With change brewing in the Court of Appeals, Happy the Elephant’s case may live to see another day

Happy 8 – credit Gigi Glendinning – Oct 2021
According to the New York Court of Appeals in their June 14 ruling, Happy the Elephant is not a human and the use of habeas corpus cannot apply to her confinement in the Bronx Zoo.
Photo Gigi Glendenning

In the wake of Chief Judge Janet DiFiore’s resignation from New York’s highest court — the Court of Appeals — an opportunity has arisen for parties unsatisfied with rulings from the DiFiore-led bench.

Now with the possibility of trying their luck before a reconfigured, seven-member bench, the Nonhuman Rights Project (NhRP) — the legal team arguing for Bronx Zoo attraction Happy the Elephant’s eventual release to an elephant sanctuary — filed a motion this month to reargue Happy’s case after the court ruled against them last month.

Advocates pushing for Asian elephant Happy’s release took a blow when the state’s highest court voted 5-2, on June 14, to reject an animal rights group’s argument that Happy was being illegally and solitarily confined at the zoo.

Since the court is not in session for the remainder of the summer, the NhRP does not expect a decision on the motion until September at the earliest.

One of five judges to rule against NhRP last month, DiFiore announced she’s leaving her post at the end of the summer, giving Gov. Kathy Hochul an opportunity to remake the court. DiFiore is also the subject of an ethics probe over whether she interfered in a disciplinary hearing for the head of the New York State Court Officers Association.

At the center of the legal saga involving the Bronx Zoo’s Asian elephant is whether the legal principle of habeas corpus, which guards against illegal detention, should be extended to emotionally complex and intelligent animals.

On that topic of law, DiFiore said, that while Happy is a complex animal — “a cognitively complex nonhuman animal” who was the first of its kind to pass a mirror self-recognition test, according to the NhRP — she’s not a person.

New York Chief Judge Janet DiFiore, left, swears in Kathy Hochul as the first woman to be New York governor in Albany, New York, U.S., Aug. 24, 2021. Photo Mike Groll/Office of Governor Kathy Hochul

DiFiore stated that nothing in legal precedent provides support for the notion that the writ of habeas corpus — which may be obtained by any “person” who has been illegally detained, oftentimes in the Bronx on behalf of prisoners on Rikers Island — is or should be applicable to nonhuman animals.

“While no one disputes the impressive capabilities of elephants, we reject petitioner’s arguments that it is entitled to seek the remedy of habeas corpus on Happy’s behalf,” wrote DiFiore on behalf of the majority. “Habeas corpus is a procedural vehicle intended to secure the liberty rights of human beings who are unlawfully restrained, not nonhuman animals.”

The Court of Appeals’ decision last month mirrored similar verdicts on the lower level which expressed favor for the Wildlife Conservation Fund, who owns the Bronx Zoo, in their long legal fight with the NhRP, a New York-based legal nonprofit which pushed to remove the 51-year-old elephant from the Bronx Zoo, saying she was imprisoned in her one-acre enclosure.

But the Wildlife Conservation Society, which operates the zoo, rejected this description, saying Happy and her fellow elephant at the zoo are well cared for. The Wildlife Conservation Society, which manages four New York City wildlife parks in addition to the Bronx Zoo, has never faced charges of abuse against their elephants.

Happy’s legal team, the NhRP told the Bronx Times they believe the Court of Appeals “misapprehended and overlooked crucial points of law and fact” in their June ruling.

“As we file this motion we stress that, regardless of how the Court rules on it, the Bronx Zoo and the Wildlife Conservation Society, which manages the zoo, doesn’t need a court order to do the right thing — which is to release Happy and the other elephant they keep in solitary confinement, Patty, to sanctuaries and close the elephant exhibit for good, as the Bronx Zoo once pledged to do,” said Elizabeth Stein, an NhRP attorney and Happy’s New York counsel.

DiFiore’s departure next month will break up one of the most powerful and consistent ruling blocs in New York’s judicial scene as the chief judge and fellow judges Anthony Cannataro, Michael Garcia and Madeline Singas voted in tandem in 96 of the Court’s 98-case session that ended last month, City & State reported on July 7.

The New York State Constitution mandates that the governor select high-court nominees from a list of candidates deemed well-qualified by a commission on judicial nomination. The 12-member body is comprised of commissioners appointed by the governor, the chief judge and majority and minority leaders of the state Legislature, and a nominee requires eight votes in order to appear on the list. Once the governor selects from among the names presented, the state Senate must confirm the nominee with a majority vote.

On April 30, protestors flocked to the main gate of the Bronx Zoo demanding the release of the zoo’s star attraction Happy the Elephant. Photo Lukas Greyson

Judicial sources with knowledge of the Court of Appeals appointment process told the Bronx Times that Hochul could possibly elevate sitting judge, Rowan Wilson to DiFiore’s post, a decision that could be favorable to the state’s progressives disenchanted with the perceived conservative slant of the court.

In a commentary piece on City Journal, John Ketcham cites Happy’s the Elephant’s case as one of the potential cases that could benefit from a Wilson-led bench.

“In one newsworthy recent dissent involving Happy, the Bronx Zoo elephant, he wrote that he would grant a writ of habeas corpus to free the pachyderm from captivity. For all its quirkiness, the case demonstrates that judicial innovation would likely become a hallmark of Wilson’s leadership,” Ketcham penned on July 14.

The conservation society did not respond to multiple requests for comment.

Reach Robbie Sequeira at rsequeira@schnepsmedia.com or (718) 260-4599. For more coverage, follow us on Twitter, Facebook and Instagram @bronxtimes