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Wilkins v Daniels

Case No. 13-3112 (C.A. 6, Mar. 4, 2014)

This case involves constitutional challenges to the Ohio Dangerous Wild Animals and Restricted Snakes Act, Ohio Revised Code §§ 935.01–935.99. Plaintiffs-appellants are seven owners of animals regulated by the Act. Defendants-appellees are the Director of the Ohio Department of Agriculture, named in his official capacity, and the Ohio Department of Agriculture. After January 1, 2014, no person may possess a dangerous wild animal or restricted snake as defined by the Act without obtaining a permit. As part of the permitting process, individuals are required to implant a microchip under the skin of their animals; yet individuals are not reimbursed for this expense. There are exemptions from the Act’s permitting requirements, including an exemption for individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA).

Appellants contend that the Act violates their First Amendment rights to freedom of association and speech because the Act’s permitting requirements are so onerously expensive as to constitute a non-option—the only viable means to comply with the Act, appellants assert, is to join the AZA or ZAA. Thus, appellants contend that they are compelled to associate with those organizations and to subsidize the organizations’ speech. Appellants also argue that the Act’s microchipping requirement constitutes a physical taking in violation of the Fifth Amendment.

We affirm the district court’s denial of injunctive relief. Appellants’ First Amendment claim fails because appellants have not demonstrated that they are compelled to join the AZA or ZAA. Appellants’ Taking Clause claim fails because the Act does not effect a physical taking.
 

 

Judge(s): Julia Smith Gibbons
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Civil Rights , Constitutional Law , Government / Politics , Property
 
Circuit Court Judge(s)
Martha Daughtrey
Bernice Donald
Julia Gibbons

 
Trial Court Judge(s)
George Smith

 
Intervenors Lawyer(s) Intervenors Law Firm(s)
Corey Colombo McTigue & McGinnis LLC
Mark McGinnis McTigue & McGinnis LLC
Donald McTigue McTigue & McGinnis LLC
Anna Frostic The Humane Society of the U.S.

 
Appellant Lawyer(s) Appellant Law Firm(s)
Robert Owens Owens Law Office

 
Appellee Lawyer(s) Appellee Law Firm(s)
Pearl Chin Office of the Ohio Attorney General
Michael Hendershot Office of the Ohio Attorney General
Eric Murphy Office of the Ohio Attorney General
James Patterson Office of the Ohio Attorney General
Alexandra Schimmer Office of the Ohio Attorney General

 

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for scientific or educational use; persons issued permits for native threatened species; counsel they are required to implant microchips in animals classified as “dangerous wild passive integrated transponders (“pit tags”). id. the microchip, about the size of a not fit within this narrow rule. amendment claims, they must establish that joining the aza or zaa is mandatory; williamson county elaborates a two-part ripeness test. a federal court may hear with the department’s standards of care and housing adopted by rule. id. nominal damages. in effecting the taking, the government exceededits permissible scope of authority under their argument oversimplifies takings clause jurisprudence. with respect to just- possession of a dangerous wild animal following that date. id. § 935.02(a). a person association of zoos and aquariums (aza) or the zoological association of america subsidies for the organization’s speech. thus, to prevail on either of appellants’ first liberties.” id. a corollary to this right is the right not to associate. cal. democratic appeal from the united states district court constitutional law, no jurisprudential purpose is served by delaying consideration of the § 1533.08; id. § 935.03(b). and sawmiller and trimbach actually have native wildlife compelled association claims on the basis of being compelled to join an organization. cf. elrod v. burns, court’s final judgment denying injunctive relief. testified that the emergency caging regulations adopted by the state were significantly suicide. partially in response, the ohio general assembly passed the ohio dangerous of complying with the permitting requirements are “so exorbitantly high” as to present corp. v. twp. of roxbury, 442 f.3d 159, 168 (3d cir. 2006); holliday amusement co. as the first amendment protects freedom of association and the corollary right as noted above, the act took full effect on january 1, 2014, prohibiting the state compulsion has been defined largely in the context of compelled speech. appellants’ claims focus in large part on ohio’s caging regulations. section a. yet individuals are not reimbursed for this expense. there are exemptions fromthe act’s of the fourteen exemptions to the permitting requirement, the odnr educational use punish, or threaten to punish, protected speech by governmental action that is male dangerous wild animal, unless a qualified veterinarian determines that sterilization trigger either compelled association or compelled subsidy protection under the first finally, appellants have not even established that joining the aza or zaa is an that has no application here. see alto eldorado, 634 f.3d at 1176 n.3. united states court of appeals available option. sawmiller testified that he could not sustain his business if he joined the constitution; the action is invalid regardless of whether compensation is provided. challenge, the supreme court has clarified: described exotic animal enthusiasts. each owns animals regulated by the act and each state bd. of educ. v. barnette, 319 u.s. 624, 642 (1943), as well as a state statute - choice”: the permitting requirements are too expensive and no exemption other than the (2005). because compensation is irrelevant to a public-use challenge—the state action either did or did is medically contraindicated. id. § 935.06(a)(4). an applicant must sign an affidavit - requirement makes little sense in the context of a public-use challenge. see alto eldorado, 634 f.3d at adjudicate a claim, already before the federal court, that clearly has no merit. we they would be so strict that owners could not, or would not, be able to keep their is designed to regulate prospectively the acquisition, purchase, sale and transfer of onerous than originally proposed. the cost of compliance with the final regulations does counsel for the humane society testified that if microchipping is too risky for a particular permits under ohio revised code section 1531.25, which exempt those animals covered identifying information as well as information demonstrating his or her ability to possess - animals.” and that, britton testified, was “exactly what happened.” appellants point to of the fifth amendment “provides that private property shall not ‘be taken for public petition for the redress of grievances, and the exercise of religion.” roberts v. u.s. but even after appellants implant the microchips. indeed, the act is close kin to the general welfare regulations that the animals, for example, african servals and lions, whose lives would be endangered, see also knox, 132 s. ct. at 2289. if the association is not compelled, neither are the speech. appellants also argue that the act’s microchipping requirement constitutes a director of the ohio department of fee of twenty-five dollars and is not required to microchip his or her animals. id. 2. aza or the zaa;2 taking without compensation in violation ofthe takings clause of the fifth amendment. “until it refuses to compensate the owner.” hensley v. city of columbus, 557 f.3d 693, for the southern district of ohio at columbus. no. 13-3112 wilkins, et al. v. daniels, et al. page 6 as a general matter, the permitting requirements for restricted snakes are just-compensation challenges concede that the government acted within the scope of its to facial challenges, its second requirement—that plaintiffs must seek just compensation research facilities accredited by the association for the assessment and accreditation of speech are subject to exacting first amendment scrutiny . . . .” id. at 2289. restricted snakes is subject to fourteen exemptions, including: facilities accredited by the appellants do not contend that they sought compensation in state court or that applicant must also provide “[a] plan of action to be undertaken if a dangerous wild - substantially similar. however, neither registration nor microchipping is required. see 1176. recommended for full-text publication expensive as to constitute a non-option—the only viable means to comply with the act, time of registration. id. § 935.04(d). this is a commonly used technique to track and permit would appear a strong candidate for many of the appellants. see ohio rev. code office,delaware,ohio,forappellants. alexandraschimmer,michael j.hendershot, no. 13-3112 wilkins, et al. v. daniels, et al. page 9 decided and filed: march 4, 2014 subjective” belief that the act compels them to join the aza or zaa is insufficient to 427 u.s. 347 (1976) (plurality opinion) (holding county sheriff’s office could not fire or threaten dismissal id. at 536–37 (internal citations omitted) (quoting first english evangelical lutheran exemption, the owner must transfer, within thirty days, all animals that the person state policy, or cases that turn on whether the plaintiff has a property interest as defined between a law requiring a microchip in an animal and a law requiring handrails in as opposed to a zaa standard of six-hundred square feet. she explained: “the 194–95. we apply this test to both regulatory and physical takings claims. see hensley, - animals); id. § 935.09(f) (restricted snakes). such a person must pay all costs associated 533–34 (1992), and its progeny, on which appellants rely. there, the supreme court stated that where iii. > no. 13-3112 wilkins, et al. v. daniels, et al. page 15 appellants contended that the act violated their first amendment rights to freedom of effects a physical invasion of an individual’s property effects a taking. yet loretto v. “dangerous wild animals” and “restricted snakes” as defined in sections 935.01(c) and as regulatory takings, loretto, 458 u.s. at 440, and neither law effects a government provide proof that he or she has at least two years of experience in the care of that with the dangerous wild animal. id. § 935.06(a)(5). finally, an applicant must comply compensation challenges, while williamson county’s first requirement may not apply some appellants are associate members with either the aza or zaa, but the costs of frantz, - 2004). the consequence need not be direct; imprisonment, fines, injunctions, or taxes compensation in the event of otherwise proper interference amounting to relevant government actor; and (2) the plaintiff has sought “compensation through the defendants-appellees, appellants contend that the act’s microchipping requirement effects a physical appellants contend that williamson county is inapplicable to facial challenges. the supreme court “has recognized a right to associate for the purpose of cal., 496 u.s. 1, 8 (1990)). for this reason, loretto explained that the takings clause does not impinge on these caging requirements as a major factor in their inability to comply with the act’s since the district court’sorder,ohiohaspromulgatedfinalregulationsforcaging no. 13-3112 wilkins, et al. v. daniels, et al. page 14 (quoting hudson v. palmer, 468 u.s. 517, 532 n.12 (1984))). amendment right against compelled speech occurs only in the context of actual act requires appellants to join the aza or zaa, appellants would not be required to microchip their important federalism interests. in regulatory takings cases involving sensitive issues of merits. ordinarily, this court reviews a challenge to the grant or denial of a request for similar. see id. § 935.07(b). as its text makes plain, the takings clause “does not prohibit the taking - ohio rev. code §§ 935.04, 935.08–935.10. an animal owner is entitled to appeal the emphasized: “our holding today in no way alters the analysis governing the state’s all persons in possession of dangerous wild animals prior to september 5, 2012, the act’s general prohibition on possession of dangerous wild animals and ohio does not provide an adequate remedy. see williamson cnty., 473 u.s. at 194 injunction. the district court consolidated the evidentiary hearing on appellants’ motion james r. patterson, pearl m. chin, office of the ohio attorney general, 935.17directsthedirector ofagriculture toestablishcagingrequirements for dangerous invasion, however minimal the economic cost it entails, eviscerates the owner’s right to animals. see ohio rev. code § 935.03(b) (exempting owners who qualify for an exemption from all but engaging in those activities protected by the first amendment—speech, assembly, believes that he or she cannot comply with the act’s permitting requirements and does the threshold inquiry in a compelled subsidy case is whether the state has a permanent injunction for abuse of discretion. see parks v. city of columbus, 395 f.3d under the act, it is also required prior to the issuance of a permit. id. § 935.06(a)(2). - there are no factual disputes present in this appeal. with the transfer. id. § 935.06(f) (dangerous wild animals); id. § 935.09(f) (restricted § 935.24(b)(2). the act also prescribes criminal penalties for noncompliance with compelled to associate with those organizations and to subsidize the organizations’ pursuant to sixth circuit i.o.p. 32.1(b) restraining order, preliminary and permanent injunction in their entirety. appellants animal escapes.” id. § 935.05(b)(7). not only is microchipping required for registration not otherwise fit within an exemption. appellants testified that they would not be columbus, ohio, for appellees. anna frostic, the humane society of the assessed a civil penalty has the opportunity for an administrative hearing. id. supreme courtcaselawoncompelled association has either considered whether an organization permitting requirements to see why this is the case. appellants contend that the costs (zaa). appellants assert that the act violates their first amendment freedom of association theory, now defunct, see lingle, 544 u.s. at 548, is best thought of as a species of public-use challenge and challenges to the just-compensation requirement. public-use challenges assert that 2 governmentalactivity.” 458u.s.at440–41. the act’s microchipping requirement does novo. id.4 cnty. of san louis obispo, 548 f.3d 1184, 1190 n.13 (9th cir. 2008); cnty. concrete - “mandated association.” united states v. u.s. foods, inc., 533 u.s. 405, 414 (2001); second williamson county requirement . . . .” (citing equity lifestyle props., inc. v. authority and assert that the government must provide the affected party with “just snakes). the director may also assess a civil penalty against any person not in by state law, ripeness concerns will prevent a federal court from reaching the merits julia smith gibbons, circuit judge. this case involves constitutional already in possession of a dangerous wild animal and who wishes to continue to possess accredited member of either the aza or zaa, or facility that is located in another state no. 13-3112 wilkins, et al. v. daniels, et al. page 3 application demonstrate that appellantsdohaveoptions. mere unwillingness to conform mobility impaired persons possessing certain primate species; deaf persons possessing the requirement to seek compensation prior to bringing suit will often serve argued: november 22, 2013 owners, was on a task force assigned to discuss possible caging regulations. britton use, without just compensation.’” lingle v. chevron u.s.a. inc., 544 u.s. 528, 536 eric e. murphy, office of the ohio attorney general, columbus, ohio, a state’s ability to pass regulations for the general welfare in most cases. the court 302, 322 (2002), or authorizes a “physical occupation . . . by a third party,” loretto, should not unduly speculate about the cost of compliance with the final regulations. § 935.09(e)-(f) (restricted snakes). 468 u.s. at 615–16. in compelled subsidy cases, plaintiffs have generally been wild animals. polly britton, legislative agent for the ohio association of animal much of the confusion surrounding this issue stems from yee v. city of escondido, 503 u.s. 519, maynard, 430 u.s. 705, 717 (1977). in contrast, in the absence of state mandated supreme court ensured were not constitutionally suspect. there is little difference petitioners brought a facial challenge asserting that the ordinance at issue did not substantially advance a we affirm the district court’s denial of injunctive relief. appellants’ first in 2011, an ohio man released over fifty exotic animals before committing appellants contend that the act violates their first amendment rights to freedom choice on appellants, even though it is not a choice they welcome. appellants “wholly (l). the act went into effect on september 5, 2012. ideological rivals,” the aza or zaa. appellants’ constitutional claims lack merit. we therefore affirm the district because they do not involve government occupation or a government-authorized apartment buildings. both are regulations of individuals property properly challenged with, the taking; all that is required is that a reasonable, certain and adequate provision compliance with chapter 935 or the promulgated rules. id. § 935.24(b)(1). any person occupation of property or a government-authorized occupation of property by a third could not continue his business profitably if he joined either the aza or zaa. and violation of a public accommodation law. see dale, 530 u.s. at 645–46; roberts, stapleton; cindy huntsman; cyril applicable to the states through the fourteenth amendment, the takings clause is a prudential doctrine. see suitum v. tahoe reg’l planning agency, 520 u.s. 725, can be forced to accept members or whether individuals compelled to associate with an organization can see, e.g., boy scouts of am. v. dale, 530 u.s. 640, 647–54 (2000); roberts, 468 u.s. at mean that the act compels appellants to join the aza or zaa. the act imposes a , the microchipping of exotic and domesticated animals as well as the ear-tagging of regulated by the act. defendants-appellees are the director of the ohio department of rights because they believe it forces them to join either the aza or zaa. second, permitting requirements. subsequent to the district court’s order, the department be forced to subsidize that organization’s speech. we assume, arguendo, that appellants can state compulsion has generally operated by force of law: accept these members or be in not exceed the scope of the government’s constitutional authority—williamson county’s state procedures boats, handrails in apartment buildings, and ramps leading to restaurants” would be in the instant case, appellants do not contend that they will be penalized if they 3 there are fifteen ways appellants can comply with the act: the permitting b. of a taking. only “[w]hen the government physically takes possession of an interest in § 935.06(a)(3). the requirements for a wildlife propagation permit are substantially 557 f.3d at 696 n.2; river city capital, l.p. v. bd. of cnty. comm’rs, 491 f.3d 301, 307 after january 1, 2014, no person may possess a dangerous wild animal or restricted act does not effect a physical taking. identification. once applied, the microchip may not be removed except “for purposes legitimate state interest, williamson county was inapplicable. id. at 534. the “substantially advance” microchips, they retain the ability to use and possess their animals and the implanted qualifies them for first amendment protection. we need look no further than the act’s schoolchildren to recite the pledge of allegiance and to salute the american flag, w. va. presented with a binary choice between subsidizing speech or quitting their jobs. see there is a tension between appellants’ first amendment and fifth amendment claims. if the agriculture, appellants assert that the act violates their first amendment freedom of speech rights 269 f. app’x 54, 56 (2d cir. 2008) (“without violating the constitution, the government can compel an (6th cir. 2007); arnett v. myers, 281 f.3d 552, 563 (6th cir. 2002). not make this a sham option. - subject to various requirements; educational institutions that display a single dangerous individual to join a professional association as a condition of employment.” (citing keller v. state bar of were required to register with the ohio department of agriculture, which administers accreditation that would trigger this exemption are significantly greater than membership costs. timely appealed.3 terry wilkins; sean trimbach; mike species of dangerous wild animal or, in the alternative, the applicant must pass a written connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common issue. if anything, dismissing the case on ripeness grounds does a disservice to the dangerous wild animals.” id. § 935.18(b). before: daughtrey, gibbons, and donald, circuit judges. unfortunately, fall heavier on some than on others, but that, without more, is not enough 10–12, 2012. the district court then denied appellants’ motions for a temporary area of a building.” id. those types of regulations are not constitutionally suspect for appellees. anna frostic, the humane society of the united states, vierstra, robert sawmiller, steve frantz, and sean trimbach are a group of self- animals.” see ohio rev. code § 935.04(d).7 omitted)). ordinarily this would end our inquiry. however, williamson countyripeness that only one of these options is actually available—joining the aza or zaa. see ohio if appellants do not qualify for an exemption from the act’s permitting requirements, all property interests.” lingle, 544 u.s. at 539. appellants argue that any law that amendment require that just compensation be paid in advance of, or contemporaneously opinion to join the aza or zaa if they are incapable of joining those organizations. aza or zaa exemption applies, therefore appellants’ only feasible option is to join the united states, washington, d.c., donald j. mctigue, corey colombo, mark the act, by november 5, 2012. id. § 935.04(a). in order to record and track these (2005) (quoting u.s. const. amend. v). it is important at the outset to distinguish two _________________ by the ohio department of natural resources (“odnr”); veterinarians providing appellants do not appeal the district court’s judgment with respect to their federal and state therefore turn to whether the act effects a taking. - on the most general level, the plain language of the act and its practical - aza or zaa. 7 through state procedures—does. see alto eldorado p’ship v. cnty. of santa fe, 634 the humane society filed a motion to intervene, which the district court granted. 6 § 935.03(b). an animal owner is not required to microchip his or her animal if he or she ii. schools only. likewise, huntsman testified that joining the aza and zaa was “not here,neitherthegovernment nor a thirdpartyhas occupiedappellants’ property. no. 2:12-cv-01010—george c. smith, district judge. of employees for failure to affiliate with a political party); menkes v. st. lawrence seaway pilots’ ass’n, laboratory animal care international; circuses; wildlife rehabilitation facilities permitted snake as defined by the act without obtaining a permit. as part of the permitting union, local 1000, 132 s. ct. 2277, 2288 (2012). “[c]ompulsory subsidies for private not subject to williamson county’s second requirement, and for a very good reason, are public- power to require landlords to comply with building codes and provide utility not qualify for another exemption that the microchipping requirement would be applicable. _________________ certain primate species; and blind persons possessing certain primate species. id. i. plaintiffs-appellants, association because it is “an indispensable means of preserving other individual state compulsion has been found lacking demonstrates that the state of ohio has not - department of agriculture officials—was that, when it comes time to write the rules, 1. compelled appellants to join the aza or zaa. in the compelled association cases, the argued: robert m.owens,owenslawoffice,delaware,ohio,for appellants. obtaining compensation exist at the time of the taking” (internal quotation marks - of association and speech because the act’s permitting requirements are so onerously nor is obtaining a permit the only option available to appellants under the act. comments that were made during the task force meetings—and these were by ohio meet fourteen other options available to them. this is not the type of compulsion that no. 13-3112 wilkins, et al. v. daniels, et al. page 10 promulgated final regulations that were less stringent than originally proposed. by the permits from the act’s requirements. id. § 935.03(b)(11). requirement and fourteen exemptions. appellants’ argument hinges on the proposition no. 13-3112 b. willing to join either the aza or zaa, whose views they abhor, because those n appellants bring a just-compensation challenge. with regard to this type of v. § 935.03(b)(10); id. § 1533.08. a permittee under that section need only pay an annual denial or revocation of a permit. id. § 935.06(e)-(f) (dangerous wild animals); id. of charleston, inc. v. south carolina, 493 f.3d 404, 407 (4th cir. 2007))).6 suspect. this is to say nothing of the implications for the myriad state laws regarding the aza or zaa because he would have to limit his exhibition of wild animals to 622–29; knox, 32 u.s. at 2289; keller v. state bar of cal., 496 u.s. 1, 7–17 (1990). f.3d 1170, 1177 (10th cir. 2011) (“courts considering claims alleging a . . . taking requirements. ohio admin. code § 901:1–4. appellants are correct that this court grain of rice, is implanted under the skin of the animal to provide a permanent form of physical takings, made clear that not every permanent physical invasion rises to the level mcginnis, mctigue & mcginnis llc, columbus, ohio, for intervenor. to render this act unconstitutional. violation of the fourteenth amendment and the ohio constitution, and that the act impermissibly deter the exercise of free speech rights.” phelan, 235 f.3d at 1247–48 nevertheless, it is sufficient to note that the final regulations are substantially less a brief comparison of cases in which state compulsion has been found and where 643, 647 (6th cir. 2005). however, we review the district court’s legal conclusions de animals, the act requires microchipping each registered dangerous wild animal at the vierstra, robert sawmiller; steve their conduct to the permitting requirements or the other thirteen exemptions does not final issuance of a wildlife shelter permit is contingent upon sterilization of each - animal, this issue could be raised as an equitable defense at an enforcement proceeding. planning comm’n v. hamilton bank of johnson city, 473 u.s. 172, 194 (1985) (internal compensation.” file name: 14a0043p.06 organizations “are at opposite ends of the spectrum.” some appellants own elderly district of ohio under 42 u.s.c. § 1983 challenging the constitutionality of the act. washington, d.c., for intervenor. on brief: robert m. owens, owens law no. 13-3112 wilkins, et al. v. daniels, et al. page 7 more burdensome than zaa or aza requirements. for example, she testified that under a taking.” and complies with that state’s applicable laws. id. § 935.06(f) (dangerous wild 733–34 (1997). physical taking in violation of the fifth amendment. intervenor. possesses to a humane society, wildlife sanctuary, rescue facility, facility that is an keller, 496 u.s. at 5–6; abood v. detroit bd. of educ., 431 u.s. 209, 211 (1977). in the order to compel the exercise or suppression of speech, the governmental measure must for the sixth circuit taking, “laws requiring license plates on cars, warning labels on packaging, lighting on there is no express exception to the microchipping requirement for permit applicants.1 party. as appellees point out, were the act’s microchipping requirement to be ruled a ‘regulatory, proscriptive, or compulsory in nature.’” phelan v. laramie cnty. cmty. agriculture, named in his official capacity, and the ohio department of agriculture. jaycees, 468 u.s. 609, 618 (1984). the constitution guarantees this freedom of do not join the aza or zaa. rather, they contend that they are unwilling or unable to funding of the speech of other private speakers or groups.” knox v. serv. emps. int’l before turning to the merits of that claim, we must consider whether it is ripe. amendment. see phelan, 235 f.3d at 1247. the burden of regulation may, 5 theemergencyregulations,therewasafive-thousand square foot requirement for hyenas agricultural animals. loretto established a “narrow” rule applicable to “[]possessory attesting that he or she will not allow members of the public to be in physical contact property,” tahoe-sierra pres. council, inc. v. tahoe reg’l planning agency, 535 u.s. what is fatal to the compelled association claim is fatal to the compelled subsidy claim. feasible.” wilkins testified that he could meet neither the aza or zaa’s “physical interference with property rights per se, but rather to secure compensation because of the unique burden they impose: a permanent physical compelled speech arena, the supreme court has struck down a state statute requiring - procedure. the district court took testimony on appellants’ claims from december _________________ meets one of these exemptions. id. no. 13-3112 wilkins, et al. v. daniels, et al. page 5 wild animal as a sports mascot, subject to various requirements; persons issued permits occupation by a third party. id. certain provisions. id. § 935.99. vierstra testified that he would not be able to afford becoming a member of the zaa and temporary veterinary care; wildlife sanctuaries; individuals transporting such an animal, speak. “closely related to compelled speech and compelled association is compelled amendment claim fails because appellants have not demonstrated that they are no. 13-3112 wilkins, et al. v. daniels, et al. page 2 penalties coercing an individual to choose a course of conduct, state compulsion has not without just compensation, even when characterized as facial claims, have applied the with a full trial on the merits pursuant to rule 65(a)(2) of the federal rules of civil discouragement that is ‘minimal’ and ‘wholly subjective’ does not, however, of private property, but instead places a condition on the exercise of that states, appellants bring two distinct but interrelated first amendment claims. first, david t. daniels, in his official capacity as federalism principles embodied in this doctrine as it would require the state courts to quotation marks omitted). generally, then, a state does not violate the takings clause submitting a registration form). it is only if appellants are not required to join the aza or zaa and do speech and association, effected a deprivation of property without due process of law in in november 2012, appellants moved for a temporaryrestrainingorderandapreliminary 4 - no. 13-3112 wilkins, et al. v. daniels, et al. page 12 accordingly, we consider both claims together. not to associate, so too does it protect freedom of speech and the corollary right not to a “general principle of compelled speech jurisprudence . . . is that a violation of the first revised code §§ 935.01–935.99. plaintiffs-appellants are seven owners of animals an illusory option. appellants’ objections stem primarily from the caging requirements 1 a takings claim only after: (1) the plaintiff has received a “final decision” from the party v. jones, 530 u.s. 567, 574 (2000).5 for obtaining compensation exist the time of the taking.” williamson cnty. reg’l teleprompter manhattan catv corp., 458 u.s. 419, 435 (1982), the seminal case on rev. code § 935.03(b)(1). appellants assert that “the act provides a textbook hobson’s permit. id. § 935.04(e). an applicant for a wildlife shelter permit must provide action is not ‘complete’ in the sense of causing a constitutional injury ‘unless or until the 1 compulsion.” c.n. v. ridgewood bd. of educ., 430 f.3d 159, 189 (3d cir. 2005). “in x agriculture; the ohio department of the fifth amendment. appellants sought injunctive relief, declaratory relief, and _________________ state fails to provide an adequate postdeprivation remedy for the property loss.’” requirements for their facilities” nor ohio’s requirements. trimbach testified that he coll. bd. of trs., 235 f.3d 1243, 1247 (10th cir. 2000) (quoting laird v. tatum, 408 power.” in other words, “it is designed not to limit the governmental different types of takings clause challenges: challenges to the public-use requirement appellants terry john wilkins, cynthia huntsman, mike stapleton, cyril been found. see phelan, 235 f.3d at 1248; c.n., 430 f.3d at 189. the act provides that if an owner is not able to obtain a permit or meet an u.s. 1, 11 (1972)); see also axson-flynn v. johnson, 356 f.3d 1277, 1290 (10th cir. use challenges. see, e.g., san remo hotel, l.p. v. city & cnty. of san fransisco, 545 u.s. 323, 345-46 appellants’ motion for a preliminary injunction was converted to a trial on the wild animals and restricted snakes act. ohio rev. code §§ 935.01–935.99. the act procedural due process claims and their regulatory takings claim. no. 13-3112 wilkins, et al. v. daniels, et al. page 13 “by compelling appellants to subsidize the speech of their purely private political and responsibly a dangerous wild animal. id. § 935.05(b). in particular, an applicant must challenges to the ohio dangerous wild animals and restricted snakes act, ohio no. 13-3112 wilkins, et al. v. daniels, et al. page 4 - exclude others from entering and using her property—perhaps the most fundamental of may suffice. axson-flynn, 356 f.3d at 1290; see also c.n., 430 f.3d at 189. “a appellants raise only a physical takings claim. “[p]hysical takings require research facilities as defined in the federal animal welfare act; (quoting united states v. ramsey, 431 u.s. 606, 623–624 (1977)). procedures the state has provided for doing so.” williamson cnty., 473 u.s. at 186, the animal after that date may obtain a wildlife shelter permit or a wildlife propagation appellants assert, is to join the aza or zaa. thus, appellants contend that they are (explaining “all that is required is that a reasonable, certain and adequate provision for permitting requirements, including an exemption for individuals accredited by the no. 13-3112 wilkins, et al. v. daniels, et al. page 11 no. 13-3112 wilkins, et al. v. daniels, et al. page 8 the humane society of the united 458 u.s. at 440, does state action rise to the level of a taking. identify animals. the microchips must contain unique identification numbers and process, individuals are required to implant a microchip under the skin of their animals; appellants brought suit in the united states district court for the southern church of glendale v. cnty. of l.a., 482 u.s. 304, 314–15 (1987)). “nor does the fifth 695–96 (6th cir. 2009); see also williamson cnty., 473 u.s. at 195 (“[t]he state’s prematurely. but where it is clear that there has been no “taking,” an issue of federal effected either a physical or regulatory taking without just compensation in violation of appellants claim, if they were subject to anesthesia in order to microchip them. requiring residents to display the state’s motto on their license plates, wooley v. doubted whether he would qualify for membership. appellants clearly are not required of a medical emergency by a veterinarian that is qualified to provide veterinary care to c. examination regarding the care of dangerous wild animals. id. § 935.05(b)(6). the compelled to join the aza or zaa. appellants’ taking clause claim fails because the a. promulgated under the act.


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