Brooklyn residents participate in the Jewish religious atonement ritual of Kaporos in October 2016. (Photo: Stepanie Keith/Reuters)

Writing that enforcement of the laws at issue would involve “some exercise of discretion,” the New York Court of Appeals on Wednesday rejected an animal-rights group's attempt to use a mandamus action to compel New York City to stop ultra-Orthodox Jews from practicing Kaporos, a ritual in which chickens are slaughtered on public streets.

A unanimous panel wrote in an opinion that it is “well settled” that the “extraordinary remedy” of a writ of mandamus can be used to force a government to perform ministerial duties, but “it will not be awarded to compel an act in respect to which [a public] officer may exercise judgment or discretion,” quoting Klostermann v. Cuomo.

In the case of Kaporos, in which the panel said thousands of chickens are killed in a religious practice performed in some Brooklyn neighborhoods before Yom Kippur, enforcement of some 17 statutes and regulations at issue—mostly focused on the slaughter of animals, public health and animal cruelty—would “involve some exercise of discretion,” citing Town of Castle Rock v Gonzales.

In 2015, a group of Brooklyn residents and the Alliance to End Chickens as Kaporos—an advocacy group associated with United Poultry Concerns, a nonprofit promoting compassionate treatment of fowl—filed a lawsuit seeking to stop Kaporos from being performed publicly by forcing police and other city officials to act against it.

In the Article 78 proceeding, they contended that each year, ultra-Orthodox Jews take to Brooklyn's streets before Yom Kippur to practice Kaporos, a ritual they decried as creating a health hazard and cruelty to animals amid a “carnival”-like atmosphere.

The ritual dates back to biblical times and involves grabbing a live chicken and swinging it three times overhead while saying a prayer that asks God to transfer one's sins to the birds, according to an Appellate Division, First Department decision issued last year in the case. The chicken is then killed by slitting its throat, in accordance with kosher dietary laws.

The Court of Appeals panel, composed of Chief Judge Janet DiFiore and Judges Jenny Rivera, Leslie Stein, Eugene Fahey, Michael Garcia and Rowan Wilson (with Judge Paul Feinman not taking part), pointed out in its opinion Wednesday that a writ of mandamus “is available only in limited circumstances,” quoting Matter of County of Chemung v. Shah, and that “such remedy will lie 'only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law,'” quoting New York Civil Liberties Union v. State of New York.

The panel also wrote that while mandamus may be used to compel a public officer to perform a legal duty, it may not “direct how [the officer] shall perform that duty,” quoting Klostermann. Moreover, “plaintiffs [in the lawsuit] do not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome.”

The high court decision affirmed a 2017 opinion by a split 3-2 Appellate Division, First Department panel in which the majority ruled to dismiss the suit.

Writing for the majority, First Department Justice Judith Gische said that “there is no express provision designating Kaporos as a prohibited act,” and that “there are disputes about whether the conduct complained of is in violation of the implicated laws and regulations.”

But writing for the dissent, Justice Ellen Gesmer argued that “the actions at issue are mandatory not discretionary.”

Pointing to the Agriculture and Markets Law, for instance, Gesmer wrote that “while the city defendants may exercise discretion in the process of determining whether a violation has occurred and, if so, how to respond to it, they have, at a minimum, an obligation to determine whether or not a reported violation has occurred.”

She also wrote that plaintiff had claimed Kaporos creates an unbearable stench and a health hazard, and that “plaintiffs' toxicology expert states … that these conditions create a risk of public exposure to, and spreading of, salmonella, campylobacter, strains of influenza, and other pathogens, toxins and biohazards, which can cause respiratory complications, dermatitis and infectious diseases in humans.”

Nora Constance Marino of the Law Offices of Nora Constance Marino in Great Neck represented the plaintiffs, including the animal-rights group. In a statement sent to the Law Journal on Wednesday, she said that she and her clients “are disappointed that the [Court of Appeals judges] did not exercise their power to right this wrong, or at least give plaintiffs the opportunity to develop the record,” adding that “we continue to explore other legal remedies.”

Marino also said that “it is disturbing that the city continues to turn a blind eye to 15 laws being violated.”

“The executive branch is disregarding the clear mandate of the legislative branch, when the legislature used the words 'must' and 'shall' in the subject statutes with respect to enforcement,” she continued. She added that “it remains plaintiffs' position that it is the role of the judiciary, consistent with our system of checks and balances, to intervene.”

A spokesperson for the city Law Department, which represented the city, including the police department, the Department of Health and Mental Hygiene and certain officials, did not respond to a request for comment. Elina Druker, a senior counsel in the appeals division, was listed in the opinion as the Law Department attorney on appeal.