Elephant Habeas Case: Steven Wise’s Forum Shopping Apparently Fails
Posted on December 17, 2018
Steven Wise is very keen on treating animals like people, but he also seems to treat rural people like unsophisticated rubes. As you’ll recall, Wise and his group, the Nonhuman Rights Project, brought a petition for a writ of habeas corpus on behalf of Happy, an elephant at the Bronx Zoo. He brought the case in rural Orleans County, New York instead of, you know, the Bronx:
Curiously, the case was filed in Orleans County, on the shore of Lake Ontario. The county’s largest town, Albion, had a population of 8,468 as of the last census. Why there? Because, Wise told the Post, “local courts aren’t amenable to his arguments.” Apparently this is consistent with New York’s statutes on venue in habeas corpus cases. We’ll see how the judge in Albion feels about Wise bringing the circus, or the zoo, to his or her courtroom.
As it turns out, the judge Tracey A. Bannister, did not think bringing the case in Orleans County was a good idea, and she indicated she would transfer it back to the Bronx. Why, she asked, did Wise bring his petition in Albion, a town he admitted he wouldn’t have been able to find on a map before bringing the case?
“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 told The Batavia Daily News in November, 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.”
Now, I don’t know Wise’s subjective intent, or how Judge Bannister would have heard his intent. But to me, this sounds an awful lot like someone who talks like Andy Griffith saying, “Well, shucks, Judge, we wanted a rural judge who really understands animals, and who has some more leisure to think the issue through, unlike those busy urban judges in New York City.” To my ear, this is incredibly patronizing. And in fact, the judge told Wise that her court was quite busy, thank you.
Probably the real reason for bringing the case in Orleans, in New York’s Fourth Department, is that appellate courts in the First Department (which includes the Bronx) have already rejected the argument that an animal can be entitled to a writ of habeas corpus out of hand. And the one judge who, in a concurring opinion, mused that perhaps the law here will one day change, is from—you guessed it—the Fourth Department.
My best guess is that Wise’s chances of victory are very low in the Bronx. Busy urban judges who don’t live among the animals probably are unlikely to think hearing a habeas corpus petition brought on behalf of an elephant is a good use of the court’s resources. But I have given up predicting in these cases. Perhaps Wise will appeal the change of venue. I wonder what Happy thinks about the relative merits of seeking relief in Orleans County versus the Bronx?