Happy New Year from NYS

As the New Year approaches, it's that time of year again when many changes to New York State laws begin to take effect.  Some of the more interesting developments to note include:

• Possession of a gun magazine that can hold more than 10 rounds is illegal (effective January 15th).
• The "Start-Up NY Program" which creates tax-free zones around state colleges and universities begins January 1st.
• A constitutional amendment allowing for non-Indian-owned casinos to be developed in the Southern Tier, Catskills region, and around Albany takes effect.
• Judges may now keep alternate jurors for service through jury deliberations.
• The state minimum wage increases from $7.25 to $8.00 per hour.

Other interesting legal developments that we can look forward to later in 2014 include a possible revision to New York's estate tax (a recent Tax Relief Commission has recommended again indexing the amount exempted (currently $1 million) to the federal estate tax exemption ($5.34 million).  And, effective July 1, 2014, the provisions of the Nonprofit Revitalization Act (the most significant revision to the laws and regulations governing nonprofit organizations in decades) take effect.

Well I’ll be a Monkey’s Uncle!

A fascinating series of lawsuits have been filed by the Nonhuman Rights Project this week in various county courts across New York State.  In each of the cases, the group has sued on behalf of a chimpanzee held privately within the state, under the common-law cause of action for a writ of habeas corpus, with the ultimate aim of having the Court grant the chimpanzees “the right to bodily liberty and to order that they be [removed from their current owners and] moved to a sanctuary that’s part of the North American Primate Sanctuary Alliance (NAPSA).”

Habeas corpus is an ancient Anglo-American legal remedy, which literally means “to deliver the body”.  Enshrined in Article I, section 9 of the U.S. Constitution, it is most often seen as a remedy of last resort for convicted criminals (and un-convicted persons held in government captivity, such as the Guantanamo detainees in the early 2000s).  On their website the Nonhuman Rights Project describe their inspiration for the instant cases as being the 1772 English case of Mr. James Somerset.  Somerset was an American slave that escaped while in London, but was recaptured and scheduled to be shipped to Jamaica, when Somerset’s godparents filed a writ of  habeas corpus on his behalf.  The English Chief Justice, Lord Mansfield, subsequently ruled that Somerset was, in fact, not a piece of property, but a legal person (entitled to his liberty in England at that time).  While the history of liberating men from the evils of slavery is compelling, a very important distinction remains: Somerset was a human man (albeit one born into slavery), while the chimpanzees at issue in these cases are definitely not human.

Of course, I’m sure that the attorneys for the Nonhuman Rights Project have collected, and will seek to present, substantial scientific data showing the human-like consciousness of these sentient chimpanzees: capacity to learn, emotional expression, free will, etc.  Interestingly, it has only been with the advances of science that collection of such objective evidence was made possible.  For many years, Anglo-American law has taken a rather Judeo-Christian view on our interaction with animals: we humans are “special” and have been given “dominion over” non-humans, and so we can do whatever we like with them (short of purely sadistic torture).  In which case, the Project has the rather Herculean task of not only proving certain scientific facts, but also convincing the Courts to apply the law to these facts in a remarkably new (at least non-traditional) way.

The outcome of these cases (and their certain appeals by either side) will have far-reaching consequences; not only for animals, but for all sentient beings we might find or create.  Quite serendipitously, last week I was watching some old Star Trek episodes from the 1980s, and came across one entitled “The Measure of a Man”.  In that episode, the ship’s android (an extremely complex human-form computer-brained robot named Data) “sued” for the 23^rd Century equivalent of habeas corpus to avoid being subjected to a rather dangerous experiment against his will.  The Enterprise’s captain advocated on his behalf, and, in the end, the hearing officer determined that the android had all the features of human consciousness, and as such, was a sentient being; worthy of his freedom and self-determination.

The theoretical creation of robots with human-like consciousness is not that absurd considering the incredible technological advances made in just the past 20 years.  Thus, the Nonhuman Rights Project’s campaign to seek acknowledgement of the rights of liberty for our nearest genetic cousins – the chimpanzees – may someday effect the liberty interests of our more distant mechanical relatives.

Snowmobile Sounds Scrutinized by State

Although we've already seen the first snowfall of the year here in the Finger Lakes, the Governor recently signed legislation beefing up enforcement of maximum sound levels emitted by the exhaust systems of snowmobiles used in the State.  The legislation (which amends section 25.17 of the Parks, Recreation, and Historic Preservation Law), generally requires that snowmobile operators make sure that the snowmobile's muffler does not emit noise above 78 decibels (measured 50 feet away at full throttle), or 88 decibels measured from 12 feet directly behind a stationary snowmobile.  The sponsors of this bill hope that, by greater enforcement of limitations on the noise created by snowmobiles, more landowners will open their property to snowmobile trail use.

Section 25.17 of the Parks, Recreation and Historic Preservation Law also specifies a number of important equipment rules for snowmobile owners to follow, including the need for a headlight, tail light, adequate brakes, reflecting material affixed to the cowling, and, of course, an adequate muffler.

Is the Invocation Before a Meeting of the Elders in Greece Ceremonial Deism?

OK, I admit that this post's title might be misleading.  But that's the joy of New York State geography: a plethora of Old-World names for municipalities.

Today, the U.S. Supreme Court heard oral argument in an interesting First Amendment case with local roots.  In Galloway v. Town of Greece, 681 F.3d 20, 33 (2d Cir. 2012) cert. granted, 133 S. Ct. 2388, 185 L. Ed. 2d 1103 (U.S. 2013), the Second Circuit reversed a lower court ruling in favor of the Town of Greece, NY (just outside of Rochester), finding that the totality of the circumstances in this case showed that the town violated the establishment clause of the First Amendment, in that the mostly-Christian prayers before town board meetings were “an endorsement of a particular religious viewpoint. This conclusion is supported by several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials.”  The Second Circuit distinguished the leading case of Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983) (an earlier case where the Supreme Court held that a chaplain’s prayer before the start of a state legislative session was not unconstitutional), and took pains to dissuade legislators from the “risks [of] establishing a [nonsectarian] 'civic religion'.”

The somewhat confusing Second Circuit decision in this case (throwing up their hands in not applying any particular judicial test, but looking at the “totality of the circumstances”), amply illustrates the inherent tension between each prong or clause of our First Amendment.  On the one hand, our Constitution preserves freedom of expression [every citizen has the right to his or her own religious beliefs and to express them peacefully] and, on the other hand, non-establishment of religion [no government may establish an official state or municipal religion].  At their extreme boundaries these concepts are clear opposites, but over generations (with a byzantine smorgasbord of Supreme Court tests and rulings on each prong during that time), courts are now being asked to decide at what point good faith expression of religious sentiment in a public forum, in fact impermissibly establishes a particular sect as that municipality’s (or school’s or state’s) religion.  One could argue that, like the state legislature in Marsh, the Town of Greece could draw the proper line by banning any specifically-Christian (or other sectarian) content in the invocation, but then, the Second Circuit cautions, the Town would still run afoul of the Constitution by establishing a neutral “civic religion” (and, ostensibly, offending the rights of belief and free expression of the minister at issue).

So what is a municipality to do?  Of course, no government needs to have a prayer or invocation before an official meeting or event.  However, many people (even those in government) may find it pleasant to “solemnize[e] an event and recognize[e] a shared religious history”.  Even though I am, in fact, a member of a religious minority, I don’t personally find any Constitutional problem with such neutral, non-denominational, expressions of public solemnity at government events.  Personally, I have always respected Justice Sandra Day O’Connor’s “middle path” between the two prongs of the First Amendment, whereby she created (or at least championed) the concept of “ceremonial deism”.  As she explained most cogently in her concurring opinion in Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 37, 124 S. Ct. 2301, 2323, 159 L. Ed. 2d 98 (2004):

Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as The Star–Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). ... These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all. ... However, “[O]ne of the greatest dangers to the freedom of the individual to worship in his own way [lies] in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.” ... Because of this principle, only in the most extraordinary circumstances could actual worship or prayer be defended as ceremonial deism. We have upheld only one such prayer against Establishment Clause challenge, and it was supported by an extremely long and unambiguous history. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (upholding Nebraska Legislature's 128–year–old practice of opening its sessions with a prayer offered by a chaplain). Any statement that has as its purpose placing the speaker or listener in a penitent state of mind, or that is intended to create a spiritual communion or invoke divine aid, strays from the legitimate secular purposes of solemnizing an event and recognizing a shared religious history.

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 39-40, 124 S. Ct. 2301, 2324, 159 L. Ed. 2d 98 (2004)

Taking this concept outside of the religious realm, consider many of our municipal Independence Day parades where participants (maybe even government workers) sometimes dress up like 18^th Century Patriots, such as George Washington or Ben Franklin.  Does their costuming mean that they endorse the tarring and feathering of Englishmen?  Does it mean that the town or county supports slavery (as President Washington was a slave owner)?  I would say not; it’s merely a traditional mode of recognizing our nation’s history in struggle against the British Empire, with no deeper meaning.

Nevertheless, under the standards articulated by Justice O'Connor a decade ago, the predominantly Christian prayers at issue in Galloway v. Town of Greece might still fail constitutional muster, but a kind of “neutered” invocation cautioned against by the Second Circuit should not.

Property Tax Relief for New York Farmers

Earlier this week, Governor Cuomo signed State Senate Bill 01952 which, effective immediately, amends Agriculture & Markets Law Section 304-a(4)(g) so that the “change in the base agricultural assessment value for any given year [will not] exceed two percent of the base agricultural assessment value of the preceding year.” Essentially what this means, is that land designated as agricultural (farmland) cannot have its assessed taxable value increased beyond 2% a year. Combined with the earlier enactment of a 2% property tax cap, it is hoped that this new legislation will bring much needed relief from tax increases on family farmers in the State.

    
As an Upstate New Yorker, I think this is a long overdue amendment to our laws, and one which should help maintain the viability of the families that raise milk cows, grow apples, pick grapes, harvest wheat and farm other crops. In stark contrast to the “industrial-ethanol” farms found in other parts of the nation, over 90% of the farms in New York State are small / family owned farms, and our State has over 170,000 acres of organic farmland alone!