When the Court of Appeals grants or denies a motion for leave to appeal, it generally does so in a one sentence order that says “motion for leave to appeal denied” or “motion for leave to appeal granted.”
At most, the Court will issue paragraph explanations sometimes when it has to dismiss a motion for leave to appeal on a complex jurisdictional ground. And it does that only so the parties understand what is preventing the Court from deciding the motion for leave on the merits.
Yesterday, however, for what I believe to be the first time, the Court of Appeals published a separate opinion in denying a motion for leave to appeal (at least that’s what my brief Westlaw research seems to suggest). You’ll see that at the United States Supreme Court sometimes when a Justice disagrees with the denial of certiorari and writes separately to explain why. But I’ve never seen it at the Court of Appeals.
In this case, Judge Eugene Fahey wrote separately to concur in the denial of leave to appeal in the so-called chimpanzee habeas corpus case. In that case, an animal rights group sought a writ of habeas corpus to free two captive chimps, Tommy and Kiko, from private owners who are keeping them in small cages within the State. Judge Fahey explains that if the Court were to grant leave, he would vote to affirm because the habeas had already been sought and denied on the chimps behalf, and two successive writs can’t be sought under the CPLR. So, he concurs in the denial of leave to appeal.
But, that’s not the end of his thoughts. Instead, Judge Fahey explains, the question of whether habeas corpus can be available for the release of a non-human animal will have to be addressed at some point. And he offers an approach for how that question should be answered:
The Appellate Division’s conclusion that a chimpanzee cannot be considered a “person” and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species. I agree with the principle that all human beings possess intrinsic dignity and value, and have, in the United States (and territory completely controlled thereby), the constitutional privilege of habeas corpus, regardless of whether they are United States citizens, but, in elevating our species, we should not lower the status of other highly intelligent species.
The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us in the motion for leave to appeal contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self-awareness and self-control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor. Moreover, the amici philosophers with expertise in animal ethics and related areas draw our attention to recent evidence that chimpanzees demonstrate autonomy by self-initiating intentional, adequately informed actions, free of controlling influences.
Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect (Fahey, J., concurring, at 4-5).
Whatever Judge Fahey’s thoughts are on the availability of habeas corpus for chimps and other animals, it is significant that the Court of Appeals seems to moving in the direction of explaining its work. A separate opinion on a motion for leave to appeal can signal to the bench and bar that a case may present important issues, but that it’s not the right vehicle for deciding those issues. It’s a welcome addition to the work of the Court.
The Court of Appeals’ motion decision can be found here.
New York Appeals 
Interesting! Substantively and procedurally.
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