Terry WILKINS; Sean Trimbach; Mike Stapleton; Cindy Huntsman; Cyril Vierstra, Robert Sawmiller; Steve Frantz v. David T. DANIELS, in his official capacity as Director of the Ohio Department of Agriculture; The Ohio Department of Agriculture; The Humane Society of the United States, Intervenor.
No. 13-3112
United States Court of Appeals, Sixth Circuit
March 4, 2014
Argued: Nov. 22, 2013.
744 F.3d 409
For the foregoing reasons, Appellant‘s arguments that he has a cognizable defense to his conviction under
ARGUED: Robert M. Owens, Owens Law Office, Delaware, Ohio, for Appellants. Eric E. Murphy, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees. Anna Frostic, The Humane Society of the United States, Washington, D.C., for Intervenor. ON BRIEF: Robert M. Owens, Owens Law Office, Delaware, Ohio, for Appellants. Alexandra Schimmer, Michael J. Hendershot, James R. Patterson, Pearl M. Chin, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees. Anna Frostic, The Humane Society of the United States, Washington, D.C., Donald J. McTigue, Corey Colombo, Mark McGinnis, McTigue & McGinnis LLC, Columbus, Ohio, for Intervenor.
OPINION
JULIA SMITH GIBBONS, Circuit Judge.
This case involves constitutional challenges to the Ohio Dangerous Wild Animals and Restricted Snakes Act,
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.
I.
A.
In 2011, an Ohio man released over fifty exotic animals before committing suicide. Partially in response, the Ohio General Assembly passed the Ohio Dangerous Wild Animals and Restricted Snakes Act.
All persons in possession of dangerous wild animals prior to September 5, 2012, were required to register with the Ohio Department of Agriculture, which administers the Act, by November 5, 2012.
As noted above, the Act took full effect on January 1, 2014, prohibiting the possession of a dangerous wild animal following that date.
Final issuance of a wildlife shelter permit is contingent upon sterilization of each male dangerous wild animal, unless a qualified veterinarian determines that sterilization is medically contraindicated.
Appellants’ claims focus in large part on Ohio‘s caging regulations. Section 935.17 directs the Director of Agriculture to establish caging requirements for dangerous wild animals. Polly Britton, legislative agent for the Ohio Association of Animal owners, was on a task force assigned to discuss possible caging regulations. Britton testified that the emergency caging regulations adopted by the state were significantly more burdensome than ZAA or AZA requirements. For example, she testified that under the emergency regulations, there was a five-thousand square foot requirement for hyenas as opposed to a ZAA standard of six-hundred square feet. She explained: “The comments that were made during the task force meetings—and these were by Ohio Department of Agriculture officials—was that, when it comes time to write the rules, they would be so strict that owners could not, or would not, be able to keep their animals.” And that, Britton testified, was “exactly what happened.” Appellants point to these caging requirements as a major factor in their inability to comply with the Act‘s permitting requirements. Subsequent to the district court‘s order, the Department promulgated final regulations that were less stringent than originally proposed.
As a general matter, the permitting requirements for restricted snakes are substantially similar. However, neither registration nor microchipping is required. See
The Act‘s general prohibition on possession of dangerous wild animals and restricted snakes is subject to fourteen exemptions, including: facilities accredited by the AZA or the ZAA;2 research facilities as defined in the federal animal welfare act; research facilities accredited by the association for the assessment and accreditation of laboratory animal care international; circuses; wildlife rehabilitation facilities permitted by the Ohio Department of Natural Resources (“ODNR“); veterinarians providing temporary veterinary care; wildlife sanctuaries; individuals transporting such an animal, subject to various requirements; educational institutions that display a single dangerous wild animal as a sports mascot, subject to various requirements; persons issued permits
The Act provides that if an owner is not able to obtain a permit or meet an exemption, the owner must transfer, within thirty days, all animals that the person possesses to a humane society, wildlife sanctuary, rescue facility, facility that is an accredited member of either the AZA or ZAA, or facility that is located in another state and complies with that state‘s applicable laws.
Appellants Terry John Wilkins, Cynthia Huntsman, Mike Stapleton, Cyril Vierstra, Robert Sawmiller, Steve Frantz, and Sean Trimbach are a group of self-described exotic animal enthusiasts. Each owns animals regulated by the Act and each believes that he or she cannot comply with the Act‘s permitting requirements and does not otherwise fit within an exemption. Appellants testified that they would not be willing to join either the AZA or ZAA, whose views they abhor, because those organizations “are at opposite ends of the spectrum.” Some appellants own elderly animals, for example, African servals and lions, whose lives would be endangered, appellants claim, if they were subject to anesthesia in order to microchip them.
B.
Appellants brought suit in the United States District Court for the Southern District of Ohio under
The Humane Society filed a motion to intervene, which the district court granted. In November 2012, appellants moved for a temporary restraining order and a preliminary injunction. The district court consolidated the evidentiary hearing on appellants’ motion with a full trial on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. The district court took testimony on appellants’ claims from December 10-12, 2012. The district court then denied appellants’ motions for a temporary restraining order, preliminary and permanent injunction in their entirety. Appellants timely appealed.3
II.
A.
Appellants’ motion for a preliminary injunction was converted to a trial on the
B.
Appellants bring two distinct but interrelated First Amendment claims. First, appellants assert that the Act violates their First Amendment freedom of association rights because they believe it forces them to join either the AZA or ZAA. Second, appellants assert that the Act violates their First Amendment freedom of speech rights “by compelling Appellants to subsidize the speech of their purely private political and ideological rivals,” the AZA or ZAA.
The Supreme Court “has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). The Constitution guarantees this freedom of association because it is “an indispensable means of preserving other individual liberties.” Id. A corollary to this right is the right not to associate. Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000).5
As the First Amendment protects freedom of association and the corollary right not to associate, so too does it protect freedom of speech and the corollary right not to speak. “Closely related to compelled speech and compelled association is compelled funding of the speech of other private speakers or groups.” Knox v. Serv. Emps. Int‘l Union, Local 1000, 567 U.S. 298, 310 (2012). “[C]ompulsory subsidies for private speech are subject to exacting First Amendment scrutiny....” Id.
The threshold inquiry in a compelled subsidy case is whether the State has “mandated association.” United States v. United Foods, Inc., 533 U.S. 405, 414 (2001); see also Knox, 567 U.S. at 310. If the association is not compelled, neither are the subsidies for the organization‘s speech. Thus, to prevail on either of appellants’ First Amendment claims, they must establish that joining the AZA or ZAA is mandatory; what is fatal to the compelled association claim is fatal to the compelled subsidy claim. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 647-54 (2000); Roberts, 468 U.S. at 622-29; Knox, 567 U.S. at 310; Keller v. State Bar of Cal., 496 U.S. 1, 7-17 (1990). Accordingly, we consider both claims together.
There are fifteen ways appellants can comply with the Act: the permitting requirement and fourteen exemptions. Appellants’ argument hinges on the proposition that only one of these options is actually available—joining the AZA or ZAA. See
State compulsion has been defined largely in the context of compelled speech. A “general principle of compelled speech jurisprudence... is that a violation of the First Amendment right against compelled speech occurs only in the context of actual compulsion.” C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 189 (3d Cir. 2005). “In order to compel the exercise or suppression of speech, the governmental measure must punish, or threaten to punish, protected speech by governmental action that is ‘regulatory, proscriptive, or compulsory in nature.‘” Phelan v. Laramie Cnty. Cmty. Coll. Bd. of Trs., 235 F.3d 1243, 1247 (10th Cir. 2000) (quoting Laird v. Tatum, 408 U.S. 1, 11 (1972)); see also Axson-Flynn v. Johnson, 356 F.3d 1277, 1290 (10th Cir. 2004). The consequence need not be direct; imprisonment, fines, injunctions, or taxes may suffice. Axson-Flynn, 356 F.3d at 1290; see also C.N., 430 F.3d at 189. “A discouragement that is ‘minimal’ and ‘wholly subjective’ does not, however, impermissibly deter the exercise of free speech rights.” Phelan, 235 F.3d at 1247-48 (quoting United States v. Ramsey, 431 U.S. 606, 623-624 (1977)).
A brief comparison of cases in which state compulsion has been found and where state compulsion has been found lacking demonstrates that the State of Ohio has not compelled appellants to join the AZA or ZAA. In the compelled association cases, the compulsion has generally operated by force of law: accept these members or be in violation of a public accommodation law. See Dale, 530 U.S. at 645-46; Roberts, 468 U.S. at 615-16. In compelled subsidy cases, plaintiffs have generally been presented with a binary choice between subsidizing speech or quitting their jobs. See Keller, 496 U.S. at 5-6; Abood v. Detroit Bd. of Educ., 431 U.S. 209, 211 (1977). In the compelled speech arena, the Supreme Court has struck down a state statute requiring schoolchildren to recite the Pledge of Allegiance and to salute the American flag, W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), as well as a state statute requiring residents to display the state‘s motto on their license plates, Wooley v. Maynard, 430 U.S. 705, 717 (1977). In contrast, in the absence of state mandated penalties coercing an individual to choose a course of conduct, state compulsion has not been found. See Phelan, 235 F.3d at 1248; C.N., 430 F.3d at 189.
In the instant case, appellants do not contend that they will be penalized if they do not join the AZA or ZAA. Rather, they contend that they are unwilling or unable to meet fourteen other options available to them. This is not the type of compulsion that qualifies them for First Amendment protection. We need look no further than the Act‘s permitting requirements to see why this is the case. Appellants contend that the costs of complying with the permitting requirements are “so exorbitantly
Since the district court‘s order, Ohio has promulgated final regulations for caging requirements.
Nor is obtaining a permit the only option available to appellants under the Act. Of the fourteen exemptions to the permitting requirement, the ODNR educational use permit would appear a strong candidate for many of the appellants. See
Finally, appellants have not even established that joining the AZA or ZAA is an available option. Sawmiller testified that he could not sustain his business if he joined the AZA or ZAA because he would have to limit his exhibition of wild animals to schools only. Likewise, Huntsman testified that joining the AZA and ZAA was “not feasible.” Wilkins testified that he could meet neither the AZA or ZAA‘s “physical requirements for their facilities” nor Ohio‘s requirements. Trimbach testified that he could not continue his business profitably if he joined either the AZA or ZAA. And Vierstra testified that he would not be able to afford becoming a member of the ZAA and doubted whether he would qualify for membership. Appellants clearly are not required to join the AZA or ZAA if they are incapable of joining those organizations.
On the most general level, the plain language of the Act and its practical application demonstrate that appellants do have options. Mere unwillingness to conform their conduct to the permitting requirements or the other thirteen exemptions does not mean that the Act compels appellants to join the AZA or ZAA. The Act imposes a choice on appellants, even though it is not a choice they welcome. Appellants’ “wholly subjective” belief that the Act compels them to join the AZA or ZAA is insufficient to trigger either compelled association or compelled subsidy protection under the First Amendment. See Phelan, 235 F.3d at 1247. The burden of regulation may, unfortunately, fall heavier on some than on others, but that, without more, is not enough to render this Act unconstitutional.
C.
Appellants contend that the Act‘s microchipping requirement effects a physical taking without compensation in violation of the Takings Clause of the Fifth Amendment. Before turning to the merits of that claim, we must consider whether it is ripe.
1.
Applicable to the States through the Fourteenth Amendment, the Takings Clause of the Fifth Amendment “provides that private property shall not ‘be taken for public use, without just compensation.‘” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005) (quoting
Appellants bring a just-compensation challenge. With regard to this type of challenge, the Supreme Court has clarified:
As its text makes plain, the Takings Clause “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” In other words, “it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.”
Id. at 536-37 (internal citations omitted) (quoting First English Evangelical Lutheran Church of Glendale v. Cnty. of L.A., 482 U.S. 304, 314-15 (1987)). “Nor does the Fifth Amendment require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a reasonable, certain and adequate provision for obtaining compensation exist the time of the taking.” Williamson Cnty. Reg‘l Planning Comm‘n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985) (internal quotation marks omitted). Generally, then, a State does not violate the Takings Clause “until it refuses to compensate the owner.” Hensley v. City of Columbus, 557 F.3d 693, 695-96 (6th Cir. 2009); see also Williamson Cnty., 473 U.S. at 195 (“[T]he State‘s action is not ‘complete’ in the sense of causing a constitutional injury ‘unless or until the State fails to provide an adequate postdeprivation remedy for the property loss.‘” (quoting Hudson v. Palmer, 468 U.S. 517, 532 n.12 (1984))).
Williamson County elaborates a two-part ripeness test. A federal court may hear a takings claim only after: (1) the plaintiff has received a “final decision” from the relevant government actor; and (2) the plaintiff has sought “compensation through the procedures the State has provided for doing so.” Williamson Cnty., 473 U.S. at 186, 194-95. We apply this test to both regulatory and physical takings claims. See Hensley, 557 F.3d at 696 n.2; River City Capital, L.P. v. Bd. of Cnty. Comm‘rs, 491 F.3d 301, 307 (6th Cir. 2007); Arnett v. Myers, 281 F.3d 552, 563 (6th Cir. 2002).
Appellants contend that Williamson County is inapplicable to facial challenges. Their argument oversimplifies Takings Clause jurisprudence. With respect to just-compensation challenges, while Williamson County‘s first requirement may not apply to facial challenges, its second requirement—that plaintiffs must seek just compensation through state procedures—does. See Alto Eldorado P‘ship v. Cnty. of Santa Fe, 634 F.3d 1170, 1177 (10th Cir. 2011) (“Courts considering claims alleging a... taking without just compensation, even when characterized as facial claims, have applied the second Williamson County requirement....” (citing Equity Lifestyle Props., Inc. v. Cnty. of San Luis Obispo, 548 F.3d 1184, 1190 n.13 (9th Cir. 2008); Cnty. Concrete Corp. v. Twp. of Roxbury, 442 F.3d 159, 168 (3d Cir. 2006); Holliday Amusement Co. of Charleston, Inc. v. South Carolina, 493 F.3d 404, 407 (4th Cir. 2007))).6
Appellants do not contend that they sought compensation in state court or that Ohio does not provide an adequate remedy. See Williamson Cnty., 473 U.S. at 194 (explaining “all that is required is that a reasonable, certain and adequate provision for obtaining compensation exist at the time of the taking” (internal quotation marks omitted)). Ordinarily this would end our inquiry. However, Williamson County ripeness is a prudential doctrine. See Suitum v. Tahoe Reg‘l Planning Agency, 520 U.S. 725, 733-34 (1997).
The requirement to seek compensation prior to bringing suit will often serve important federalism interests. In regulatory takings cases involving sensitive issues of state policy, or cases that turn on whether the plaintiff has a property interest as defined by state law, ripeness concerns will prevent a federal court from reaching the merits prematurely. But where it is clear that there has been no “taking,” an issue of federal constitutional law, no jurisprudential purpose is served by delaying consideration of the issue. If anything, dismissing the case on ripeness grounds does a disservice to the federalism principles embodied in this doctrine as it would require the state courts to adjudicate a claim, already before the federal court, that clearly has no merit. We therefore turn to whether the Act effects a taking.
2.
Appellants raise only a physical takings claim. “[P]hysical takings require compensation because of the unique burden they impose: A permanent physical invasion, however minimal the economic cost it entails, eviscerates the owner‘s right to exclude others from entering and using her property—perhaps the most fundamental of all property interests.” Lingle, 544 U.S. at 539. Appellants argue that any law that effects a physical invasion of an individual‘s property effects a taking. Yet Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982), the seminal case on physical takings, made clear that not every permanent physical invasion rises to the level of a taking. Only “[w]hen the government physically takes possession of an interest in property,” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg‘l Planning Agency, 535 U.S. 302, 322 (2002), or authorizes a “physical occupation... by a third party,” Loretto, 458 U.S. at 440, does state action rise to the level of a taking.
For this reason, Loretto explained that the Takings Clause does not impinge on a state‘s ability to pass regulations for the general welfare in most cases. The Court emphasized: “our holding today in no way alters the analysis governing the State‘s power to require landlords to comply with building codes and provide utility connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common area of a building.” Id. Those types of regulations are not constitutionally suspect because they do not involve government occupation or a government-authorized occupation by a third party. Id.
Here, neither the government nor a third party has occupied appellants’ property. If appellants do not qualify for an exemption from the Act‘s permitting requirements, they are required to implant microchips in animals classified as “dangerous wild animals.” See
III.
Appellants’ constitutional claims lack merit. We therefore affirm the district court‘s final judgment denying injunctive relief.
JULIA SMITH GIBBONS
UNITED STATES CIRCUIT JUDGE