## Facts

- Mary Jane Clifton found an injured baby grey squirrel that had been separated from its mother shortly after birth.
- Clifton took the squirrel into her home, provided nutrition and hydration, and rehabilitated it despite its low chance of survival.
- The squirrel remained in Clifton’s home for nearly a year and a half and became habituated to living with humans.
- Clifton kept the squirrel as a pet.
- Clifton entered the squirrel in the 1997 Circleville Pumpkin Show pet parade and won a prize, which brought the squirrel to the attention of the Ohio Division of Wildlife.
- Wildlife officers went to Clifton’s residence and attempted to take custody of the squirrel; Clifton refused to surrender it.
- The Ohio Division of Wildlife filed a misdemeanor complaint charging Clifton under Ohio Revised Code § 1533.71 for having a squirrel in captivity without applying for or possessing a game-propagating license.
- During the dispute, Clifton applied to the Division for the required license.
- The Division denied the license because the squirrel had been “taken from the wild,” and it directed Clifton to release the squirrel into the wild.
- At the hearing on Clifton’s motion to dismiss, the Division could not point to any published regulations or written standards that governed when a captivity license would be granted or denied in circumstances like Clifton’s.
- When asked to identify the basis for its denial decision, the Division referenced a separate hunting law requiring a hunter who traps or otherwise takes a lawfully hunted wild animal to immediately kill the animal, and treated that rule as the Division’s effective standard.

## Issues

1. Whether prosecuting Clifton under R.C. 1533.71 violated due process because the Division administered the licensing requirement without clear, publicly knowable standards, leaving citizens without fair notice and allowing arbitrary enforcement.

## Decision

- The Circleville Municipal Court (Pickaway County) granted Clifton’s motion to dismiss the misdemeanor complaint.
- The court held that R.C. 1533.71 was unconstitutional as applied to Clifton because the Division’s licensing practice provided no fair warning and permitted arbitrary enforcement.
- The court rejected the Division’s attempt to justify its license denial by relying on an unrelated hunting-kill provision as an unwritten licensing rule.
- The criminal charge was dismissed, and the prosecution did not compel Clifton to surrender or release the squirrel through this case.

## Legal Principles

- Due process requires fair notice of what is required before the government may impose criminal penalties for failing to obtain a license.
- A statute may be unconstitutional as applied if the administering agency uses ad hoc, undisclosed criteria to decide who can comply with a licensing requirement.
- A criminal prosecution premised on a licensing scheme cannot rest on an agency’s unannounced standards that ordinary citizens cannot identify in advance.
- Reliance on a separate statutory rule—aimed at different conduct and contexts—as the practical standard for license denials can amount to arbitrary enforcement when that standard is not tied to the licensing statute’s text or any duly issued regulation.

## Conclusion

Ohio Division of Wildlife v. Clifton dismissed a charge for keeping a rehabilitated squirrel in captivity without a license because the Division of Wildlife denied Clifton’s license request using no clear, public standards and instead relied on an unrelated hunting rule as its justification, leaving citizens without fair notice and permitting arbitrary enforcement in violation of due process.


Ohio Division of Wildlife v. Clifton, 692 N.E.2d 253 (1997)