A Wildlife Control Operator or WCO is a person who traps and removes nuisance birds and mammals found to be creating property damage or presenting a threat to the public’s health or safety. The WCO repairs damage to homes and buildings caused by nuisance wildlife and installs barriers to prevent unwanted animals from entering the structure. He may also install one way doors that allow unwanted animals to exit the building on their own instead of being caught and removed by a trap. Most importantly, WCOs do not use poisons or pesticides in or around structures for the control of insects, birds or mammals. Wildlife Control Operator is a fairly new occupation having developed as an outgrowth or convergence of the fur trapping, vertebrate pest control and construction industries. The State of California has not recognized the WCO as a unique occupation. Instead, it has tended to regard them as outsiders who perform pest control work without being properly licensed. However, when Wildlife Control Operators petitioned the various regulatory agencies for the creation of a separate license category, these licensing agencies found one or more reasons for not creating a new WCO license. Reasons For The Lawsuit In 1995 the state legislature took notice of this emerging occupation and amended Section 8555 of the Business and Professions Code of Regulations to accommodate those who persons who controlled bees, wasps and such vertebrate pests as raccoons, skunks, and bats in structures without the use of pesticides. They were not permitted however to control the pest control industry’s most lucrative vertebrate pests. WCOs were prohibited from controlling mice, rats and pigeons in structures without possession of a Branch 2 Structural Pest Control License. To get a Branch 2 license, a WCO would have to quit whatever else he was doing and go spend two years working for a registered structural pest control company, then spend hours studying material devoted to pesticides even though he had no desire to ever use them. Some preferred to take the illegal “back door” approach instead. They would simply find someone who had the Branch 2 license, but wasn’t using it. It made no difference that the licensee lived in a distant county or that he had no experience in performing bird or rat exclusion work. Once that licensee’s name was added to the WCO’s payroll, his business instantly became a registered company eligible to perform work to control mice, rats and pigeons. Around 2002 or 2003, the Structural Pest Control Board appeared to adopt a get tough policy. Cease and Desist letters were sent to any unlicensed person offering to control the money-making pests. Agents from the Department of Consumer Affairs would set up sting operations to nab WCOs offering to rat-proof a house or to apply bird spikes on a building ledge. WCOs were fined substantial sums of money and threatened with jail time for performing, or offering to perform, any animal damage control work involving these three species of nuisance wildlife. Members of the CNWCOA needed relief from this perceived persecution, but none was in sight. One particular incident occurred in the summer of 2003 that reached the tipping point and, more than any other single event, was responsible for launching the civil rights lawsuit. The California Department of Transportation (CALTRANS) published a Request For Proposal (RFP) for bird control work at the San Francisco TransBay Terminal. The RFP did not include the Branch 2 license requirement nor did it include the word “pigeons”. A bidders’ meeting was held and an on-site walk thru was held, but still no mention of pigeons was made nor were any pigeons seen at the work site location. The RFP did however specify that ¾ inch bird netting (not the 2” pigeon netting) would be required to exclude all birds from the areas to be protected. Some members of the California NWCO Association submitted bids to perform the requested bird exclusion work, but their proposals were subsequently rejected because they did not have a Branch 2 license. A protest was filed, but was rejected by the CalTrans Protest Officer after consultation with the Structural Pest Control Board. The reason given for the Branch 2 license requirement was that a possibility existed that pigeons might enter the TransBay facility, and if and when they did, they would be excluded by the installed bird netting. That was the last straw and members of the WCO Association knew something had to be done to protect their rights. The California NWCO Association began to speak out on its website with a series of editorials raising questions about the Mafia-like tactics being used by the agents of the State to enforce an unconstitutional law for the economic benefit of a protected classification. When the outlines of a state-sponsored cartel in the pest control industry began to take shape we knew that we had to fight back in the only effective way possible – in the courts. The Pacific Legal Foundation Comes To The Rescue By pure coincidence, a constitutional lawyer who headed up an “Economic Liberty Project” for the Pacific Legal Foundation in Sacramento, was surfing the web one night and by chance discovered the editorials published on the CNWCOA website. Timothy Sandefur, immediately recognizing and understanding our plight, contacted us the next morning to offer his help. He asked if we had an attorney, and when we said yes, he asked for his phone number to speak with him about our case. In the weeks that followed, we applied for acceptance into the PLF Economic Liberty Project and after a short wait, we learned that we had been accepted and that Pacific Legal Foundation would provide us with free legal representation in Federal Court even to the U.S. Supreme Court should that prove necessary. That was great news because we were just about broke at the time and did not really know if we could carry on. The Plaintiffs In January of 2004, a Complaint for declaratory and injunctive relief was filed in the United State District Court in San Francisco by Plaintiffs Alan Merrifield, an individual; Urban Wildlife Management, Inc. a California corporation; and by the California Nuisance Wildlife Control Operators Association (CNWCOA) a California non-profit corporation. The Defendants The Defendants named in this lawsuit were Bill Lockyer, State Attorney General; Kelli Okuma, Registrar of the California Structural Pest Control Board; Gretchen A. Brigaman, Protest Officer of the California Department of Transportation; and all members of the California Structural Pest Control Board. The Complaint The Complaint alleged that the Defendants, in their official capacity, acting under the color of law, violated Plaintiffs’ constitutional rights to earn a living without a rational basis, and for no legitimate purpose, when it enforced or threatened to enforce, Section 8555(g) of the Business and Professions Code of Regulations. The Defendants responded to the complaint by claiming the lawsuit was frivolous and without merit; that the Plaintiffs lacked standing in court to bring the lawsuit; that as officials of a state government the Defendants had constitutional immunity from being sued; and that the Federal Court had no right to second guess actions taken by a state legislature. The Court ruled against all of the Defendants' asserted claims. The Expert Witnesses Eric Paulson, an expert in the field of Structural Pest Control, was the Defendants’ only expert witness. In his sworn deposition Paulson gave the follow account as to how and why this law was created. Attorney Sandefur said, “When we deposed the state’s expert witness. I asked him, “would you call this law irrational?” And he answered, with laudable honesty, “Yes I would.” But he went on to explain that the law was created through a compromise between those who wanted to allow people to practice chemical-free pest control and those who wanted to prevent such competition. Because pigeons, rats, and mice are the most common pests, the law was altered to require a license for the most lucrative part of the pest control trade, while allowing some minor competition when it came to seagulls or raccoons. The law, explained the state’s own witness, was consciously devised to prevent free competition and to grant a special economic favor to a particular interest group.” The Plaintiffs selected two expert witnesses – Randall Blair, a former San Mateo County Vector Control Specialist and expert on rodent control and Bill Gillespie, who was a recognized expert in the education and training of applicants for Branch 2, Structural Pest Control licensure. The Rational Basis Test In his opening brief, Timothy Sandefur explained that; “Under the rational basis test, laws must be rationally related to a legitimate government interest. This standard of review is deferential to the government, and requires that there be some reasonable connection between the legislature’s goal and the means chosen to accomplish that goal. The connection need not be exact, but neither may it be a mere conclusory assertion, or a pretext for illegitimate discrimination against disfavored outsiders. Although the rational basis test is lenient, it does not leave a court absolutely free to devise wholly speculative rationalizations for a law.” The District Court’s Decision The Court did find however that there was a rational basis for prohibiting the control of mice, rats and pigeons by persons not having the Branch 2 license. Judge William Schwarzer decision (see below) accepted the Defendants’ assertion that, even though WCOs didn’t apply pesticides themselves, they might very well encounter pesticides applied by someone else and therefore would require the education and training associated with pesticide application for their own health and safety. The Court granted the Defendants’ Motion For Summary Judgment. A decision that demanded appeal to a higher court. “The California legislature, in excluding those engaged in nonpesticide control of mice, rats, and pigeons from the licensing exemption in § 8555(g), could reasonably have found that continuing to require a Branch 2 license of these operators would further the State’s legitimate interest in consumer protection and the public health and welfare.11 It is rational to think that rats, mice and pigeons are overwhelmingly the most common vertebrate pests infesting structures and that other vertebrate pests tend to be present in structures rarely and incidentally. Thus, the distinction drawn in § 8555(g) is a rational one. This distinction is rationally related to the State’s interest in protecting the health and welfare of the public.” Judge William Schwarzer The Three Judge Panel On December 21, 2005 the Pacific Legal Foundation, on behalf of its WCO Plaintiffs, filed an Appeal in the United States Court of Appeals For The Ninth Circuit in San Francisco. A three judge panel consisting of Judges Darmuid F. O’Scannlain, Kim M. Wardlaw and Michael D. Hawkins were assigned to hear the appeal. The Plaitiffs’ Opening Argument In the Appellants’ Opening Brief, PLF Attorney Timothy Sandefur argued that “Occupational licensing laws must be rationally related, not merely to a legitimate state interest…more specifically to the applicant’s fitness or capacity to practice the profession itself and that the Pesticide License requirement in this case fails to satisfy this requirement, both facially and as applied.” In his Oral Argument to the panel, the Plaintiffs’ attorney argued that “Section 8555(g) is facially unconstitutional under the Equal Protection Clause of the Fourteenth Amendment for two reasons. First, it treats professions that are different as though they were exactly alike and secondly, the licensing requirement treats similarly-situated people differently for reasons that are not rationally related to a legitimate government interest.” Institute For Justice Files Amicus Curiae Brief In Support of Appellants In a persuasive Amicus Curiae (or Friend of the Court) brief submitted in support of the Wildlife Control Operators’ case, attorneys Jennifer Barnett, William Mellor and Clark Neily of the Institute For Justice stated: “California has taken a class of persons and improperly divided it into two groups, determining that it will burden the right to earn a living of some but not others even though all are similarly situated in all relevant respects. This is exactly the kind of differential treatment the Supreme Court has repeatedly found to violate the Constitution under the rational basis test.” The Majority Opinion In the end, Judge O’Scannlain and Judge Wardlaw agreed with the Plaintiffs’ assertions and handed down an Opinion in their favor. The licensing law, explained Judge Diarmud O’Scannlain in the 2-1 decision, "was designed to favor economically certain constituents at the expense of others similarly situated, such as Merrifield.” The Court concluded “that mere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review….and that economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in the furtherance of a legitimate governmental interest." In the words of Judge O’Scannlain, “The licensing scheme in this case specifically singles out pest controllers like Merrifield in the exemption legislation. Needless to say, this type of singling out, in connection with a rationale so weak that it undercuts the principle of non-contradiction, fails to meet the relatively easy standard of rational basis review. Indeed, the record highlights that the irrational singling out of three types of vertebrate pests from all other vertebrate animals was designed to favor economically certain constituents at the expense of others similarly situated, such as Merrifield.” The Court said that it invalidated the legislature’s naked attempt to raise a fortress protecting the monopoly rents that Structural Pest Control Operators extract from consumers and that the measure to privilege Branch 2 pest controllers over others at the expense of consumers was not animated by a legitimate governmental purpose and therefore could not survive even rational basis review. Judge Hawkins concurred in part and dissented in part as it was his belief that ”I certainly agree with the majority’s carefully thought out determination that California is entitled to require testing for pesticide knowledge of rodent and pest control operators who employ non-pesticide methods. Like the District Court, I think it rationally follows that the State may determine which type of service providers should face a testing or licensing requirement and which should not.” The Appeals Court reversed the Summary Judgment in favor of the State on the exemption issue and ordered the case remanded to the U.S. District Court with instructions to enter a judgment in favor of Merrifield and the other Plaintiffs. Petition For Panel Rehearing and Rehearing En Banc The Defendants responded to the majority opinion by filing a Petition For Rehearing by the three judge panel and by an en banc panel consisting of eleven (11) active Appeals Court judges. The State claimed that the panel majority “misapprehended” a material fact underlying its erroneous conclusion. What the State first claimed was a frivolous case, totally without merit, now had somehow morphed into a case of such “unquestionable” and “exceptional” importance that it placed the public at risk; threatened to impair the integrity of the State’s scheme for regulating pest controllers; interfered with the State’s rights to exercise its police power; and interfered with the State legislature’s attempts to craft its legislation. Well, the twenty seven (27) didn’t buy the State’s argument and as a result, the only judge voting to rehear the case was Judge Hawkins who has earlier dissented from the majority opinion. The Defendant-Appellees were prohibited from filing any additional petitions for rehearing. Pacific Legal Foundation Declares VICTORY!!! On October 22, 2008 the Pacific Legal
Foundation’s website (www.pacificlegal.org)
published the story of its win in two articles entitled
“PLF
Scores Big Win For Free Enterprise In The Ninth Circuit”
and
“PLF defeats
governmental cartel in the pest control business”.
In
these articles the PLF boldly proclaimed that “This important
victory has helped clear the way for entrepreneurs across the west
coast to pursue their constitutional right to earn a living.” And
“PLF’s win for Mr. Merrifield’s right to earn a living is being
hailed as a landmark precedent for free enterprise”. As you may know, Alan Merrifield and the California Wildlife Control Operators went to federal court and won a landmark decision affirming their common law right to pursue a gainful occupation free from the interference of state-imposed monopolies. The outcome of that case, now referred to as the Merrifield decision, is being used in support of a Second Amendment right to keep and bear arms case scheduled to be heard by the U.S. Supreme Court next March. The Pacific Legal Foundation, who brilliantly represented the California WCOs in its case against state-sponsored protectionism, has joined with the Cato Institute in submitting an amicus curiae brief supporting Otis McDonald, et al who has sued the City of Chicago for violating his 2nd Amendment right to keep and bear arms in his home for his own personal protection. McDonald is being represented by attorney Alan Gura who was also the lead attorney in the Heller v. District of Columbia case where his client Dick Heller, et al prevailed in establishing the right of citizens to keep and bear arms in federal enclaves such as the District of Columbia. The question presented for the Court’s consideration is : “Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process clauses.” In other words, must State laws conform to the national standards established in the Second and Fourteenth Amendments to the U.S. Constitution? We believe the answer is obviously yes, but it is unclear whether the Court will incorporate through the Privileges or Immunities clause by overturning the infamous Slaughter-House decision or through the Due Process clause which has been used in the past to incorporate most of the Articles in our Bill Of Rights. In either case, the rights of WCOs and other entrepreneurs will be strengthened against arbitrary and excessive state regulation. Personally, I’m hoping the Court will opt for applying the Privileges or Immunities Clause after overturning the Slaughter-House decision because that will vindicate the unsuccessful legal claim made by the Merrifield plaintiffs. As you may recall, while we ultimately did prevail on Equal Protection grounds, the Court found against us on our Privileges or Immunities claim stating, “Given the Slaughter-House Cases limitation on the Privileges or Immunities Clause of the Fourteenth Amendment, we cannot grant relief based upon that clause unless the claim depends on the right to travel. Merrifield's claim does not invoke that right, and therefore must be denied.” Merrifield v. Lockyer 547 F.3rd 978 (9th Cir. 2080) In any
case, I am optimistic as to the outcome of the Court’s deliberations
and WCOs are bound to benefit for the ultimate decisions made in
this landmark case. For example, given all the ways cities, counties
and states currently repress or prohibit WCOs’ use of guns as tools
in wildlife control, we may obtain a new constitutional basis for
challenging these laws, regulations, rules or policies, etc. if the
this is how the McDonald decision ultimately unfolds.
No one can say how things will turn out, but I for one will be tuned in and will read everything I can find regarding this case. I urge WCO to do the same. Tags: McDonald v. City of Chicago; Merrifield
v. Lockyer; 14th Amendment - Privilege or Immunities
Clause; 2nd Amendment- right to keep and bear arms;
Heller v. District of Columbia; economic liberty -right to earn a
living; Slaughter-House Cases.
So What Does It All Mean??? After
pursuing this case for almost six years, its time to look back and
reflect. What did we achieve? Was it worth all the time and money
spent. Who are the winners and losers? What is the legacy?
Click
here for our take on these issues. |
