. at 5 (quoting Commerford I). NHRP sought reconsideration of Commerford I en banc as well as review by the Supreme Court of Connecticut, and both requests were denied.
In the present appeal, which was of a lower court ruling denying a second habeas petition filed on behalf of a single elephant (Minnie — the other two had died), the Appellate Court affirmed on the basis of Commerford I:
The petitioner has failed entirely to present any material distinctions between Commerford I and the present case. The reasoning and the holding in Commerford I are clearly applicable to the present case, and control the resolution of this appeal. We therefore conclude that Minnie and, consequently, the petitioner, lacked standing to file a petition for a writ of habeas corpus.
Slip op. at 6. The Appellate Court also criticized NHRP for bringing a duplicative habeas petition in a second district (Tolland) seeking the essentially same relief after the first petition had been denied in the Lichtfield district court. This was a stratagem that counsel for NHRP “conceded … constituted ‘judge shopping.’” Slip op. (n.5). Counsel argued that the second petition was brought in a district where the judges allegedly “would have a greater understanding of habeas corpus.” Id. The Appellate Court found this wholly unpersuasive:
We strongly disagree that counsels’ filing of the habeas petition in Tolland was proper. … Furthermore, we are extremely troubled by counsels’ implication that filing a second action that is virtually identical to the first action, which the petitioner lost, was justified because Judge Bentivegna did not have sufficient knowledge of or experience in habeas corpus matters when he ruled against the petitioner. Not only does such a suggestion unfairly impugn an experienced and capable judge, our system does not work that way. A litigant may not file a repetitive action just because it is unhappy with the ruling of the first judge. A disappointed litigant’s remedy after losing in the trial court is to appeal to this court or to our Supreme Court, not to file a second action essentially asking one Superior Court judge to overrule another. This is not a novel concept.
Id.
NHRP’s efforts to obtain habeas relief for “Happy” – the elephant resident at the Bronx Zoo – continue to consume judicial resources in the State of New York (as we have reported here) with no more success to date than the outcomes in Connecticut.