*3
misdemeanor
punishable
convictions
OPINION
$1,000
up
fines of
and six months im-
O’SCANNLAIN, Circuit Judge:
prisonment per violation.2 Cal. Bus. &
We must decide whether
state regula-
a
(“Code”) §
Prof.Code
8553. The state
tory scheme violates
protection
the equal
(“Board”)
Structural Pest Control Board
rights
pest
controllers.
enforces the licensing requirements. The
record
correspondence
includes
between
I
Merrifield
Board
officials making clear
A
his bids
for
project to
birdproof the
Bay
Trans
Alan
Terminal in
appeals
San
a grant
from
Francisco
summary judgment
would
be considered
denying his
unless
request
permanent,
for a
he had a
prospective
II”
injunction
“Branch
license.
On Febru-
21,
ary
California’s
pest
the Board
licens-
warned Merrifield
ing requirements. He
engages
comply
in “non-
with the licensing statute. After
pesticide animal damage prevention
quoting
the text of
require-
(“ADP
bird control”
BC”),
&
ment,
which in-
the letter stated:
Appellants
(1977).
also include Urban Wildlife Man-
standing
UWM does not have
("UWM”),
agement
a company that Merrifield
bring
privileges
and immunities claim be-
owns, and the California Nuisance Wildlife
corporation.
cause it is a
See W.
Ass'n v.
Turf
Operators
("CNWCOA”),
Control
Association
Greenberg,204 U.S.
27 S.Ct.
a trade group of
“engaged
businesses that are
(1907) ("[A] corporation
L.Ed. 520
cannot be
nonpesticide
in the
removal or exclusion of
deemed a citizen within
meaning
pests.”
vertebrate
standing
Merrifield has
be-
clause of the Constitution of the United States
cause he cannot
in his trade unless he
protects
privileges
and immunities
first
licensing require-
satisfies
current
”).
of citizens
the United
States....
For
ment or
exemption.
Lujan
receives
See
convenience,
opinion
plain-
refers
555, 560-61,
Wildlife, 504 Defenders tiffs-appellants as "Merrifield.”
Given the minimally Cases limi- tation on the Privileges types Immunities activities covered in the Clause of Amendment, the Fourteenth principal we state’s training curriculum and grant cannot relief upon based that clause examination. See id. at unless the claim depends on right (finding percent” “well below ten of the travel. Merrifield’s claim does not invoke curriculum to be relevant to Cornwell’s right, and therefore must be denied. actual percent activities and 11 of exam questions to be relevant to Cornwell’s ac- Ill activities). tual The court viewed this
Merrifield next claims that California’s marginal overlap as constitutionally infirm
Branch II pest control licensing require-
due to
(by
overbreadth
including persons
ment violates the Due
Equal
Process and
relevant)
whom the license was not
Protection Clauses of
the Fourteenth
(by
underinclusiveness
failing to ensure
All parties
Amendment.
agree that ra-
braiders).
the competency of hair
tional basis
applies.9
review
only
found the
imaginable justifica-
tion to be
protectionism
economic
A
cosmetology industry, which it deemed ille-
heavily
Merrifield relies
on two recent
gitimate.
Id. at
Thus,
1117-18 & n. 50.
cases, which struck down regulatory
the licensing requirement violated Corn-
schemes, to establish both his
due
well’s due process
equal
protection
equal
protection claims: Cornwell v.
rights.
Hamilton,
(S.D.Cal.
‘sometimes the discrimination 1 can in treating lie things that are different ” as though they were exactly alike.’ Id. Cornwell involved an “African hair at 1103 & Fortson, n. 2 (quoting v. Jenness braider” engaged who in “natural hair 403 1970, U.S. 91 S.Ct. 29 care” and that asserted she per- should be (1971)). Jenness, L.Ed.2d 554 however, In mitted to braid hair without fulfilling Cali- Supreme fornia’s Court cosmetology phrase used in require- 1102, response ment. 80 F.Supp.2d at argument an Georgia 1104-05. that a court agreed, district because state Corn- election law that treated traditional well could “reasonably political classified as parties differently than newer Amar, 8. Akhil Reed and Education, Substance Method in tures the State? Religion, and 2000, 601, the Year Pepp. 28 L.Rev. 631 n. the Courts: A View From the Courtroom (2001) 178 ("Virtually (1994)). no serious modern left, right, and center—thinks that scholar— [Slaughter-House plausible Cases] is a review, 9. Under rational basis a statute will reading Amendment.”); pass [Fourteenth] constitutional muster if "rationally it is Kmiec, Douglas Litigator", W. "God’s 70 No legitimate related to a City state interest.” 1247, (1995) tre Dame Duties, L.Rev. n. 29 1253 New Orleans v. 96 Ball, (reviewing Bentley William Mere Crea- S.Ct. L.Ed.2d 49 511 licensing requirement, to the relationship violated qualification for ballot parties only Jenness, that “the difference U.S. which ensured equal protection. noted Court 441-42, 1970. The licensed [sold the caskets between treat the Georgia to rational that it was is that those sold persons] unlicensed differ- organizations political types of systemat- two were directors funeral licensed challenges the different on ently based Id. at 225-26. expensive.” ically more Georgia’s need entity faces and that each rejected government’s also The court Id. The manage elections. properly helped licensing law that argument Rhodes, 393 cited Williams Court knew selling caskets that ensure (1968), in 5, 21 L.Ed.2d (such grief to customers’ respond how ballot access down Ohio it struck exam). Id. at tested on were matters of estab- treatment to its law due different possible all reasons Having rejected In other parties. political and new lished court or that the provided Williams, in words, in Jenness both conceive, it concluded reasonably could re- imposed laws challenged different burden imposed a licensing law tradi- groups, two different on quirements prevent “to merely merchants upon casket However, parties. political tional new di- with funeral competition” economic an Afri- bywas challenge in Cornwell such, law As at 225. Id. rectors. challenged a stylist who can hair uniform rational basis review. failed reasoning While licensing scheme. may be ar- Craigmiles con- in Cornwell casket retailers the district it analysis, due our sistent with was so their business gued that different analysis. equal protection cannot survive govern- directors from funeral safety health and interest ment’s not im- funeral directors was regulating af- Circuit the Sixth Craigmiles, In words, although the other plicated. court, fol- of a district firmed decision both claims brought under sellers casket trial, the inclusion lowing bench Equal Protection Process and the Due within merchants casket Clauses, affirmed the Sixth Circuit violated funeral directors quirement was not argument grounds, both process. and due equal protection vio- differently in being treated they were the district The court cited at 222. F.3d Clause, but Equal Protection lation of casket requiring sell- findings that court’s unconstitution- suffering an they *8 funeral directors the skills ers to learn profession practice al barrier —a safety, because and health did not further claim.10 process due in funeral did not sellers casket embalming activities, cleaning 3 possi- one did discern court corpses. The Craig- in Cornwell and plaintiffs casket mer- regulating ble reason other the same as treated miles were the caskets used quality of “The chants: statutory challenged under groups at health.” Id. public threatens potentially Therefore, equal protec- framework. omitted). However, (emphasis 225 a ra- requiring analytical framework tion a for lack of this rationale rejected the men- group that serviced venting a home Craigmiles highlight cited 10. The cases zoning operating under tally from disabled analysis was not protection real- equal that an feeble- classified "the expressly law which v. Cleburne City Cleburne ly applicable. groups. Cra- 3249, differently other from Ctr., 87 minded” S.Ct. 105 Living F.3d at 227. igmiles, 312 pre- (1985) a law down struck L.Ed.2d 313 986 tional legitimate connection health.”); in- between Sys., Turner Broad. Inc. v. cf. terest and different classifications was FCC, 180, 189-90, 520 U.S. 117 S.Ct.
inapplicable to these cases. Nordlinger
(1997)
B
to the individual Branch II
require-
license
ments in light of
Merrifield’s due
challenge.
argues
that the licensing re-
quirement for non-pesticide pest control-
i
lers bears no relationship
legitimate
Merrifield does not
any signif
offer
public health,
interest such as
safety, or
argument
icant
challenging
validity
protection.
consumer
With respect
the training requirements. Nor would
process claim,
Merrifield’s due
the first
possible.
“A State
require
can
aspect of the rational basis
easily
test is
high standards
qualification,
such as
satisfied
government’s
interests
good moral character or proficiency ...
and safety
health
pro-
consumer
before it admits
applicant ...,
but any
tection. See
v. Maryland,
Watson
qualification must have a
rational
connec
licensing statute does
fail
because it is
not tailored
precise
to each
specialization
Finally, Merrifield argues that the clas-
within a field.
enough
“It is
that there is
sification within the statutory exemption
correction,
evil at hand for
and that it
has no rational basis and thus violates
might
thought
particular
legis-
equal protection.
8555(g)
Section
discrimi-
lative
way
measure was a rational
to cor- nates
non-pesticide
between
pest control-
rect it.”
Optical,
Williamson
Lee
348 lers of vertebrate
“bats,
animals
Finally, many questions more pigeons.” do relate Only the former are exempt directly to Merrifield’s line of work. For from requirement. Merri-
989 Dukes, an Supreme upheld Court distinction, based this that argues field own- controlled, exempted pushcart irra- which is ordinance type upon 8 food for at least selling been ers who had tional. push- general prohibition a years from 1 at Id. 298- Quarter. French carts in the review, determined The Court Merri- 2513. basis 96 rational S.Ct. Under long as in rejected as interest city legitimate had a claim must field’s state reasonably the French conceivable charm of maintaining “there is rational basis” provide number of limiting facts that could and that Quarter v. FCC Beach challenged law. those only allowing peddlers pushcart 307, 313, Inc., 113 Commc’ns, 508 U.S. older, rationally to related were was who (1993). The L.Ed.2d 211 124 S.Ct. Quarter’s French because the that interest substantiate required to is not charm and of the part peddlers older “In an equal with facts. reasoning its than interest had more of established ... those chal type of this protection case 304-05, at 96 Id. S.Ct. newer ones. con judgment must legislative lenging protection equal The Sixth Circuit’s facts on legislative the court vince instructive. is also Craigmiles analysis based apparently which classification history of the considered The court to be conceived reasonably be could had the state and held legislation decisionmaker.” governmental true legislation “specifically amend[ed]” 93, 111, 99 Bradley, 440 v. Vance at 227. 312 F.3d casket retailers. include (1979) (emphasis 59 L.Ed.2d S.Ct. fact, the determined added). compelled is not State “The particular of a economic out singling statistical assumptions with logical verify reason logical no rational group, with Scrap v. Alexandria Hughes evidence.” of an so, strong evidence doing 794, 812, Corp., 426 U.S. no relation with animus economic added). (1976) (emphasis L.Ed.2d Therefore, safety. health, morals has stated that Court Supreme director the funeral court concluded pro- may implement “[ljegislatures required casket licensing scheme which areas, in ... economic by step, gram step was unconstitu- to obtain license sellers only partially adopting regulations basis rational failure to survive tional for deferring perceived evil ameliorate a at 227-29. scrutiny. Id. evil to future complete elimination New Orleans City regulations.” 2513, 49 Dukes, one at least Here, record reveals (1976) (internal citation omit- L.Ed.2d 511 govern- purpose, conceivable ted). wide latitude are accorded “States Paulsen, discussed Eric expert, ment’s un- economies of their local regulation for the worked testimony. Paulsen rational dis- police powers, der their of California Operators Pest Control substantially made with may be tinctions 1997, for Mission (“PCOC”) from 1991 exactitude.” than less mathematical from Heat California City Fumigation and added). Indeed, we must (emphasis 1998, and September December may not sit as judiciary “the member that 1998 on- September from again for PCOC the wisdom judge superlegislature into him jobs insights gave These ward. determina- legislative desirability policy 8555(g), of section history legislative neither affect in areas that made tions the PCOC represented he because along proceed nor sus- rights fundamental mem- and Board legislators meetings lines.” Id. pect *12 990
bers involved in reforming the licensing thought Paulsen the removal of the re- requirements.13 explained Paulsen that quirement could be as irrational in viewed legislature the California decided the sense exempted that the activities also change pest its structural posed However, health risks. Paulsen ex- quirements after Assemblywoman plained at length Valerie that compromise Brown complaints received from constitu- justified could be on grounds ents who wanted to pests mice, rats, exterminate with and pigeons are the most com- “homemade concoctions” that fell within mon pests, structural particular and in the Branch requirements II but were “[p]igeons not primary are the bird which is purchased pesticides. as They sought attacking “to structures.” posited He also have their license that own dealt with their impact non-pesticide based con- However, specialty.” explained, Paulsen trol of pests such would relatively the legislature did not want to create “ad- greater as non-pesticide insofar techniques ditional licensing categories” and thus the would be the most common. question became whether exempt per- Indeed, Merrifield’s experts did not dis- sons who did not use “dangerous pesti- pute rationality of maintaining a licens- 14 cides.” explained Paulsen ing requirement engaged in opposed any PCOC licensing exemption, structural pest control pesticides. without including respect pigeons. “[0]ur Instead, they argued separate that a cate- position as the Pest Operators Control of gory better, would be because “[t]he field California my understanding [of] the covered the Branch category is [II] Structural Pest Control position Board’s simply large too to be covered one
was that the trapping and exclusion any examination.” The record itself reveals of these [pigeons] birds really should [re- that, initially proposed, legislation quire] a structural control license.” would have created a separate licensing When about a asked exemption limited category. based on type of animal targeted, Paul- sen asserted compromise, 3 would “from lay person’s perspective Generally, the legislature’s decision ... be irrational.” to remove certain licensing requirements argues that Paulsen’s testi- it no longer essential, deems rather mony should be read to mean than create a new licensing category, is a retention of requirement was rational and quintessential^ legislative de irrational. The text belies that assertion— cision. Despite the given by reasons Contrary suggestions, Merrifield’s Paul- sen express did not the viewpoint gov L.Ed.2d 211 Thus the district court ernment. Merrifield asked the district court held legislative Paulsen's statements about to strike testimony much Paulsen’s on the history to be "irrelevant they extent grounds that Paulsen was expert relate purposes to the actual and motivations question the matters in point the district —a members,” of the [Board] and its but “since rejected due to “Paulsen's more than the Court did consider the statements for twenty years experience in the field of purpose, this the Court declines to sustain control.” v. Lock Meirifield objections [Merrifield’s] to the statements in yer, F.Supp.2d (N.D.Cal. regard.” Merrifield, F.Supp.2d 2005). certainly Paulsen ability had added). (emphasis testify personal experiences to his with the However, legislature. purpose actual 14. The record corroborates Paulsen's testimo- legislature did not matter for rational ba- ny regarding impetus bill. Commc’ns,Inc., sis review. See FCC v. Beach *13 pushcart or her person began a not exemption, it does when the for government Here, by the the drawn line as- legislative business. from the follow logically the pests what kinds of based on State removing the that sumptions exterminates. of less business control non-pesticide quirement those more pests especially common Dukes, not a However, — in there is unlike effectively controlled commonly and by the classi- implicated interest legitimate risk to a lesser pose pesticides in Dukes Supreme The Court —would fication. Indeed, in engaging those public welfare. was City the of New Orleans that held common of less non-pesticide control the maintaining with concerned legitimately prior likely to encounter are more pests Quar- beauty the French charm and recom- likely to or are more pesticide use was pushcarts limitation of and the ter rath- pesticides use that their clients mend furthering that inter- rationally to related words, In other than their services. er Here, impli- structural pest est. scheme the current exempted under those safety a health state’s cates pesticides to likely exposed to be are more that in Dukes found The Court interest. like Merrifield. than individuals way to bal- line drawn was rational preserving interest in city’s ance non-pesticide-using possibility that established inter- Quarter with the pesti- with French might interact controllers pest and the fact pushcart owners suggest of older to est need the skill cides or will actually contributed pushcarts some be more effec- it pesticide use when would Here, Quarter’s charm. the French to government’s very tive is the rationale however, the state’s own applying when in upon, we relied proffered, and counsel controllers requiring that Merrifield rationale requirement upholding take the Merrifield to due a license under obtain cannot be exam, exemption scheme simultaneously up- We cannot grounds. Therefore, basis. to rest on a rational under due said licensing requirement hold require does conclude Dukes and then we rationale process based on one in this exemption scheme uphold to from the ex- us exclusion Merrifield’s uphold case. completely contradic- on a emption based say, while a
tory rationale. Needless the li- Moreover, Craigmiles, in just as perfectly provide need not specifically case censing scheme this it problems, regulatory logically solution like out controllers singles basis re- rational hope cannot to survive Needless exemption legislation. in the irrationality. by resorting to view out, in connection say, type singling it undercuts a rationale so weak deceptively similar with case is This non-contradiction, fails to Dukes, principle prohibit- plaintiffs where the of ra- relatively easy standard meet push-carting same engaging ed from Indeed, the record review. to en- tional basis allowed that others were business out singling that the irrational highlights Here, engaged Merrifield is gage in. all from pests types three vertebrate pests non-pesticide extermination designed animals other vertebrate from the licens- exempt and those who constituents economically certain favor in the same also ing requirement situated, similarly of others Dukes, expense City of New Or- business. such as Merrifield.15 line based on leans drew classification determining if respect protec- irrational ism is economic We conclude that mere review. basis survives rational protection- a classification economic the sake tionism for stake, Although rights economic are at IV we are basing today our decision on reasons, foregoing For summary economics, our personal approach to but judgment in favor of the State on the on Equal require- Protection Clause’s exemption issue is reversed. The district similarly ment situated must court, remand, shall enter a judgment Craigmiles equally. treated *14 in favor of Merrifield. it said best: today Our decision is not a return to part AFFIRMED in & REVERSED in
Lochner, by which this court would ele- part and REMANDED. Costs are to be
theory
vate its economic
over that of
Appellant.
awarded to
legislative bodies. See Lochner v. New
York,
25 S.Ct.
49 L.Ed.
HAWKINS,
DALY
MICHAEL
Circuit
sophisticated
No
economic
Judge, concurring
part
dissenting
analysis
required
pretextual
to see the
part:
proffered
nature of the state’s
explana-
tions
amendment.
[¶]...]
We are
I certainly agree
majority’s
with the
imposing
our view of a well-function-
carefully thought out determination that
ing
people
market on the
of [this state]. California
require
is entitled to
testing for
Instead,
only
we invalidate
the [decision- pesticide knowledge of rodent
making body]’s
attempt
naked
to raise a
operators
employ non-pesti-
who
protecting
fortress
subsection
[one
cide
court,
methods. Like the district
industry at
expense
of another simi- however, I think it rationally follows from
larly situated]....
this that the
may
state
determine which
of the licensing scheme.
exemption scheme supported by is not
rational basis review.
We conclude that 8555(g) the section exemption
license to the extent it does mice, rats,
“not include pigeons” is un-
constitutional. so, doing agree we with the Sixth protectionism Circuit stances when might economic Craigmiles reject legitimate governmental Tenth Circuit's related to inter- Harris, reasoning in Powers v. 379 F.3d est and survive rational basis review. Howev- (10th Cir.2004). er, rejected 1218-19 protectionism sake, Powers economic for its own Sixth pro- regardless Circuit’s conclusion that economic good, of its relation to the common
tectionism for its own sake is irrational. legiti- cannot be said to be in furtherance of a disagree We do might that there governmental be in- mate interest.