Mark Dubois Mark Dubois

Some day, law students learning about the common law may study the Litchfield elephants case for what it shows about how new concepts, values and sensibilities can redefine and reshape what is at its core the flexible and adaptable system of common law. If I teach ethics again, I might include the case on the final exam because of what it teaches us about Rule 3.1 and the mandate that lawyers only bring nonfrivolous matters to courts.

As reported in the Tribune a few weeks ago, Judge James Bentivegna dismissed a habeas corpus petition brought by an animal legal rights group challenging the continued detention in Litchfield of three elephants at the Comerford zoo and farm. Initially, I joked about the case as probably many did—“wow, I bet they won’t forget that!” I viewed the whole thing as a farce and a waste of time. I was wrong.

I was intrigued enough to look further into the case because one of the grounds of dismissal was that the matter was “wholly frivolous.” For ethics nerds like me, hearing a judge call an argument or position frivolous is kind of like blood in the water. There’s a schadenfreude that draws us to the troubles of others. I figured the case might add something to the law of frivolity, especially if there were repercussions for bringing such a claim. After a lot of reading and thinking (OK, I really do have to get out more…), I think the case has a point.

The Practice Book has a procedure for screening habeas cases which allows a judge to refuse to issue a writ if the court lacks jurisdiction, the matter is “wholly frivolous on its face,” or the relief sought is not available. If I were wearing the robe, I probably would have used the third prong, holding that courts can’t extend people rights to animals. Yet the petition contained a footnote that runs four pages, documenting an impressive roster of legal thinkers who argued exactly the opposite in numerous law review articles. Quite apart from what that might say about how rarified the air is in the ivory tower of the legal academy, maybe that avenue wasn’t quite the slam dunk I thought.

That left the issues of standing and frivolity. The judge spends most of his opinion on standing, and points out that the elephants’ “next friend” for surrogacy purposes was more likely their captors, who had a long relationship with them, than the plaintiff, which had never met them. Of course, that begs the question whether the jailors (in the plaintiff’s view of things) could be relied on to act against their own interests and advance the elephants’ claims to freedom. There is also a trust that’s been established on behalf of the elephants; the trustees might have standing even if the plaintiff does not.

Frivolity is the issue that initially caught my attention and is, for my purposes, the richest. There’s a pretty well-developed body of law on frivolity, both in criminal jurisprudence, where it forms the basis for the “Anders Brief” advising the court that there is no basis for an appeal, and in the civil common law, where it is examined relevant to the award of fees or as the basis for sanctions. It is also an issue in legal ethics (think Rule 3.1 of the MRPC and Rule 11 of the FRCP). There are four axes on which frivolity is examined: factual, legal, subjective and objective.

The legal ethics test for frivolity is pretty much the Rule 11 one, a reasonable basis in fact and law or a reasonable argument for the extension of the law. While the frivolity analysis under the old code of ethics was subjective, commentators on the new rule regime suggest that the test is now more objective, i.e., what a reasonable lawyer would believe. Judge Bentivegna adopted a frivolity test from a family case which defines nonfrivolous as meritorious, though he does admit that habeas jurisprudence only requires it to be something that’s “debatable among jurists of reason.”

After reading some of the law review articles the petitioner cited, I think the issue is at least debatable. The appellate courts will now decide whether a sentient animal might be entitled to some of the rights of a person. Should be great briefs, and even better oral argument. Bottom line, however, is that I don’t see any ethical jeopardy for the lawyers involved in this case, even though it’s not something you see every day. The common law, as the petitioner avers, may just be flexible enough to realize that we don’t yet know everything about how animals think, feel and act. They be more human than some of us.