Johnson v. Smith

104 F.4th 153

Scott JOHNSON; Harlene Hoyt; Covey Find Kennel, LLC, Plaintiffs - Appellants, v. Justin SMITH, D.V.M., in his officialcapacity as Animal Health Commissioner at the Kansas Department of Agriculture, Defendant - Appellee.The Buckeye Institute; Pacific Legal Foundation;New Civil Liberties Alliance; Kansas Pet Advocates, Amici Curiae.

No. 23-3091

United States Court of Appeals, Tenth Circuit

FILED June 10, 2024

Appeal from the United States District Court for the District of Kansas (D.C. No. 6:22-CV-01243-KHV-ADM)

Samuel G. MacRoberts, Jeffrey S. Shaw, Kansas Justice Institute, Overland Park, Kansas, for Appellants.

Anthony J. Powell, Kurtis K. Wiard, Office of Attorney General Kris W. Kobach, Topeka, Kansas, for Appellee.

David C. Tryon and Alex M. Certo, The Buckeye Institute, Columbus, Ohio; filed a brief on behalf of Appellants, for Amicus Curiae The Buckeye Institute.

Daniel T. Woislaw, Alexander J. Smith, Pacific Legal Foundation, Sacramento, California; filed a brief on behalf of Appellants, for Amicus Curiae Pacific Legal Foundation.

Markham S. Chenoweth, New Civil Liberties Alliance, Washington, D.C.; filed a brief on behalf of Appellants, for Amicus Curiae New Civil Liberties Alliance.

Sheila Martinsen, Kansas Pet Advocates, Leawood State, Kansas (joined by Jason Petropoulos, Latham & Watkins LLP, New York, New York and Brittany M.J. Record, Latham & Watkins LLP, Washington, D.C.); filed a brief on behalf of Appellee, for Amicus Curiae Kansas Pet Advocates.

Before HARTZ, PHILLIPS, and CARSON, Circuit Judges.

HARTZ, Circuit Judge.

Seeking declaratory and injunctive relief, Plaintiffs Scott Johnson and his wife Harlene Hoyt raise a Fourth Amendment challenge to the constitutionality of a Kansas statute that permits warrantless inspections of their homestead, where Mr. Johnson owns and operates a business that houses and trains bird dogs for their owners. See Kan. Stat. Ann. (K.S.A.) § 47-1709(b). They also claim that their constitutional right to travel is infringed by a statutory requirement that they make the premises available for inspection within 30 minutes of the arrival of an inspector. See id. § 47-1721(d)(1). The United States District Court for the District of Kansas dismissed their complaint for failure to state a claim, and they appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of their right-to-travel claim but remand for further proceedings to determine whether Mr. Johnson's business is closely regulated and, if so, whether warrantless inspections are reasonable under the Fourth Amendment (as applied to the States under the Fourteenth Amendment).

We first describe the Kansas statute at issue and summarize the controlling Fourth Amendment law before applying that law to the Kansas statute. We then briefly explain why the statute does not violate Plaintiffs' right to travel.

I. THE KANSAS PET ANIMAL ACT

The Kansas Pet Animal Act (the Act) regulates those who house pet animals. It imposes licensing requirements, see K.S.A. §§ 47-1701-1737 and directs the Animal Health Commissioner of the Kansas Department of Agriculture (the Commissioner) to adopt rules and regulations for licensees regarding, among other things, reasonable treatment of animals, inspections of licensed premises, and recordkeeping, see id. § 47-1712(a); id. § 47-1701(i) (defining Commissioner).

The Act distinguishes eight different types of licensees: (1) a boarding- or training-kennel-operator license is required for anyone, except a licensed veterinarian, "who operates an establishment where four or more dogs or cats, or both, are maintained in any one week during the license year for boarding, training or similar purposes for a fee or compensation," id. § 47-1701(p); see id. § 47-1723(a); (2) an animal-distributor license is required for anyone who is "engaged in the business of buying for resale dogs or cats," id. § 47-1701(z), (aa); see id. § 47-1702; (3) a pet-shop-operator license is required for anyone who operates premises where animals are sold at retail, see id. § 47-1701(t), (u); id. § 47-1703; (4) a pound or animal-shelter license is required for anyone except a licensed veterinarian who operates a facility used to "house, contain, impound or harbor any seized stray, homeless, relinquished or abandoned animal or a person who acts as an animal rescuer, or who collects and cares for unwanted animals or offers them for adoption," id. § 47-1701(g); see id. § 47-1704(a); (5) a research-facility license is required for anyone who operates "any place, laboratory or institution, except an elementary school, secondary school, college or university, at which any scientific test, experiment or investigation involving the use of any living animal is carried out, conducted or attempted," id. § 47-1701(w); see id. § 47-1720; (6) a hobby-breeder license is required for anyone who operates "premises where all or part of three, four or five litters of dogs or cats, or both, are produced for sale or sold, offered or maintained for sale per license year," if the total number of dogs and cats sold, offered, or maintained for sale is less than 30, id. § 47-1701(m), (n); see id. § 47-1719; (7) an animal-breeder license is required for anyone who operates premises "where all or part of six or more litters of dogs or cats, or both, or 30 or more dogs or cats, or both, are sold, or offered or maintained for sale, primarily at wholesale for resale to another," id. § 47-1701(e), (f); see id. § 47-1733; and (8) a retail-breeder license is required for anyone who operates premises "where all or part of six or more litters or 30 or more dogs or cats, or both, are sold, or offered or maintained for sale, primarily at retail and not for resale to another," id. § 47-1701(ff), (gg); see id. § 47-1736.

The Act has expanded its reach over time. As originally enacted in 1972, it covered only animal "dealers," pet-shop operators, pounds or animal shelters, and research facilities. 1972 Kan. Sess. Laws Ch. 201 §§ 2-5. In 1991 the Act was amended to include kennel operators, see 1991 Kan. Sess. Laws Ch. 152 §§ 21, 22 (defining kennel operator as "any person who operates an establishment where animals are maintained for boarding or similar purposes for a fee or compensation"), and a 1996 amendment clarified that those who maintain dogs for training purposes (such as Mr. Johnson) are included in that definition, see 1996 Kan. Sess. Laws Ch. 151 § 6. Animal breeders, retail breeders, and hobby breeders were also added in 1996. See id. Ch. 151 §§ 2, 5, 19.

A number of regulations promulgated under the Act apply generally across licensees, such as those relating to record keeping, see Kan. Admin. Regs. (K.A.R.) § 9-18-7, and certain standards for the housing, handling, and caretaking of animals, see id. §§ 9-18-10-9-18-15, 9-18-17-9-18-22, 9-18-31.

But in other respects the various types of licensees are treated differently. For example, animal breeders and animal distributors are exempted from many housing and caretaking standards because they already have to comply with federal regulations under the Animal Welfare Act (AWA), 7 U.S.C §§ 2131-60. See K.S.A. § 47-1712(b); K.A.R. § 9-18-24. Roughly speaking, the AWA requires licenses for those engaged in interstate commerce, other than common carriers, who sell or transport animals for use as a pet, for research, or for exhibition, see 7 U.S.C. §§ 2132, 2134, and requires certain other businesses engaged in the animal trade to register with the Secretary of Agriculture, see id. §§ 2132, 2136. The chief purpose of the AWA is to ensure humane treatment of animals by those holding or transporting them, see id. § 2131, and it authorizes the Secretary of Agriculture to promulgate rules to effectuate this purpose, see id. § 2151.

Other restrictions under the Act apply to some types of licensees but not others. See e.g. K.S.A. § 47-1711 (prohibiting animal-control officers from obtaining an animal-distributor, animal-breeder, retail-breeder, hobby-breeder, or pet-shop-operator license); K.A.R. § 9-18-16 (requiring that sexually intact adult animals not be housed with sexually intact animals of the opposite sex within an animal shelter, rescue network, or pet-animal foster home); id. § 9-18-25 (prohibiting the sale or gift of certain animals by pet shops); id. § 9-18-30 (restricting tethering of animals at boarding or training kennels). Annual fees for the various licenses range from $125 to $600. See id. § 9-18-6.

All licensees are subject to inspection. First, an applicant must pass an initial inspection of its premises. See K.S.A. § 47-1709(a). "The application for a license shall conclusively be deemed to be the consent of the applicant to the right of entry and inspection of the premises." Id. Notice "need not be given" before inspection. Id.

Once an operator becomes licensed, officials may conduct routine inspections "at reasonable times with the owner or owner's representative present." Id. § 47-1709(b). Acceptance of a license "shall conclusively be deemed to be . . . consent" to such searches. Id. Although the Act once permitted inspectors to give prior notice of routine inspections, a 2018 amendment provides that prior notice of inspection "shall not be given." Id. (current provision); see 2018 Kans. Laws Ch. 55 § 5 (amendment).

Refusing inspection "shall be grounds for suspension or revocation of the license." K.S.A. § 47-1709(b). And failure of an owner or licensee, or a designated representative, to make the premises available for inspection within 30 minutes of the inspector's arrival results in a $200 no-contact fee. See id. § 47-1721(d)(1). If an inspector is denied access to the premises, the Commissioner "may apply to any court of competent jurisdiction for an administrative search warrant authorizing access to such location for such purposes. Upon such application and a showing of cause therefore, the court shall issue the search warrant for the purposes...