*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.” 119 L.Ed.2d 351 CNWCOA standing has also because its mem- 2. Submitting public agency a bid to a without bers injuries. suffer same See Hunt v. qualifies a license as such misdemeanor. Cal. Comm’n, Apple Wash. State Adver. 7028.15(a). § Bus. & Prof.Code 333, 342-43, L.Ed.2d con- of structural practice business attention Board’s to the come It has licensed” unless he or she proper ... trol [sic] you posses do Control) Li- (General law Board’s conformity Pest with state II Branch 8550(a). Certifi- Registration Company appli- § Id. requirements. cense It is also Board. by the licens- tri-partite cate issued sets forth statute cable advertising and you apparent fumigation, I Branch for ing scheme: mice, (rats, Proofing conducting Rodent control,3 and II general Branch etc.) activities. control. termite III Branch conducting firm is your you If § 8560. *4 advertisement activity or pest control Code, pesticide- both Under or II License Branch requires control non-pesticide-based and based Certificate, you Registration Company obtain required to operators all activi- cease and desist to ordered the term “struc- II license because Branch are [sic] licensed or properly ty unless to include: defined tural control” 8555(g) Busi- Section compliance with or infec- of infestations identification Code. and Professions ness or inspection tions; making of an only warning your notice will This identify- purpose of for inspections which violates person any firm or identify infestations attempting to or ing Pest of the Structural provisions or other struc- of household or infections ap- and investigated Act will be Control organisms; or pests such tures be initiated action will legal propriate recommen- reports, of making inspection Attorney’s Office. District through the estimates, bids, dations, whether and ... these requirements Compliance with written, respect to such with 1997. or mandatory March oral shall be infections; and the mak- or infestations li- becoming are interested If you of contracts, submitting or the II, of ing contact please in Branch censed work for, performance Divi- or the Licensing or Enforcement bids Board’s making including .... sion the use or replacements, pairs or applied for such has never rodenticides, fu- insecticides, pesticides, necessary for none is and claims license or sub- allied chemicals migants, or activity. business stances, devices or mechanical B exterminating, eliminating, purpose provided that has California Since or controlling preventing or infestations engaged regulate those Board will organisms. pests, or such infections pest control.” of “structural the business added).4 (emphasis §Id. § 8520. The Bus. & Prof.Code Cal. enact- legislature California mission,” according “primary Board’s the Branch exemption from express ed an protec- 8520, is “consumer Code section en- “[pjersons requirement II license “any individu- forbids The State tion.” Id. or and removal capture in the live gaged in the engage offer or al pests” term "structural Code uses pest" "[t]he control defined 3. "General de- pests and wood encompass "household of household relating practice organisms, or other stroying pests or poisonous or excluding fumigation with pests, or other may invade households pests which & Prof.Code gases.” Cal. Bus. lethal cars, structures, ships, including railroad 8560(a). § trucks, docks, airplanes, or the contents 8560(a). § & Prof.Code Cal. Bus. thereof.” c bees, exclusion of vertebrate pests, wasps from a structure without the use of prospect Faced pun- either pesticides.” § 8555(g). Id. pro- The new if ishment he worked without a license or vision limited its definition of “vertebrate enduring much expense and effort to ob- pests” ensure controlling license, tain the Merrifield filed this 42 mice, rats, pigeons would still need to § U.S.C. against 1983 suit the Board and “ obtain II Branch licenses: ‘Vertebrate various other officials5 (collectively “the include, pests’ to, bats, but are not limited Board”) in the district court February raccoons, skunks, squirrels, but do not 6, 2004. The complaint alleged that mice, rats, (em- include pigeons.” Branch II licensing requirement violates added). phasis Equal Protection, Process, Due Privileges or Immunities Clauses of the Obtaining a Branch II requires license Amendment, Fourteenth sought de- proof that applicant has had at least claratory injunctive par- relief. The years two experience “actual ... or the *5 ties submitted amended filings, equivalent” working in “the particular and conducted extensive civil discovery, branch” for which a license is desired. Id. including pages of interrogatories posed by 8562(b). § 1993, Since each applicant has and responses by Merrifield Board mem- also required been to provide proof of a bers. experts Several depositions entered year experience of as a licensed Branch II declarations, including those who testi- representative” “field equivalent or “the of fied on the effectiveness non-pesticide of that or training experience.” Id. pest control and on potential the rationale 8562(f). § Finally, the applicant must behind the licensing rules and the 1995 pass the Board-administered Branch II exemption therefrom. exam with a percent score of 70 better. The parties then cross-moved for (f). sum- 8560(a), § Id. sample Branch II mary judgment on the issue whether exam and preparation materials entered in the II licensing Branch requirement the record reveal that subject most areas section 8555(g) rationally related to a “relate to the storage use and of pesticides legitimate government purpose. On Au- the identification and of in- and/or gust 1, 2005, the district court granted pests.” vertebrate Lockyer, v. Merrifield summary judgment to the State and de- 1051, (N.D.Cal.2005). F.Supp.2d 388 1054 nied summary judgment to Merrifield. The district court found that “[o]f 200 Merrifield, 388 F.Supp.2d at questions 1064-65. sample exam supplied, timely appealed.6 most questions mice, rats, relate to nonrodenticide-based or rat and/or mouse II control,” questions six related “compli- ance procedures possibly appli- [that] Merrifield first claims Califor pest-control cable to all enterprises,” and nia’s Branch II control licensing re question “[o]ne concerns bat droppings.” quirement violates Privileges or Im munities Clause the Fourteenth original 5. The complaint named several other 6. We review a district court’s decision on officials, including state Schwarzeneg- Arnold summary judgment cross-motions de California; ger, Brown, Governor of Valerie Inc., Layers, novo. v. Bader N. Lina 503 F.3d Assemblywoman; California Lock- Bill 813, (9th Cir.2007). California, yer, Attorney General but these defendants dismissed from the case. Roe, 489, 119 S.Ct. In Saenz infringes on it because Amendment however, (1999), L.Ed.2d 689 profession. his chosen practice right fundamentally “[d]espite can- held provision Court contends The state leg- coverage of concerning against differing by citizens views not be invoked states, except their own or Immunities Clause Privileges power islative to travel. right Amendment, notably ex- most regard Fourteenth dissenting majority and in the pressed or Immunities Clause Privileges Cases, it Slaughter-House in the opinions not ex- Amendment does the Fourteenth that this ground always been common has restriction, a home-state contain pressly component of the third protects Clause make or shall “No State for it states: Id. at right to travel.” abridge the law which shall enforce Court, omitted). (citation According of citizens immunities privileges Const, XIV, of the constitutional component amend. the third States.” United travel- However, Supreme Court “for those protects, right to travel § cl. 2. Privi- resi- permanent around the tight boundaries become drew ers who elect Four- State], Clause to be treated right leges Immunities dents [of Slaughter- in the Amendment Id. at teenth State.” of that other citizens like Wall.) (16 36, 21 Cases, 83 U.S. House Court thus 119 S.Ct. 1518. The The Court ruled L.Ed. 394 many had considered opened debate rights which those only secures clause Cases. Slaughter-House foreclosed gov- to the Federal their existence “own *6 pur- right to argues that character, its Consti- ernment, National its now falls profession chosen sue one’s Id. at Some tution, 79. its laws.”7 or arguing the clause of purview within immuni- or privileges Federal examples of holding Court’s Slaughter-House Amend- by the Fourteenth protected ties in a com- living to earn the right were Supreme Court by the listed ment among rights occupation was not mon govern- the Federal petition right to has since been citizenship national of protec- the care and “demand and to ment has the Court It is true that pudiated. over Federal of the tion one’s right pursue to a federal recognized high on the life, when property and liberty, due substantive under profession chosen However, the Court 79. at seas.” 286, Gabbert, 526 U.S. Conn v. process. priv- the traditional very it clear that made 1292, 291-92, 143 L.Ed.2d citizenship “which and immunities ileges Bar Exam’rs (1999); v. Bd. Schware fundamental; nature, are, in their 752, 232, 238-39, 77 S.Ct. N.M., 353 U.S. free of all to citizens right, belong, of However, (1957). Saenz 1 L.Ed.2d right such as governments,” quali- only decision the Court’s represents choice, see profession in one’s Corfield or Immunities Privileges bar on fying the (C.C.E.D.Pa. 546, 551-52 6 F.Cas. Coryell, State of the power “the against claims Privileges by the 1823), protected were not rights [their] over the governments of a they if Clause Immunities Cases, 83 Slaughter-House citizens.” own Slaughter-House character. “federal” Wall.) lim- case (16 77. That Wall.) (16 Cases, at 78-79. 83 U.S. exercise, the impose restrictions Privileges Immuni- respect With less, same, be the shall IV, more nor neither Slaughter-House of Article ties Clause of other rights citizens measure of purpose was sole "[i]ts Court concluded Slaughter- jurisdiction.” States, your States within whatever several to declare Wall.) (16 Cases, House them you grant or rights, as establish those citizens, qualify, L.Ed. 394 you limit or or as your own right ited to the to travel. The Court has a cosmetologist as it is defined and regu- not found rights other economic protected lated presently,” and if “[e]ven [she] were clause, although many scholars defined to be a cosmetologist, the licensing have argued overruling Slaughter- regimen would irrational as applied to House toto.8 Cases her because of her range limited of activi- ties,” which Slaughter-House over-lapped only

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. 80 F.Supp.2d 1101 *7 Cornwell, In the district court observed 1999) Giles, and Craigmiles v. 312 F.3d that under “ Equal Protection Clause (6th Cir.2002). 220 grossest

‘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) 137 L.Ed.2d 369 (finding consumer Hahn, 1, 10, 505 112 U.S. protection legitimate to be a federal gov- (1992) (“The L.Ed.2d Equal Pro- interest). ernmental However, if the stat- tection Clause does not forbid classifica- ute is unrelated interests, to these simply tions. It governmental keeps de- statute lacks a rational basis. from treating cisionmakers differently persons who are all relevant respects alike.”). The Branch II licensing statute includes Craigmiles Because in- Cornwell 1) three requirements: years least two volved plaintiffs arguing they experience “actual ... equiva- or the from other groups and should not different lent” working in particular “the branch” same, be treated the these cases for which a desired, license is Cal. Bus. & directly applicable to Merrifield’s claim 2) 8562(b); § Prof.Code year experi- that he is the same non-pesticide as other as a ence Branch licensed II repre- “field exterminators being and is treated differ- sentative,” 3) 8562(f); §id. passage ently.11 However, cases are analogous the Board-created Branch II exam with a and applicable to Merrifield’s due process score of percent better, § 8560(a), id. claim that he is pesticide- from different (f). Merrifield asserts that these require- using exterminators and should not be ments have no legitimate purpose for per- them, treated the same as because such engaged sons treatment is an unconstitutional barrier on pesticides, without and simply inhibit com- liberty under the Due Process Clause. petition in marketplace. We now turn

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 54 L.Ed. 987 (1910) (“It tion with applicant’s fitness or capacity too well settled to require *9 practice to profession].” at day [the discussion this police that the power Schware v. of Exam’rs, the states extends Bd. regulation to the Bar certain trades and callings, (1957) particularly 1 L.Ed.2d 796 (discussing those closely which concern public the requirements law). state practice to The Although directly applicable, not Craig- question in may tion govern- affect a whether miles does have helpful a regard- discussion may ment’s action survive rational basis how, ing in a either equal due or scrutiny. an portion relevance of this protection analysis, history legisla- the Craigmiles is discussed below in Part III.C. 8562(b) ii en- in section requirement training have controllers pest that structural sures third challenge to the Merrifield’s related and skills judgment, perspective, on the percent score a 70 requirement, as- Although Merrifield occupation. examination, requires careful licensing license examination pesticide that the serts that the ex asserts analysis. Merrifield en- are almost training requirements purpose its and exceeds requirement amination appli- an establishing pesti on tirely geared simply toward focuses test because pesticides heavily on regard to He relies expertise cide-handling. with cant’s Cornwell, rested much require- which invertebrates, training rationale and hair lack of analysis relevant its on work persons to do not require ments cosmetology on braiding questions of- Merrifield invertebrates. pesticides pesticide-centric to the He cites exam. rejected state has that the no evidence fers and licensing examination on the questions non- it involved training because person’s has no relevance objects that the test requirement, The second work.12 pesticide To pesticides. not use who do 8562(f), year of work requires section submits Merrifield point, this substantiate Again, representative.” II “field a Branch examination, in which licensing sample specify not does provision eighty-four hundred and “[o]ne he asserts Therefore, pesticides. must be with work are entire questions on test the 200 inflict the does not licensing scheme In fur does.” what ly [he] irrelevant Cornwell, in as the scheme burden same claim, points he to the his support of ther in hair required a braider 8555(g), exemption section otherwise she activities business believes, which, the government’s he belies during engaged would have requirement Branch II contention the license. get of her business course pest control. necessary non-pesticide is 1108, 1110, 1115. Cornwell, at F.Supp.2d licens- contends that Merrifield also plaintiffs Additionally, unlike purpose achieve fails to its ing scheme offers Craigmiles, and Cornwell focused “A test that being too narrow: training would reason believe no disposal of chemi- use, storage, and safety profession. of his ques- increase the no which contains poisons, and cal out, pest the work points non-pesticide government As about pigeons tions fairly not with- evaluate controllers is cannot pest techniques, non-pesticide control capacity to install applicant’s structural fitness Like other of harm. risk out (emphasis add- spikes” and pigeon controllers, climb on screens Merrifield must ed). requirement If the wires pigeon roofs to install people’s safety and con- health aimed enter busi- he must apparatuses; require- argues, he protection, sumer homes; deal with he must nesses provisions included would have ments Proper spread disease. that can pests as well. techniques non-pesticide garding help him oversight would training competency. skills and requisite responds “[Bicen- obtain Thus, suggestion Merrifield’s ensures that sure potential are educated about purpose operators no serve training requirements pests, caused vertebrate threats health rejected. must *10 option but to applicants no which would leave current aver all not does pesticides. work with pesticides, work with Branch II licensees mice, rats, including and pigeons.” By- example, questions discuss rats and requiring pest structural controllers to mice. Some questions other appli- test the licenses, obtain the state creates a frame- ability cant’s to recognize what pest work to them keep monitor them ac- responsible for an infestation describing Furthermore, requiring countable. per- signs asking applicant ani- sons who pesticides do not use to learn mal leave would such ques- marks. These about pesticides the risks of is rationally tions are relevant. if Even the answer is related to government’s in interest “mice,” “rats,” or “pigeons,” person public safety persons because like Merri- mice, specializing rats, pigeons or should field work in they environments where recognize be able to what pests traces such may exposed pesticides be that have would not leave. In way, many ques- applied been previously and left on-site. tions that Merrifield discounts as irrele- Finally, the government contends that vant, perhaps based on fact that their structural pest controllers be edu- should “mice,” correct “rats,” answers are not or cated on the various options consumer “pigeons,” in fact test knowledge relevant control, with respect pest so that they to all pest structural control. can advise their customers on the relative Furthermore, questions several address effectiveness and flaws of different control legal requirements apply per- to all techniques. offers no evi- sons engaged in pest structural pigeons dence that have been covered in and have no relation to the pesti- risks of prior examinations, points but out several cides any particular animal. aspects of the examination covering skills and knowledge relevant to all persons en- Having reviewed the ques- examination gaged pest structural control. tions, we conclude that Merrifield’s claims understate their relationship to his line of The merits government’s conten- work. All three requirements tions are best understood reference to have a connection competence in the sample examination itself. With re- field, and therefore satisfy rational spect exam, basis to the a significant number of words, review. other unlike in questions Craig- on the examination very are miles, California has a legitimate relevant for like Oth- Merrifield. er health questions interest requiring on the all examination address pests, invertebrate controllers to vertebrate obtain licenses. pests There- mice, rats, fore, are not or pigeons. Merrifield’s challenge But those to the rationali- questions equally ty “irrelevant” pesti- licensing requirement under due cide-based controllers who specialize rejected. must be mice, rats, in targeting pigeons. C

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 99 L.Ed. 563 raccoons, skunks, and squirrels,” and non- pesticide pest “mice, rats, controllers

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 312 F.3d at 229. type of providers service should face a Here, has undercut its testing or licensing requirement and which own rational basis scheme See, should not. e.g., City New Orleans by excluding exemp- Merrifield from the Dukes, tion. exemption from the license is (1976) 49 L.Ed.2d 511 (legislatures may given non-pesticide pest to those control- adopt regulations “only partially ame- lers likely who are most to interact with evil”). perceived liorate a I would affirm pesticides. Additionally, the non-pesticide across the board. pest controllers who are likely least interact pesticides must part remain Therefore,

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.