Angele Daniel Nicole will enjoy Christmas and several future holidays with Mary Jane Clifton, thanks to a case dismissal by Judge John R. Adkins late Tuesday afternoon.
The pet squirrel has been the subject of a dispute between Clifton and the Ohio Division of Wildlife (ODW) since October. Officers for the ODW told Clifton she could not house the squirrel she had found 17 months ago in downtown Circleville because she did not have a license to do so. On Oct. 30 Clifton pleaded not guilty to unlawfully having a game quadruped — a squirrel in captivity — without applying for or possessing a game propagating license from the ODW. She requested a jury trial at that time. A motion hearing was held Dec. 18, at which time Adkins said he would make a decision on the motions filed (motion to dismiss and motion for discovery) by Stephen Gussler, attorney for Clifton, within 10 days. According to Adkins' written decision, ODW supervisor James Lehman testified that the Division has no such rules or regulations setting out criteria for the allowance or rejection of applications for licenses. He provided copies of the Ohio Administrative Code under hunting and trapping regulations for fur-bearing animals, which state that the animal may be hunted, trapped, taken or possessed, if thereafter immediately it is put to death by any reasonable means. It was further stated the animals shall be taken only by hunting with a gun, a gun and dog, a bow and arrow, or a bow, arrow and dog, during the appropriate hunting season. "It is clear from Officer Lehman's testimony that had Mrs. Clifton taken this gray squirrel from the Thursday following Labor Day through Jan. 31 (hunting season) and subsequently thereafter killed it, she would have committed no wrong, assuming that she had acquired the proper license from the State to engage in such activity," Adkins noted in his written statement. He further stated that "there is no reasonable prospect that this case will be tried at any time in the future."
He goes on to say there are far more serious cases on the docket impacting the health, safety and welfare of the public. It was stated that the court finds there are not appropriate rules setting forth clearly and distinctly the rules and regulations for a person in good faith to satisfy the obvious legislative intent, including the preservation of animal life. "No one could be so myopic as to perceive that the legislature of the state of Ohio is so ambivalent to the protection of wild animals as to have legislated an act which required, manifestly, that all animals found in whatever location defined under the statute must be thereafter killed or turned over to a clinical rehabilitation specialist who at best might hope the animal would survive," the opinion stated. The court does not find the statute unconstitutional or vague, Adkins reported; however, the statute in this case was found to be unconstitutional because "there must be provided a fair warning to the ordinary citizen so behavior can comport with dictates of the statute." Secondly, Adkins stated that enforcement of the law cannot be capricious or discriminatory by agents with "too much authority and too few constraints." The truth of the case, Adkins wrote, is that a citizen tried to act kindly to aid a threatened animal. As a reward for this act of kindness the wildlife officer would have chosen to fine and jail Clifton and take the animal, which could mean "obviously, death for the squirrel." Clifton could have been imprisoned for 60 days and made to pay a $500 fine if the maximum penalty had been issued. Lehman testified that a squirrel would live about 11 months in the wild. Adkins said that since the squirrel has lived 17 months so far, the state's insistence on turning this squirrel back to the wild makes no sense. "Even the most myopic child would perceive no sense of justice or right in the position of the state.
In conclusion, Adkins stated: "At a time when the State is struggling to find resources to educate our children and to make them intelligent, compassionate people, so that our youth can be educated in honest, life-enhancing persuits, it is more than ironic that the State, further the Director of Law of Circleville, would choose to allocate the resources of two uniformed officers to pursue a woman who demonstrates no culpable mental state. The court is not so foolhardy. Therefore, for all the reasons set forth above, the court finds the defendant's motion to be well taken and the case is dismissed forthwith. Further, this gray squirrel shall be permitted to be retained in and about the property of Mary Jane Clifton without further interference. Although the court cautions Mrs. Clifton that it does not expect to view this squirrel in the public being bandied about in strange wearing apparel of any kind." In response to the decision, Clifton said her holidays will be much brighter.
"I was very excited," Clifton said, noting that she first learned of the good news from a friend who heard the information on a television newscast. Clifton says she has been told that she cannot dress Angele up in handmade clothing anymore because it would bring too much attention to her; however, she said she would not change anything else she has done, given the chance. Clifton admitted that she is not angry with the wildlife officers, only the "unconstitutional laws" that are written. She said the Ohio Division of Wildlife now has 30 days to appeal the decision. "If they appeal, they will have a lot to lose," she said. "I know in my heart that they will never win. They took my constitutional rights away from me. They denied me a permit." In response to the cards and words of support Clifton has received from individuals all across the United States and elsewhere, she says "thank you," adding that she has accumulated a substantial list of names to send thank-yous to. Although Clifton said she has been "very down in the dumps" for some time regarding the case, she remained confident that she and Angele would be allowed to stay together. "I knew it would not go to a jury trial," Clifton said. "The division of wildlife had too much to lose." Adkins said the holidays were a vital factor in the timing of his decision. "It seemed a good time of year to do it," he said. "The more research I did, the more it became clear what should be done," he said, noting that he had no difficulty making his decision. ODW officers could not be reached for comment.
Gregg Bassett
President
The Squirrel Lover's Club
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