Allinder v. State of Ohio

• Decision Date: 08 January 1987
• Docket Number: Nos. 85-3664,85-3807,s. 85-3664
• Citation: 808 F.2d 1180
• Parties: William P. ALLINDER and Caroline I. Allinder d/b/a Sunnyside Bee Farm; Elmer Steiner and Marilyn L. Steiner, Plaintiffs-Appellees, v. STATE OF OHIO; Ohio Department of Agriculture; Dale Locker, Director of Ohio Department of Agriculture; Eric Nelson, Hardin County Bee Inspector, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1180

808 F.2d 1180

William P. ALLINDER and Caroline I. Allinder d/b/a Sunnyside Bee Farm; Elmer Steiner and Marilyn L. Steiner Plaintiffs-Appellees, v. STATE OF OHIO; Ohio Department of Agriculture; Dale Locker, Director of Ohio Department of Agriculture; Eric Nelson, Hardin County Bee Inspector, Defendants-Appellants.

Nos. 85-3664, 85-3807.

United States Court of Appeals Sixth Circuit.

Argued Aug. 5, 1986.

Decided Jan. 8, 1987.

John K. Maguire (argued), Asst. Atty. Gen., Columbus, Ohio, for defendants-appellants.

Gregory L. Arnold (argued), Arnold & Barrett, Toledo, Ohio, for plaintiffs-appellees.

Before ENGEL and MARTIN, Circuit Judges, and COHN ^*, District Judge.

COHN, District Judge.

I. INTRODUCTION.

A. Nature of the Case.

This case involves a fourth amendment challenge to the scope of section 909.05 of the Ohio Revised Code (ORC) which empowers the Ohio Director of Agriculture or his authorized representative to conduct warrantless searches of apiaries and other premises, buildings or places where bees or bee paraphernalia are kept. ¹ After notification of a planned warrantless inspection of their apiaries, the plaintiff-beekeepers commenced separate actions for declaratory and injunctive relief in the United States District Court for the Northern District of Ohio. The district court granted the plaintiffs' motion for partial summary judgment in the Allinder action and permanently enjoined the Ohio Department of Agriculture from "conducting warrantless, nonconsensual inspections of apiaries pursuant to the Ohio Apiary Inspection Law, ORC Sec. 909.05" on the grounds the law was unconstitutional "insofar as it purports to authorize non-consensual apiary inspections without a warrant or its equivalent." Allinder v. Ohio, 614 F.Supp. 282 (N.D.Ohio 1985). The Steiner plaintiffs and defendants stipulated that the order entered in the Allinder action would apply in the Steiner action, and that the two actions would be consolidated for purposes of appeal and trial on the remaining issues. Defendants appeal from the injunctive orders in both cases. This court consolidated the two actions on appeal. For the reasons which follow, we affirm the district court in substantial part.

B. The Regulatory Scheme.

Pursuant to Chapter 909 of the ORC, Ohio maintains an apiary ² inspection program. ³ 3] The program is designed to detect bee diseases in their early stages and to prevent their spread. ORC Sec. 909.03 declares infected hives a public nuisance. Under ORC Sec. 909.03, the director of agriculture has rulemaking and enforcement powers "as in his judgment are necessary to control, eradicate, or prevent the introduction, spread, or dissemination of any bee diseases." Of particular concern in the production of honey and pollination of crops is the spread of American Foulbrood disease (AFB) which infects the preadult stage of the bee. ⁴ Although the disease is not harmful to humans, it can destroy entire colonies of bees. Under ORC Sec. 909.02, a beekeeper must register his apiaries with the director of agriculture along with directions as to their location. Not all beekeepers are registered, primarily because of their ignorance of the statutory requirements. The program is enforced by the state apiarist, four deputy apiarists, and part-time county inspectors who are appointed and funded by the individual counties and over whom the state retains little control. ⁵ Because of the technical knowledge needed to make inspections, inspectors are often competitors of those whom they inspect and are often charged with the responsibility of inspecting their own apiaries. Under ORC Sec. 909.05, an inspector is expressly authorized to examine apiaries without prior notice, without a warrant and outside the presence of the owners.

There are no published rules and regulations. The inspectors are provided a training manual which appears to outline the goals and guidelines of the program. Final decisions as to what to inspect, how to inspect and when to inspect rests with the individual inspectors.

Inspection involves manipulation of the hive ⁶ and not merely visual inspection of the exterior of an apiary. The inspector approaches the hive and removes the lid with a crowbar-like hive tool. The front entrance of the hive is then smoked with another appliance to subdue the bees. Smoking continues as needed throughout the inspection process. The inner cover, honey layers, queen excluder, and other layers are manipulated and removed to arrive at the bottom layers where the brood ⁷ chambers are located. All the layers in the hive are stuck together with propolis, a sticky substance which the bees process from tree residues, and which generally has to be pried from the hive. Some of the brood frames are then removed and examined for signs of disease. If the inspector diagnoses AFB, surrounding colonies or sometimes the entire apiary is quarantined under ORC Sec. 909.04. A sample is taken from the colony and sent to the Ohio Department of Agriculture laboratory for testing. If the presence of AFB is confirmed, the bees and hive equipment are ordered destroyed by burning. Under ORC Sec. 909.16, the beekeeper has five days within which to appeal the decision to burn the bees and equipment to the Director of Agriculture whose determination is final.

C. The Parties.

The Allinders and the Steiners are commercial beekeepers in the business of raising bees for honey production and renting bees to farmers for crop pollination. The Allinders' 600 hives and the Steiners' approximately 850 hives are located in seven different counties in Ohio. They registered their apiaries with the added notation "No inspection permitted without a warrant."

II. THE ELEVENTH AMENDMENT.

A. The State Defendants.

Defendants first argue that the district court did not have jurisdiction under the eleventh amendment bar to an action against the State. The argument has merit as to defendants State of Ohio and Ohio Department of Agriculture. The Supreme Court has consistently interpreted the eleventh amendment to preclude a citizen from bringing suit against his own state in a federal court. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Employees v. Dep't of Public Health and Welfare of Missouri, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). Contrary to plaintiffs' contention that defendants have waived immunity by proceeding in these actions, a waiver of eleventh amendment immunity will be found only where indicated " 'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.' " Edelman, 415 U.S. at 673, 94 S.Ct. at 1361 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed.2d 742 (1909)); Ohio v. Madeline Marie Nursing Homes # 1 and # 2, 694 F.2d 449 (6th Cir.1982). The defense may be raised for the first time on appeal, Edelman, 415 U.S. at 678, 94 S.Ct. at 1363, and a state's appearance and offer of defenses on the merits is no bar; the defense is jurisdictional and may be raised at any stage of the proceedings. Florida Dep't of State v. Treasury Salvors, Inc., 458 U.S. 670, 683 n. 18, 102 S.Ct. 3304, 3314 n. 18, 73 L.Ed.2d 1057 (1982) (Opinion of Stevens, J.). Defendants asserted the eleventh amendment as an affirmative defense in their answers to the complaints in both actions and have never indicated an intention to waive the defense. See Madeline Marie Nursing Homes # 1 and # 2, 694 F.2d 449. The State of Ohio and the Ohio Department of Agriculture must be dismissed as defendants for lack of jurisdiction.

B. The Individual Defendants.

The eleventh amendment defense of defendants Eric Nelson, a bee inspector in the Steiner action, and Dale Locker, the director of the Ohio Department of Agriculture in both actions, implicates an exception to eleventh amendment immunity first recognized in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In Young, the Supreme Court held that state immunity did not shield a state official attempting to enforce an unconstitutional act. Under Young, a state cannot transfer its immunity to an official who must accede to his "responsibility to the supreme authority of the United States." 209 U.S. at 160, 28 S.Ct. at 454. Accordingly, Nelson and Locker are proper defendants.

III. THE FOURTH AMENDMENT.

A. The Existence of a Search.

1. Open Fields.

Before invoking the fourth amendment, we must first determine if there has been a search. Dow Chemical Co. v. United States, 749 F.2d 307, 311 (6th Cir.1984), aff'd, --- U.S. ----, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). Defendants argue that no search occurred, relying on the "open fields" doctrine first enunciated in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), and recently reaffirmed in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). In both Hester and Oliver, the Supreme Court held that a visual observation of an open field did not violate the fourth amendment.

Defendants' reliance on these cases is misplaced. Oliver did not overrule the holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that the fourth amendment protects persons and not places. ⁸ See 466 U.S. at 176 n. 6, 104 S.Ct. at 1740 n. 6. Oliver focused on factors such as the "intention of the Framers of the Fourth Amendment", the uses to which a location is put and the societal understanding as to areas deserving protection from government invasion in concluding that society does not recognize an expectation of privacy in open fields as reasonable. Id. at 178-79, 104 S.Ct. at 1741. In decisions following Katz, the Supreme Court has consistently adhered to the open fields doctrine while at the same time recognizing that it is limited in scope to "sights seen in 'the open fields.' " Air Pollution Variance Bd. of Colorado v. Western Alfalfa Corp., 416 U.S. 861,...