thirteen thirty one twelve terry wilkins at all versus the humane society of the united states intervene or david daniels in his official capacity as director of the ohio department of agriculture and all oral argument as follows fifteen minutes for the plaintiffs fifteen minutes to be shared by the defendants and the defendant intervenor mr owens or the pla briefs i also thank previous counsel this is my first appearance before this body and it is always nice to see somebody go first to break the ice i thank you very much let me stand my presentation and first of all i should thank you let me start with first a roadmap i'd like to begin by starting to look at some of the broader concepts of law that i think drive the issues in this case then take a look more closely at some of the key pivot point which are subject to review first of all with regard to some of the broader concepts in this case i think a review of the opinion of the lower court's decision is telling for a few reasons first of all you can see that the district court judge is really struggling with what i think are very ugly facts and the application of very ugly facts to the situation and i think that is very evident throughout the opinion certainly in the beginning and i think the court even make special provision to talk about it and to a degree it makes sense i mean sitting behind me are two young ladies that are having their entire birth right dispossessed there's families that are being destroyed their animals that are literally because of their age because of their condition and being subject to a process of pit tagging that requires anaesthesia are literally subject to a death sentence as a result of that and there was you know mary medical testimony to testify by that by veterinary that examined some of the specific animals that are taking place and i think when we look at that particular issue that helps set the framework for how we contemplate crux of where the district court was sort of reviewing what about all these exceptions and of course in the pelleas brief they say well hey what about all these exceptions now there are exceptions and there are a number of them but your honor they have absolutely no application whatsoever to private ownership free enterprise and there was some specific testimony and i think we cite that in our brief that look if you want to be somebody that privately owned animals and you want to be somebody that uses that property to generate a private free enterprise there's really only two exceptions are really only two options that you have under this law that apply and that's either membership in the c a a or aid or the essentially permitting scheme that the state is put together now i recognize there are other options out there for example you can be a research facility you can be a circus none of those will never ever apply to to my clients i to the first amendment aspect i'm saying from a first amendment perspective this whole scheme fails and it fails for this reason principal a and that is that essentially what we're doing here is we're giving these owners and understand we're talking about property that is been legal to own since the inception of the state of ohio has never been illegal to own it is now made illegal and you only have two options to stay woful one is the essentially it wipes out that as an option all together and really leaves a z gaze e a a is the only option and there is we stated in the brief is that forced compelled association that is violative of the first tragedy and which animal in a released fifty of his wild animals before committing suicide the act reasonably seeks to promote the animal health and public safety concerns and heron and the ownership of dangerous wild animals while giving reasonable options for current owners to maintain their animals whether whatever one's view of the act as a policy matter it passes  it's simply one option among many as you yourself said judge donald and second the microchip in requirement is not a for permanent physical occupation of property within the meaning of the court's loreto the supreme court decision because it's not third party required to access which was the key factor and the rideau it's analogous to a license plate on a car or in a sprinkler system requirement or a fire extinguisher current not wild animals and so you can't get near them and our experts the state's experts also testified that anesthesia is very rarely contra indicated dr you can get the columbus zoo and aquarium suggested that the zoo old animals all the time you mentioned colo which is a famous gorilla at the columbus zoo who's the first born in captivity and she's still alive at the zoo so but but set in aside it's not permanent physical occupation has always required third party access and it's just a requirement on the use of property it's not her it's not a requirement to give the property to some other person to allow the person to have the animal for some time so it shouldn't be analyzed under the permanent physical occupation per se taking rubric if anything it should be in at least into the regulatory taking but their brief expressly waves any type of regular taken here and actually go so far as to criticize the district court and engaging in regulatory taken analysis and so that essentially i think dooms their claim because it would be a fairly unprecedented ground to say that this is a permanent physical occupation within the meaning of the raido now getting back to the first amendment issue that the first amendment claim fails for two distinct reasons first they failed to prove compulsion and number two even if they did prove compulsion type of association at his you here fits neatly  and so it's not like the cases where the court is not like the unconstitutional conditions cases where you have to to join the state bar to become a lawyer or join a union to get a public job it's not a quid pro quo that is just one option among many now they're claiming that it's factually compelled to them because they don't want to engage in any of the other exemptions but i know of no case that has felt that fell in that type of factual compulsion they've actually made out that there's compulsion because all of the witnesses testify five of the witnesses testified in this case that they couldn't couldn't meet the standards of the a z a or the z a either so there's and fact nobody testified that they could meet the standards and so they're essentially saying that they're being compelled to do something that they can't do so that's that's a unique type of compulsion claim i think at the end of the day i just go back to that i'm suggesting that they  the even assuming there was some type of compulsion here the supreme court's decisions and in color in a booed suggest that mandatory associations can in some circumstances be perfectly acceptable if it's non speech related  it was you have to join the bar because the bar's engaged in regulatory activity over lawyers it's the same analogy here the a z in the or not at their core advocacy organizations are essentially accreditation agencies they set standards of care for how to help how big cages should be year for animal care so the analogy to those cases is directly on point but those cases of course there's there was actual compulsion there and there's not and that is simply insufficient on the evidence to show that any of their fees would actually if they join these organizations be spent on any of that type of ideology more over activities such as gun control legislation and pollution regulation which had nothing to do with the regulation of the state bar here the activity at issue has everything to do with animal welfare so and unless the court has any other may like many other state laws in this country the dangerous wild animals in research and snakes act is an eminently reasonable regulation of inherently dangerous activity the act does not compel any speech or association nor does it require subsidization of a socio political speech or unconstitutionally condition a government benefit as the supreme court stated in rumsfeld plaintiff's claims are a far cry from the traditional compelled speech jurisprudence and their arguments trivialize the freedoms protected by the first amendment my co counsel said waive their regulatory takings argument on appeal they have focused entirely on argument that the microchip in requirement is a physical invasion of their private property and that claim fails as a matter of law in the tahoe sierra preservation council case the supreme court specifically said that physical takings are relatively rare and easily identified that is simply just not the case here there is no need for this court to deviate from its own precedent in the tennessee scrap recyclers case which up held a law that required a tag and hold procedure for personal government in this case nor a third party authorized by the government is provided access to plaintiff's property by virtue of the microchip requirement nor is our plaintiffs deprived of their exclude right to exclude others  from me from their property in this case there is simply no violation of the first amendment nor any violation of the taking schooling we have a set of plaintiffs who simply do not want to comply with regulations that were the process of a long and reasoned legislative process that they were part of and we would respectfully request this court to uphold the district court's decision i'm happy to answer any questions you might think you are there are let me ask this are there are similar statutes in other states now or is this unique because the unique problem there arose in ohio thank you for your question this is not a unique law at all in fact ohio is one of the last states to adopt a law like this currently we think there are only a handful of states that do not have a similar law i happy to provide supplemental briefing on all of those state laws but essentially almost all states in this country currently have laws on the books that directly regulate the possession of dangerous wild animals big cats bears primates etc and that provide a series of options for  prior owners to maintain their property after the passage of those laws a lot of those state laws are in fact far more restrictive than ohio's law i would think i would say that ohio is somewhere in the middle of that spectrum  many states only exempt a z and do not exempt ca and there are so there are numerous states that have laws that are more restrictive and this is a common law that we're seeing across the country thank you coun q thank you again now let me i guess begin my rebuttal by talking about specifically this illusion of choice that is brought up and i think it's pivotal to the first amendment claim on the association part of it you know when i think about this illusion of choice it reminds me of of how the federal court approached issues in the civil rights era when there were these doctrine of separate but equal when the court looked at this and said hey you can claim that there's a choice and you can claim that there are separate schools and that there is a quote but we all know that that's just absolutely not true and they struck they eventually got to the point of saying we're not going to accept that standard and i think this applies as well when you look at the de facto  i'm sorry when you say hundred years to get there did it and your honor it did in what i would say is let's not go backwards at this point you know on that issue we have a position like this where the court can take a look at the point here is that when we're dealing with this illusion of choice that's what gets us to this a forced association because i think the record is clear that there were plaintiffs that could choose to essentially join a z a could meet those standards if they so choose but there was testimony that they find them politically repugnant and abhorring to them to be essentially you know in the in the issue of animal rights and animal husbandry they have in many cases polar opposite views on water back best practices for those kinds of things and that's why we have this issue of first amendment because we're forcing people to say look if you can afford to go through the state scheme which is set up specifically there was testimony on it that these that regulatory scheme is set up specifically to destroy and wipe these people out  question about this joining versus accreditation the statute provides that one exemption is that you can be accredited by the a z a or the the right that's correct are those entities do you have to join them to be accredited by them that's correct you have to join and then as a member you go through an accreditation process and what's important you be a non accredited member you can be a non accredited member and still be a member and pay dues they had there was testimony at the trial court that there's essentially sort of an entry  accredited by the m if you are not a member that's correct that's correct you can be a member and not accredited but you cannot be a credit in that is how that process works and again what we're saying here is that because the standards for easy a and i think the probably one of the now with or one of the things that jumps out at you deals with hyenas in particular if you're izzy a member six hundred square feet is all you need but if you go through the regulatory scheme all the sudden it's five thousand square feet right so we're not talking about issues related to the cleanliness are they feeding on right or what's the health care it's got nothing to do with any of that we're talking about six hundred square feet which is fine for hyenas if you're in a z but if you're not then you have to have five thousand square feet and that's but one of numerous examples that we have breathed in  hundred doesn't it no your honor right and they've switched the mop and i believe we have it in the briefing i want to say it was reduced but it's still two three hundred percent larger and then there's other things that have gone up and down and all over the it is incorrect to throw the fact that doesn't figure out there at the time of trial the five thousand was the number and i want to say it's still much higher than the and even if that one if i'm incorrect on that one the record is replete with many other examples and we i think we've even cited several specifically in our reply brief in which the standards for the a z a z a are just from a physical description much less significant than the standards that you need to have the regulatory scheme and that i think is where really comes into showing that this is a hobson's choice because if it wasn't what they could just say is hey it's the standards that these board have or the same standards that ca is but that's not what the situation is special interests carve themselves michel as a result of creating that meche what they've done is they've created a first amendment problem in the process and i think that that's where that that comes in let me talk about to this physical occupation because i think that the honor your honor brings up a good point with regard to this physical  occupation this is very unsuitable or to the cats and dogs case and i think there's been significant testimony about the fact that with cats and dogs you virtually never have to have a nest you know that's an anesthesia and all that kind of stuff were used with these animals that's pretty much all that you're talking about it is having to use that process and it was the defendant's own witness that said that yeah you have to anesthetize i mean it was the defendant's own expert witness that said no especially with regard to older animals you would never enough to ties them just for the purpose of doing this if they had some other disease or some other malady and we were going to sort of work out and because it was medical and for that you could pet tag them all they were down but you certainly wouldn't do that with older animals and the evidence that was deduced at this trial was that there were several animals it would be far too dangerous for that process now if they were facing a life threatening illness already fine you anesthetize them because they're already facing a life threatening illness but for the purpose of a pet tag no you would never do that and even the defendant's own witness agreed with that and i think when we talk about that that pet tag you know they make this argument that hey that's really not an invasion of privacy but again in our brief we talked about the bundle of rights that comes with ownership and clearly what we see in this pet tag where the state chooses the nature of the tag the state chooses where and when it goes in the state chooses and says by law if you ever remove it that's a crime and the state has access to scan it do whatever with it at any particular time that is very clearly meets the standards for a physical occupation and i think that basis it certainly meets that put together now your honor you also i think address this issue of hey what are other states doing that actually was briefed i think there's some significant testimony in the record there are approximately twenty states that least on the record in that trial were discussed that have was similar to it i think and again this can be additionally brief if the court wants although i think you know not necessary but in essence i think  ohio oh i saw when and i knew when it was and asked stopped within a few seconds and i was thinking yes i mean i knew what had happened today because we've had the experience yesterday we don't have any video of her here i think it's ok i think we should i can hear you though let's go ahead but we have mr owens head probably about another minute to ninety seconds  to and our first amendment claims have two parts to them centrally there's the association part and then essentially the forced speech part now in regard to that there is this issue of art well what does  organizations did actively be involved in the legislative aspect of this bill they had paid staff members show up they actively lobbied for the bill the active lobbied for the sort of special carve out exceptions that they got the benefit of and moreover there was a member of their organization that took the stand and testify that yes that is how things are are done and that there was significant use of resources and so in that regard i think we do lay that out affectively in our reply brief and i do believe there are significant facts lastly i would leave the court with this there's been a lot said about you know winds and tigers and bears being dangerous and certainly that's the case but i think it's noteworthy to note that of the general public in the state of ohio there have been more people that have been elected to the office of president of the united states than of the and killed or injured severely by any privately owned animal of the plaintiffs that we're talking about it's really a non issue but i'll tell you what it does do it destroys families and it is in certain instances a death sentence for older animals and on that basis we would ask for the relief we've requested thank you thank you both thank you all for your arguments and will consider the case