State ex rel. Dir., Ohio Dept. of Agriculture v. Forchione (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Dir., Ohio Dept. of Agriculture v. Forchione, Slip Opinion No. 2016-Ohio-3049.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2016-OHIO-3049

THE STATE EX REL. DIR., OHIO DEPARTMENT OF AGRICULTURE, v.

FORCHIONE, JUDGE; HUNTSMAN ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Dir., Ohio Dept. of Agriculture v. Forchione,

Slip Opinion No. 2016-Ohio-3049.]

Prohibition—R.C. Chapter 935—Dangerous Wild Animals and Restricted Snakes

Act—Director of Ohio Department of Agriculture has exclusive authority to

implement and enforce R.C. Chapter 935, including the removal of

dangerous wild animals—R.C. 935.20(D) allows an owner of dangerous

wild animals that were removed by the director to request an adjudication

in accordance with R.C. Chapter 119—Judge patently and unambiguously

lacks jurisdiction over owner’s action seeking a temporary restraining

order and an injunction—Writ granted.

(No. 2016-0729—Submitted May 10, 2016—Decided May 18, 2016.)

IN PROHIBITION.

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SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} In 2012, the Ohio legislature enacted the Ohio Dangerous Wild

Animals and Restricted Snakes Act, R.C. Chapter 935, to regulate the acquisition,

possession, care, sale, and transfer of “dangerous wild animals.” Under that

statutory scheme, no person may possess a dangerous wild animal after January 1,

2014, without a permit from the Ohio Department of Agriculture, unless the owner

falls under one of the statute’s exemptions. R.C. 935.02(A) and (B), 935.05(A),

935.07(A), and 935.101(A).

{¶ 2} Intervening respondent Cynthia Huntsman is an owner of multiple

species of wild animals that are regulated by the act. Huntsman has no permit and

has not submitted an application to obtain one. After obtaining a warrant to search

her premises, relator, the Ohio Department of Agriculture (“ODA”), executed an

administrative order under R.C. 935.20, and ordered the transfer of multiple

dangerous wild animals found in her facility to a temporary holding facility

established by the ODA. The next day, respondent, Stark County Common Pleas

Court Judge Frank G. Forchione, granted Huntsman a temporary restraining order

against the ODA, ordered the ODA to return the seized animals to Huntsman by

May 19, 2016, and scheduled a preliminary injunction hearing for the same day.

{¶ 3} Relator, David Daniels, in his capacity as the director of the ODA,

seeks a writ of prohibition to prevent Judge Forchione from continuing to exercise

jurisdiction over the case in which he granted the restraining order, In re Huntsman

Transfer of Dangerous Wild Animals, Stark County C.P. case No. 2016 MI 138.

Judge Forchione opposes this request on the merits. Intervening respondents,

Cynthia M. Huntsman and the farm she operates, Stump Hill Farm, Inc., have filed

a motion to dismiss and also oppose this request on the merits. We grant a

peremptory writ of prohibition to prevent Judge Forchione from proceeding in the

underlying case and order him to vacate his previous orders.

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January Term, 2016

Background

The Act

{¶ 4} In 2011, in Zanesville, Ohio, authorities were forced to kill numerous

dangerous animals that had been released from a private preserve by an owner who

later committed suicide. In response, the General Assembly passed the Dangerous

Wild Animals and Restricted Snakes Act, R.C. Chapter 935, which became

effective on September 5, 2012. The act tasks the ODA with implementing and

enforcing a comprehensive statutory scheme regarding the registration and control

of dangerous wild animals.

{¶ 5} Under R.C. 935.20(A), the ODA has the authority to initiate an

investigation if it has reason to believe that a person possesses a dangerous wild

animal without a permit. If the ODA believes that an owner of dangerous wild

animals has violated the statute, it may quarantine the animals on site and restrict

any movement on and off the property. R.C. 935.20(A). Alternatively, the ODA

may order the immediate transfer of the animals under an administrative transfer

order. Id. If transfer is needed, the ODA may house the animals at any facility

approved for this purpose. R.C. 935.20(A) and (K). The act vests these powers

exclusively in the director of the ODA.

{¶ 6} The owner may request a hearing to dispute either a quarantine or

transfer action, and the administrative review includes a hearing, objections, and

judicial review under R.C. 119.12. R.C. 935.20(D). Only after the remedies are

exhausted may the director initiate proceedings for the permanent seizure of the

animals. R.C. 935.20(H).

{¶ 7} As part of his investigatory powers, the director or his designee may

enter at reasonable times onto property where dangerous wild animals are located.

R.C. 935.19(A)(1). To enter such property, the director must obtain the owner’s

consent. However, if the owner refuses to grant consent, the director may obtain a

search warrant from a court of competent jurisdiction to enter and search the

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premises for evidence of any violation of the act, upon a showing of probable cause.

R.C. 935.19(A)(2) and (3).

Facts

{¶ 8} Under R.C. 935.04, Huntsman, in 2012, registered with the ODA two

Syrian brown bears, two baboons, six black bears, one bobcat, one chimpanzee,

two North American cougars, one black panther, two albino Burmese pythons, two

Siberian tigers, eight Bengal tigers, one serval, two American alligators, two

African lions, and two gray timber wolves. All of these animals are regulated by

the act. R.C. 935.01. Under the act, all owners of dangerous wild animals were

required to obtain a permit to possess them by January 1, 2014. R.C. 935.05(A),

935.07(A), and 935.101(A).

{¶ 9} Huntsman did not apply for any type of wild-animal permit. Rather,

she claimed that she was in the process of obtaining accreditation from the

Zoological Association of America (“ZAA”) and therefore that she was exempt

from the permit requirements. R.C. 935.03(B)(1) states that the permit

requirements do not apply to facilities that are accredited members of the ZAA and

licensed under the United States Department of Agriculture.

{¶ 10} The ODA notified Huntsman in early February 2014 that she had

failed to submit an application for a dangerous-wild-animal permit. Huntsman

claimed that she was exempt from the permitting requirement because she had a

permit for a bald eagle issued by the Ohio Department of Natural Resources under

R.C. 1533.08. Under R.C. 935.03(B)(10), the permit requirement does not apply

to an owner who has been issued a permit under R.C. 1533.08, provided that the

permit lists each specimen of wild animal that is a dangerous wild animal or

restricted snake in the owner’s possession. The ODA notified Huntsman that her

bald-eagle permit did not cover any of the dangerous wild animals in her possession

and that she was therefore not exempt from the permit requirements of R.C. Chapter

935.

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January Term, 2016

{¶ 11} The ODA learned that in early 2014 and continuing into the spring

of 2015, Huntsman had transferred from her farm dangerous wild animals that she

had never registered with the ODA. The animals that the ODA learned Huntsman

had transferred included a spotted leopard, transferred to a park in Calvert, Texas,

on December 18, 2014, a crested macaque, transferred to Smalley Exotic Farm,

L.L.C., in Silver Lake, Indiana, on February 4, 2015, and a tiger cub transferred to

Wild Acres Ranch in Sandusky, Ohio, on February 23, 2015.

{¶ 12} On March 5, 2015, Huntsman again claimed that she was in the

process of obtaining accreditation from the ZAA and was exempt from the permit

requirements of the act. She provided the ODA with documentation of the steps

that she intended to take in order to obtain ZAA accreditation, including a reduction

in the number of animals in her possession. She also voluntarily relinquished some

of her dangerous wild animals to the ODA, including four black bears in July 2015,

four alligators in September 2015, and two black and two Syrian brown bears in

December 2015. However, Huntsman maintained possession of the rest of her

dangerous wild animals.

{¶ 13} A brown bear relinquished by Huntsman to the ODA in December

2015 gave birth to cubs while in the ODA’s custody. At an unknown time,

Huntsman apparently acquired two American alligators in addition to the two she

previously registered. In January 2015, Huntsman transported a third Syrian brown

bear to Sandusky, Ohio, even though she had previously registered only two of

these animals. In November 2015, she transported an unregistered Bengal tiger cub

to New York City. And on January 7, 2016, an inspector for the United States

Department of Agriculture observed that Huntsman possessed one chimpanzee, two

Hamadryas baboons, two pumas, and five tigers, even though she did not have a

dangerous-wild-animal permit as of January 7, 2016, had never applied for a permit

as of that date, and had not been granted an exemption. The assistant chief of the

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Division of Animal Health of the ODA also visited Huntsman’s premises and

observed the same ten dangerous animals.

{¶ 14} In March 2016, because she had not established that she was exempt

from the permit requirements, the ODA delivered to Huntsman a quarantine order

it issued under R.C. 935.20. The quarantine order prohibited her from acquiring or

removing dangerous wild animals from her premises without approval from the

ODA. Huntsman requested an administrative hearing on the quarantine order as

allowed under R.C. 935.20 and R.C. Chapter 119; the hearing is currently scheduled

for August 22 and 23, 2016.

{¶ 15} On April 1, 2016, the ODA sent Huntsman a letter asking her to

provide documentation of her ZAA accreditation status by May 2. On May 2,

Huntsman’s counsel faxed a letter from Kristi de Spain, executive administrator of

the ZAA, denying Huntsman professional membership in that organization.

Professional membership is required in order to get the accreditation needed for the

exemption.

{¶ 16} On May 4, 2016, the ODA asked Huntsman for permission to enter

and search her premises under R.C. 935.19, and Huntsman refused. The ODA then

requested and obtained a search warrant from Judge Forchione. During the search,

the ODA found a number of animals for which no permits had been issued, and it

exercised the director’s authority under R.C. 935.20 to implement a transfer order

of the dangerous wild animals. The ODA transferred five tigers, two pumas, two

baboons, and one chimpanzee from Huntsman’s premises. The animals have been

in the ODA’s legal custody since that time. The chimpanzee is housed in an

approved out-of-state facility, and the other animals are housed in the ODA’s

temporary holding facility and are being maintained according to veterinary

standards of care. These animals are defined as dangerous wild animals under R.C.

935.01. One of the tigers gave birth to four cubs while in the ODA holding facility.

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January Term, 2016

{¶ 17} On the day the animals were taken, Huntsman filed a motion for a

temporary restraining order and preliminary injunction in the Stark County Court

of Common Pleas. Judge Forchione set a hearing on the motion for the next day,

May 5, at 8:30 a.m. Counsel for the ODA and Huntsman appeared at the hearing,

but no sworn testimony was presented. However, an ODA veterinarian informed

the court that the animals would need to be sedated again if they were to be

transferred back to Huntsman and that, for medical reasons, that should not happen

for two weeks.

{¶ 18} Judge Forchione ordered the ODA to return the dangerous wild

animals to Huntsman by May 19, 2016, even though the ODA has never issued her

a permit to possess them or determined that she was exempt from obtaining permits

under the act.

{¶ 19} The ODA then filed this action seeking a writ of prohibition. It

asserts that Judge Forchione has improperly exercised judicial power over the

underlying action and that his exercise of that power is unauthorized by law.

Further, the ODA asserts that he patently and unambiguously lacks jurisdiction over

transfer orders authorized under R.C. 935.20. The ODA asserts that it has no

adequate remedy at law if it is forced to defend its decision to transfer Huntsman’s

animals. The ODA requests a peremptory writ, or if necessary, an alternative writ,

to prohibit Judge Forchione from further exercising jurisdiction over In re

Huntsman Transfer of Dangerous Wild Animals, case No. 2016 MI 138, and an

order declaring that Judge Forchione has no jurisdiction over the underlying matter.

{¶ 20} In an amended emergency motion, the ODA has requested that this

court issue a ruling by Wednesday, May 18, 2016. Huntsman and Stump Hill Farm

filed an emergency motion to intervene, which we granted on May 12, 2016. Judge

Forchione and Huntsman and Stump Hill Farm filed their responses to the ODA’s

amended emergency motion on Friday, May 13, 2016.

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Discussion

{¶ 21} “A writ of prohibition is an extraordinary remedy that is granted in

limited circumstances with great caution and restraint.” State ex rel. Corn v. Russo,

90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001). To be entitled to the requested

writ of prohibition, the ODA must demonstrate that (1) Judge Forchione is about to

exercise or has exercised judicial power, (2) the exercise of that power is

unauthorized by law, and (3) denying the writ would result in injury for which no

other adequate remedy exists in the ordinary course of law. State ex rel. Bell v.

Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 18; State ex rel.

Miller v. Warren Cty. Bd. of Elections, 130 Ohio St.3d 24, 2011-Ohio-4623, 955

N.E.2d 379, ¶ 12.

{¶ 22} However, the last requirement need not be established if the lack of

jurisdiction is patent and unambiguous. Chesapeake Exploration, L.L.C. v. Oil &

Gas Comm., 135 Ohio St.3d 204, 2013-Ohio-224, 985 N.E.2d 480, ¶ 11. We have

found a patent and unambiguous lack of jurisdiction and have granted writs of

prohibition in previous cases in which courts attempted to bypass special statutory

proceedings by agencies that have exclusive jurisdiction over a particular subject

matter. See State ex rel. Albright v. Delaware Cty. Court of Common Pleas, 60

Ohio St.3d 40, 42, 572 N.E.2d 1387 (1991) (exclusive jurisdiction to consider

annexation matters is in county in which hearing on annexation petition takes

place); State ex rel. Taft-O’Connor ’98 v. Franklin Cty. Court. of Common Pleas,

83 Ohio St.3d 487, 488-489, 700 N.E.2d 1232 (1998) (complaints regarding

election-law violations must be filed with the Ohio Elections Commission); State

ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106, 2003-Ohio-2506, 789 N.E.2d 203,

¶ 16, 18, 21 (unfair-labor-practices actions are the exclusive jurisdiction of the State

Employment Relations Board).

{¶ 23} It is undisputed that Judge Forchione has exercised and intends to

further exercise judicial power in the underlying case. So the next issue we need

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January Term, 2016

to resolve is whether the exercise of that power is authorized by law. For the

reasons explained below, we hold that it is not. We further find that Judge

Forchione patently and unambiguously lacks jurisdiction in the underlying case.

{¶ 24} Judge Forchione argues that he has jurisdiction to grant injunctive

relief in this case. He argues that the act uses mandatory language only in some

areas and that when permissive language is used, the act does not vest exclusive

authority in the director. Specifically, he argues that because R.C. 935.20(A) states

that the director or his designee “may” order a quarantine or transfer, the director

lacks exclusive authority over the power to quarantine or transfer dangerous wild

animals. This argument is without merit.

{¶ 25} The “may” language in R.C. 935.20(A) gives the director discretion

to issue quarantine or transfer orders. It does not vest authority to do so in the

common pleas courts or in any other entity. No other agency of government,

including the courts, has been given authority by the General Assembly to order the

quarantine or transfer of dangerous wild animals. R.C. Chapter 935 is a

comprehensive statutory scheme regarding the regulation of dangerous wild

animals, which vests exclusive authority over such matters to the director of the

ODA.

{¶ 26} Huntsman and Stump Hill Farm argue that Judge Forchione has

jurisdiction to order the animals returned to them because he is merely reversing

his own order. They claim that Judge Forchione has jurisdiction “to order the return

of the animals seized pursuant to the search warrant he issued on May 4, 2016.”

But the animals were not seized pursuant to the search warrant; rather, they were

seized under the director’s exclusive authority to transfer dangerous wild animals.

Huntsman and Stump Hill Farm do not contest that the director has that authority.

{¶ 27} Judge Forchione issued the search warrant allowing the ODA on the

premises of Stump Hill Farm. But he did not issue the warrant to seize the animals

or to take any other action regarding the treatment of the animals, and indeed, the

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face of the warrant makes this clear. The warrant states that it is exclusively for the

purpose of entering the Stump Hill Farm property, to search for evidence of a

violation of R.C. Chapter 935, including specifically, possession of dangerous wild

animals. Additionally, the warrant explicitly states: “Nothing in this warrant shall

limit your authority to order the quarantine and/or transfer of any such animals

under R.C. 935.20(A).” It is clear from the face of the warrant that it merely

authorizes the ODA to enter and search the property and that the ODA retained its

authority to quarantine or transfer any dangerous wild animals. Thus, the warrant

itself belies the argument that Judge Forchione exercised jurisdiction over the

seizure of Huntsman’s animals by issuing the warrant and that he may therefore

order their return by quashing it.

{¶ 28} In issuing the warrant, Judge Forchione exercised his limited

authority to allow the ODA on the premises to search. He had no authority to allow

or require the ODA to seize the animals. The discretion whether to seize the

animals is conferred by R.C. Chapter 935 exclusively on the director of the ODA.

Judge Forchione therefore patently and unambiguously lacks jurisdiction to order

the animals’ return.

Conclusion

{¶ 29} We hold that Judge Forchione patently and unambiguously lacks

jurisdiction to order the return of the dangerous wild animals seized from Cynthia

Huntsman and Stump Hill Farm. Daniels, as director of the ODA, has exclusive

authority to implement and enforce R.C. Chapter 935, including the exclusive

authority to order the removal and quarantine of dangerous wild animals being held

by an owner without a permit to do so.

{¶ 30} Accordingly, we hereby grant a peremptory writ of prohibition

preventing Judge Forchione from exercising any further jurisdiction over In re

Huntsman Transfer of Dangerous Wild Animals, Stark County C.P. case No. 2016

MI 138. We also order him to vacate his previous orders in the case.

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January Term, 2016

Writ granted.

O’CONNOR, C.J., and LANZINGER, KENNEDY, and FRENCH, JJ., concur.

PFEIFER, J., not participating.

O’DONNELL, J., dissents and would grant an alternative writ.

O’NEILL, J., dissents with an opinion.

_________________

O’NEILL, J., dissenting.

{¶ 31} Respectfully, I must dissent.

{¶ 32} Neither this court nor the trial court have sufficient evidence to

determine what exactly is happening in this case. For that reason, I would grant

only an alternative writ so that this court can make an informed decision.

{¶ 33} But one thing is eminently clear. The Ohio Department of

Agriculture (“ODA”) sought a search warrant from the court of common pleas.

After Cynthia Huntsman asked the same court to intervene and order the return of

property seized during the execution of that warrant, the ODA showed up in this

court arguing that the court of common pleas “patently and unambiguously” lacks

subject-matter jurisdiction over the dispute. The majority holds that the animals

were seized under the exclusive statutory authority granted solely to the ODA. But

the statute’s inclusion of the court of common pleas in the statutory scheme for

intruding onto Huntsman’s property belies that position. R.C. 935.19(A)(2) and

(3).

{¶ 34} Respectfully, I dissent.

_________________

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Peter

T. Reed, Deputy Solicitor, and James R. Patterson and Lydia M. Arko, Assistant

Attorneys General, for relator.

Kevin R. L’Hommedieu, Special Prosecuting Attorney, for respondent.

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John L. Juergensen Co. L.P.A., and John L. Juergensen, for intervening

respondents.

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