Supreme Court off the State of New York
New York County – Civil Branch – Part: 12

In the Matter of a Proceeding under Article 70 of the CPLR for a Writ of Habeas Corpus

Before

HONORABLE BARBARA JAFFE, Justice

Appearances

  1. NONHUMAN RIGHTS PROJECT
    Attorneys for Petitioners
    5195 NW 112th Terrace
    Coral Springs, Florida 33076
    BY: STEVEN M. WISE, ESQ.
    ELIZABETH STEIN, ESQ.
    NATALIE K. PROSIN, EXECUTIVE DIRECTOR

  2. OFFICE OF THE ATTORNEY GENERAL
    Attorneys for Respondents
    120 Broadway
    New York, New York 10271
    BY: CHRISTOPHER V. COULSTON, ESQ.
    MICHAEL R. KLEKMAN, ESQ.

  3. ANGELA TOLAS, CSR
    OFFICIAL COURT REPORTER

COURT CLERK: Nonhuman Rights Project, Incorporated, on behalf of Hercules and Leo, against Samuel L. Stanley, Junior, MD.

Counselors, please state your appearances for the record.

MR. WISE: Steven M. Wise for the Nonhuman Rights Project.

MR. COULSTON: Christopher Coulston on behalf of respondent Sam Stanley, State University. With me is Michael Klekman, Assistant Attorney General’s office.

THE COURT: Can you spell it?

MR. KLEKMAN: K‑L‑E‑K‑M‑A‑N.

MR. WISE: Your Honor, I forgot to introduce my co-counsel Elizabeth Stein.

THE COURT: Very good. Good morning and welcome. I know that you all are aware that we are here for oral argument by the lawyers in this case, and that only they have permission to speak. And as the acoustics in this room are less than ideal, I ask that everyone please refrain from talking when the lawyers are talking, and that you silence any electronic equipment that you have. And as you can see the proceedings are being recorded.

Before we commence argument, I would like to observe that on the first page of the petition that was presented to me with the order to show cause it reads as follows. “The Court need not make an initial determination that Hercules and Leo are persons in order to issue the writ and show cause order.”

I thus signed the order in anticipation of hearing both sides address the procedural and substantive issues raised. That being said and having read respondents’ opposing papers, I ask that the parties first address the procedural issues raised in respondents’ opposition with respondents going first. I will then hear the parties on the issue of legal personhood for habeas purposes with petitioner going first in that case.

MR. COULSTON: Just for clarity sake, your Honor, you want me to focus on the cross-motion for venue that was filed and begin there?

THE COURT: That’s fine.

MR. COULSTON: Okay, your Honor, we think petitioners are form shopping here. This is the fourth petition, identical petition largely that was filed by the Nonhuman Rights Project on behalf of chimpanzees in the State of New York. In the other three cases the order to show cause was not signed by a Supreme Court Judge, and the Second, Third and Fourth Department all ruled that Article 70 didn’t apply for various reasons to chimpanzees.

We are here today because petitioner is seeking to avoid those rulings in the second department. There has already been a petition that was filed on behalf of Hercules and Leo that was in Suffolk County. Suffolk County is where Stonybrook is located. It’s where Hercules and Leo are located. And under Article 70 it’s where this hearing should be held. We think CPLR 7004 is very straightforward referring to State institutions as a place of detention that the only appropriate place to hold a hearing on an habeas petition is in that county where the person is detained. We obviously don’t concede that the chimpanzees are persons, but they brought this pursuant to Article 70 and we think those provisions should apply here.

They have made the argument that SUNY is not a State Institution. New York Education Law plainly states that it is and that Stonybrook is a part of SUNY. So frankly we don’t see how that provision CPLR 7004(c) would not apply here. We made a separate argument under 7002 using the plain language of that statute that under 7002(b) (1) if you’re to bring a petition before Supreme Court it again needs to be where the person is detained, again that would be in Suffolk County. They have relied on 7002(b) (3) which says to any Justice of the Supreme Court, but there again the language indicates that it would need to be specifically be brought to the justice.

This is a statute incorporating a lot of older law and, you know, I think what it envisions in an emergency proceeding where you go to a judge when the courthouse is not open to you. But if you proceed to the courthouse, you need to go where the person is detained. For those reasons we don’t think the venue’s proper here, and the matter should be transferred to Suffolk County.

There is also a discretionary provision in the matter that was already before Judge Asher in Suffolk County. This Court can transfer it based on the fact that Judge Asher’s already had this before him, and it’s actually probably 7004(c) that it may be returnable in a county where – sorry, just one moment, your Honor.

(Perusing.)

Right, under 7004 there is a discretionary provision where the Judge may transfer it to the county where the person is detained as well. So then we think there is a provision it’s also discretionary as well. We think it’s appropriate here given that everything relevant that’s going on in this case is in Suffolk County.

Do you have any other questions? I’ll be happy to answer them, otherwise...

THE COURT: Well, what’s going on with the Court of Appeals?

MR. COULSTON: So right now they filed seeking leave to basically have the Court of Appeals hear their case in the third party. I believe the Third Department denied their request for leave to appeal. They appealed directly to the Court of Appeals, that’s pending. They also are seeking leave from the Fourth Department, I believe that’s still pending.

MR. WISE: It was denied in the Fourth Department.

MR. COULSTON: It was denied.

THE COURT: Same?

MR. COULSTON: Same situation.

THE COURT: Why shouldn’t I abide the Court of Appeals?

MR. COULSTON: Why?

THE COURT: Should I or shouldn’t I abide a decision by the Court of Appeals?

MR. COULSTON: Abide a decision by the Court of Appeals?

THE COURT: If they grant leave, shouldn’t I wait and see what they eventually do, and I’ll ask Mr. Wise the same question.

MR. COULSTON: Your Honor, I think that would be prudent if, in fact, the Court of Appeals is going to rule on this issue it would seem premature for anything contrary to be done.bY this Court. At the same time we think the decision of the Third and Fourth Department as of now are binding on this Court. So if your Honor were to proceed, those decisions are still binding despite the fact they have sought leave to appeal to the Court of Appeals.

THE COURT: Talking about institutions, you seem to narrowly interpret the statute in general. You don’t want it more broadly interpreted to include other things. Why shouldn’t I narrowly interpret the term “institution” as well?

MR. COULSTON: Well, your Honor, we think even with a narrow interpretation of SUNY is absolutely a State Institution.

THE COURT: Is that the kind of institution contemplated?

MR. COULSTON: I understand that, your Honor. Here we are in the world of analogy. This whole case is proceeding based on analogy. Petitioner wants to use Article 70 as analogy, and they want it for their own purposes. And when it doesn’t serve their purposes, they want it to be read literally. These chimpanzees are being detained, according to petitioner, at a State Institution. It wasn’t contemplated, but it was also never contemplated that chimpanzees would be subject to a writ of habeas corpus.

We think you can’t have it both ways. Either the procedures in Article 70 has to applied, or Article 70 doesn’t apply at all, and habeas doesn’t apply for chimpanzee.

THE COURT: And what would be the purpose of transferring this case to Suffolk County?

MR. WISE: It would be in the interest of comity and abide by Article 70. And I mean the fact that a Supreme Court Judge already denied a petition here

THE COURT: On the merits? Not really.

MR. COULSTON: I believe it was on its merits, your Honor, and there is a two-sentence order that was issued by the Judge where the Judge plainly stated that he was going to view it under CPLR, I believe it was 2214, 2214 as opposed to under Section 7002, plainly and then further said chimpanzees are not purposes – for purposes of Article 70.

That was then appealed to the Second Department. The Second Department had the opportunity to say, you know what, Article 70 does apply here, we will hear your appeal because Section 7001 of the CPLR allows appeals even when they are ex parte. That didn’t happen. The Second Department agreed with the Supreme Court Judge. We think that’s substantial enough to rise to the level, that’s res judicata, and issue of preclusion with respect to whether or not Article 70 applies to these chimpanzees.

THE COURT: So it’s your position that because the Second Department considered the appeal, that that is a ruling on the merits? Let’s say the Second Department hadn’t ruled and there was just Judge Asher’s decision, would that be res judicata?

MR. COULSTON: Yes, your Honor.

THE COURT: To decline to sign an order to show cause is res judicata?

MR. COULSTON: I believe because of the—

THE COURT: Do you have authority for that, counsel?

MR. COULSTON: Your Honor, I don’t have authority for that. What I have is a signed order where I think the order specifically states the basis for the decision that Article 70 didn’t apply. It wasn’t the denial of a traditional habeas petition, it was a ruling that Article 70 doesn’t apply to chimpanzees.

It’s short, it’s to the point, but it’s undeniable. And the last sentence says, “Further, Article 70 of the CPLR Section 7002 applies to persons, therefore habeas corpus relief does not lie.”

THE COURT: And what about the venue of the regular ordinary plain vanilla venue statute where it applies to so-called trials? Tell me, how is this, what is it 511?

MR. COULSTON: How that would apply here?

THE COURT: Yes.

MR. COULSTON: Well, your Honor, Stonybrook is, like I said, in Suffolk County. The chimpanzees are in Suffolk County. The petitioner I believe is in Florida and Massachusetts. I don’t want to mischaracterize them, but think that’s where they are incorporated and have their place of business. There is nothing in New York County, your Honor. I think even under traditional rules of venue, New York County would still be an inappropriate county here.

THE COURT: Thank you.

MR. COULSTON: Thank you, your Honor.

THE COURT: Mr. Wise?

MR. WISE: Thank you, your Honor. First I want to bring to the attention of the Court that my brother was and in Massachusetts we call the other lawyer brother and sister, sometimes judges don’t know what I am talking about. So if it’s all right, I’ll just refer to him as my brother.

THE COURT: Hearing no objection?

MR. COULSTON: I do not object. I never had a brother.

MR. WISE: My brother brought it as a cross-motion, his venue, which we don’t think is the right thing to do. The statute says it’s to be by motion. It was brought by cross-motion. There wasn’t a motion to cross, so we think there is at least somewhat of a procedural error to bring it by cross-motion. The second thing is that under CPLR 224(b), if you’re going to bring a motion then you have to give us eight days’ notice. My brother gave us the motion about three or four o’clock on Friday afternoon which means we had one business day, yesterday, which I must say was a very long day for us, to be able to respond. And so I think it’s not timely.

THE COURT: Well, you did file, Ms. Stein filed an affirmation.

MS. STEIN: Yes.

THE COURT: Which I did read.

MR. WISE: Thank you. We got it about eight or 9:00 o’clock last night, we were able to do that.

THE COURT: She filed one in response to the demand?

MR. WISE: Oh, yes, we have that, your Honor, as well.

MS. STEIN: Yes.

MR. WISE: So this was done, the subsequent motion, which we think under 224(b) does require an eight-page notice, we only got at the best we got five, which one of them are today, and three of them are holidays. We would urge the Court not even consider the motion because it’s not timely. The last part of that would be that even if you use CPLR 511, which we think you don’t use for writ of habeas corpus, then you have to have due diligence. Now in this case, this Court had ordered the original hearing for just a few days after we had filed. By agreement of counsel we had moved they had more than a month in which to prepare their case. So they should have given us notice earlier in order for us to be able to have a chance to file our opposition to their statement, and then they should have then filed a motion to give us eight days so then we could reply. For those three reasons we feel that, first of all, the motion itself is not timely.

MR. COULSTON: Your Honor, may I address that briefly?

THE COURT: Do you mind?

MR. WISE: I don’t mind.

MR. COULSTON: I’m sorry, your Honor, just to clear it up very quickly 2211 of the CPLR says that it’s the order to show cause and it’s treated as a motion on the docket for your Honor, their motion, their order to show cause for habeas relief is listed as a motion. We thought a cross-motion is appropriate here.

And under 2215, which applies to cross-motions, they need to be served three days prior to the hearing which was proper here, just Friday, three days before the hearing today on Wednesday.

THE COURT: Thank you.

MR. WISE: Thank you.

MR. COULSTON: And then, Judge, they briefed venue in their original memo of law in response to our demand, and then again last night, so I think they have had more than an ample opportunity to brief venue here.

THE COURT: Thank you.

MR. WISE: Your Honor, I’m not saying we didn’t get our work done. I’m just saying that we had eight days and we only got five of which four of them are holidays.

THE COURT: I understand.

MR. WISE: So to move on to the merits then, that venue indeed is proper, that under CPLR 7002(b) or 2(c), or – I’m sorry, (b), we may petition to any justice of the court. And I think that and the entire hearing has to be looked at in the context of the extraordinary, and I use extraordinary in both maybe a technical term and also in a non-technical term. Extraordinary purpose of a writ of habeas corpus. It is the most important writ in the arsenal of writs that are in the Anglo-Saxon heritage.

It’s not called the Great Writ, capital G capital W, for nothing. And so the reason is is because when a person, and we’re here to talk about who a person is, but when a person is deprived of his bodily liberty, that’s just about the worst thing that could possibly happen to a person. And the general rules that apply, usually almost down the line, do not apply to a common-law writ of habeas corpus, which is what we’re suing under. It’s a substantive common-law writ of habeas corpus governed procedurally by CPLR Article 70.

So when they say any justice, they mean any justice. That part of that is that traditionally at common-law there is no issue of preclusion, there is no claimed preclusion. You can indeed keep filing writs of habeas corpus again and again and again and again.

And to my knowledge it’s probably the only cause of action, the only writ in which issue of preclusion and claimed preclusion do not apply, but they do not apply. And we cite a Court of appeals case, I believe, in which it’s clear that they say it typically does not apply. The common period to it says it does not apply. There is no such thing as issue of preclusion.

And what the part of the writ of habeas corpus or the part of Article 70 that says successive writs, what that does is meant as a limitation to the normal common-law saying that every single judge always has to give it his or her full attention. There is a slight cut-back saying if you file again I guess you won’t get find $1,000 if you don’t issue the writ.

THE COURT: I was scared of that.

MR. WISE: We did not wish to threaten the Court with that, so we didn’t mention anything about that.

THE COURT: Thank you.

MR. WISE: So indeed when it says every justice, it means every justice, because under the common-law you could indeed continue to go from justice to justice both in England and in the colonies, and then in the United States, because of the fact that we are dealing with the most important writ involving the most important characteristic of a person, the fact that they are imprisoned.

So any justice means any justice. The fact that – and, believe me, we talked about it. The fact that we could not say track a Supreme Court Justice to a cafe and hand it to her during dinner, we thought that that was not the appropriate thing to do, and that what we had to do was to go and use the regular filing system which there was and—

THE COURT: Which was randomly assigned.

MR. WISE: It was randomly assigned, yes, as opposed to us well, honestly we weren’t going to track you down, we had to track somebody down, we had no idea who we would were going to track down, and say: Here, we want you to look at the writ. I’m not sure if the Court would even considered it filed if we handed it to somebody as opposed to going to the random assignment list.

Then under 7004(c), Article 70, 7004(c) then says that when the court issues a writ it must be returnable to the county of issuance which is what this court did. And there is only that single one single exception when the writ is to secure release from a State institution.

And it’s clear if you look at the kind of State institutions that they are talking about against the background of the purpose of the statute, and the purpose of the statute according to the cases is to – and we do cite Cordero versus Thomas, is to relieve wardens and other superintendents of the burden and the finance of having to transport their inmates of mental hospitals usually and also of prisons, you know, from one county to another distant county. So that’s the sole purpose.

The only inmates that a state university would have, actually I can’t think of any with the exception of Hercules and Leo. They are the only inmates that I can imagine that a state university would ever have. I don’t think that it was within the contemplation of the legislature, it’s not what state institution means in this context. It means an institution that has people, inmates, who would normally might be the subject of a writ of habeas corpus.

And to kind of nail that down, we asked for, and the Court was kind enough to issue an order to show cause. And we did not want Hercules and Leo brought into the courtroom, and the Court did not order that Hercules and Leo be brought into the courtroom. So the reason doesn’t even exist. There is no – you don’t have to worry about Stonybrook having to bear the burden and expense and problems on a writ of habeas corpus or order to show cause.

THE COURT: That might be the reason.

MR. WISE: I’m sorry, your Honor?

THE COURT: That might be the underlying reason for the statute, but the legislature did not insert an exception based on that.

MR. WISE: Yes.

THE COURT: That’s a problem, no?

MR. WISE: If it is, I missed it. Say that one more time?

THE COURT: We understand that part of the reason for saying that using the term state institution is so that there is an expense of bringing a prisoner into the county that you don’t want to bring into an outer lying county.

MR. WISE: Yes.

THE COURT: But they didn’t insert that exception into the statute itself, even though that’s the underlying reason. The legislature didn’t say: Except when you’re not bringing the corpus in.

MR. WISE: Yes, but the Cordero case says that you interpret that against the background of what the purpose of the statute is. And in any case we don’t seek a writ of habeas corpus, we seek an order to show cause. The Court issued an order to show cause. So on several levels it would not make any sense to find that Stonybrook falls within the meaning of a state institution. And I also note that we cite the case of Cox versus Appleton which actually involved a state school, and so and in which it was not held to be a state institution. So if a state school is not, a state university doesn’t have to be either. So really the universe of state institutions that the statute talks about are those that have inmates of some kind, either a state hospital or a state prison, but even some of those, as the Appleton case shows, even some of those are not seen as state institutions.

As far as the transfer, my brother asked for a transfer under CPLR 510 and 511, and we argue that 510 and 511 simply don’t apply, that you look to Article 70, you don’t look to the normal CPLR. And they also – in fact, the practice commentary we point out in CPLR 506 says that counsel should consult the statute authorizing the special proceeding, and specifically names 7002(b). So as the Court pointed out that a 511 refers to the place of trial, and the application of the Heller case, in the application of the Heller case the Court of Appeals said that a habeas corpus procedure, there is a summary hearing, there is no trial. So if there is no trial you cannot use a venue statute that refers to change being the venue when there is a trial. I think that about covers it, your Honor.

THE COURT: Okay. Well, are we also – that was just venue, so we’re going on? Or

MR. WISE: I certainly hope so.

THE COURT: Well, I mean, about the Appellate Division decisions. Mr. Wise.

MR. WISE: Yes, I do have something to say about that.

THE COURT: Yes, I think you have to address it.

Aren’t I bound by one of the.

MR. WISE: Oh, I’m sorry, your Honor. The Second Department—

THE COURT: Let’s forget about the Second Department for a moment.

MR. WISE: We’re talking about the Third and Fourth Departments, we have something to say about that your Honor. My brother argues the Lavery and Presti case are binding upon this Court. Now the State versus Moore case states that an Appellate determination is binding only if it involves “settled principles of law and legal issues.” So my brother has the burden of showing that the Lavery and Preston case involved a settled principle. And I will now try to persuade this Court that neither of them involve settled principles.

In the Lavery case, the Third Department said within the decision itself that the case was novel. Second of all, as the Court pointed out, the case is indeed ongoing. And we have – there is at least four reasons why we believe that it is reasonably likely that the Court of Appeals will indeed take further review of the Lavery case. One is Professor Laurence Tribe has filed a letter brief urging the Court to do that saying that the lower court had engaged in a fundamental misunderstanding of the habeas corpus and of personhood, that Justin Marcoux, who was also a habeas corpus professor had filed a letter brief, and he points out that the Lavery case is in fundamental tension with core tenants of habeas corpus. The Center of Constitutional Rights has indicated last night that it indeed was filing a letter brief asking the Court to take the case.

We filed a 67-page motion for further review which we set out what we think are very persuasive arguments, obviously, that we think that would justify the Court taking it. And perhaps one of the most important issues is that even if the Court didn’t take the case, the problem with my brother’s argument is that the Lavery case conflicts with the Court of Appeals case. It conflicts with the Bern case. And the Bern case is really the only case in the State of New York that leads us through the issue of personhood. How you decide when someone’s a person.

So in 1972 you had a fetus, there is a case involving a fetus, where the Bern Court both said that the fetus was a human, but yet was not a person. And the court went out of its way to say that personhood was not a biological question, it’s a question of public policy. And for the Lavery case, the Lavery Court essentially say that person means only humans, what they did is they did not follow Bern, they simply made a biological decision and not a public policy decision, because their failure to make a public policy decision is the reason that in their case the Court will notice that there is no – there is nothing whatsoever about public policy.

We made extensive public policy arguments based on liberty, on equality, as we make them for this Court that goes on for 30 or 40 pages. The Court was not interested in our public policy arguments because it was not following Bern, which it should have, because the Court requires that they made a public policy argument, and said what it did is what the court said you could not do in Bern simply point to a biological characteristic, there a fetus, here being human, and saying you’re not going to be a person. They had to make a public policy analysis. They did not. So though clearly violate Bern. So we agree that an Appellate Court’s decision is binding on this Court when it’s settled law, but that would be the Bern case that would be binding on the Court, not the Lavery case because the Lavery case conflicts with the Bern case, and it is indeed a lower court.

Now as far as Presti case goes, the Presti case was an ironic case, because one of the reasons that the Nonhuman Rights Project brought the habeas corpus case in the State of New York was because habeas corpus is so broadly interpreted in the State of New York, we were trying to persuade the Court that they should also bring in these extraordinarily cognitive and complex beings like chimpanzees into personhood.

What that court did was to instead of broadening habeas corpus, it actually narrowed it, so that now many New Yorkers are not able to use the writ of habeas corpus the way they could have before Presti case. They said that you could not – the only way that you could use a common-law writ of habeas corpus was—

THE COURT: Release.

MR. WISE: If you’re released completely. Well, there are 200 years of cases in which the Court of Appeals and other courts of all levels have understood, for example, that when you release, say, a five year-old child or an eight year-old child, and this was done numerous times in the days when there were human slaveries. The vote in New York and Massachusetts, New Jersey and Pennsylvania, that when the courts found through a common-law writ of habeas corpus that these children, you know, were slaves and they should be released, they did not put these children out into the street, they released them into the custody of somebody else. They went from one kind of custody to another kind. But it was – the first time it was illegal because what we’re dealing with is a two-step process here. We’re dealing with, number one, this Court has to decide whether Hercules and Leo are being improperly detained, and then the Court will make an order of release. Now we urge the Court that it’s required to do so. The second thing, though, is what do you do with them? No more than a slave child or an apprentice or—

THE COURT: We’re kind of getting into the personhood issue that we’ll be getting into soon.

MR. WISE: Then somehow it seemed relevant to me at the time.

THE COURT: It does, and I understand your point, and I think we all do, but we’ll get into that in further detail. Is that it on the procedural issues?

MR. WISE: No, that was it on that one in response to that.

THE COURT: Okay.

MR. WISE: That the Presti case – so that you need to choose those cases over what Presti did because Presti is clearly a 200-year outlier.

THE COURT: Okay.

MR. WISE: In this case.

THE COURT: Thank you.

MR. COULSTON: Your Honor, may I respond?

THE COURT: Very briefly.

MR. COULSTON: Your Honor, very briefly the Lavery case could not be more precisely on point. We have not briefed the issue, we only got a reply brief from petitioners at 8:30 last night. Frankly, your Honor—

THE COURT: And I haven’t gotten it.

MR. COULSTON: And I should have said this up front, your Honor, my understanding was

THE COURT: It was E‑filed?

MS. STEIN: It was E‑filed.

MR. WISE: And you have a hard copy as well.

THE COURT: It must be in the file.

MR. COULSTON: Your Honor, my understanding is under the rules of the Court, is there is no reply order to show cause, and we also put together a schedule that did not include a reply brief.

THE COURT: It depends.

MR. COULSTON: I understand. And we filed a cross-motion to change venue. And what relates in the brief to that motion we think is proper, but we don’t think the rest of it is proper at this time. But we leave it to the discretion of your Honor obviously.

As for – let me begin with Lavery being precisely on point. Like I was saying we didn’t have an opportunity to see their papers until late last night. I’ll be more than happy to find additional case law that speaks to the issue of whether or not a departmental level case is binding when there is a potential for an appeal. I’ll be happy to file that and provide it to your Honor if there is any doubt that there is no alternate precedent until the Court of Appeals actually cited the issue. Otherwise those departmental cases are the authority.

THE COURT: If I do need further briefing, I will let you know afterwards.

MR. COULSTON: And we actually cite the Mountain View case which says, “The doctrine of stare decisis requires trial courts in this department to follow precedent set by the Appellate Division of another department until the Court of Appeals, or this Court, pronounces a contrary rule.” We think it’s irrelevant. The Bern case and the Lavery case also do not conflict at all, your Honor. The Lavery case does not decide the chimpanzees are not people based on biology, or not legal persons based on biology. The analysis is far more nuanced than that. There is an in-depth discussion of the origin of rights and how they are usually connected to obligations and morals, the ability to make moral decisions within society. It wasn’t just that they are simply not human beings, it’s that they don’t partake in society in the same way that we do.

THE COURT: Just like I cut off Mr. Wise on this, we’re going to – if you want to launch into, I mean, anything else you want to reply to with respect to the procedural issues?

MR. COULSTON: Right, I’m probably—

THE COURT: I’m trying to be organized, I don’t mean to cut anybody off.

MR. COULSTON: Would standing qualify as an issue you’d like to get out of the way now?

THE COURT: I think so.

MR. COULSTON: Okay. Your Honor, all of the cases that are cited by petitioners as to why they have standing here are the 19th or 18th century. There is not a well-developed body of law in New York State on what next friend and standing amounts to for purposes of habeas.

The Federal Court, however, the Federal Court has a far more developed notion of this idea, and we think it should be at least persuasive here. And what it requires is some connection, some relationship in some way between the organization that is pursuing the petition on behalf of the detained individual and that detained person.

The Nonhuman Rights Project has never met Hercules or Leo and doesn’t really know anything about the conditions in which they are held. Has no real relationship with them other than the fact that they are advocating for a change in the law generally as it relates to animals. We think that’s insufficient under that Federal Court precedent, and for that reason we don’t think I that they have standing here.

MR. WISE: Your Honor, we clearly have standing under CPLR 7002(a). It says, “A person restrained of his liberty within the state or ‘one acting on his behalf’ may bring a suit.” And that’s the only requirement.

The three federal cases that my brother cites, none of them have ever been cited in the State of New York for standing, and only one of them has been cited for twice for issues that are not standing. And the reason why they are not cited is they don’t state the law of standing with respect to the writ of habeas corpus.

Now there are a large number of cases, many of them come from the 19th century, some of them come from the 20th and 21st century, as to why, as to how this habeas corpus statute works. A lot of them come from the time, again, when there was human slavery in the State of New York where you can see, for example, the New York City Vigilance Committee and the American Anti-Slavery Society, you have the lawyers for them and you have the founders or the presidents of them actually going out into the City of New York, and any time they found a black person who they thought was a slave they would then go to a Court and seek a writ of habeas corpus without knowing anything else about them. And they would get those writs of habeas corpus.

And indeed one of the most famous cases outside of the Dred Scott case is Lemon versus People, or People versus Lemon, where Louis Napoleon who worked for the American Anti-Slavery Society, his job was to go and find people who were being wrongly enslaved. And he found the eight members of a slave family being brought to the Lemon house after being disembarked at New York Harbor. And he went to the Supreme Court, he got the writ of habeas corpus.

And he had also then ten years before in the in re Kirk case which we gave you. In the Belt case, in re Belt, you had a black man who is walking down the street with another black man. And the first one is simply kidnapped right off the street. The second one then runs and gets a writ of habeas corpus. And all they are are walking down the street together. There is no other relationship between them. There was the Mary Ellen case which is not a Appellate case but it’s one of the most important cases with respect to children’s rights, and it came out of New York, I believe in the 1870s, and so there you had Henry Bergh and you had the people who worked for the ASPCA essentially, Bird, and they are the ones who sought the relief of the writ of habeas corpus. They had no relationship to Little Ellen at all.

THE COURT REPORTER: I’m sorry, no relationship to?

MR. COULSTON: Little Ellen E‑L‑L‑E‑N. To Ellen.

All they knew is that this was a person who was being kept and detained. And then we cite the McCloud case where they say when there is an infant involved they use the word anyone may seek a writ of habeas corpus on behalf of an infant.

THE COURT: Okay.

MR. WISE: We cite slave cases, children cases, and then cases like Rail versus Warden Toronto versus Cunningham when you have incarcerated inmates, you have someone else from a third party coming in and seeking a writ of habeas corpus. Again writs of habeas corpus don’t follow the usual rules, they don’t follow.

And specifically they don’t follow Article 3 standing rules that the United States Supreme Court has to have on all of its three. There is no Article 3 in New York law, so we clearly have standing.

THE COURT: Thank you. We’ll turn now to the issue of personhood. Mr. Wise.

MR. WISE: If we might just briefly we also we filed a motion to describe portions of my brothers affidavit and

THE COURT: I’ll read it.

MR. WISE: You can look at it.

THE COURT: Okay.

MR. WISE: Your Honor, the issue in front of the Court now we believe is solely the issue of personhood. My brother – we argue that their response to your order and to Article 70 was really grossly deficient. They never addressed themselves in a single affidavit, part of which we moved to strike.

They never addressed the issue of why they are holding Hercules and Leo, where they have got Hercules and Leo, what their relationship is to Hercules and Leo. They simply say Hercules and Leo have been there since a certain date since 2010, and that’s it.

So since they have not contradicted, they didn’t put any expert affidavits in, they have not contradicted any of our affidavits, and so we think that the for purposes of habeas corpus, the facts that we place before the Court both, in the affidavits and otherwise must be taken as true. So that the only issue is based upon the facts that we’ve placed in front of the Court by affidavits that are uncontroverted, are Hercules and Leo persons within the meaning of Article 70.

Now to begin we have to distinguish the common-law writ of habeas corpus from the Article 70. So again we are filing suit under the common-law writ of habeas corpus which is what holds in New York. The only time that Article 70 comes in is that it is a CPLR so what it does is it’s a procedural regulation of the common-law writ of habeas corpus. It uses the word person, but the legislature does not define the word person, and we’re not so certain that under Article 1, Section 4, which is the su pension clause whether it could have statutorily narrowed the word person without it amounting to a violation of Article 1, Section 4 the suspension clause for writ of habeas corpus. But be that as it may, that the word “person” in Article 70 refers to the common-law. So this Court does not look to what the legislature meant other than – and we briefed this – other than the fact the only thing the legislature could have meant was that it is talking about person within the meaning of the common-law writ of habeas corpus.

Now we argue that both as a matter of liberty and as a matter of equality, Hercules and Leo are indeed legal persons. So the liberty argument is a non-comparative argument, so we’re talking about what kind of qualities Hercules and Leo might have that might qualify them for personhood as opposed to our equality argument which is a comparative argument, which we’re then going to be comparing Hercules and Leo to someone else who does have personhood and arguing that they indeed should have them too.

One thing I want to make clear is that our argument is limited, extremely limited to the argument that Hercules and Leo, chimpanzees, should be entitled, should be persons solely for the purpose of a common-law writ of habeas corpus. As the Court noted in Bern, kind of almost sarcastically that just because you’re a person for one part of the law doesn’t mean you’re a person for any other part. There the petitioner had claimed that if you’re a person for one part of the law then you’re a person for everything. That is not so, and Bern is clear that is not so. We’re saying we’re not asking that Hercules and Leo be seen as persons for any reason other than the common-law writ of habeas corpus.

Now we do urge the Court to look at the so-called pet trust statute where the Court has made certain nonhuman animals beneficiaries of pet trusts. We have said Hercules and Leo are beneficiaries of a pet trust that we have set up, and so they are indeed already persons because under New York law in the case that we cite the only entity who can be a beneficiary of a trust and not an honorary beneficiary but a real beneficiary, the only one who could do that would be a “person.” And so Hercules and Leo are already persons within the meaning of the pet trust statute, at least the only case that’s come down to that is in re Faust which by coincidence involved five chimpanzees, and the Surrogate says again and again that they are persons and they are beneficiaries.

So with that in the background, looking at a case just like say Rivers versus Katz, if the Court’s familiar with it I bother explaining it. Okay, I’ll explain it. So in River versus Katz you have someone who’s been involuntarily committed into a mental institution. And there the question is whether or not the fact that they have been involuntary committed means that they are unable to make any kind of treatment decisions. Should I take the antipsychotics or should I not. And the hospital says the fact that you have been involuntary committed

THE COURT: I’ve had them, yes.

MR. WISE: Okay, so the reason I cite Rivers versus Katz as well as the in re Storer case involving Brother Fox and Storer, that in those two cases the New York Court of Appeals makes it really clear that truly supreme common-law value in the State of New York is the protection of autonomy, and they say it again and again. Around unfortunately I’ve mixed it up in my papers, but indeed they indeed do they say that it is the fundamental common-law value, autonomy. And it’s the job of the courts to protect the autonomy of even them to the greatest degree possible because when a being is autonomous then it’s the Court’s duty to make sure that they can live their lives out in as autonomous and self-determining a way as possible.

Now the Nonhuman Rights Project submitted to the Court more than a hundred pages of affidavits from nine of the greatest chimpanzee cognition experts in the world that sets out in great detail, cites more than 400 scientific articles, gives approximately 42 different ways in which chimpanzees are extraordinarily cognitive and complex which taken either together or separately, some of them separately, clearly show that chimpanzees are autonomous and self-determining beings. They are not cabined by instinct like many perhaps in the nonhuman kingdom are. They are self-conscious, they have a theory of mind, they can understand what others are thinking, they understand that they are individuals, that they existed yesterday, that they are going to exist tomorrow, that their lives mean something to them. They plan for what their life is going to be like.

And in this way they have language or language-like capabilities. They do mathematics. They have a material, a social, a symbolic culture. There is even a field called chimpanzee archeology showing how chimpanzees pass their culture down from generation to generation. They are the kinds of beings who can remember the past, plan ahead for the future, which is one of the reasons why imprisoning a chimpanzee is at least as bad, and maybe even worse than imprisoning a human being.

Because chimpanzees who are imprisoned, and being, essentially being exploited by Stonybrook now, that they are – they don’t even know why they are their. These are the sort of things that we would only do to our worst criminals amongst us. And we’re doing that to Hercules and Leo. So they don’t even know why they are there. They have only known they have been there so long. They are only eight years old now, they came in when they were three. Ever since they have been three years old, they have been unable to live an autonomous and self-determining life at all. They are essentially in almost solitary confinement. They are kind of in binary confinement, which they are entirely at the mercy of their keepers. That is what we do to the worst human criminal.

Now if you look at the undisputed facts, the untraversed affidavits that show that these animals are indeed autonomous and self-determining beings because we believe we have to prove that, and we believe that we have. Then the whole purpose of a writ of habeas corpus is the reason that they call it the Great Writ is because it’s coming in to assist those of us, up until now, those of us humans who are being kept against our will, or who are being kidnapped, or who are being imprisoned.

And so the very purpose of a writ of habeas corpus is to – it’s really the fundamental Great Writ that protects the autonomy of autonomous and self-determining beings. And that is a wonderful thing. It’s been around for 800 years. But science has shown us over the last 50 years, especially over the last 20, that there are more autonomous beings in this world than just human beings. It’s clear because half of the scientific articles that our scientists cite came down since the year 2000, and six of them since the year 2010. All the science is only going one way, they are just being seen as more and more autonomous. They have already reached a level where they clearly are autonomous, at least for the purposes of living their lives out as a chimpanzee.

So as a matter of liberty that protects autonomy. And the Rivers versus Katz, the Storer case, you know, powerfully protect at least autonomy with respect to the human being, but the purpose of Rivers and Storer is not to protect human beings, it’s to protect autonomy. And there are other beings who are clearly autonomous. And so their liberty rights to bodily liberty are being violated because they are autonomous, and that’s being utterly ignored. Now that’s the liberty argument.

The equality argument is this. That in New York, New York for 200 years through its statute, through its constitution, through its common-law, has demonstrated an intense commitment to equality. And indeed you have People versus Lemon, or Lemon versus People, from 1860 where experts of trials in that era, slave trials, say that the New York Court of Appeals decision in that case which ruled on behalf of slaves, human slaves, with respect to a writ of habeas corpus was the strongest statement in the United States about how terrible slavery was.

So the fundamental minimal requirement for a Court or a legislature to make some kind of a distinction, and they make them all the time, legislatures and judges are always drawing lines. And the courts will generally, unless you’re dealing with a fundamental right or subclassification, will simply use some kind of a minimum rationale test. And we urge that that’s what the common-law is in the State of New York as well. Now the minimum rational test means that you have to have in order for a statute to be constitutional, and we urge in order for this Court’s distinction to not violate the common-law is that it has to be a rational means to a legitimate end. And our claim is simply that to cabin out chimpanzees who are as our uncontroverted affidavits say, autonomous and self-determining beings to rule so these autonomous and self-determining human beings must spend the rest of their lives in slavery, that that violates common-law equality. That’s kind of the first aspect of it.

The second aspect is if you look at the Romer case, for example, the Romer’s case there Chief Justice I’m sorry, Justice Kennedy – and again we’re working by analogy because we cite an article about former Chief Justice Kaye in which she noted that there has now been a two-way street between constitutional law and common-law, and that the common-law is often infused with constitutional values.

So because of that we urge that this Court understand that the common-law with respect to the writ of habeas corpus be infused with constitutional and equal protection sort of qualities. And that Justice Kennedy would say that in the Romer case said it violated equal protection. To choose a single characteristic, and in that case that was proposition two, the people of Colorado had then chosen to identify someone solely by their sexual preference. And they essentially said gay people, you know, will not be covered by law.

And they said that – Justice Kennedy said to choose a single characteristic and then make that on the basis of that characteristic you are no longer essentially protected by law, that’s a violation of the deepest kind of equality values.

So both for that reason, and for the reason that it’s simply not something that New York equality would want to do to say that we’re going to imprison, and admittedly an autonomous being, and that is a legitimate end. Because if it’s a legitimate end to imprison an autonomous being that begins to be corrosive in either way at what Rivers versus Katz is saying, a historic case is saying. Because at that point you’re arbitrarily condemning an autonomous being to a life of slavery, and that’s it. It would be arbitrarily. And when our law begins to become arbitrary, then it can come back at you and begin to eat away at the rights that we humans thought we had. Thank you.

THE COURT: Thank you. What about this social contract?

MR. WISE: Social contract. The social contract is there is no social contract. The – it’s, first of all its a mythical thing that we talked about a social contract. But the second thing is that the common-law has always reached entities, and in law itself, has reached entities that are not part of the social contract.

The Third Department cited no New York law in which it was talking about a social contract, it primarily cited a two articles by my friend Professor Cup who talked about this social contract. But the problem is that slaves, for example, always have, you know, didn’t have rights, but under the Connecticut case, for example, Jackson versus Bulloch, they are not seen as being part of the social contract.

In the Somerset case which we cite which I wrote an entire book about, the Somerset case, James Somerset was in slavery, he was then brought from being a thing to being a person, but as a slave he was not part of the social contract.

In the Guantánamo cases you have them, you have habeas corpus’ being brought on behalf of people whom the government says are not only part of our social contract but are trying to destroy our social contract. So how can you possibly swear bringing a habeas corpus on behalf of someone who is a person who’s trying to destroy our social contract and say they have to be part of the social contract.

THE COURT: Now what is the state interest here?

MR. WISE: I’m sorry, your Honor?

THE COURT: Can you identify a particular state interest in deeming chimpanzees persons for habeas purposes?

MR. WISE: Yes.

THE COURT: What is the state?

MR. WISE: The state interest is that under Rivers versus Katz, and the Storer case New York consistently, the Court of Appeals, consistently says that autonomy and self determination are the supreme common-law values. So much so that if someone goes into a hospital in New York and they want to turn down medication or surgery life saving, the courts will not interfere because the courts say we value that person’s autonomy and self-determination more than the state interest in their life.

THE COURT: They get a hearing.

MR. WISE: They would get a hearing. They don’t need a hearing, they can simply say: No, we don’t want to do it. If the hospital wants to fight them about it, it’s the hospital that wants to come in and really seek a hearing. So other than that I think the law under Rivers versus Katz and Storer is really clear that they should not interfere with them, perhaps in order to a avoid a malpractice action, or some other action, the hospital may want to come in as a safety valve. So other than that it’s clear that once they knew that, they are going to lose.

THE COURT: So the state interest is in advancing the autonomy?

MR. WISE: Yes.

THE COURT: What about the autonomy of chimpanzees?

MR. WISE: Autonomy is autonomy.

THE COURT: Period.

MR. WISE: These beings are autonomous beings. The state

THE COURT: Theoretical autonomy.

MR. WISE: That’s what the courts must always say autonomy and self-determination it appears to be the most powerful, the supreme common-law value, even more than the state interest in life. And so it is therefore irrational for them to draw other lines and say, look, these beings are autonomous too, but for some other reason we’re not going to let them – we’re not going to protect their autonomy.

So that’s the state interest in not drawing arbitrary lines, in protecting autonomy and self-determination, at least at the level that chimpanzees have it, and humans have it, wherever that may be found. It’s not likely to be found too many places. We believe it’s probably the four species of great apes, chimpanzees, orangutans and guerrillas, perhaps elephants, and perhaps some citations like orcas or dolphins they have these extraordinarily complex autonomous beings. But that’s at least based on the science that I know of right now, that’s pretty much it.

So it’s autonomy, and it’s also so that the state is not declaring as you would if you don’t – if the Court did not rule in their favor as a matter of equality, the state is not saying that it is a legitimate end which we would urge in order to find, in order to cabin them out and not include them as a matter of equal protection or equality you’d have to say that the state has some kind of an interest in – a legitimate interest in ignoring and imprisoning beings who are autonomous. I think it’s much better for the state to say it’s not slavery of any autonomous being is not a legitimate excuse.

THE COURT: Thank you. Mr. Coulston.

MR. COULSTON: Yes, your Honor, just first we did not concede anything regarding the legality of the detention, it’s our understanding this is a more limited proceeding regarding the personhood issue, that’s how we proceeded in filing our papers and taking petitioner at their word saying that it’s sort of the first step in the analysis for it to be some determination about personhood against us. We would want subsequent briefing on that legality. We did submit an affirmation, otherwise would we would want that additional briefing.

Your Honor, petitioners come back to the Bern case any number of times. And for the one point of saying that Lavery and Bern are inconsistent, then also saying Bern is how the courts think about legal personhood. The Bern case very plainly states that legal personhood is not a justiciable issue for the court. And this is a final paragraph I’d just like to read for your Honor. “There are then real issues in this litigation that they are not legal or justiciable. They are issues outside the law, unless the legislature should provide otherwise. The Constitution did not confer or require legal permit for the unborn. The legislature may or it may do something less as it does in its abortion statutes and provides some protection far short of conferring legal personalty. What the Bern Court is saying there is this is a legislature determination, and we would agree that that’s actually what the Lavery Court said. The third part of its decision was that there are legal protections that do, in fact, exist for chimpanzees and other animals in the State of New York citing criminal statutes that relate to the treatment of animals.

We also cite in our papers the Animal Welfare Act which applies to Hercules and Leo, and the regulations promulgated thereunder. The legislature is a far better way to make this sort of nuanced approach to these new rights that they want to create, rather than a judiciary which is just something, I think the fact we’re proceeding under habeas in the first place when everyone acknowledges that habeas is more of an analogy than actually proceeding on pure habeas corpus law. I think Bern was right. I don’t think Lavery is inconsistent. The other characterization of Lavery was that it was decided based on biology. Your Honor referenced a social contract, that was the basis of rights in Lavery. It was the court’s understanding that social contract is giving rise to rights. Not simply that chimpanzees are not human beings, it’s that they can’t bear the moral responsibility in our society and the correlative rights and duties just don’t simply make sense with respect to chimpanzees.

Petitioners admitted that the chimpanzees could not be released into society. I think we all knowledge that they are just not equipped the same way a human being would be to be a member of society. And for that reason the court found habeas corpus rights did not apply to chimpanzees.

The other point that the Lavery Court made, and it’s worth making, I mean, we’re pursuing· this petitioners pursuing this by drawing parallels to slavery and parallels to children, there is simply no precedent anywhere of a nonhuman animal receiving the kinds of rights they are talking about. The exceptions that do exist to legal personhood being assigned to somebody who’s not human, in every instance that they have cited, it’s something that in some way relates to human interest. Whether it’s a corporation, whether a ship is treated as a legal person. They have gone far afield to New Zealand actually to find a river, where not by matter of common-law but by agreement between the government and indigenous people there, I believe a right was assigned to the river of ownership of the riverbank. That is based on the religious significance of that river to the people in that area. It’s still serving the interest of those people. There is nothing about the river itself that entitled it to those rights.

We think that really is the principle that’s governing assignment of legal personhood. We think that’s what the Lavery Court said, and we think that’s the law, your Honor. And we don’t know of any exceptions, otherwise the petitioner hasn’t cited it.

The other case is Presti which did not reach the issue of legal persons. In the papers that were filed last night petitioner suggested in some way the failure to reach that issue was an indication that the Fourth Department might have said chimpanzees are legal persons. We completely disagree with that characterization. The court was just simply ruling on alternate grounds, which is that the relief that’s being sought here is simply a change in conditions. And a transfer from one facility to another is never an appropriate remedy under habeas corpus.

A case that they cited in Johnson, it’s a Court of Appeals case, and the cite for this is 9 NY2d at 484, and there the court said that a mere transfer is purely an administrative matter, and a prisoner has no standing to choose the place in which he is to be confined. That was what Presti court was relying on. That strain of law that says you’re entitled to immediate release. There are exceptions that petitioner cited, but those exceptions relate to where in order, or in a sense is in some way not being abided by. And that the prisoners not being treated in accordance with whatever the specific order might be.

There you have an order that governs the specific detention and it may be appropriate, but this is a very narrow exception. And all the cases that they cite state that is an exception to the general rule that immediate release is what’s required typically as the remedy for habeas.

Here it’s clear they are seeking a transfer. They are seeking a transfer to Save the Chimps, which is a non-party to this proceeding. They will be held in conditions that petitioner views is better, but they will undeniably be held there. They are placed on islands, they are placed on islands because they can’t swim. They are subject to vasectomies, birth control, their bodily liberty is constrained, maybe in a different way, but is still constrained. There is no principle way for this court I think to now analyze under habeas principles why one is appropriate versus the other under those transfer precedents that they cite. If there is any provisions or laws that would govern the treatment of Hercules and Leo, it would be federal and state regulations which we include in our affirmations we abided by. If we are meeting that standard, it’s unclear how you could have a transfer premised on our failure to abide by those regulations.

THE COURT: I have a question.

MR. COULSTON: Certainly, your Honor.

THE COURT: Understanding that what Mr. Wise refers to as the Great Writ, and what it means to us, and I think another judge of this court many years ago referred to it is a powerful and broad tool subject to expansive interpretation, and our understanding that the law applies according to scientific discovery, social mores and marital rights, isn’t it incumbent upon the judiciary to at least consider whether a class of beings may be granted a right, or something short of a right under the habeas statute, some kind of special status?

Thus why can’t a chimpanzee, by virtue of the traits documented in Petitioner’s exhibits, the extra exhibits, be deemed a person for the sole purpose, as Mr. Wise says, of permitting the writ to the very limited extent sought? Why isn’t that an appropriate use of this Great Writ?

MR. COULSTON: Your Honor, this is – we have always understood it as the Great Writ, it’s been around for 800 years, the Magna Carta Great Writ has been around. What has been diminished all along in this proceeding is how different it is what they are actually trying to do. How the similarities that they paint you can talk about 99 percent of DNA and other aspects that create similarities, but the reality is these are fundamentally different species than human beings. These are laws that we are creating for them in some way that perhaps are participating in, but they have had no ability to sort of partake in human society, and societies that’s developed these rights on their behalf.

I think that is a real distinction. I think these rights that have evolved related to human interest that’s an important thing that we would lose. Petitioners at some point said that imprisoning a chimp is maybe worse than a human being. I worry about the diminishment of these rights in some way if we expand them beyond human beings.

I also think courts are simply not going to be equipped to determine where this new line is going to be for these vague categories that, yes, they have given them some scientific help, but autonomy and self-determining? In the Fourth Department argument my brother, which I guess I’ve adopted now, compared a chimpanzee to a five year-old with the assumption that a chimpanzee is thus entitled, guess, to similar rights to a five year-old.

Well, what about a three-month old or a one-day old? Are there animals that are similar in terms of their autonomy or their cognitive abilities to a child at that age? I imagine there are, and I imagine there are animals that are different than the ones we’re discussing limitations in some of those other animals with higher levels of thinking. This just becomes a question of where are we going. You’re absolutely opening the possible flood gates. And it is a Great Writ, it’s a Great Writ for human beings. I think it should stay there, and I think the ramifications are ones that we can’t always foresee and can have a dramatic affect not only on our understanding of how important these rights are to human beings, but in applications that could affect our society in a negative way.

THE COURT: Thank you.

MR. WISE: May I reply, your Honor?

THE COURT: Yes.

MR. WISE: Certainly with respect to my brother’s claim that they are welfare laws that protect the chimpanzees, I’d like to quote Huff versus State. There they said that habeas corpus has been cherished by generations of free men, could learn by experience that its purpose is the only reliable protection of their freedom. If habeas corpus is the only reliable protection of the freedom of human beings who are otherwise extraordinarily well protected, how can they – how can a chimpanzee who is protected by almost nothing, how can their freedom be protected. Their freedom is not— without a writ of habeas corpus, Stonybrook can continue to hold them for five more years, or ten more years, or their whole life, or send them to some other person who is going to hold them. They have been held for five years.

Clearly if the welfare statutes were sufficient to protect their fundamental interest in autonomy, bodily liberty, well they must not be because Stonybrook has held them for the last five years. And both of us agree that they are not in violation of any welfare reg, so therefore they clearly do not protect the fundamental interest of an autonomous being. The second thing is that my brother has put forward the slippery slope argument. If you do this then it’s going to do this, and then all of a sudden ants are going to be having writs of habeas corpus, but that’s not it. We have made it really clear that the line that we’re drawing is based upon the autonomy that the Court of Appeals itself repeatedly for centuries had said is extraordinarily valuable and that we treasure.

It’s then really a matter of fact as to whether or not that autonomy exists. In our case it clearly exists because if you look at the hundred pages of affidavits there can be no doubt about it. And none, not a single fact, has been traversed. The third thing is that to say that no nonhuman 54 animals have ever been the recipient of a writ of habeas corpus, but until the Nonhuman Rights Project began filing these suits, no one had ever asked.

And if you look at the Somerset case again, the reason why Lord Mansfield, and one of the reasons he’s such a great Judge is that he understood that there is a first time for everything. And that if Lord Mansfield had taken my brother’s advice, and said, you know, a black person, a slave has never been the recipient of a writ of habeas corpus, well then our world might be a different place than it would now, there would be much more human slavery. I cite the Standing Bear case where in 1879 you had a federal judge deal with the fact that for the first time native Americans coming to the court and saying I’m being held prisoner by the U.S. Army I want a writ of habeas corpus, the United States saying Indians aren’t entitled to writs of habeas corpus, they have never been entitled to writs of habeas corpus. And the Judge said: Well, Standing Bear is going to get a writ of habeas corpus. And that changed the law. So the second time there had been a native American who got a writ of habeas corpus, and the second time there had been a black slave who had received a writ of habeas corpus.

The idea that I think I want to go back to just to reply briefly to this social contract issue. We urged, and I think the Court of Appeals is going to agree, we believe that one of the fundamental errors in the Lavery case was the fact that the Third Department mistook the so-called immunity right that we were seeking for a claim right.

Now and we’re not – we were not arguing that Tommy should be able to sign a contract or sue for breach of contract. Under legal theory what correlates with the claim is a duty. If there is a claim there has to be a duty, if there is a duty there has to be a claim. We did not argue there is any duties involved or there are any claims involved. We used another kind of right which is a fundamental immunity right which correlates with the disability. There is nothing about having to be able to have any duties. So the classic immunity right would be the 13th Amendment of the United States Constitution. We all are immune from being enslaved. Everyone else is immune from enslaving us. There is nothing about having to correlate with any rights, duties, has to be social contract. Whether you’re part of the social contract, whether you’re not part of the social contract, whoever you are, you cannot be enslaved.

And one of the real problems with looking, when you start to look at the Lavery case more closely, is you’re saying an entity who’s not a member of the social contract, and there are many of them, they can be enslaved. And it’s ironic that to be said, to be able to partake in the social contract of society in order to have society not enslave you. We had a history doing that for hundreds of years saying black people, slaves, were not part of our social contract we can enslave them, but we’ve already been down that path. It doesn’t work. It’s not right to say that if you’re not part of the social contract, therefore you lose all protections, you can simply be enslaved.

I want to also just briefly talk about with respect to this right duty thing, see, here is where the Third Department Lavery case, you know, explicitly contradicts the Bern case. Now the Bern case is really clear that a person means someone – that personhood means that someone has the “rights and privileges of a person.” The Bern case says nothing about rights and duties. It says rights and privileges. And that’s a very different sort of thing. By coincidence it happens to be the argument that we’re making that chimpanzees should be able to get the right and privileges with respect to the writ of habeas corpus. But that doesn’t mean they have to have certain duties.

And, I’ll make this quick, and the secondary sources that the Court of Appeals cited in Bern, including Patent, and if you look at what Patent writes he says – he talks about the fact that legal personality has been granted to entities other than individual human beings including an idol, and they specifically cite and rely upon chapter two of John Chipman Gray’s book, The Nature and Sources of the Common-law. And in that, Chapter Two, Gray says, and I quote, “There is no difficult in giving legal rights to a certain natural being and making him or her a legal person.” And the last thing is more to the point Gray says, “There may be systems of law in which animals have legal rights. Animals may conceivably be legal persons.” That comes out of chapter two of the law which the Court of Appeals in the Bern case explicitly relied upon. So, thank you.

THE COURT: Thank you.

MR. COULSTON: Your Honor, just briefly just a couple of things very briefly. He was talking about the 13th Amendment which specifically states that the 13th Amendment doesn’t apply to orca whales which is again this category of animals that have higher cognitive ability. Also this language about animals as slaves this is what I am talking about in terms of the problem of the slippery slope and you start thinking about livestock, you start thinking about pets, and it’s hard to see how it doesn’t fit in that conception of the world that he’s talking about here. And finally these are arguments for appeal, these are not an argument to this Court with precedent to be binding.

THE COURT: Thank you very much. Thank you, counsels, for an extremely interesting and well-argued oral argument. I thank you very much. The way we do things here is that since there is a cross motion you folks will share the cross of ordering the transcript and uploading it and E-filing it, okay. And you have two weeks to do that which would be June 10 or or before June 10. I believe I have hard copies of all of your submissions. If I don’t, please deliver them to Mr. Kasper back at 80 Centre Street Part 12. Except for exhibits, we will look at exhibits, they can be uploaded. We don’t need hard copies of the exhibits. Again, thank you.

MR. COULSTON: Thank you very much.

MR. WISE: Thank you, your Honor.