© 2012 Erika N. Chen-Walsh
From April of this year until I resigned on October 12, 2012, I was formally involved with USARK and engaged heavily in Ohio against Troy Balderson’s balderdash bill, SB 310. I have blogged extensively on this over reaching, unconstitutional, unfunded mandate of a legislative disaster. (See “SB 310: Kasich’s Big Expensive Blunder Poised to Kill Small Business in Ohio.”) In June 2012, the Ohio legislature enacted and Governor Kasich signed the Ohio Dangerous Animals Act (“DAA”).
On November 2, 2012, a group of Ohio residents filed a suit in federal court captioned as Wilkins et al. v. Daniels et al., Case No. 2:12-CV-01010-GC. In the underlying suit, plaintiffs seek declaratory judgment, temporary restraining order, preliminary and permanent injunction and nominal damages for violations of the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution.
I will explain the legal nomenclature in lay terms for ease of understanding.
A declaratory judgment is an adjudication of the rights and status of litigants. Here, the plaintiffs are seeking to have the Court declare that the imposition of the burdens of (1) joining and funding the objectionable views of a private organization; (2) having one’s private property seized; or (3) obtaining and maintaining a license under Chapter 935 of the Ohio Revised Code are unconstitutional on their face and as applied to Plaintiffs because they violate the rights to freedom of speech, private property, and due process of law guaranteed under the First, Fifth, and Fourteenth Amendments to the Constitution.
A temporary restraining order is a court order of limited duration. It commands a defendant in a case to maintain a certain status until the court can hear further evidence and decide whether to issue a preliminary injunction.
A preliminary injunction is a temporary court order that prevents the other party from pursuing a particular course of conduct until the conclusion of a trial on the merits. A permanent injunction is a permanent order that precludes the other party from engaging in a particular course of conduct.
Nominal damages are nominal money damages.
Temporary restraining orders and preliminary injunctions are considered extraordinary relief. In order to prevail on a preliminary injunction, the moving party must show (1) a strong likelihood of success on the merits; (2) that the movant would otherwise suffer irreparable injury; (3) whether the issuance of a temporary restraining order or preliminary injunction would cause substantial harm to the non moving party; and (4) whether the public interest would be served by the issuance of a temporary restraining order or preliminary injunction.
In this case, the Plaintiffs have petitioned for a Temporary Restraining Order and Preliminary Injunction. Although no order has been entered, sources close to the lawsuit have stated that the attorneys in the case have a “gentlemen’s agreement” that the Ohio Department of Agriculture (“ODA”) will not enforce the DAA on a temporary basis. This should be a matter of grave concern to all exotic animal owners in Ohio because the deadline to register exotic animals restricted by the DAA has passed. Those who did not register face repercussions. On the other hand, registering exotic animals under the current law strengthens the position of ODA in the lawsuit. It is a very slippery slope with significant risk. Plaintiffs should push hard for a court order granting the preliminary injunction to protect their property rights.
The allegations of unconstitutionality are as follows:
First Amendment – freedom of association. Plaintiffs claim that the DAA abrogates their right to freedom of association by forcing their involvement with the American Zoological Association and the Zoological Association of America.
The Fourth Amendment guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. The allegations are vague as to the Fourth Amendment implications, but ostensibly, the objection is to the ability of ODA to inspect private property without a warrant.
The Fifth Amendment, inter alia, sets out rules for eminent domain and protects the right to due process. Eminent domain is a governmental takings without compensation argument. Plaintiffs make a claim that the DAA is tantamount to the Ohio government depriving them of their animals without procedural due process, and that their animals are property as a matter of law.
The Fourteenth Amendment contains the Due Process and Equal Protection clauses. In very short terms, Due Process requires the government to give a party due process of law before depriving the party of property. The Equal Protection clause says that, “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” Here, it means that Ohio exotic animal owners who are not members of AZA or ZAA are not receiving equal protection under the law.
When I was part of USARK, I summarized constitutional issues that I saw in SB 310 for Andrew Wyatt with an eye on a potential lawsuit, and Wyatt agreed. However, certain members of the USARK board are risk averse and have an organizational aversion to lawsuits, so those issues never came to fruition.
With respect to the allegations in the case at bar, some of the constitutional challenges are, in my opinion, very strong. Some are not as strong. I am not going to publicly criticize any of them because that is how lawsuits work, and I will endeavor not to write a single word that could lessen the chances of the Ohio plaintiffs from prevailing. The doctrine of res judicata precludes litigants from later raising legal challenges in court that could have been brought in a prior lawsuit, unless new facts come to light. In lay terms, this means that the Ohio plaintiffs need to bring every possible claim they have in one lawsuit or they will be barred from bringing them later.
On November 27, 2012, the Humane Society of the United States (“HSUS”) filed a Motion to Intervene in the Ohio lawsuit. That request was granted in an order by United States District Court Judge George C. Smith on December 3, 2012. (See December 3, 2012 Order Granting HSUS Leave to Intervene.)
This is a very important development for the Ohio plaintiffs and the entire reptile community should pay very close attention. Goliath has just entered the arena. The HSUS legislative machine is fueled by hundreds of millions of dollars in donations. The Ohio plaintiffs are operating on a very frugal budget. The reason that HSUS is entering this case, with all of its clout and all of its money, is set forth explicitly in its Motion to Intervene:
“This case marks the first constitutional challenge to a state dangerous wild animal law, and many states are currently considering adopting similar laws to address the problem of private possession of dangerous wild animals. The Humane Society is expending resources to support passage of those laws and, therefore, the precedential nature of this lawsuit could have an impact on the organization’s other legislative efforts and future possible litigation concerning those legislative efforts.”
(HSUS Motion to Intervene at p. 13.)
It is extremely important to the rights of reptile keepers and all exotic animal keepers to prevail in Ohio. HSUS could win this fight just by grinding this case into the ground financially. Polly Briton and the Ohio Association of Animal Owners (OAAO) need funding to keep this fight going. If they lose, we all lose.
There are many divisions within the reptile community, both organizationally and personally. Now is not the time for infighting among ourselves. If reptile keepers and owners cannot come together for this common cause, the entire community is going to face an unprecedented onslaught of anti-reptile keeping legislation in the coming years.
Andrew Wyatt is a close personal friend of mine and a trusted colleague. However, I would encourage any reptile or exotic animal keeper who has money to donate at this time to send it to the OAAO via Polly Briton and nowhere else. The in-community fighting and rhetoric must stop or we fuel HSUS’s fight against us. There will be another lawsuit coming down the pike shortly at the federal level, and that one is also going to need funding, but the pressing need right now is in Ohio.