Alliance to End Chickens as Kaporos v. New York City Police Department

2017 NY Slip Op 4408, 152 A.D.3d 113, 55 N.Y.S.3d 31

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 2017
• Docket: 156730/15 3256
• Status: Published

Opinions

OPINION OF THE COURT

Gische, J.

The central issue raised by this appeal is whether plaintiffs have a right, via a writ of mandamus, to compel the municipal defendants to enforce certain laws related to preserving public health and preventing animal cruelty, which they allege are violated by Orthodox Jews who perform the religious practice of Kaporos. We affirm Supreme Court’s dismissal of the proceeding against the City defendants, which include the New York City Police Department (NYPD), NYPD’s Commissioner and the New York City Department of Health and Mental Hygiene (DOH) (collectively City), because mandamus does not lie where, as here, plaintiffs seek to compel the enforcement of laws and regulations implicating discretionary actions (New York Civ. Liberties Union v State of New York, 4 NY3d 175, 184 [2005]l.¹,²

The individual plaintiffs reside, work or travel within Brooklyn neighborhoods where the non-City defendants engage in the Kaporos ritual every year before Yom Kippur. Plaintiff the Alliance to End Chickens as Kaporos, of which some individual plaintiffs are members, is associated with nonparty United Poultry Concerns, a nonprofit organization promoting compassionate and respectful treatment of domestic fowl. The non-City defendants are individual Orthodox Jewish rabbis, members of yeshivas or other Orthodox Jewish religious institutions, and several Orthodox Jewish religious institutions, all based in Kings County.

Kaporos is a customary Jewish ritual practiced by the non-City defendants, who are ultra Orthodox. It dates back to biblical times and occurs only once a year, the few days immediately preceding the holiday of Yom Kippur. Adherents of Kaporos believe this ritual is required by religious law and that it brings atonement and redemption. The ritual entails grasping a live chicken and swinging the bird three times overhead while saying a prayer that symbolically asks God to transfer the practitioners’ sins to the birds. Upon completion of the prayer, the chicken is killed in accordance with the kosher dietary laws, by slitting the chicken’s throat. Its meat is then required to be donated to the poor and others in the community. Each year thousands of chickens are sacrificed in furtherance of this ritual and the practice takes place outdoors, on public streets in Brooklyn, and in full public view.

Plaintiffs allege that the manner in which Kaporos is practiced is a health hazard and cruel to the animals. They decry the practice as “party-like” and having a “carnival” atmosphere. They contend the practice involves the erection of makeshift slaughterhouses in which “[d]ead chickens, half dead chickens, chicken blood, chicken feathers, chicken urine, chicken feces [and] other toxins . . . consume the public streets” (amended complaint ¶ 168). They also allege that there is blatant animal abuse and cruelty {id. ¶ 174). It is plaintiffs’ contention that Kaporos is a public nuisance to all those who, like them, pass through these locations for day to day activities, including going home, to work, or to shop. Their goal is to stop this practice. They argue that there are other, better ways for Kaporos adherents to practice their faith and express their devotion, including by using coins instead of live chickens. They denounce Kaporos as “a far cry from a solemn religious ritual.” These claims are disputed by the non-City defendants, who otherwise claim that they have a constitutional right to practice Kaporos.

In seeking the remedy of mandamus against the City defendants, plaintiffs claim that this ritual violates numerous laws, rules and regulations, including Agriculture and Markets Law §§ 96-a and 96-b (requiring licensing of places where fowls are slaughtered or butchered); Labor Law § 133 (2) (o) (prohibiting employment of a minor in a slaughterhouse); 1 NYCRR 45.4 (sanitary precautions against avian influenza when entering premises containing live poultry); Administrative Code of City of NY § 18-112 (d) (no slaughterhouse in parts of Brooklyn); former New York City Health Code (24 RCNY) § 153.09 (no blood, offensive animal matter, or dead animals to be put on city streets); former New York City Health Code (24 RCNY) § 153.21 (a) (persons contracted or undertaken to remove dead or diseased animals must do so promptly); New York City Health Code (24 RCNY) § 161.11 (prevention of animal nuisances); New York City Health Code (24 RCNY) § 161.19 (c) (live poultry intended for sale prohibited on the same premises as a multiple dwelling); New York City Health Code (24 RCNY) § 161.19 (b) (areas of slaughter to be kept clean and free of animal nuisances); Agriculture and Markets Law §§ 353 and 371 (prohibiting animal cruelty); Agriculture and Markets Law § 355 (prohibiting abandonment of animals to die in a street); Agriculture and Markets Law § 359 (prohibiting carrying animals in a cruel manner); former New York City Health Code (24 RCNY) § 161.03 (a) (prohibition against animal blood, feces and body parts on pubic sidewalks); and New York City Department of Sanitation Rules (Administrative Code) § 16-118 (6) (no offensive animal material shall be allowed to fall on a person or run into any street or public place).

Plaintiffs claim that they are entitled to have the courts compel the City to enforce these laws. They seek to have this Court direct the City to “enforce the law, issue summonses, issue arrests, and issue violations when such situations are warranted” (amended complaint ¶184).³

Article 78 is the codification of the common-law writs, including a writ of mandamus to compel (CPLR 7801, 7803 [1]). Mandamus to compel is a judicial command to an officer or body to perform a specified ministerial act that is required by law to be performed. It does not lie to enforce a duty that is discretionary (Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88, 96 [1981]). The availability of mandamus to compel the performance of a duty does not depend on the applicant’s substantive entitlement to prevail, but on the nature of the duty sought to be commanded — i.e., mandatory, non-discretionary action (id. at 97). A ministerial act is best described as one that is mandated by some rule, law or other standard and typically involves a compulsory result (New York Civ. Liberties Union, 4 NY3d at 184). Discretionary acts, on the other hand, are not mandated and involve the exercise of reasoned judgment, which could typically produce different acceptable results (id.). Mandamus is not available to compel an officer or body to reach a particular outcome with respect to a decision that turns on the exercise of discretion or judgment. In other words, mandamus will lie to compel a body to perform a mandated duty, not how that duty shall be performed (Klostermann v Cuomo, 61 NY2d 525, 539-540 [1984]). It lies “only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law” (New York Civ. Liberties Union, 4 NY3d at 184).

Mandamus is generally not available to compel government officials to enforce laws and rules or regulatory schemes that plaintiffs claim are not being adequately pursued (see e.g. Jones v Beame, 45 NY2d 402, 409 [1978], citing People ex rel. Clapp v Listman, 40 Misc 372 [Sup Ct, Special Term, Onondaga County 1903] [mandamus does not lie to compel enforcement of Sunday “blue” laws]; Matter of Walsh v LaGuardia, 269 NY 437 [1936] [no right to compel Mayor and Police Commissioner to prohibit operators of nonfranchised bus routes]; Matter of Perazzo v Lindsay, 30 AD2d 179 [1st Dept 1968], affd 23 NY2d 764 [1968] [no right to compel enforcement of laws governing operation hours of coffee houses]; Matter of Morrison v Hynes, 82 AD3d 772 [2d Dept 2011] [cannot compel the initiation of a prosecution]; Matter of Bullion v Safir, 249 AD2d 386 [2d Dept 1998] [no mandamus to compel police to make arrests]). This reflects the long-standing public policy prohibiting the courts from instructing public officials on how to act under circumstances in which judgment and discretion are necessarily required in the fair administration of their duties.

We hold that the laws which plaintiffs seek to compel the City defendants to enforce in this action involve the judgment and discretion of those defendants. This is because the laws themselves implicate the discretion of law enforcement and do not mandate an outcome in their application. With the exception of Agriculture and Markets Law § 371 (addressed separately below), there is nothing in the plain text of any of the laws and regulations relied upon by plaintiffs to suggest that they are mandatory. Nor is there anything in the legislative history supporting a conclusion that any of the implicated laws and regulations are mandatory. There is no express provision designating Kaporos as a prohibited act. There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations. There are disputes about whether and to what extent the implicated laws can be enforced without violating constitutional rights belonging to the non-City defendants. Rituals involving animal sacrifice are present in some religions and although they may be upsetting to non-adherents of such practice, the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment (Church of Lukumi Babalu Aye, Inc. v Hialeah, 508 US 520, 531 [1993]).

Consequently, the decision whether and how to enforce these laws and regulatory provisions allegedly violated during Kapo-ros implicates the reasoning and discretion of the City defendants and the law enforcers. None of the laws or regulations plaintiffs rely on preclude the City defendants from deciding whether or not to enforce those laws in the context of Kaporos. Plaintiffs do not have a “clear legal right” to dictate which laws are enforced and how, or against whom. Determining which laws and regulations might be properly enforced against the non-City defendants without infringing upon their free exercise of religion involves the exercise of reasoned judgment on the part of the City defendants. The outcome cannot be dictated by the court through mandamus.

We also reject any argument that Agriculture and Markets Law § 371 may provide a basis for the court to mandate that the police either issue an appearance ticket, or summon, or arrest and bring before the court, the non-City defendants for having practiced animal cruelty.

Agriculture and Markets Law § 371 provides in pertinent part that:

“A constable or police officer must, and any agent or officer of any duly incorporated society for the prevention of cruelty to animals may issue an appearance ticket pursuant to section 150.20 of the criminal procedure law, summon or arrest, and bring before a court or magistrate having jurisdiction, any person offending against any of the provisions of article twenty-six of the agriculture and markets law” (emphasis added).

Notwithstanding the use of the word “must” in the statute,⁴ it is still subject to the definition of animal cruelty as otherwise defined in the Agriculture and Markets Law. Agriculture and Markets Law § 350 (2) defines “torture” or “cruelty” to include “unjustifiable physical pain, suffering or death.” Thus, a determination of whether a practice in killing animals is “unjustifiable” implicates discretion and is not susceptible to a predictable, mandated outcome. For that reason, the parties’ dispute concerning whether plaintiffs made complaints to law enforcement is irrelevant because enforcement of this statute is discretionary. The dissent’s reasoning that a hearing should be held to determine whether the killing of these birds is “justified” proves the point. There is no ministerial determination to be made about the justification for killing chickens. Thus, the City defendants’ decision of whether action is necessary, and if so, the nature of such action, is inherently discretionary. Opening up claims of this nature to discovery and possible trials would be an unjustified intrusion into the everyday affairs of the City defendants. Consequently, since the City defendants may exercise their judgment in deciding whether there has been a violation of Agriculture and Markets Law § 371, they cannot be compelled to act a certain way (see Klostermann at 540).

Matter of Jurnove v Lawrence (38 AD3d 895 [2d Dept 2007]), relied upon by plaintiffs, does not dictate a different result. The issue in Jurnove was that the police had adhered to an internal policy of referring all article 26 violations, most of which involved animal cruelty, to the local society for prevention of cruelty to animals (SPCA) (Jurnove at 896). The Court held that a hearing was necessary on the issue of whether the officers had “abdicated their statutorily-imposed duty” by routinely referring the claims to the SPCA without considering them at all (id.). At bar, however, the plaintiffs are really challenging the core decision by law enforcement not to arrest or take other legal action against the non-City defendants for what plaintiffs believe are violations of law. In other words, they are seeking to drive a particular outcome. Notably, the Court in Jurnove observed that “[a] subordinate body can be directed to act, but not how to act,” noting further that law enforcement has “broad discretion” in allocating resources and devising enforcement strategies (id.). This statement of law is harmonious with controlling Court of Appeals precedent, reminding courts “to avoid . . . the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches” (Klostermann, 61 NY2d at 541).

Plaintiffs’ own claims demonstrate that the City defendants have not been derelict in their duties. Although plaintiffs deride NYPD for, and accuse it of, aiding and abetting the non-City defendants by enclosing the Kaporos area with barriers, placing orange cones, providing generators to supply light for the area and erecting “no parking” signs, these actions contain the event and maintain order, each of which is a proper exercise of the NYPD’s law enforcement obligations. As for DOH, it too has acted on plaintiffs’ complaints, by sending an investigator. Notwithstanding plaintiffs’ complaint that the investigator arrived after Kaporos ended, plaintiffs have no clear right to dictate when, how, or if at all, such investigation takes place.

Accordingly the order of the Supreme Court, New York County (Debra A. James, J.), entered September 24, 2015, which, upon converting the plenary action as against the City defendants to a CPLR article 78 proceeding, granted the City defendants’ motion to dismiss the proceeding, should be affirmed, without costs.

1 . This action was originally styled as a plenary action against individual defendants and the City defendants. Supreme Court appropriately converted the relief against the City defendants into a CPLR article 78 proceeding seeking mandamus.

2 . Plaintiffs also sought a preliminary injunction against the practice of Kaporos, pending resolution of the underlying nuisance action. Supreme Court denied that relief. Although plaintiffs originally appealed from that portion of the order, they subsequently stipulated to withdraw that issue from the appeal.

3 . We do not agree with the dissent’s conclusion that plaintiffs are not seeking to compel a particular action, but seek only to compel the City defendants to investigate. While the pleadings broadly claim such relief along with other relief, the facts plaintiffs allege simply belie any claim that they only seek the limited relief of an investigation. Plaintiffs concede that investigations were, in fact, made of their complaints, albeit, in their opinion, belatedly. Moreover, they admit that the City defendants were fully aware of the circumstances attendant to Kaporos, but failed to take the action they believe is necessary. It is clear that plaintiffs simply disagree with how the City defendants have acted.

4 . The “must” language pertains only to constables or the police. Consequently, by its terms it cannot support a claim for mandamus against the DOH.