THE FINAL REPORT
ENFORCING THE COURT'S PERMANENT INJUNCTION
August 1, 2017
It hardly seems possible, but fourteen years have now passed since we decided that Wildlife Control Operators had endured enough harassment from the Structural Pest Control Board and its supporting cartel. We could no longer just stand by and watch the state sponsored anti-competitive licensing scheme run roughshod over our emerging industry. So we decided to sue the Structural Pest Control Board members in federal court to protect our constitutional right to earn an honest living in the occupation we had all chosen for ourselves. Against all odds, we won that lawsuit and the federal court granted us “Declaratory and Injunctive” relief. but no money.
Though being deprived of our constitutional right to earn an honest living, the Ninth U.S. Circuit Court of Appeals recognized a “presumption of inadequacy”, or the belief that there was no amount of money that could justly compensate us from the deprivation of this basic constitutional right. So instead of being awarded cash, we were awarded a permanent injunction that enjoined or prohibited the defendants from enforcing Business and Professions Code section 8555(g) against us. As long as we engaged in live trapping, maintained liability insurance and didn't apply pesticides in structures we would be permanently exempted from all regulations found in the Structural Pest Control Act.
Just a few years had passed when some of our members started complaining that they were getting Cease and Desist Warning Letters from the Structural Pest Control Board claiming that they had violated sections 8555(g) and 8550 requiring Branch 2 licensure. Since this seemed to be a clear violation of the court order, I decided to look into the matter and then issue this final report to determine what the membership wanted to do, if anything, to enforce the court order and stop the defendants from committing further violations of the permanent injunction.
Using the State's Freedom of Information Act, I asked the Board to send me copy of every enforcement document issued after the Permanent Injunction was issued in 2009. The Board complied by providing me with over two hundred Cease and Desist Letters. A lot fewer than I had requested. This difference was explained by the fact that the Board defendants had been destroying the incriminating Cease and Desist Letters once they became two years old.. Nonetheless, after sifting through hundreds of pages of enforcement documents, I was able to isolate over fifty (50+) Cease and Desist Warning Letters issued by the defendants against us in violation of the court order.
Two members had already given me their copies of the C&D Letters issued against them by the Structural Pest Control Board and by a County Agriculture Commissioner. However, when I received the copies of the warning letters from the defendants, I noticed that copies of these two letters were not included in the batches sent to me by the Board and Ag Commissioner even though they were issued within the same time period as all the others. Something seemed wrong. Why were these two violations withheld from my public records request when failure to comply with a valid FOYA request could be considered grounds for a Contempt of Court citation by itself?
So because the defendants had been caught shredding some documents that might have shown their violations of the injunction, I was unable to determine the exact number enforcement documents actually destroyed. If you consider all those who might have issued C&D warning letters to WCOs since 2009, the number could be huge. Nonetheless, we now have clear tangible evidence that the defendants were disobeying the court order. So now, do we want to monetize our injunctive relief, or just let it slide?
MISLEADING AND DECEPTIVE ACTS
I don't know if you noticed it too, but the Board defendants have seemed totally disinclined to mention either the lawsuit, the court's constitutional OPINION or the permanent injunction issued against them. The state defendants had never lost an occupational licensing or economic liberty case like their defeat in Merrifield v. Lockyer, so I guess they didn't quite know how to play it except to pretend that it never happened.
The Structrural Pest Control Board defendants have maintained an official website long before the injunction was issued in 2009. However, not a word about the lawsuit has ever been published on that website. No need to tell consumers they could hire WCOs to handle their problems with rats, mice and pigeons. Doing so would be contrary to their anti-competetive scheme and be an economic disservice to their protected Branch 2 licensees.
Recall what the appeals court said in our case:
“The undisputed evidence [in the Merrifield] case established that the bizarre pest
control licensing scheme was designed simply to protect licensed practitioners against
competition from outsiders, not to protect the public's health and safety”.
On the defendants' website www.pestboard.ca.gov there is a section where consumers are invited to look up the licensing regulations to see if a license is needed by the person or the company being considered for the vertebrate pest control job at hand.
Here's what I learned. Nine years after the Merrifield decision was handed down, section 8555(g) is still being published today exactly the way it was in 2003. No Branch 2 licensing exemption for the control of rats, mice or pigeons is mentioned. This kind of action is what the Court called “naked economic protectionism” and it clearly violates the U.S. Constitution's Fourteenth Amendment Equal Protection guarantees as well as violating the permanent injunction. So, it seems California consumers are still being mislead and deceived into thinking hat WCOs without Branch 2 licenses are outlaws who operate outside the parameters established in Structural Pest Control Act.
So nobody really cares right? Not the Structural Pest Control Board, not the Department of Consumers Affairs who oversees the Board, not the state legislature who also still posts the unconstitutional regulation and recommends it to the public and not the State Attorney General who wound up on the losing end of the Merrifield decision. However, the only important question is whether or not the California WCO plaintiffs care enough to act.
SILENCE IN THE BOARD ROOM
The official minutes of every public meeting of the Board are posted on the defendants' website www.pestboard.ca.gov . These minutes are prominently displayed so that California consumers can be properly informed about structural pest control issues, so I took the time to carefully read all of the Board's minutes published after 2008 to see what other violations I could find.
Here's what I found – Nothing! Nothing about the Board being sued. Nothing about section 8555(g) being declared unconstitutional. Nothing about the Board defendants being served with a permanent injnction. Wait a minute! There was one meeting when the Board discussed a motion to amend section 8555(g) in a way to create an economic monopoly making it illegal for unlicensed WCO to control any animal in a structure. The Board passed that motion unanimously and sent it to the legislature for adoption, however, when the Senate's Business and Professions Committee discovered the proposed amendment violated the permanent injunction the defendants' amendment was deleted and returned without a public hearing. The Board has stated its intention to try again next year. We will try to be ready then too.
FAILURE TO TRAIN
One important consequence of the defendants' silence regarding the court order or the 9th Circuit Court's Merrifield OPINION is that no relevant training was ever provided to members of the Board or to the enforcement staff responsible for issuing Cease and Desist Warning Letters to the plaintiffs. If the Board's Legal Counsel had taken the time to explain these legal issues to the board members, and the board had then required training for all enforcement personnel, maybe those inappropriate warning letters wouldn't have been issued and the plaintiffs' legal rights not again violated.
SERVING DEFENDANTS WITH A CEASE AND DESIST LETTER
When I learned of the extent of the defendants' disregard and defiance of our permanent injunction, I drafted a Cease and Desist Demand Letter which I can provide to our attorney at the appropriate time. Basicly this letter establishes our “red line” across which violators may not cross without suffering serious legal consequences. I hope our members will want to review and amend this draft letter.
SERVING DEFENDANTS WITH A CEASE AND DESIST LETTER
When I learned of the extent of the defendants' disrgard and defiance of our permanent injunction, I drafted a Cease and Desist Demand Letter which I can provide to our attorney at the appropriate time. Basicialy this letter establishes our “red line” across which violators may not cross without suffering serious legal consequences. I hope our members will want to review and amend this draft letter.
As pointed out by Chicago attorney Meredith Martin Addy, “parties that have won injunctions almost always prefer to bring contempt proceedings instead of commencing new lawsuits. That’s partly because contempt proceedings are much faster and cheaper: There’s no discovery, and the matter is decided by a judge, not a jury.
Also, a contempt proceeding is usually heard by the same judge who issued the injunction, so the judge is already familiar with the facts of the dispute. That’s particularly useful in complicated disputes such as patent infringement litigation, where a judge may need several months to get up to speed on the relevant technology.
Another advantage of contempt proceedings, from the plaintiff’s point of view, is that these proceedings are tightly focused. They do not allow defendants to present counterclaims or assert many defenses.
Plaintiffs can often get larger recoveries in contempt proceedings and sanctions for contempt may be “steep and punitive,”
The party bringing a contempt proceeding also has a psychological advantage. That party has already won a trial before the judge and so starts off the contempt proceeding with a favorable impression. “You may have a pretty sympathetic judge on your hands,” says Addy. The party accused of contempt, by contrast, has previously been adjudged to be in the wrong, “so that company is wearing a very black hat.”
Yet, despite the preferences for contempt proceedings, there is one significant downside: They require a higher burden of proof than a lawsuit. A party seeking contempt must provide clear and convincing evidence that the injunction was violated. In ordinary civil litigation, a litigant wins with a mere preponderance of the evidence.
Overall, however, plaintiffs find this evidentiary burden is far outweighed by the advantages. “You can get satisfaction much easier,” Addy says. ABA Journal, TIVO Inc. v. Echostar Corp.
COMPENSATORY CONTEMPT DAMAGES
Compensatory contempt is a money award for the plaintiffs when the defendants have injured the plaintiffs by violating an injunction. Judges use compensatory contempt when it is too late to coerce the defendants into the desired mode of conduct. The goal of compensatory contempt is to indemnify the plaintiffs directly for the harm the condemnors (defendants) caused by breaching the injunction.
If complainants (plaintiffs) make a showing that respondents (defendants) have disobeyed a decree in complainant's' favor and that damages have resulted to complainants thereby, complainants are entitled as of right to an order in civil contempt imposing a compensatory fine The court has no discretion to withhold the appropriate remedial order.
So what are the actual economic losses we may have suffered as a direct result of the defendants' violations of the enjoined acts? and how do we establish the extent of those losses in federal court? Really good questions right?
I don't have the answers of course, but I think I know how to go about getting them. I won't go into a discussion of monetary or compensatory damage claims here. However, you may soon get the opportunity to file a claim for any or all economic losses you might have incurred during the past eight years as a result of the numerous permanent injunction violations.
“If the consent of anyone who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” CA Code of Civil Procedure, section 382
VIOLATIONS OF THE SHERMAN ANTITRUST AND CLAYTON ACTS
We now know that the defendants have violated the permanent injunction and, as a result, may be sanctioned by the U.S. District Court in San Francisco. However, an additional legal question may now be considered. Did the defendants also violate the antitrust laws?
A Supreme Court decision in February of 2015 stemmed from a North Carolina dental board seeking to crack down on non-dentists providing teeth whitening services after licensed dentists complained the services were undercutting their business.
In a 6-3 decision, the Supreme Court ruled that when the a controlling number of members of a state licensing board are members of the regulated occupation, they are only immune from antitrust claims if they are acting under direct orders from the state.
In our case, the Structural Pest Control Board is controlled by Branch 2 licensees who determine the outcome of the Board's voting on a variety of self dealing issues, including the vote to create an economic monopoly for themselves when attempting to amend section 8555(g). The votes of these non-state actors are not supervised by any independent state entities and, in the case of seeking to amend section 8555(g), were not acting under any direct order from the state. Thus, the board defendants can not hope to pass the two part Midcal test they would need for Parker immunity rising from claims that they violated the Sherman Antitrust and Clayton Acts.
Antitrust laws and regulations are put in place to discourage monopolistic operations – to protect consumers, to prohibit practices that restrain trade, and to ensure that the marketplace remains open and competitive. The evidence we produced in court, and the documentation we later identified during the Permanent Injunction's review, would present a powerful showing that the defendants have committed acts in restraint of trade when also violating the federal court order. Such acts may be prohibited by the Sherman Antitrust and the Clayton Acts. We will need professional legal advice to answer that question.
FINANCING ANOTHER LEGAL BATTLE
The last time we decided to fight back in court, we raised a war chest from donations from members of the NWCOA and the CNWCOA along with support from many friends and vendors who believed in, and were willing to contribute to our just cause.
In addition, and most importantly, we were fortunate to have our attorney fees paid by the Pacific Legal Foundation and the Institute For Justice. This time however, these public interest law firms will not be available because we will not be seeking another constitutional issue nor would we be asking for another injunction. This time we would be making our case for compensatory and/or punitive damages against the Merrifield defendants, their employees, their associates, agents, attorneys and others who aided and assisted the defendants in violating the Merrifield plaintiffs' legal rights.
Now our challenge is to fill another legal war chest to pay attorney fees and court costs. These legal fees and costs will be awarded to the prevailing party just as before. The judge(s) will decide how much to fine violators of the permanent injunction and the antitrust laws. Obviously, the plaintiffs will need to meet and discuss this issue in the near future. I said “near” because there are important reasons for moving swiftly if we decide to go in that direction.
I AM NOT A LAWYER
Finally, please remember that I am not a lawyer. I have had no legal training whatsoever and I am simply a plaintiff in a legal case just like you. My opinions are based solely on my personal involvement in this case since 2003. Every CNWCOA member will have to consider the issues and decide how best to proceed. My job, as I see it, is to give you all the relevant information you might want or need to make these decisions. I also need to create ways for you to raise your questions and concerns in an organized way either online or in meetings. Good communication will be essential so please help out where you can.
Now here's my last disclaimer. I am about to be 80 years old and heading out for my last roundup. I have never been computer savvy and I really struggle in the use of “social media”. I need to get the word out to all our WCO members throughout the state so I need lots of help here.
Please respond if you are willing and able to assist in these areas. So, send me an email at firstname.lastname@example.org and tell me what you think we should do. Tell me if you want to be included as a stakeholder in this legal battle or if you want to be left alone and scratched from our list of participants. Once I get your ideas, I will set up a membership meeting probably in the Bay Area this fall and we'll decide what action the Association will take.
Thanks, and God bless us all.
Alan Merrifield, President CNWCOA