The elephant in the room: does Happy qualify for habeas corpus?

Photo courtesy of NhRP Happy the elephant at the Bronx Zoo in September.

ALBION — Does Happy the elephant qualify for habeas corpus?

In an Order to Show Cause, oral arguments will be heard in front of the Hon. Tracey A. Bannister in December to argue just that.

In The Batavia Daily News’ previous story on Happy — which ran on Wednesday — Happy’s case is the second time in United States legal history a habeas corpus has been issued for a nonhuman animal, and the first time anywhere a case has been argued for an elephant. Steven Wise, Nonhuman Rights Project (NhRP) president, said to the best of his knowledge a habeas corpus has happened two other times across the world; one for an orangutan in Buenos Aires and another time on behalf of a chimpanzee in Mendoza, Argentina.

The purpose of the Nonhuman Rights Project is to argue personhood for great apes, elephants, dolphins, and whales, maintaining they possess fundamental rights such as bodily liberty and bodily integrity.

It all started with the book “Animal Liberation: A New Ethics for Our Treatment of Animals” by Peter Singer which was given to Wise in 1979. It was then he decided to become an animal lawyer feeling if he spends his life working on behalf of animals he would do more than anything he did as a human lawyer.

“We’ve been filing our first lawsuits — our habeas corpus lawsuits — on behalf of nonhuman animals who we can prove are autonomous beings in that they don’t act according to instinct,” Wise said. “They have free will; they can make their own independent choices as how to they want to live their lives. Autonomy is something valued in the state of New York as it is in many places.”

Happy’s case has affidavits from the greatest and most famous elephant experts from around the world, including Joyce Poole and Cynthia Moss, who have studied elephants for 40 to 50 years and know them better than anybody else in the world. Wise said Happy is an autonomous being who was born in the wild in 1971, and would be walking 20 miles a day, living in a multi-generational family and in a relatively large herd.

“To put Happy in the Bronx Zoo, to force her with virtually alone in a one acre place — it’s similar to putting you or I in solitary confinement in prison except she didn’t do anything,” he said. “She is just forced to live there. It’s not good for her. It’s like her being a prisoner here — it’s not healthy for her. It’s like spending life in prison.”

So NhRP is asking for a two-step decision: first the whole purpose of habeas corpus is to free autonomous beings who are being imprisoned against their will and not all being in the world who are autonomous are humans. That habeas corpus has been used over the years for humans who were considered to be “things” because they weren’t considered a person, or a being with a capacity for rights as opposed to a thing who has no capacity for rights. The second was for Happy to be released to an elephant sanctuary.

Orleans County was chosen to hear Happy’s case for two main reasons; its place in the New York’s Fourth Judicial Department and its rural nature.

Wise explained in New York, each county has their own supreme court and then there are four intermediate appellate courts which funnel into a single court of appeals. When NhRP was last in the New York First Judicial Department — which covers Manhattan and the Bronx, where the Bronx Zoo is — the court ruled against them saying a non-human animal because they were non-human animals could never have any legal rights. When they brought it up to the Court of Appeals, while the court denied it, a judge from the fourth judicial department by the name of Eugene Fahey disagreed saying someone not being a human being was not a sufficient reason to deny the rite of habeas corpus.

“The statue that says where you can file a writ of habeas corpus says you can do it in front of any judge you want in the entire state, so there was no reason we needed to go in front of a judge in the first department where the Bronx Zoo was,” Wise said, explaining they chose the fourth department area was because last time they were in front of them for a chimpanzee named Kiko they ruled against NhRP — though not on the grounds Kiko was a person, but to sue for habeas corpus you have to be able to ask about the detained being released immediately, and NhRP did not ask for an immediate release. So when they filed in Orleans, NhRP has asked numerous times for an immediate release.

“We simply chose Orleans court because we believed ... this kind of issue was fairly complex and that a judge in a more rural court might have more time to really think it through rather than in a busy urban court,” he continued, before adding with a laugh the justice set them straight Orleans County Supreme Court is really super busy. “If we had known that, we might have picked some other court because we were looking for a court that was not super busy.”

Wise admitted they chose Orleans County Supreme Court almost randomly a rural court in the fourth department, and he told the judge at the oral hearing none of the staff had been to Orleans County nor knew where it or Albion was. However, he assured he now knows it is between Niagara Falls and Rochester.

Orleans County Supreme Court cannot comment on the current case, but the case will be heard on Dec. 14 at 11:30 a.m.