The Nonhuman Rights Project was so interested in having its elephant habeas heard in San Francisco rather than Fresno that it filed a petition for a writ of mandamus seeking review of a San Francisco judge’s decision last month to send the case to Fresno, where the elephants and the Fresno Zoo are located. Although I don’t know if there is a written order, the docket indicates that the appellate court denied the petition earlier this month, apparently without an oral hearing and without calling for a response from the other side.
Lawyers should have someone they can go to for a sanity check on briefs they write. The person doesn’t have to be a lawyer and maybe shouldn’t be a lawyer–just someone with good sense. What you’re looking for is someone who can tell you, “that’s the dumbest thing I’ve ever heard” and save you from your super-clever argument that turns out to be utterly unpersuasive. I think the NhRP’s petition could have benefitted from that kind of sanity check here. One of the NhRP’s main points is that its habeas petition doesn’t need to be heard in the place where the elephants are kept, because it’s not a challenge to the conditions to their confinement but instead to the legality of their confinement. The sanity checker might read that argument and ask, “Do you meant that you’re arguing that the elephants should be set free, because it’s illegal for people to decide where elephants can and can’t go?” No, the NhRP would say, we’re not saying exactly that; we’re saying that the elephants should be in an elephant sanctuary where they can lead happy elephant lives instead of in the Fresno Zoo. “So then aren’t you complaining about the conditions of the Fresno Zoo? You write a lot about how bad they are.” No, the NhRP would say, we explicitly that we’re not challenging the conditions of confinement. “Yes, I read that, but you’re also not suggesting that they should just be set free, right?” Er, right.