Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc.

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NONHUMAN RIGHTS PROJECT, INC. v. R.W.
COMMERFORD & SONS, INC., ET AL.
(AC 42795)
Alvord, Bright and Beach, Js.
Syllabus
The petitioner, N Co., sought a writ of habeas corpus on behalf of three
elephants that it alleged were being illegally confined by the named
respondents, C Co., a zoo, and C Co.’s president, W. N Co. challenged
the detention of the elephants, sought recognition of the elephants
as ‘‘persons’’ recognized by the common law, and requested that the
elephants be released. The habeas court dismissed the petition as succes-
sive in light of N Co.’s first petition against C Co. and W, which alleged
essentially the same facts and sought the same relief. On appeal to this
court, at which time only one of the three elephants remained alive, the
petitioner claimed that the habeas court erred in dismissing its second
petition as successive and that this court’s decision on the first petition,
which affirmed the habeas court’s decision to decline to issue the writ,
was incorrect. Held that the habeas court properly dismissed the present
petition for a writ of habeas corpus, as the elephant, and consequently,
N Co., lacked standing to file a petition for a writ of habeas corpus
because the elephant had no legally protected interest that possibly
could be adversely affected; the reasoning and the holding in the appel-
late decision on the first petition were clearly applicable to the present
petition and controlled the resolution of this appeal, N Co. failed to
present any material distinctions between the first appeal and the present
appeal, our habeas corpus jurisprudence contained no indication that
habeas corpus relief was ever intended to apply to a nonhuman animal,
our common law revealed no instances of a nonhuman animal permitted
to bring an action to vindicate its purported rights, only a person, not
an animal, whose custody is in question is authorized to file an applica-
tion for a writ of habeas corpus, the term ‘‘person’’ in our General
Statutes has never been defined as a nonhuman animal, and recent
legislative activity regarding habeas corpus lacked any indication that
the legislature intended habeas corpus relief to apply to nonhuman
animals.
Argued January 8—officially released May 19, 2020
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the matter was transferred to the judicial district of
Litchfield at Torrington and tried to the court, Shaban,
J.; judgment dismissing the petition, from which the
petitioner appealed to this court. Affirmed.
Steven M. Wise, pro hac vice, with whom were Bar-
bara M. Schellenberg and, on the brief, David B. Zabel,
for the appellant (petitioner).
Opinion
ALVORD, J. The petitioner, Nonhuman Rights Proj-
ect, Inc., appeals from the judgment of the habeas court
dismissing its petition for a writ of habeas corpus that
it sought on behalf of an elephant, Minnie,1 who is
alleged to be owned by the named respondents, R.W.
Commerford & Sons, Inc. (also known as the Commer-
ford Zoo), and its president, William R. Commerford.2
The petitioner argues that the court improperly dis-
missed its petition for a writ of habeas corpus. We
conclude that the court properly dismissed the petition
on the alternative ground that the petitioner lacked
standing.3
On November 13, 2017, the petitioner filed its first
verified petition for a common-law writ of habeas cor-
pus on behalf of three elephants; see footnote 1 of this
opinion; pursuant to General Statutes § 52-466 et seq.
and Practice Book § 23-21 et seq. (first petition). See
Nonhuman Rights Project, Inc. v. R.W. Commerford &
Sons, Inc., 192 Conn. App. 36, 38, 216 A.3d 839 (Com-
merford I), cert. denied, 333 Conn. 920, 217 A.3d 635
(2019). ‘‘The petitioner alleged that it is a not-for-profit
corporation with a mission of changing the common-
law status of at least some nonhuman animals from
mere things, which lack the capacity to possess any
legal rights, to persons, who possess such fundamental
rights as bodily integrity and bodily liberty, and those
other legal rights to which evolving standards of moral-
ity, scientific discovery, and human experience entitle
them. . . . The petitioner alleged that the named
respondents are illegally confining the elephants.
‘‘The petition [made] clear that it challenge[d] neither
the conditions of [the elephants’] confinement nor [the]
respondents’ treatment of the elephants, but rather the
fact of their detention itself . . . . It [was] not seeking
any right other than the common-law right to bodily
liberty for the elephants. The petition state[d] that
determining [who] is a person is the most important
individual question that can come before a court, as
the term person identifies those entities capable of pos-
sessing one or more legal rights. Only a person may
invoke a common-law writ of habeas corpus, and the
inclusion of elephants as persons for that purpose [was]
for this court to decide. The petition further allege[d]
that [the] expert affidavits submitted in support of [the]
petition set forth the facts that demonstrate that ele-
phants . . . are autonomous beings who live extraordi-
narily complex emotional, social, and intellectual lives,
and who possess those complex cognitive abilities suffi-
cient for common-law personhood and the common-
law right to bodily liberty protected by the common law
of habeas corpus, as a matter of common-law liberty,
equality, or both.’’ (Internal quotation marks omitted.)
Id., 38–39.
On December 26, 2017, the habeas court, Bentivegna,
J., declined to issue a writ of habeas corpus pursuant
to Practice Book § 23-24 (a) (1) and (2)4 on the basis
that the petitioner lacked standing to bring the petition
on behalf of the elephants and that the petition was
wholly frivolous on its face. Id., 39–40. The petitioner
appealed to this court. While the appeal to this court
from the order of the habeas court declining to issue
the writ with respect to its first petition was pending,
the petitioner filed the present petition for a writ of
habeas corpus on June 11, 2018.5 The petition again
sought recognition of the elephants as ‘‘persons,’’ within
the meaning of the common law, in order to secure the
elephants’ common-law right to bodily liberty protected
by habeas corpus. The petition requested release of the
elephants from the alleged illegal confinement.
On February 13, 2019, the habeas court, Shaban, J.,
issued a memorandum of decision dismissing the peti-
tion as successive under Practice Book § 23-29 (3), con-
cluding that the petitioner, the named respondents, the
subjects of the petition, the grounds asserted in the
petition, and the relief sought by the petition were all
the same as in the first petition.6 It further concluded
that, even if the petition were not successive, it would
be subject to dismissal pursuant to Practice Book § 23-
29 (5).7 This appeal followed.8
On appeal, the petitioner claims that the habeas court
erred in dismissing its petition.9 After the petitioner
filed its appellate brief in this appeal, this court released
its decision in Commerford I, supra, 192 Conn. App. 36,
which affirmed the habeas court’s decision to decline
to issue the writ with respect to the petitioner’s first
petition. This court concluded in Commerford I that
the petitioner could not satisfy the prerequisites for
establishing next friend standing because the elephants
lacked standing in the first instance. Id., 41. The ele-
phants lacked standing to file a petition for a writ of
habeas corpus because they lacked a legally protected
interest that possibly could be adversely affected and,
therefore, the habeas court properly declined to issue
the writ on standing grounds. Id., 48. Following this
court’s decision in Commerford I, the petitioner filed
a motion for reconsideration en banc,10 which this court
denied, and a petition for certification to appeal to our
Supreme Court,11 which also was denied.
The petitioner thereafter was granted permission to
file a supplemental brief in this appeal. In its supplemen-
tal brief, the petitioner argued that ‘‘this court should
disregard [Commerford I] as it is ‘clearly wrong,’ ’’ pre-
senting nine arguments in support of this claim.12 ‘‘[A]s
we often have stated, this court’s policy dictates that
one panel should not, on its own, reverse the ruling of
a previous panel. The reversal may be accomplished
only if the appeal is heard en banc.’’ (Internal quotation
marks omitted.) AFSCME, Council 4, Local 1303-385
v. Westport Dept. of Public Works, 151 Conn. App. 477,
484 n.7, 95 A.3d 1178, cert. denied, 314 Conn. 930, 101
A.3d 274 (2014); see State v. Joseph B., 187 Conn. App.
106, 125 n.14, 201 A.3d 1108, cert. denied, 331 Conn.
908, 202 A.3d 1023 (2019); see also Practice Book § 70-
7.13 At oral argument before this court, the petitioner’s
counsel recognized both that this court cannot overrule
a decision of a prior panel and that it had not filed a
request to have the present appeal heard en banc.14
Accordingly, we decline the petitioner’s request to
revisit our precedent.
In accordance with our decision in Commerford I, we
conclude that Minnie and, consequently, the petitioner,
lack standing. ‘‘Standing is the legal right to set judicial
machinery in motion. One cannot rightfully invoke the
jurisdiction of the court unless [one] has, in an individ-
ual or representative capacity, some real interest in the
cause of action . . . . Standing is established by show-
ing that the party claiming it is authorized by statute
to bring suit or is classically aggrieved. . . . The funda-
mental test for determining [classical] aggrievement
encompasses a well-settled twofold determination:
first, the party claiming aggrievement must successfully
demonstrate a specific personal and legal interest in
the subject matter of the decision, as distinguished from
a general interest, such as is the concern of all the
members of the community as a whole. Second, the
party claiming aggrievement must successfully estab-
lish that the specific personal and legal interest has
been specially and injuriously affected by the decision.
. . . Aggrievement is established if there is a possibility,
as distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Stec v. Raymark
Industries, Inc., 299 Conn. 346, 373–74, 10 A.3d 1 (2010).
In Commerford I, this court first examined our
habeas corpus jurisprudence, which revealed ‘‘no indi-
cation that habeas corpus relief was ever intended to
apply to a nonhuman animal,’’ and our common law,
which revealed no instances of nonhuman animals
being permitted to bring a cause of action to ‘‘vindicate
the animal’s own purported rights.’’ Commerford I,
supra, 192 Conn. App. 45. It then discussed the social
compact theory, pursuant to which ‘‘all individuals are
born with certain natural rights and that people, in
freely consenting to be governed, enter a social compact
with their government by virtue of which they relinquish
certain individual liberties in exchange for the mutual
preservation of their lives, liberties, and estates.’’ (Inter-
nal quotation marks omitted.) Id., 45–46. It explained
that elephants and other nonhuman animals are ‘‘inca-
pable of bearing duties and social responsibilities
required by such social compact.’’ Id., 46.
Next, this court turned to our statutes, particularly
§ 52-466,15 which shapes the use of a writ of habeas
corpus. The court noted that ‘‘§ 52-466 (a) (1) unequivo-
cally authorizes a person, not an animal, to file an appli-
cation for a writ of habeas corpus in the judicial district
in which that person whose custody is in question is
claimed to be illegally confined.’’ (Emphasis in original.)
Id., 47. It further stated that it ‘‘found no place in our
General Statutes where the term ‘person’ has ever been
defined as a nonhuman animal.’’ Id. Noting recent legis-
lative activity regarding habeas corpus, which lacked
any indication that the legislature intended habeas cor-
pus relief to apply to nonhuman animals, and the lack
of case law holding that animals can possess their own
legal rights, this court declined to disturb who can seek
habeas corpus relief. It concluded that ‘‘the elephants—
who are incapable of bearing legal duties, submitting
to societal responsibilities, or being held legally
accountable for failing to uphold those duties and
responsibilities—do not have standing to file a petition
for a writ of habeas corpus because they have no legally
protected interest that possibly can be adversely
affected.’’ Id., 48.
The petitioner has failed entirely to present any mate-
rial distinctions between Commerford I and the present
case. The reasoning and the holding in Commerford I
are clearly applicable to the present case, and control
the resolution of this appeal. We therefore conclude
that Minnie and, consequently, the petitioner, lacked
standing to file a petition for a writ of habeas corpus.16
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petition originally was filed on behalf of three elephants: Beulah,
who was in her ‘‘mid-forties’’; Minnie, who has been owned by the named
respondents since at least 1989; and Karen, who was in her ‘‘mid-thirties.’’
The petitioner represented during oral argument before this court that Beu-
lah and Karen have since died. Counsel for the petitioner stated that, although
he believes that Karen died in March, 2019, he did not learn of her death
at the time because he does not have access to the elephants.
2
The named respondents are not parties to the action or to this appeal.
3
Given our conclusion that the petitioner lacked standing, we need not
address the petitioner’s claims that the habeas court improperly (1) dis-
missed its petition for a writ of habeas corpus on the ground that it was
successive pursuant to Practice Book § 23-29 (3) and (2) concluded that,
even if it were not successive, it would be subject to dismissal pursuant to
Practice Book § 23-29 (5).
4
Practice Book § 23-24 provides: ‘‘(a) The judicial authority shall promptly
review any petition for a writ of habeas corpus to determine whether the writ
should issue. The judicial authority shall issue the writ unless it appears that:
‘‘(1) the court lacks jurisdiction;
‘‘(2) the petition is wholly frivolous on its face; or
‘‘(3) the relief sought is not available.
‘‘(b) The judicial authority shall notify the petitioner if it declines to issue
the writ pursuant to this rule.’’
5
Despite alleging that the elephants were being detained by the named
respondents in Goshen, which is located in the judicial district of Litchfield
where the petitioner filed its first petition, the petitioner filed the present
petition in the judicial district of Tolland. It was transferred by the court,
sua sponte, to the judicial district of Litchfield.
When asked during oral argument before this court why the petition
was filed in Tolland, the petitioner’s counsel, who appeared pro hac vice,
represented that he believed that the judges in Tolland would have a greater
understanding of habeas corpus. The petitioner’s counsel conceded that
for a judge that would rule in his favor but, rather, one that ‘‘worked in the
area of habeas corpus day in and day out.’’ Local counsel for the petitioner,
Barbara M. Schellenberg, was asked during oral argument whether she was
cognizant of the ‘‘judge shopping’’ occurring in the case, and she stated that
she personally was not involved in the matter before the trial court.
Following oral argument, David B. Zabel, also local counsel for the peti-
tioner, filed with this court a letter stating that pro hac vice counsel for the
petitioner believed, at the time of the filing of the petition, that it would
not be improper to file the petition in the judicial district of Tolland. Zabel
agreed with that position, likening the filing of the petition in Tolland to
‘‘seeking to have a complex civil case transferred to the complex litigation
docket in Connecticut to have it heard before a judge experienced in com-
plex cases.’’
We strongly disagree that counsels’ filing of the habeas petition in Tolland
was proper. See General Statutes § 52-466 (a) (1) (‘‘[a]n application for a
writ of habeas corpus, other than an application pursuant to subdivision
(2) of this subsection, shall be made to the superior court, or to a judge
thereof, for the judicial district in which the person whose custody is in
question is claimed to be illegally confined or deprived of such person’s
liberty’’).
Furthermore, we are extremely troubled by counsels’ implication that
filing a second action that is virtually identical to the first action, which the
petitioner lost, was justified because Judge Bentivegna did not have suffi-
cient knowledge of or experience in habeas corpus matters when he ruled
against the petitioner. Not only does such a suggestion unfairly impugn an
experienced and capable judge, our system does not work that way. A
litigant may not file a repetitive action just because it is unhappy with the
ruling of the first judge. A disappointed litigant’s remedy after losing in the
trial court is to appeal to this court or to our Supreme Court, not to file a
second action essentially asking one Superior Court judge to overrule
another. This is not a novel concept.
6
In dismissing the petition, the habeas court considered a motion filed
by the petitioner seeking that the court rule promptly on its petition for a
writ of habeas corpus and for oral argument to be held thereon.
7
Practice Book § 23-29 (5) provides: ‘‘The judicial authority may, at any
time, upon its own motion or upon motion of the respondent, dismiss the
petition, or any count thereof, if it determines that . . . any other legally
sufficient ground for dismissal of the petition exists.’’
8
The petitioner filed a motion to reargue, which was denied.
9
‘‘Whether a habeas court properly dismissed a petition for a writ of
habeas corpus presents a question of law over which our review is plenary.’’
Gilchrist v. Commissioner of Correction, 334 Conn. 548, 553, 223 A.3d
368 (2020).
10
Therein, the petitioner argued that the decision conflicted with appellate
precedent in four ways. ‘‘First, under Jackson v. Bulloch, [12 Conn. 38
(1837)], the [petitioner’s] standing did not depend upon the elephants having
standing. Second, under Connecticut Assn. of Boards of Education, Inc. v.
Shedd, [197 Conn. 554, 557 n.1, 499 A.2d 797 (1985)], and other controlling
authorities, this court improperly resolved the question of standing by
determining the merits of the case. Third, under Johnson v. Commissioner
of Correction, [168 Conn. App. 294, 308 n.8, 145 A.3d 416, cert. denied, 323
Conn. 937, 151 A.3d 385 (2016)], the [petitioner] was prejudiced by its lack
of opportunity to adequately address the merits of the case both in the
lower court and this court. Fourth, Beulah, Minnie, and Karen are already
legal persons whose status as beneficiaries of an inter vivos trust created
pursuant to [General Statutes §] 45a-489a does not turn on their capacity
to bear duties and social responsibilities; neither should their right to bodily
liberty so turn under Jackson v. Bulloch.’’
11
In its petition for certification to appeal to our Supreme Court, the
petitioner presented the following questions for review: ‘‘A. Did the Appellate
Court err in holding that the real party in interest, Minnie—an Asian elephant
unlawfully detained by [the named respondents]—must have standing in
the first instance in order for [the petitioner] to have next friend standing
to pursue a habeas corpus action on her behalf, where the action seeks a
good faith extension or modification of the Connecticut common law of
habeas corpus?
‘‘B. Did the Appellate Court err when it resolved the question of Minnie’s
standing by determining the merits of the case?
‘‘C. Did the Appellate Court err in determining that personhood requires
the ability to bear duties and social responsibilities, an issue which neither
the trial court nor the
Appellate Court provided [the petitioner] with an adequate opportunity
to present, brief, and argue?’’ (Footnote omitted.)
12
In its supplemental brief, the petitioner raised the following arguments:
‘‘this court erroneously conflated the question of [the petitioner’s] standing
with the merits when it determined that Minnie was not a ‘person’ for
standing purposes’’; ‘‘in conflict with Jackson v. Bulloch, [12 Conn. 38 (1837)]
this court erroneously concluded that [the petitioner’s] standing depended
on Minnie having ‘standing in the first instance’ ’’; ‘‘the English and American
common law of habeas corpus have long granted third parties standing to
challenge a stranger’s private detention’’; ‘‘in conflict with Jackson [v. Bul-
loch, supra, 38] and Anglo-American jurisprudence, this court erroneously
concluded that Minnie is not a ‘person’ because she is ‘incapable of bearing
duties and social responsibilities required by [the] social compact’ ’’; ‘‘Minnie
is already a ‘person’ as she has the right of a trust beneficiary under General
Statutes § 45a-489a (a)’’; (emphasis in original); ‘‘by asserting that the unde-
fined term ‘person’ in General Statutes § 52-466 (a) (1) cannot apply to an
animal . . . this court erroneously conflated ‘person’ with ‘human being,’
which are not synonymous’’; ‘‘§ 52-466 and Practice Book § 23-21 et seq. are
purely procedural and cannot determine the substantive scope of habeas
corpus . . . [t]hus, it is irrelevant that judges or legislators may not have
had elephants in mind when determining who was entitled to habeas corpus
relief’’; ‘‘Connecticut courts are ‘charged with the ongoing responsibility to
revisit our common-law doctrines when the need arises’ ’’; and ‘‘allowing
Minnie to seek habeas corpus relief would not ‘require [this court] to upend
this state’s legal system to allow highly intelligent, if not all, nonhuman
animals the right to bring suit in a court of law.’ ’’ (Emphasis in original.)
13
Practice Book § 70-7 provides: ‘‘(a) Before a case is assigned for oral
argument, the chief judge may order, on the motion of a party or sua sponte,
that a case be heard en banc.
‘‘(b) After argument but before decision, the entire court may order that
the case be considered en banc with or without further oral argument or
with or without supplemental briefs. The judges who did not hear oral
argument shall have available to them the electronic recording or a transcript
of the oral argument before participating in the decision.
‘‘(c) After decision, the entire court may order, on the motion of a party
pursuant to Section 71-5 or sua sponte, that reargument be heard en banc.’’
14
Instead, when asked during oral argument before this court whether
he was waiting to seek consideration en banc until after this court issued
its decision stating that it could not reverse the ruling of the prior panel,
the petitioner’s counsel represented that he intended to file a motion for
reconsideration en banc after this court issues its decision in this appeal.
15
See footnote 5 of this opinion.
16
Following oral argument before this court, the petitioner submitted
a notice of supplemental authority citing Gilchrist v. Commissioner of
Correction, 334 Conn. 548, 223 A.3d 368 (2020), stating that it is significant
because the habeas court dismissed the present petition pursuant to Practice
Book § 23-29 (3) prior to issuing the writ.
In Gilchrist, our Supreme Court clarified the proper procedure to be used
by the habeas court in its preliminary consideration of a petition for a
writ of habeas corpus under Practice Book §§ 23-24 and 23-29. Id., 550. It
summarized: ‘‘[W]hen a petition for a writ of habeas corpus alleging a claim
of illegal confinement is submitted to the court, the following procedures
should be followed. First, upon receipt of a habeas petition that is submitted
under oath and is compliant with the requirements of Practice Book § 23-
22; see Practice Book §§ 23-22 and 23-23; the judicial authority must review
the petition to determine if it is patently defective because the court lacks
jurisdiction, the petition is wholly frivolous on its face, or the relief sought
is unavailable. Practice Book § 23-24 (a). If it is clear that any of those defects
are present, then the judicial authority should issue an order declining to
issue the writ, and the office of the clerk should return the petition to the
petitioner explaining that the judicial authority has declined to issue the
writ pursuant to § 23-24. Practice Book § 23-24 (a) and (b). If the judicial
authority does not decline to issue the writ, then it must issue the writ, the
effect of which will be to require the respondent to enter an appearance in
the case and to proceed in accordance with applicable law. At the time the
writ is issued, the court should also take action on any request for the
appointment of counsel and any application for the waiver of filing fees
and costs of service. See Practice Book §§ 23-25 and 23-26. After the writ
has issued, all further proceedings should continue in accordance with the
procedures set forth in our rules of practice, including Practice Book § 23-
29.’’ Gilchrist v. Commissioner of Correction, supra, 334 Conn. 562–63.
Because of the highly unique and unusual procedural history of the present
case, we decline to assign error in the procedure followed by the court.
First, we note that the petitioner improperly filed its petition in the judicial
district of Tolland. The action was assigned a civil docket number in Tolland
before being transferred to the appropriate judicial district. Once properly
in the judicial district of Litchfield, the court held status conferences and
received and heard oral argument on the petitioner’s motion for order.
Although that motion sought to have the court issue the writ; see Practice
Book § 23-24; the court raised during oral argument the present petition’s
duplicity with the first petition. The petitioner’s counsel did not object on
the basis that consideration of that issue was improper because the court
had not yet issued the writ pursuant to Practice Book § 23-24. Moreover,
the record contains a status conference memorandum dated November 27,
2018, in which the petitioner argued that the present petition should not be
dismissed under Practice Book § 23-29 (3).
Finally, even if we were to assign error in the procedural handling of the
present action and to conclude that the court failed to issue the writ prior
to its dismissal of the petition pursuant to Practice Book § 23-29, we note
that the only remedy available to the petitioner, given the petitioner’s lack
of standing, would be for this court to remand the matter to the habeas
court with direction to decline to issue the writ under Practice Book § 23-
24 (a) (1) on the basis that the court lacked jurisdiction. See Gilchrist v.
Commissioner of Correction, supra, 334 Conn. 563.