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

Supreme Court of New York, First Department

June 6, 2017

The Alliance to End Chickens as Kaporos, et al., Plaintiffs-Appellants,
The New York City Police Department, et al., Defendants-Respondents, Congregation Beis Kosov Miriam Lanynski, et al., Defendants.

         Plaintiff appeal from 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.

          Law Office of Nora Constance Marino, Great Neck (Nora Constance Marino of counsel) for appellants.

          Zachary W. Carter, Corporation Counsel, New York (Damion K. L. Stodola and Jane L. Gordon of counsel), for respondents.

          Richard T. Andrias, J.P., Karla Moskowitz, Paul G. Feinman, Judith J. Gische, Ellen Gesmer, JJ.

          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 N.Y.3d 175, 184 [2005]). [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 non profit 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 slaughter houses 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. at ¶ 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; 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]; 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 § 161.19(b) [areas of slaughter to be kept clean and free of animal nuisances]; Agriculture and Markets Law §§ 353, 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 and Regulations §§ 16B118(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 N.Y.2d 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 N.Y.3d 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 N.Y.2d 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 N.Y.3d 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 N.Y.2d 402, 409 [1978], citing People ex rel. Clapp v Listman, 40 Misc. 372');">40 Misc. 372 [Sup Ct, Onondaga Special Term 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 A.D.2d 179');">30 A.D.2d 179 [1st Dept 1968], affd 23 N.Y.2d 764 [1968] [no right to compel enforcement of laws governing operation hours of coffee houses]; Matter of Morrison v Hynes, 82 A.D.3d 772');">82 A.D.3d 772 [2d Dept 2011] [cannot compel the initiation of a prosecution]; Matter of Bullion v Safir, 249 A.D.2d 386');">249 A.D.2d 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 nonadherents 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 the Lukumi Babalu Aye, Inc. v Hialeah, 508 U.S. 520');">508 U.S. 520, 531 [1993]).

         Consequently, the decision whether and how to enforce these laws and regulatory provisions allegedly violated during Kaporos 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 ...

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