The Judge ruled on several motions today. I am not a lawyer and I am not
completely clear on all the issues involved. What follows is *my*
understanding of the events that took place in court today. Overall it
doesn't look great but it isn't over yet.
*For anyone who isn't used to legal terms, "the Plaintiffs" are our side,
i.e. the ferret owners. "The Defendants" are Mayor Giuliani, the Department
of Health, and the Commissioner of Health.
The Judge stated that as a pet owner he is distressed by the DOH's actions.
As a pet owner he feels that pets are parts of peoples' families and he is
unhappy with the DOH's attempts to regulate/prohibit ferrets as pets when
according to the plaintiffs, ferrets have been domesticated for centuries
and should be given the same consideration as other domesticated animals
such as cats and dogs.
However, he also stated several times that the court's "hands were tied"
as to what it could and could not legally rule on and that there were
limitations within which it has to operate.
The Judge ruled on several motions today
1) The DOH's Motion to Dismiss the case
2) The Motion for Summary Judgement
3) The Motion for a Temporary Injunction
1) The DOH's "Motion to Dismiss" the case
Apparently there were several points that the DOH raised as reasons for
wanting to have the case dismissed. The Judge had to determine whether
*those* points were valid. I'm not clear on the specifics of those points,
but several things were made clear. The judge stated that it was *not*
evident that the plaintiffs reasons for bringing the lawsuit did not have
merit, so it could not be dismissed on that point. For some reason (which
I don't understand fully) the Judge decided that it *was* appropriate for
the Humane Society to be dropped as a plaintiff against the DOH.
The end result of this motion is: The DOH's motion to dismiss the case is
denied. The NY Humane Society has been dropped as a plaintiff. The DOH
may file ANOTHER motion to dismiss the case on *different* grounds if they
choose to do so, but the case could not be dismissed based on the reasons
they stated in *this* motion to dismiss.
2) The "Motion for Summary Judgement"
In order for a judge to make a Summary Judgement and base his ruling solely
on the papers submitted, it has to be determined that the issues he is
ruling on and the facts of the case are indisputable. That the facts are
*so* clear that there is no room for interpretation and that there are no
"triable issues" i.e. issues that could go one way or another based on how
they may be presented, argued and interpreted in a trial.
The Judge did not feel that the facts submitted met that criteria. He
stated that he was not convinced, based on the information provided, that
the plaintiffs had an indisputable case or that it was clear that they were
likely to win if the case went to trial. As a result, he could not make a
decision based solely on the papers submitted and the motion for Summary
Judgement was denied.
3) The "Motion for a Temporary Injunction"
The motion for a Temporary Injunction prohibiting the DOH from enforcing
the ban pending the outcome of the lawsuit, is at this time DENIED.
Although the DOH is not actively seeking out ferret owners, FERRETS IN
NEW YORK CITY'S FIVE BOROUGHS MAY AT THIS TIME BE SEIZED by officials and
turned over to the Center for Animal Control.
The Judge stated that the DOH did not have to show that there was a
*sufficient* or *reasonable* risk to the public. He stated that all they
had to show was that there was *any* risk to the public. Therefore, if
they could point to one bite case, there was some risk -regardless of how
small- and as a result, he could not prohibit them from enforcing the ban
until such time, if any, that the ban was officially lifted.
The Judge stated that the case will now continue with a different court and
judge (I'm not clear on the issues involved with this... particularly since
it *already* went to a different judge and he asked for it *back!*) and
made reference to his not being able to continue with the case because he
had too heavy a caseload.
The Judge made a very looooong statement with regards to his decision.
So long that both lawyers (the lawyer for the plaintiffs and defendants)
didn't understand all of it and asked questions afterwards. The transcript
of the Judge's decision will be typed up and the lawyer for the plaintiffs
will receive a copy so that he can go over it more thoroughly. Then a
decision will be made as to what to do next. My understanding is that some
of the options are: go trial (but funds are now low to non-existent and it
may not be possible to continue unless ferret owners can raise thousands
of dollars to pay for the lawyers' fees), or either side can appeal the
decisions the Judge made today, or the DOH can file another Motion to
Dismiss the case based on different grounds. There may be other options
as well that I'm not aware of.
The upside of this is that the case is still open and if it continues to
trial the members of the DOH will now have to prove the validity of their
decisions and substantiate their misinformation under oath. The downside
is that the Judge did not think that the facts presented by the lawyer for
the plaintiffs were clear cut enough to warrant overturning the DOH's ban
at this time, the Humane Society has been dropped as a plaintiff, and at
this time, the DOH may continue to seize pet ferrets and enforce it's ban
as it applies to ferrets.
We'll have more details and information once the lawyer receives the
transcript of the Judge's decision and has had a chance to review it more
carefully.
Please remember that everything I've stated above is *my* interpretation of
today's events. Without seeing the written transcript I'm sure there are
some points that I've missed. As I said, the Judge's statements today were
lengthy and even the lawyers had some difficulty keeping up.
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http://members.aol.com/NYCFerrets
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[Posted in FML issue 3072]
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