A look at the lawful problems with the Zanesville incident
By A.J. Wagner
There is a Mutt and Jeff cartoon where one of the characters stands in front of hundreds of books in a law library and declares: “To think we started with Ten Commandments.”
So who makes this stuff up? Who creates all these laws? How’d we get here from there?
The political process in America that produces our laws starts with us, the electorate. Not only do we elect the lawmakers, but by our selection we generally tell them what laws we want or don’t want.
We also make demands for laws as situations arise that get our dander up enough to get us to write letters, sign petitions, visit our elected officials and create an atmosphere that demands change.
A recent situation in Ohio commanded public attention that, in turn, has stirred lawmakers into action. The result may be another volume to add to the library of laws where laws already exist, or existed, to address the situation.
I’m referring to the release of about 50 wild animals from a private wild animal sanctuary near Zanesville. The sanctuary’s owner opened all of the animal cages releasing lions, tigers, wolves, bears and monkeys before committing suicide.
Ohio was one of only 10 states not to have rules in place for the control of exotic animals. Now, Governor Kasich has put an executive order in place that calls for an inquiry, asks for cruelty and health laws to be enforced through local officials, asks officials to seek alternative housing for wild animals, calls for a toll-free hotline, asks for investigation of animal auctions and asks for a possible moratorium and calls for a study to be completed by Nov. 30 on what other laws can be created. No new laws are created by the order because the governor says that he doesn’t make laws.
He’s wrong. Laws are generally the province of legislatures but sometimes legislatures give governors the authority to make laws. In the case of wild animals, the legislature has given the chief of the Department of Natural Resources Division of Wildlife the authority to make rules regarding the possession and control of wild animals. In an emergency, the governor has the authority to make such rules for a period of 90 days giving the chief an opportunity to create permanent rules.
§ 1531.04. Powers and duties of division of wildlife
The division of wildlife, at the direction of the chief of the division, shall … Enforce by proper legal action or proceeding the laws of the state and division rules for the protection, preservation, propagation, and management of wild animals and sanctuaries and refuges for the propagation of those wild animals, and adopt and carry into effect such measures as it considers necessary in the performance of its duties;
§ 1531.08. Powers and authority of chief of division
… the chief of the division of wildlife has authority and control in all matters pertaining to the protection, preservation, propagation, possession, and management of wild animals and may adopt rules for the management of wild animals.
The chief may regulate any of the following: (A) Taking and possessing wild animals, at any time and place or in any number, quantity, or length, and in any manner, and with such devices as he prescribes;
(B) Transportation of such animals or any part thereof; (C) Buying, selling, offering for sale, or exposing for sale any such animal or part thereof; 119.03
If the governor, upon the request of an agency, determines that an emergency requires the immediate adoption, amendment, or rescission of a rule, the governor shall issue an order … The emergency rule, amendment, or rescission shall become invalid at the end of the ninetieth day it is in effect. Prior to that date the agency may adopt the emergency rule, amendment, or rescission as a nonemergency rule, amendment, or rescission …
Before he left office, Ted Strickland did just that. With the assistance of a task force including the Humane Society, Strickland declared an emergency and signed an executive order creating specific rules for the ownership, possession and control of wild animals. It went into effect in January. Kasich let the Strickland executive order expire after 90 days without requiring the chief of wildlife to create any new rules.
Now we’re back to scratch with a lesson in how laws are created or eliminated by the election of our lawmakers. We also see how events can change the equation.
At the beginning of this year, we had a new law created by the governor. By the beginning of next year we will probably have another created by the governor under the authority given to him by the legislature or by the legislature itself.
Electors and governors and legislators, oh my.
Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.
A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.