Powers v. Harris

execution, only daytime had intended to authorize we need not and do not address Likewise, execution. had Detective Dain those issues. simply proceeded with the search after reasons, foregoing For the we AFFIRM.

realizing drafting the error rather than Appellee’s supplement motion to the rec- authorization, calling judge the Mr. appeal ord on is denied as moot. prevail. Katoa would We are confident any future risk officers intentional- ly misdrafting attempting warrants and

salvage them with heat-of-the-moment

telephone in sleepy judges calls to the night

middle of the will be ameliorated issuing judges’ ability

the to refuse author- nighttime

ization of execution over the telephone. POWERS; Bridges; Kim Dennis Online, us, Concepts Inc.,

On the Memorial facts before we conclude Plaintiffs-Appellants, nighttime execution of the warrant was holding reasonable. Our is narrow: when drafting the face of a warrant contains a HARRIS, capacity Joe his official subject defect or regarding omission President the Oklahoma State Constitution, specifically named in the Board of Embalmers and Funeral Di- warrant issuing judge is made valid if the rectors; Stephen Huston, Charles authorizes correction of the defect or omis Brown, Terry Clark, Craddock, Chris sion via telephone during the search and Stumpff, Smith, Keith and Scott each subsequently confirms that authorization capacity in their official Thus, as a writing. when an Member supplies officer of the Oklahoma support affidavit of a State Board of Em- search warrant clearly Directors, indicating he seeks balmers and Funeral authorization De- search, for a nighttime judge fendants-Appellees. under stands authorization for a nighttime search The Claremont Institute Center for Con- being requested, judge intends to Jurisprudence; stitutional Pacific Le- nighttime authorize a search and believes gal Foundation, Amici Curiae. doing he is despite drafting so error omitting indicating nighttime words execu No. 03-6014.

tion, the officer drafting discovers the er Appeals, United States ror Court executing while at night search Tenth immediately Circuit. telephonic receives authoriza tion to execute the warrant at night, and Aug. judge return, signs the warrant upon nighttime execution of the warrant is rea

sonable. dispute Because there is no

this case about the of probable existence

cause, the particularity requirement re

garding searched, place to be the spec

ificity requirement regarding the items warrant,

named in relationship be

tween the contents the affidavit and

warrant, justification or the for nighttime III, Neily, lawyers, Clark M. Institute Jus- Protection Clause does (William Mellor, tice, Washington, DC H. it.”). not forbid Plaintiff-Appellants Kim Justice, DC, Washington, Institute for and Powers, Bridges, Dennis and Memorial Lester, Lester, Loving Andrew & Da- W. Online, Concepts (collectively Inc. “Plain- Edmond, OK, vies, PC, with him on the tiffs”), who wish to sell caskets over the briefs), appearing Plaintiffs-Appel- obtaining Internet without the licenses re- lants. law, quired by challenge Oklahoma K. Doughty, Attorney Stefan Assistant soundness of this venerable rule. Seeking General, OK, City, appearing Oklahoma relief, declaratory Plaintiffs sued Defen- for Defendants-Appellees. dant-Appellees, who are members of the Eastman, The John C. Claremont Insti- Oklahoma State Board of Embalmers and tute Jurispru- Center for Constitutional (“the Board”), Funeral Directors the rele- dence, CA, Orange, filed an amicus curiae licensing authority. vant After a full brief. trial, bench the District Court ruled for Timothy Deborah J. La Fetra and appeal, the Board. On Plaintiffs contend Sandefur, Foundation, Legal Pacific Sacra- licensing Oklahoma’s scheme violates mento, CA, an filed amicus curiae brief. Immunities, Privileges and Due Pro- cess, Equal and Protection clauses of the TACHA, Judge, Before Chief Circuit Fourteenth Amendment to the Federal McKAY, TYMKOVICH, and Circuit jurisdiction Constitution. take pursu- We Judges. § ant to 28 U.S.C. and AFFIRM. TACHA, Judge. Chief Circuit Hornbook constitutional provides law I. BACKGROUND that if to limit Oklahoma wants the sale of directors, caskets to licensed funeral The Oklahoma Funeral Services Licens- Equal Protection Clause not forbid it. does Act, 59, § ing Okla. Stat. tit. seq. 395.1 et Fitzgerald Racing See v. Assoc. Cent. (“FSLA”), and Board promulgated rules Iowa, pursuant provide regula- to the FSLA (2003) (holding L.Ed.2d 97 tory industry scheme for the funeral prohibit Protection Clause does not FSLA, any Oklahoma. Pursuant to the Iowa’s differential tax favoring rate person engaged the sale of funeral- intrastate racetrack over the intrastate riv merchandise,1 caskets, including service gambling industry); erboat Ferguson oper- must be licensed funeral director2 726, 732-33, Skrupa, 372 U.S. ating out of a 1028, 10 (“If funeral establishment.3 Id. the State of 396.6(A) 396.3a; § Kansas wants to limit adjusting § debt see also id. at 1.The FSLA defines funeral-service merchan- 2. The FSLA defines a funeral director as "a products normally provided dise as "those ... person who: sells funeral service merchan- by required funeral establishments and to be public....” dise to the Okla. Stat. tit. listed on the General Price List of the Federal 396.2(2)(d). § Commission, including, Trade ... but not to, supplies limited the sale of burial and 3. A funeral establishment is defined as “a equipment, excluding but sale ceme- place profession of business used ... in the therein, tery of lands or interests services directing....” ... funeral Okla. Stat. tit. thereto, markers, memorials, incidental mon- 396.2(3). § uments, equipment, crypts, niches or outer enclosures....” Okla. Stat. tit. 396.2(10). §

(prohibiting sale funeral merchandise consumers located outside of Okla- license).4 without a homa—and salesperson unlicensed who located in may Oklahoma sell a time- not, however, Oklahoma does apply this of-need casket to a customer Oklahoma. licensing requirement to those who sell requirement that a salesperson pos- other funeral-related merchandise (e.g., sess both a funeral director’s license and urns, markers, grave monuments, clothing, operate out of a licensed funeral establish- flowers). Furthermore, because the therefore, applies, ment only to the intra- distinguishes Board between time-of-need state sale of time-of-need caskets Okla- sales,5 pre-need licensing this require- homa. ment apply does not to all casket sales.6 Specifically, person although must be Obtaining licenses these is no small feat. fully sales,7 licensed to make time-of-need According rules, to the Board’s an appli- salesperson may lawfully sell caskets cant for a funeral director’s license must pre-paid without a license so long as that complete sixty both credit speci- hours of

person acting agent as an of a licensed fied undergraduate training8 and a one- funeral director. year apprenticeship during ap- which the

Finally, plicant while the must embalm twenty-five Board issue or- bodies. FSLA, ders to An applicant enforce the pass see must id. at also both sub- a 396.2a, § ject-matter the FSLA limits its and an enforcement Oklahoma law exam. to intrastate only, casket sales See generally Dist. Ct. Okla. Admin. Code fact). Op. at (finding such, 235:10-1-2, §§ Furthermore, As 10-3-1. unlicensed may Oklahoman sell a time-of- be licensed as a funeral in establishment need casket to a Oklahoma, customer outside of Okla- a business must have a fixed indeed, Plaintiffs have sold physical location, caskets preparation room that homa— 4. As the District noted: Court 6. The Oklahoma Insurance Code and the In- By including surance products regulate normally provid all Commissioner the sale of by ed pre-paid funeral caskets on a required establishments and basis. generally See to be listed § on the Okla. Stat. seq.; General Price List tit. 6121 et Okla. Ad- (a caskets) FTC list such, § which includes min. Code seq. within 365: et 25-9-1 As the definition of service 'funeral requires merchan Board funeral who directors dise,’ by including anyone and who sells make arrangements funeral pre-need on a such 'funeral service merchandise’ within comply basis to with the Insurance Code and director,' the definition of by 'funeral and with the regula- Insurance Commissioner’s including place anyone of business of 235:10-7-2(6). § tions. Id. at pre-paid participates

who directing’ 'funeral in with sale cemetery of non-casket merchandise in the definition of a 'funeral establish governed by Cemetery the Oklahoma Mer- ment,' effectively requires the FSLA that by chandise Trust and Banking Act the State both a funeral director's license and a fu 8, § Commissioner. seq. Okla. Stat. tit. 301 et neral establishment license be obtained from the person entity Board before or 7. The FSLA and require Board rules also Harris, lawfully sell caskets. Powers v. person be a operat- licensed funeral director CIV-01-445-F, WL 32026155 at 11 ing out of a pre- funeral establishment to sell (W.D.Okla. 12, 2002) Dec. [hereinafter Dist. death, pre-paid, but not caskets. Op.] Ct. required Time-of-need 8. The mortuary sales are those that are science neither curriculum (i.e., pre-death pre-paid art, nor purchased embalming, includes: and restorative micro- paid biology, for at the time delivery the sale with pathology, chemistry, arranging fu- date). nerals, the casket to occur at a future psychology, grief management, Pre- funeral sales, merchandise, need conversely, are those sales that are prac- and the funeral and burial pre-death either pre-paid. religions. tices of various embalming by censed the Board as either a requirements meets the funeral Likewise, bodies, director or as an a funeral-service merchandise-se- embalmer. inventory although Bridges room with an of not less Mr. has been a licensed lection caskets, adequate areas for funeral director than five Tennessee for over twenty years, viewing of human remains. See he is not licensed Okla- public 235:10-1-2, §§ part id. at 10-3-2. homa. As a of their current enter- generally in-state, reflecting legislative prise, on these and adminis- Plaintiffs wish to sell time- regulations, the District Court con- of-need caskets to Oklahomans over the trative “they They foregone evince an intent to fore- Internet.10 have cluded these they treatment of those sales sales because “have a reasonable go laissez faire genuine they in this fear that if were to sell cas- provided and services when State. consumers, they li- kets to Limiting might the sale of caskets sellers Oklahoma is, undeniably, a ma- by prosecuted censed the Board for violation of the FSLA jor component statutory Op. of that scheme.” and Board rules.” Dist. Ct. at 3. Op. Dist. at 13. Ct. Importantly, Plaintiffs have no desire to appropriate obtain the Oklahoma licenses Online, Concepts Memorial Inc. is an they requirements because view their created, corporation operated, Oklahoma intrastate, operation irrelevant to the of an Mr. and owned Ms. Powers and Internet, retail, casket business. On this Bridges to sell funeral merchandise over point, specifically the District Court found the Internet.9 It offers no other death- or services, plays funeral-related no role remains, very of human disposition specialized knowledge and is little is re- quired es- licensed Oklahoma as funeral sell caskets. Most consumers Powers, Although style.

tablishment. Ms. who select on and price caskets based Oklahoma, City, many Any generally in Ponca information a lives has educated years selling person on a to in experience caskets needs know about caskets agent acquired as of a licensed to them pre-need basis order sell can be on director, job. li- per Oklahoma funeral she is not Less than five cent of the company, charging 9. Because this is an Internet it funeral directors from a direct "cas physical presence ket-handling recoup maintains no storefront in fee” to revenue lost from Only casket, the State of Oklahoma. the server is the sale of see 16 C.F.R. assumed, parties located there. The have 453.4(b)(l)(ii), many § funeral directors sim purposes appeal, do we for of this that the ply price raise the overall of non-declinable server's location constitutes the com- Internet increasing every fees for all customers.—thus Hence, pany's place we of business. need not See, e.g., Pennsyl one's overall funeral costs . imponderables address the of "where” an In- Assoc., FTC, vania Funeral Dir. Inc. v. 41 F.3d company purposes ternet is located for that, (3d Cir.1994) although (noting 84-85 regulation. hope competition some exists that increased eventually in the casket market will lower they 10. Plaintiffs contend that could offer prices, assuredly funeral it will cause overall valuable service to Oklahoma customers be- "many providers [to] funeral service ... raise cause, commonly represent whereas "caskets profes the amount of their non-declinable (and upwards per [in] of 25 cent some cases they sional service fees in order to ensure that more) of the total cost of funeral-related costs.”); Op. recoup Dist. Ct. at 6 services,” overhead goods Op. they and Dist. Ct. cases, however, ("In competition when some products can sell these at a substantial dis- increases, their funeral homes have raised significant We de- count. note that there is they provide prices in for the other services regarding competition bate whether increased compensate profits lost due to order to for in the casket-sales market will decrease over- Although prohibits prices.”). all funeral costs. the FTC lower casket States[.]”). Citing of the United requirements citizens training education and Roe, in necessary for licensure Oklahoma Saenz any knowledge (1999), pertain directly they to contend that 143 L.Ed.2d 689 As a necessary to sell caskets. skills ... right living [is an honest “the earn misfit between result of the substantial Privileges and Immunities found] training required the education and Plain Aplt. Despite Brief at 62. Clause.” training and licensure and the education not mark a protestations, tiffs’ Saenz does Oklahoma, required to sell caskets change long-standing sea constitutional caskets, if people who wish sell such, agree we with the jurisprudence. As sales, in-state they wish to make disposition of this claim: District Court’s lives required spend years of their ground to this for chal “There is no merit knowledge with equipping themselves and Im lenge. Privileges Revival of the directly training and which is not rele- interesting be an and munities Clause Op. at selling vant to caskets. Dist. Ct. scholarly but this topic useful debate place memorandum is not for that Thus, (citations brought Plaintiffs this declar Op. at discussion.” Dist. Ct. action, atory judgment asserting omitted). To the extent that Plaintiffs ar Privileges Immuni FSLA violates the Slaugh gue that we should overrule ties, Process, Protection Due (16 Cases, Wall.) 36, 21 ter-House clauses of the Fourteenth Amendment to enough L.Ed. 394 it is to remind the United Constitution.11 After a States Supreme] Plaintiffs that “it is Court’s [the Court, trial, thorough the District bench prerogative alone to overrule one of its memorandum, order and its well-reasoned Khan, precedents.” State Oil Co. v. on all Plain found for the Board counts. 20, 118 S.Ct. timely appeal. tiffs filed a notice of (1997); Saenz, but see 526 U.S. at (Thomas, J., dissenting) (urging S.Ct. 1518 II.STANDARD OF REVIEW privileges-and- its the Court to reconsider challenges “We review to the con jurisprudence). immunities stitutionality of a statute de novo.” Unit (10th Plotts, ed States v. 347 F.3d EQUAL AND IV.DUE PROCESS Cir.2003) omitted). review (quotations We PROTECTION CLAUSES factual findings the District Court’s Plaintiffs next contend that 52(a). clear error. Fed.R.Civ.P. rights FSLA violates two under the Four AND III.PRIVILEGES First, claim, they teenth Amendment. IMMUNITIES process, a matter of substantive due that

CLAUSE every right the FSLA violates “the citi any zen of the to follow United States Plaintiffs that contend the FSLA business, calling, profession lawful or he Privileges violates the and Immunities Virginia, Dent v. West 129 choose[.]” Amendment. Clause Fourteenth Const, (“No 114, 121, 9 L.Ed. XIV, § S.Ct. 32 623 amend. State Virginia’s physician any (upholding shall West shall make or enforce law which abridge privileges licensing against and immunities of scheme a substantive due Moreover, trial, inapplicable. 11. At also contended that the Plaintiffs do not Plaintiffs such, appeal. FSLA violated the “dormant” Commerce reassert this claim on As it is Clause. Given the District Court’s factual waived. See State Farm Fire & Cas. Co. v. 4-5, Mhoon, (10th Cir.1994). findings, supra see at this doctrine is 31 F.3d 984 n. contend, individuals, Second, they groups, treats two different- challenge). process that the equal protection, matter of ly- as a because the is unconstitutional FSLA Here, Plaintiffs have challenge cast their similarly-sit- “arbitrarily treating Board is to the FSLA as both a substantive due differently, ... arbitrari- people

uated and process equal protection and an claim. Al- ly differently-situated people the treating contentions, Plaintiffs though forward both at 24. a state Aplt. Brief As same.” challenge properly presented their is most not affect a regulation does claim, equal protection as an as evidenced right categorizes people and fundamental by they the fact that exclusively almost classification, non-suspect on the basis of a (even equal cite to protection sup- cases passes we determine whether the FSLA port process argu- their substantive due muster, as a matter of constitutional both ment) and the Court itself has most equal protec- process substantive due analyzed regulatory challenges often under tion, by applying rational-basis review. event, equal protection any rubric. In Fitzgerald, See 539 U.S. process analysis because a due substantive (equal protection); Motors General along equal as an proceeds same lines Romein, 181, 191, 112 Corp. v. 503 U.S. analysis, protection equal protection our (1992) (sub- 1105, 117 L.Ed.2d sufficiently discussion addresses both process). stantive due

claims. Equal A. Protection Versus Substantive ’Arguments B. Parties Due Process satisfy To the rational basis analy

Because their substantive test, rationally “the need converge, [FSLA] ses often the differences be equal protection tween and substantive legitimate government pur related to a fully process appreciated. due v. pose.” Save Palisade FruitLands (10th Cir.2002). Protection and Due Process clauses Todd, F.3d protect distinctly different interests. On argues protecting casket The Board hand, component” the one the “substantive purchasers, particularly vulnerable “provides of the Due Process Clause group, legitimate constitutes a state inter heightened protection against government point, est. Plaintiffs concede this and we fundamental interference with certain Sys. Turner Broad. v. agree as well. See interests,” rights liberty Washington FCC, 180, 189-90, Glucksberg, (1997) (finding consumer 2258, 138 L.Ed.2d 772 even when governmen protection federal challenged regulation per affects all in a Amendment chal tal interest First contrast, equally. sons “the essence of Thus, lenge). parties, as framed equal protection requirement is that question the relevant is whether similarly the state treat all those situated rationally re FSLA’s licensure scheme Schs., similarly,” Bartell v. Aurora Pub. proffered lated to the state’s consumer Cir.2001) (10th (quota 1149 263 F.3d interest. protection omitted), purpose tions with its “central They that it is not. Plaintiffs contend [being] prevention of official conduct irra- argue regulatory that the scheme is discriminating on of race [or the basis per tional because than five cent of “[l]ess classifications,]” Washington suspect other training requirements the education Davis, 229, 239, v. S.Ct. (1976). necessary per- for in Oklahoma such, licensure equal 48 L.Ed.2d 597 As any knowledge or skills directly the state tain protection applies when necessary to sell Op. caskets[.]” Dist. Ct. legislative, judicial, rather than consider- 5; Hamilton, see also Cornwell v. ation .... necessity This renders (S.D.Cal.1999) (hold- F.Supp.2d precise coordinates of the resulting leg- ing California’s cosmetology licensing re- judgment islative virtually unreviewable, quirements in violation of the Fourteenth since the legislature must be allowed Amendment’s Due Process Equal Pro- leeway approach a perceived problem tection “just clauses because per- over six incrementally. v. FCC Beach Commu- cent of the curriculum is relevant .... [to] nications, Inc., 307, 315-16, braider”). would-be African hair Indeed, (1993) (in- 124 L.Ed.2d 211 Plaintiffs claim that “every single federal omitted). quotations ternal citations and court ... that has considered casket sales urges Board that licensing its proto- restrictions like they Oklahoma’s has found col is not “wholly irrelevant” because “[e]v- lack any rational basis.”12 Aplt. Brief at ery witness who subject testified on the 23. agreed that purchasing consumers time-of- The Board concedes that its licensure need caskets especially be vulnerable requirements do not perfectly match its to overreaching sales tactics because of asserted consumer-protection In goal. grief and other emotions which arise stead, they contest the degree of fit need result the death person for whom ed to pass rational-basis In review. the consumer is purchasing a casket.” view, Board’s statutory “[a] classification Op. Dist. Ct. at 5. The Board further notes fails rational-basis review only when it “[e]ven expert, [Plaintiffs’] own Lisa rests on grounds wholly irrelevant to the Carlson, admitted that Oklahoma’s FSLA achievement objective.” of the State’s protect functions to consumers and that Doe, Heller v. 312, 324, Doe removing provisions those would effective- ly protection reduce consumer people omitted) (quotations added). (emphasis buying caskets ... Oklahoma.” Aple. The Board further contends that: Brief at 22. [t]hese judicial restraints on review have added force legislature where the must Equal C. Protection and Judicial Review

necessarily engage in a process of line- Economic Legislation drawing. Defining the class persons In subject to a United States v. regulatory requirement ... Carolene Co., inevitably Products requires persons some 58 who have an equally almost 82 L.Ed. 1234 strong held, claim the Court to favored pursuant treatment placed on review, differ- rational basis line, ent sides of the legislative and the when fact judgment [that] is called into might the line have been question drawn differ- equal on protection grounds and ently at points some is a matter debatable, the issue is the decision of the following Plaintiffs Craig cite sissippi's statute). cases: casket Plaintiffs' statement Giles, (6th miles v. Cir.2002) 312 F.3d 220 pushes however, credulity, the bounds giv- (holding Tennessee's casket selling licensure Plans, en Guardian Teague, Inc. 870 F.2d requirements, nearly which are identical to (4th Cir.1989). Teague, upon which Oklahoma's, in violation of the Fourteenth heavily, the Board relies the Fourth Circuit Amendment's Due Process and Protec rejected equal protection and substantive clauses); Giles, tion Craigmiles v. 110 process due Virginia's challenge to funeral F.Supp.2d (E.D.Tenn.2000) (same); 658 Cas scheme, regulatory substantially one similar Royale, ket Inc. v. Mississippi, F.Supp.2d 124 to Oklahoma’s. (S.D.Miss.2000) (same 434 to Mis- relation

1217 110-11, 939, 171 “any if of 99 S.Ct. 59 L.Ed.2d upheld must be legislature (1979). or which could reason either known facts it.” support for ably be assumed affords Finally, “because we never re is not allowed. Second-guessing by court to its quire legislature articulate reasons Communications,

Id.; 508 Beach see also statute, entirely enacting for it is irrele 313, pro (“[E]qual 2096 at 113 S.Ct. U.S. vant for constitutional whether purposes not a license for courts analysis tection challenged conceived reason for the wisdom, fairness, logic of judge to actually legisla motivated the distinction choices.”); New v. legislative Orleans Communications, ture.” Beach 508 U.S. 2513, Dukes, 297, 303, 96 49 427 U.S. S.Ct. (citations 315, at 2096 quota 113 S.Ct. curiam) (“The (1976) ju (per L.Ed.2d 511 omitted). attacking ra tions “[T]hose super legislature diciary may not sit as tionality legislative classification desirability leg of judge to the wisdom or every negative have the burden ‘to con made in ar policy islative determinations ” might support ceivable basis which it[.]’ rights that neither affect fundamental eas (quoting Id. Lehnhausen v. Lake Shore ”). proceed along suspect nor lines.... Co., 364, 356, Auto Parts 410 93 U.S. S.Ct. Further, 1001, (1973)); 35 L.Ed.2d 351 see also rational-basis review Comm’rs, McDonald give option specu courts the to v. Board Election does 802, 809, 1404, 22 whether some other scheme 394 U.S. 89 S.Ct. late as to regulated (“Legislatures pre the evils L.Ed.2d 739 could have better constitutionally even Mourning Family v. Publ’n sumed have acted question. 356, 378, Serv., Inc., normally if 411 93 S.Ct. source materials resorted U.S. (1973). 1652, fact, ascertaining grounds we their for action 36 L.Ed.2d 318 silent, statutory a law as irrational are otherwise and their will not strike down if no may it not succeed classifications will be set aside simply because grounds justify it to ac can be bringing about the result seeks conceived them.”). Sons, such, by As we are not bound complish, Seagram & Inc. v. Hostet 1254, ter, 35, 50, parties’ arguments 86 16 as to what 384 U.S. S.Ct. (1966), to further. abrogated on other state interests the statute seeks Inst., Inc., fact, obligated 491 In “this Court is to seek out

grounds by Healy v. Beer 324, 342, 2491, validating [a 105 L.Ed.2d other conceivable reasons S.Ct. Starlight Sugar, Inc. v. statute.]” or because the statute’s classifi (1st Cir.2001) (em Soto, 137, lack Dan 253 F.3d razor-sharp precision, cations added). Williams, Indeed, 471, 485, that phasis purpose dridge v. 397 U.S. (1970). a state stat uphold 25 L.Ed.2d 491 Nor the court relies on to S.Ct. provided by not the reason [the can we overturn a statute on the basis ute “was equal protection the as is irrelevant to an empirical supports state] no evidence underlying legislative inquiry.” (citing Id. Beach Communica sumptions 2096).13 tions, Bradley, v. 440 U.S. 508 U.S. choice. Vance (1980)); City Stanglin, 66 L.Ed.2d 368 Bark 13. See also Dallas v. 19, 26, et, Fine, Levy 104 L.Ed.2d 18 Inc. v. St. Louis Thermal & York, (1989); City (8th 1994) New 123 F.3d Beatie Energy Corp., Cir. 21 F.3d (2d Cir.1997) ("Supreme 711-12 Court ("[W]e by explanations are not bound jurisprudence us when re- now informs [policy’s] rationality offered legislation, viewing challenged a court social courts.”) (quoting litigants Kadrmas or other legisla- ‘plausible reasons’ for must look for Schs., 450, 463, v. Dickinson Pub. action, whether or not such reasons un- tive (1988)); action.”) (citing derlay legislature's United U.S., Acad., Inc. v. 715 F.2d Burke Mountain Fritz, Ret. Bd. v. States R.R. 1218

These admonitions are legal more than licensed funeral directors from competition phrases caskets”). catch dutifully recited each on time we confront equal protection an challenge D. Intrastate Economic Protectionism to state regulation they make sense. — First, practical terms, we para- Implicit would argument Plaintiffs’ is the lyze governments state if we contention that undertook a intrastate protec- economic tionism, probing review even actions, of each without violating specific of their constitutional constantly provision asking them or a valid “try to federal again.” statute, Second, is an illegitimate if state even we interest. assumed such exalt- See Aplt. Indeed, Brief at 53 n.8. role, ed it Plaintiffs be nothing would more than describe Oklahoma’s licensure scheme as substituting our view public of the good or “a piece classic special interest legisla- the general welfare for that by chosen designed tion monopoly extract rents states. As a creature of politics, the defi- from pockets consumers’ and funnel them public nition of good changes with the into the coffers of a small politically but political winds. There simply is no consti- influential group of business people— tutional or against Platonic form which we namely, Oklahoma funeral directors.” Id. (or could) can judge the wisdom of eco- at 26. Amici are coy. not so In their regulation. Third, nomic these admoni- view, Oklahoma’s licensure scheme “is sim- ring tions especially true when we are ply protectionist ... legislation^]” Brief reviewing the regulatory states, actions of Amicus Curiae 26, Claremont Institute at who, in our system, federal great merit Constitution, “[u]nder the ... econom- respect separate sovereigns. gen- See protectionism ic legitimate erally Geier v. Motor, American Honda interest!,]” Brief of Amicus Curiae Pacific Inc., 861, 894, 529 U.S. 1913, 120 S.Ct. Legal Foundation at 2. (2000). L.Ed.2d 914 count, By our only three courts have Thus, we are obliged to every consider held, in the absence of a violation aof plausible legitimate state interest specific constitutional provision or a valid might support just FSLA —not statute, federal that “protecting a discrete consumer-protection interest by forwarded group interest from competition parties. Hence, we consider whether legitimate is not a governmental purpose.” protecting the intrastate funeral home in Craigmiles, 224;14 312 F.3d at see also dustry, absent a violation of specific con Cornwell, 80 F.Supp.2d at 1117 (implying, provision stitutional or a valid stat federal citation, without that establishing a cartel ute, constitutes state interest. for cosmetology services is not a legitimate does, If it there can be little doubt that the interest); City Houston, Santos FSLA’s regulatory scheme is rationally re (S.D.Tex.1994) (hold- 852 F.Supp. lated to that goal. See Craigmiles v. ing that “economic protectionism in its Giles, (6th Cir.2002) F.3d glaring most form ... [is] not legiti- (stating that Tennessee’s mate.”).15 version Because the four Supreme FSLA “very well tailored” to “protecting Court collectively cases cited Craig- (2d Cir.1983) (“It job try is our Philadelphia 617, 624, Jersey, v. New 437 U.S. divine Congress what left [and] unstated we (1978); 57 L.Ed.2d 475 H.P. resort to our own talents and those of counsel Sons, Mond, &Hood Inc. v. Du 336 U.S.

to discern rationality of the classification 537-38, (1949). 93 L.Ed. 865 (internal question.") omitted). quotations Citing 15. Minnesota Creamery v. Clover Leaf Citing Energy Group, Reserves Inc. v. Kan- Co., 456, 470, Co., Light sas Power & (1981). (1983); City safety or to regulation the not with a view to not stand for and do miles Santos highways, conservation of the but the pro- intrastate proposition competition.’ of The same tectionism, specific prohibition of a absent a violation statute, advanced, here that limitation argument or federal provision constitutional interest, itself to competition we cannot of would contribute illegitimate state is an conservation, and therefore safety and agree. to indirectly permissible serve an end fact, only by quotation In it is selective state, ‘not sound.’ the was there declared Supreme of these reading that such a has not It is no better here. This Court For exam appears plausible. Court cases disability of only recognized this the Sons, Inc., v. Du in H.P. Hood & ple, economy state to isolate its own as 525, 657, Mond, L.Ed. 69 S.Ct. 336 U.S. striking parochial legisla- down basis (1949), the considered whether Court so, designed to do but it has policies tive power] New York the [had “the State of incapacity the of the state to recognized acquire facilities to deny additional compe- from protect its own inhabitants milk in commerce where ship interstate sustaining particu- tition as reason limita are that such grounds of denial power commerce of lar exercises of the protect business will upon tion interstate matters in which Congress to reach interests.” Id. and advance local economic H.P. Hood & states were so disabled. added). 526, (emphasis 69 S.Ct. 657 Sons, 537-38, 69 336 U.S. at legislation. The The Court struck the (citations omitted). following pas to the Craigmiles court cites context, in H.P. Hood & read When Sons, which is from H.P. Hood & sage plainly directed at admonition Sons’s of inter clearly regulation limited to the economy that shelters its regulation state commerce, conclusion support its state i.e., larger economy, national vio- from the protectionism is intrastate economic “dormant” Commerce lations interest: illegitimate Clause. that our economic unit is principle This Nation, gamut alone has the which in upon cases relied The other necessary to control of the powers similarly dis Craigmiles and Santos power of

economy, including the vital Energy Group, Reserves tinguishable. See against for erecting Co., customs barriers Light Inc. v. Kansas Power & corollary as eign competition, has its 400, 697, 74 L.Ed.2d 569 103 S.Ct. separable are not eco (1983) the states Clause-spe (addressing a Contracts said in Bald nomic units. As Court issue); Minnesota v. Clover cific Leaf Inc., 511, Seelig, Co., win v. G.A.F. 294 U.S. 101 S.Ct. Creamery 1032, (1981) 79 L.Ed. “What 715, (addressing 55 S.Ct. Clause); that one state principle City is ultimate is the “dormant” Commerce may not dealings with another Philadelphia Jersey, its v. New position of economic place itself 57 L.Ed.2d Jersey law speaking it but followed whether New (addressing “[a] isolation.’ so of most solid importation that the state not use principle prohibit[ing] originated or was protect liquid the health waste which powers its admitted the territorial limits of a basis for collected outside safety people of its .... violates the Commerce In Buck v. the State suppressing competition. of the United States Constitu Kuykendall, 267 Clause tion.”). such, passages these do struck down a As 69 L.Ed. the Court Craig- because, espoused support Mr. the contention language act intrastate economic Brandeis, miles and Santos that primary purpose ‘Its Justice protectionism, absent violation of a spe- inconsistent with relevant federal laws or cific federal statutory or treaties.”). constitutional provision, represents an illegitimate state application Court’s principle this interest. country’s Our constitutionally is found numerous state subsidization policy enshrined favoring a national mar- and licensing equal protection cases. For ketplace simply irrelevant as to whether example, in Fitzgerald, the Court held that may legitimately protect one intra- an taxing Iowa statute slot machine reve industry against as another when the %, nues on riverboats at 20 while taxing challenge to the statute is purely one of those at %, racetracks at 36 did not violate equal protection. Metropolitan See Life Equal the because, Protection Clause even Ward, Ins. Co. v. W.G. 105 though they racetracks, harmed the “the S.Ct. (noting different tax rates” have furthered that the Commerce Clause Equal and the the legitimate state’s interest “help[ing] Protection “perform Clause different func- the riverboat industry.” 539 U.S. at analysis tions the permissible the More specifically, the scope of a power state’s protects in- —one Fitzgerald Court held: commerce, terstate and the protects other Once one realizes every that not provi- persons from unconstitutional discrimina- sion ain law must share a single objec- states”). tion tive, one has no difficulty finding the contrast, In Supreme the Court has con- necessary support rational for the 20 sistently held that protecting favoring percent/36 percent [tax] differential here one particular industry, intrastate absent a at difference, issue. That harmful to the specific federal constitutional or statutory racetracks, is helpful riverboats, to the violation, is a legitimate state interest. which, respondents as concede, were Fitzgerald, See 539 U.S. at facing also peril. financial These two 2156 (holding hypothetical that the goal of characterizations opposite are but sides fostering intrastate gambling riverboat same coin. the Each reflects a ra- provided a rational basis to support legis- way tional for a legislator view lation taxing riverboat slot machine reve- (cita- matter. Id. at 123 S.Ct. 2156 nues at a more favorable rate than those omitted). tions from machines); racetrack slot Ferguson, Indeed, even Plaintiffs concede that “the 730-31, (“It U.S. at 83 S.Ct. 1028 [Fitzgerald ] Court [helping found the riv- now settled that States power have erboat industry] to gov- [a] legislate against what are inju- found to be objective[.]” ernmental Aplt. Reply Brief practices rious in their internal commercial at 6. affairs, and business so long as their laws In Nordlinger Hahn, do run afoul of some specific federal L.Ed.2d prohibition, constitutional or of some valid law.”) Court that held federal California’s (quotations omitted); property taxa Dukes, scheme, tion which U.S. at favored long-time 304 n. prop 96 S.Ct. 2513 (“[T]hese erty holders over principles purchasers, ... govern new did not when no violate Equal constitutional provision Protection other than Clause. In Equal Protection discussing Clause the many possible itself is apposite. reasons for Very different principles govern scheme, taxation even eco- Court held regulation nomic when ... provi- “[t]he constitutional State legitimately can decide to sions such as the ... Commerce Clause established, [favor] ‘mom-and-pop’ implicated, or when local regulation is businesses ... [over] newer opera chain challenged under the Supremacy Clause 12, 112 tions.” Id. at S.Ct. 2326. FSLA, merely a Dukes, similar to the citation rejected an the Court to dispose would have sufficed challenge to a New Or- Williamson Clause Protection of this case.16 selling prohibited leans ordinance French pushcarts from foodstuffs Similarly, Tenth has Circuit exempted it area Quarter, though even legislation special granting held that state continuously operated had vendors who industry, benefits to intrastate absent years. 427 eight or more business statutory federal constitutional or specific This ordinance 96 S.Ct. 2513. violation, Equal does not run afoul of the only vendors allowing two had the effect in example, Protection For Clause. Schaf Quar- in the French operation to continue Aspen Skiing Corp., 742 F.2d er Although 2513. Id. at 96 S.Ct. ter. (10th Cir.1984), injured party pur an the appeals legislation struck the court equal protection challenge sued an Colo illegitimate purpose state furthering an three-year of limita special rado’s statute protected created “a the ordinance because against the applied tions that suits memberf,]” favored class monopoly for the In industry. rejecting challenge, ski the omitted), rejected the Court (quotations id. industry a we noted that ski makes “[t]he reasoning, id. at 96 S.Ct. 2513. this contribution, directly or substantial indi Instead, ordinance fur- it found that the rectly, economy” and that to the Colorado legitimate purpose, state because thered a legitimate a interest its the “state has in the presence [French the of “vendors well-being viability.” and economic Id. at city’s the tourist Quarter], the heart of Although plaintiff was 584. Schafer ... have a deleterious ef- industry, might injured competitor, consumer and not a city.” at economy of the Id. fect on the favor underlying principle holds true: noted, 304-05, 96 2513. As the Court S.Ct. industry over another is ing one intrastate [, i.e., objective of that legitimacy “[t]he short, given interest. In legitimate a state industry,] benefitting the tourist is obvi- overwhelming supporting authority, at 96 S.Ct. 2513. ous.” Id. arguments to and the dearth of credible that, absent a viola contrary, we hold Protec- Finally, in the watershed provision constitutional specific tion of a Op- v. Lee tion Clause case Williamson law, pro federal intrastate economic other Oklahoma, tical of legitimate a tectionism constitutes held 99 L.Ed. 563 the Court interest. goal may legitimate a set as a note, an ex- profession, great to as that while “free[ing passing, a] alsoWe pastime from all taints of commer- national possible, may tent as be the baseball 491, 75 461. economic citizenry, dishing special out cialism.” re- Indeed, closely mirrors the in-state industries so benefits to certain Williamson that, of state and pastime Siren’s mains the favored of this case but facts this case does governments.17 other local While recently that has induced song ability of directly challenge the legislation states courts to strike state economic may v. New calling, be conditioned.” Nebbia this deferential 16. The Court has not limited York, 502, 527-28, equal protection cases. jurisprudence to Indeed, (1934). arena, the Court stated L.Ed. 940 process the Court the substantive due monopoly of a even the establishment guar- does not "[t]he has stated Constitution legitimate Id. at 529. state interest. engage privilege to in a the unrestricted antee pleases. it as one Cer- business or to conduct circuit Examples states in this prohibited; and from of business be tain kinds Greiner, See, business, Henry to e.g., pursue a abound. John right or to to conduct provide business-specific economic in the Oklahoma institution, electorate for its centives, adopting a against rule legiti not us.

macy of intrastate protectionism economic E. Regulatory Oklahoma’s Scheme

and applying it in a principled manner would have wide-ranging consequences. Because we find that intra-state — Jubelirer, See Vieth v. U.S. —, protectionism, absent a violation 1769, 1776-77, specific of a federal statutory or constitu (2004) (“[J]udicial action governed must be provision, tional state inter by standard, by rule. Laws promulgated est, we have little difficulty determining by [legislatures] inconsistent, can illogi that the FSLA satisfies rational-basis re cal, hoc; and ad pronounced law by the view. above, As discussed supra see note courts must be principled, rational, the Board enforces the FSLA such based upon distinctions.”). reasoned Thus, manner as to any avoid conflict with the besides the threat to all profes licensed “dormant” Commerce Moreover, Clause. doctors, sions such as teachers, account we find no other federal statutory or con ants, plumbers, electricians, lawyers, and stitutional provision that the FSLA vio see, e.g., Statutes, (list Oklahoma title 59 particular, lates. In that, we note despite ing fifty over professions), licensed every the protestations FTC’s before the trial piece of legislation in six states aiming to court that the FSLA does not “advanc[e] 18 protect or favor one industry or business the ends of the FTC’s Rule,” Funeral over another in the hopes jobs of luring to the FSLA does not transgress any of the that state would be in danger. While the express Rule’s provisions. See 16 C.F.R. creation of such a paradise libertarian §§ Hence, 431.1-453.9. the FSLA need worthy be a goal, Plaintiffs must turn to rationally related to the Bill, Oklahoman, 26, Back Tire Plant May The $500 million Boeing in bonds to help Wichita 2004, at (discussing IB the Quality Oklahoma acquire a role in manufacturing jet- the 7E7 Act, provides Investment which Oldahoma liner); Gosmano, Jeff Wyoming Pipeline City’s Bridgestone/Firestone tire manufactur- Group Jump Seelcs Pipeline to Start Building ing plant $5 with million in state financial Process, Week, 29, Aug. Natural Gas 2003 assistance); Wallace, Brice Hopes State to (noting the legislation adopted by Wyoming Jobs, News, Lure 22, Morning Deseret May giving the power state the to $1 issue billion 2004, at (noting D12 that the Utah Board of gas in bonds to pipeline revive development). Business Development and Economic extend- Additionally, state governments and local of- ed financial jobs incentives to lure new to the ten craft protect measures to current busi- Qwest Bilingual and Vinyl National Products See, nesses from additional competition. e.g., already facilities state); Gargi located the Annys Barbara, Shin & Michael Council Bill Chakrabarty, Weld; Kodak Picks Windsor Wal-Mart, Targets 15, 2004, June Post, Wash. Plant Competition Investment, Wins New (commenting at E01 proposed on a zoning re- Jobs, News, 23, 60 Rocky Mtn. Mar. at “big striction on box’’ stores is crafted incentives, IB (noting cash job training narrowly to apply exclusively almost to Wal- funds, property tax given reductions to Supercenters). Mart Eastman encourage Kodak Co. to expansion Windsor, Colorado); Webb, Hydro- Andrew 18. Brief of Funds, gen Amici Curiae J., Plan Federal Trade Albuquerque Lands Com- Mar. 5, 2004, Harris, at mission Powers v. (discussing at B6 New CIV-01-445-F Mexico's Ad- (W.D. 2002). Technologies vanced Okla The appear FTC did not Development Economic as Act, appeal, aims amicus on which to use but it did submit an incentives amicus hydrogen attract parties brief below. research businesses the did not include this state); Chilson, Morgan Boeing Sees brief in the Future in record appeal. on But see 7E7, Topeka Cap.-J., Sept. (discussing 2003 http://www.ftc.gov/os/2002/09/okamicus.pdf a Kansas bill that (last allows the state 2004). to issue July visited on 109-110, Fitzgerald, 539 U.S. See able. industry protec- of interest intrastate the decision (holding, after dispute that serious be no There can tion. favor objective pro- Craigmiles, tailored” “very well the FSLA another industry over one intrastate ing indus- funeral-home intrastate tecting the support legisla basis to at 228. As rational provides F.3d try. Craigmiles, tion). Third, on the actual focusing at an end.” United such, inquiry “our Fritz, legislature Bd. v. of the state motivation R.R. Retirement States law, justifications 66 L.Ed.2d proffered state’s heavily on Cle (1980). court relied Craigmiles Inc., Center, Living burne v. Cleburne v. Giles Craigmiles F. company with part (1985). misplaced. holding, emphasis we find this In so We decision, which Craigmiles Circuit’s Sixth in order A additional words few Tennessee statute nearly identical struck disagreement. point our last regarding Protection Clause violating this essence, in this case “ask Plaintiffs Our dis- process. due and substantive they assert to be in what engage court to to three reduced can be agreement standard set rational-basis exacting First, by the District as noted points.19 in Cleburne Supreme Court forth analysis focused Court, Craigmiles’s Jacobs, Jacobs, City Co. v. & [.]” Visconsi perception heavily on the court’s (10th Lawrence, 1119 n. 6 927 F.2d legisla- Tennessee motives actual Cir.1991). reading of Pursuant to their (“The at 227 F.3d 312 Craigmiles, ture. Cleburne,20 shrinking “a court would be a the Act as whole argue could if it duty abstained its most basic from legitimate pro- some actually provides ... analysis legislation’s of the from both casket from retail- for consumers tection objective and method articulated howev- history legislation, ers. achieve that employed to legislature ”). The story.... er, a different reveals F.Supp. Barry, 710 objective.” Brown v. an in- such has foreclosed Supreme Court (D.D.C.1989); Craig 352, also 355 see Communications, 508 U.S. Beach quiry. reading of miles, 227. This F.3d at 312 (“[Bjecause we nev- 315, 2096 at Cleburne, however, a marked constitutes its to articulate legislature a require er rational-basis from “traditional” departure statute, entirely it is enacting for reasons looking legis at the on prohibition review’s purposes for constitutional irrelevant motives, Beach Commu see lature’s actual for the chal- reason the conceived whether 2096, 315, nications, 508 U.S. at actually motivated lenged distinction every con obligation to and our forward Second, Craigmiles legislature.”). behalf interest on legitimate state ceivable in- a discrete “protecting held that court see, statute, e.g., Star challenged competition from group terest at 146. 253 F.3d light Sugar, purpose.” legitimate governmental sides,21 from all cry hue and Despite the 224. As discussed F.3d at Craigmiles, 312 has stated of the Court majority no above, unsupport- find this conclusion we ap- Inc., of Cleburne appeal, our treatment of this Royale, 124 reject We also Casket Santos, plies equally to Romer. (S.D.Miss.2000), 852 F.Supp.2d 434 (S.D.Tex.1994), v. and Brown F.Supp. 601 devel- Court has whether the over 21.Debate (D.D.C.1989) these F.Supp. Barry, 352 710 be- review higher-order rational-basis oped a reasons. same See, e.g., Erwin long gan not after Cleburne. Principles Law: Chemerinsky, Constitutional reading a similar push hard 20. Plaintiffs Policies, (1997) ("The is that claim Evans, 620, 536 S.Ct. 116 Romer v. 517 1620, (1996). in purposes For 134 L.Ed.2d the rational-basis review found in Moreno, Cleburne v. ture 413 U.S. S.Ct. Evans, Romer v. 620, 517 U.S. 116 2821, 37 (1973), L.Ed.2d 782 constituted S.Ct. differs the only conceivable state interest those from the variety traditional applied above. cases, Clajon see Corp. Production Pet v. But Texas, see Lawrence era, (10th F.3d 1581 n. 24 Cir. 156 L.Ed.2d 508 1995) (forwarding this interpretation of (2003) (O’Connor, J., part) concurring Cleburne). Under reading, this Cleburne (“When a law exhibits such a desire to would also not apply here because we have harm a politically unpopular group, we conceived of oth interest have applied a more form searching er than a “bare desire to harm” non-li rational basis review to strike down such censed, time-of-need, retail, casket sales laws under the Clause.”). Protection persons. Perhaps, as Justice O’Connor suggests, Cleburne and represent Romer the em Finally, perhaps Cleburne and Romer bryonic stages of a new category of equal merely exceptions to traditional ration- protection Cleburne, review. See al basis review fashioned the Court to (Marshall, S.Ct. 3249 J., con perceived correct inequities unique to curring in part and dissenting in part) so, those cases. If the Court has “fail[ed] (labeling Cleburne’s rational-basis review “ to articulate [when exception this applies, ‘second-order’ review”). rational-basis provid[ing] thus] no principled foundation But “[e]ven if we were to read Cleburne to for determining when more searching in- require that laws against discriminating quiry is to be invoked.” Cleburne, 473 historically unpopular groups meet an ex U.S. at 3249 (Marshall, J., acting standard,” rational-basis which we concurring part not, and dissenting do “we do part). not believe the class in Regardless, which the Court itself they [Plaintiffs] assert has ap- never are mem plied ber merits such Jacobs, scrutiny.” Cleburne-style rational-basis Viscon review Jacobs, Co., &si 927 to F.2d at See, 1119 n. economic issues. 6. e.g., Fitzgerald, 123 2159-60; S.Ct. at Beach hand, On Communica- the other Romer and Cleburne tions, 508 at U.S. 2096; not signal the birth of a new category Nordlinger, equal of 505 11-13, protection at 112 review. Perhaps, after considering all Following other the lead, conceivable Court’s purposes, neither the Romer and Thus, Cleburne will we. Courts found that we need not decide how “a bare ... desire to harm a alters, politically all, Cleburne if at traditional ration- unpopular group,” Department Agricul- al-basis because, review even under of a mod- some cases says where the Court is using it Intermediate Scmtiny by Name, Any Other 62 review, rational basis (1987) actually it is Ind. L.J. 779 employing (claiming that the Court's heightened a use test of with more 'bite' than rational the basis review cre- customarily ates confusion in very legisla- lower courts and deferential rational basis review.... The by tures failing to delineate differing when claim is that is not singular there rational types of Indeed, rational basis review apply). basis test but one that varies between com- at least one argued commentator has that the plete deference and rigor.”); substantial Rob- Court employs at least six versions of rational- Farrell, ert C. Legislative Purpose Equal & basis Kelso, review. See R. Randall Stan- Review, Rationality

Protection’s 37 Vill. L.Rev. dards Review Under the Protection of (1992) (suggesting that there two Clause & Related Constitutional Doctrines Pro- levels of rational basis review by used the tecting Rights: Individual The "Base Plus Six” Court manner); in an unpredictable Gayle Model Supreme Practice, & Modem Court 4 U. Lynn Note, Pettinga, Rational Basis with Bite: Pa. J. (2002). Const. L. interest furthered legitimate state test, outcome here the basis rational ified licensing funeral scheme. Oklahoma’s unchanged. would usefully sets forth majority opinion The V. CONCLUSION rational test. Un- of the basis an overview “may that the FSLA not doubt doWe test, is judicial review the der traditional needless, requirement wasteful exact chal- determining whether the to limited legislature, it for the But many cases. rationally re- classification is lenged state advantages courts, the to balance not As the state interest. lated to re- disadvantages [FSLA’s] agree, I courts majority explains, and Williamson, at quirement[s].” “wisdom, (1) second-guess the not should system Under our 75 S.Ct. 461. (2) choices; fairness, logic” legislative or “ ‘must resort to Plaintiffs government, legislative classifi- “razor-sharp” insist on ” protection not to courts’ polls, cations; into moti- inquire legislative or Id. abuses. perceived the FSLA’s against that the burden rests agree I also vations. (quoting Munn legislative to a classifi- challenger with 113, 134, 24 Illinois, L.Ed. every conceivable ba- negative cation “to (1876)). should the law. Courts supporting sis” eloquently stated: Churchill As Winston in- “every plausible legitimate credit govern form of worst “[Djemocracy is the judicial their review part as a terest” those other forms except for all ment this deferential standard. under Churchill, tried.” Winston have been majority company I with part Where (Nov. House of Commons at the Speech pro- view of economic is its unconstrained 1947). facts here Perhaps prove interest.” “legitimate as a tectionism A to amend FSLA maxim. bill this have courts majority is correct that Plaintiffs’ in the situation persons favor that favor some regulatory schemes upheld in the Oklahoma been introduced has Many over interests others. economic times, languish three House promote subsidize state classifications (Okla.2003); H.R. See committee. or discrete industries particular (Okla. (Okla.2001); H.R. 1083 H.R. here significant it actors. And 1999). may lead failures While these only covered licensing scheme Oklahoma’s legislature is that the believe Plaintiffs all of the caskets. But sales of intrastate reason, the Consti ignoring their voices foundation: a fundamental rest on cases political guarantee simply does tution ad- arguably discriminatory legislation success. aor general welfare the vances either intrastate that econom- Because we hold public interest. of a a violation absent protectionism, ic consistently has Supreme The Court statutory or constitutional specific federal inter- of state “legitimacy” the grounded legitimate state interest provision, The public of a interest. in terms ests rationally this related to the FSLA is that out, searched, even and rooted has Court end, we AFFIRM. context, “invidious” basis the rational TYMKOVICH, J., concurring. evaluating legislative interests Thus, example, the classifications. except majority opinion join I the v. Lee of case Williamson paradigmatic E, the D and concur in Parts IV Inc., 348 U.S. Optical, I separately because I write judgment. Court Supreme the 99 L.Ed. applica- overstates majority believe in- health safety and invoked consumer protectionism” economic of “intrastate tion terests over a pure claim of pa- economic courts have always found that they could rochialism. Rather than gov- hold also rationally advance a non-protectionist ernment always favor one economic public good. The majority, in contrast to another, actor over Court, if any- these precedents, effectively imports a thing, insisted that the legislation ad- standard could even credit legislative public vance good. some 487-88, Id. at classifications that advance no general (“It 75 S.Ct. 461 is enough that there is state interest. an evil at hand for correction, and it The end of result the majority’s reason- might thought that the particular leg- ing is an per almost se rule upholding islative measure was a rational way to protectionist intrastate legislation. I, for correct it.... prohibition one, imagine can a different of set facts Equal Protection goes Clause no further where legislative classification is so than discrimination.”). [] invidious Simi- lopsided in of personal favor interests at larly, the in Fitzgerald Court v. Racing expense public good, or so far Iowa, Ass’n Central 539 U.S. removed from plausibly public advancing (2003) L.Ed.2d 97 invoked interest that a rationale “protectionism” economic development and protecting the would fail. Even those cases such as Fitz- reliance interests of owners, river-boat in gerald that give some weight to economic City Dukes, New Orleans v. protectionism, are careful to find a mix of (1976) state interests that general advance the invoked historical preservation and eco- welfare. No ease holds that the pref- bare nomic prosperity, and in Nordlinger erence of one economic actor while fur- Hahn, 120 thering greater no public interest advances invoked neighborhood “legitimate state interest.” preservation, continuity, stability, and We need not go so far this case for protecting the reliance interests of prop- two reasons. all, First of the record below erty owners. None of these cases over- and the district court’s findings of fact that., turned the principle the Equal Pro- support a conclusion that the funeral li- tection prohibits Clause invidious state censing scheme furthers, here im- however interests; to the contrary, they ratified perfectly, element of protec- consumer the principle. tion. The district court found that relying While on these time-tested au- Board had in fact brought enforcement thorities, the majority goes well beyond actions under Act to combat consumer them to confer legitimacy to a broad con- abuse by funeral directors. The licensing cept not argued by the Board —unvar- scheme provides thus a legal club to attack nished protectionism. Contrary sharp practices by a major segment of to the majority, however, whenever courts casket retailers. Secondly, the history of upheld have legislation that might other- the licensing scheme here shows that it appear wise protectionist, as above, shown predates the FCC’s deregulation of third- 1. Three suggest cases that bare pro improve the economy by local fostering in- tectionism does not meet the legitimacy re state insurance companies at expense quirement: Cahoon, Smith v. companies out-of-state 553 legitimate); is not Al- , 51 S.Ct. (1931) 75 L.Ed. 1264 (holding legheny Pittsburgh Coal Co. v. County bonding that a requirement favoring Comm’n, agricul tural interests over other industries is not (1989) L.Ed.2d 688 (holding that county tax legitimate); Metropolitan Ins. Co. v. system assessment discriminating against Life re- Ward, cent sales and protecting certain property (holding desire to irrational”). owners "wholly competition, or internet sales casket party instance, was not first

and, in the at least directors funeral solely protect

enacted I competition. intrastate

facing increased the district conclude therefore

would consumer crediting not err

court did by the rationale advanced

protection

Board. issue here licensing scheme record desired. The much to be

leaves the free on it clear limitations

makes what- outlived of casket sales have

market they may have had. Con-

ever usefulness rath- harmed appear to be

sumer interests limitation of by the protected

er than by the licens- price encouraged

choice and sales. intrastate casket restrictions on

ing protection consumer general

Oklahoma’s adequate a more than appear to be

laws of abu- consumer redress to allow

vehicle majori- But the marketing practices.

sive over this that the battle

ty surely right fought in the Oklahoma must be

issue arbiter of state the ultimate

legislature,

regulatory policy. legislative that the therefore conclude

I basis test the rational here meets

scheme majority. join judgment in the UNGARO-BENAGES, Judge, as

Ursula Orenstein, Berliner nee of Lili

heir

Plaintiff-Appellant, AG, Deutsche BANK

DRESDNER AG,

Bank Defendants-

Appellees.

No. 03-11880. Appeals, States Court

United Circuit.

Eleventh

Aug.

Case Details

Case Name: Powers v. Harris

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 23, 2004

Citation: 379 F.3d 1208

Docket Number: 03-6014

Court Abbreviation: 10th Cir.