Merrifield v. Lockyer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALAN MERRIFIELD, an individual; 

URBAN WILDLIFE MANAGEMENT

INC., a California corporation

individually as a successor in

interest to Alan Merrifield dba

Urban Wildlife Management;

CALIFORNIA NUISANCE WILDLIFE

CONTROL OPERATORS ASSOCIATION,

a California non-profit corporation,

Plaintiffs-Appellants,

v.

BILL LOCKYER, Attorney General, No. 05-16613

Defendant,

and  D.C. No.

CV-04-00498-MMC

KELLI OKUMA, Registrar of the OPINION

California Structural Pest Control

Board; GRETCHEN A. BRIGAMAN,

Protest Officer of the California

Department of Transportation;

JEAN MELTON, Member of the

California Structural Pest Control

Board; BILL MORRIS, Member of

the California Structural Pest

Control Board; MICHAEL ROTH,

Member of the California

Structural Pest Control Board;

MUSTAPHA SESAY, Member of the



12915

12916 MERRIFIELD v. LOCKYER

California Structural Pest Control 

Board; THURMAN, Member of the

California Structural Pest Control

Board; KENNETH L. TRONGO, 

Member of the California

Structural Pest Control Board,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Maxine M. Chesney, District Judge, Presiding

Argued and Submitted

August 16, 2007—San Francisco, California

Filed September 16, 2008

Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,

and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge O’Scannlain;

Partial Concurrence and Partial Dissent by Judge Hawkins

MERRIFIELD v. LOCKYER 12919

COUNSEL

Timothy Sandefur, Pacific Legal Foundation, Sacramento,

California, argued the cause for the plaintiffs-appellants and

filed briefs; Meriem L. Hubbard, Pacific Legal Foundation,

Sacramento, California, was on the briefs.

Diann Sokoloff, Deputy Attorney General, Oakland, Califor-

nia, argued the cause for the defendants-appellees and filed a

brief; Bill Lockyer, Attorney General for the State of Califor-

nia, Alfredo Terrazas, Senior Assistant Attorney General,

Wilbert E. Bennett Supervising Deputy Attorney General,

Oakland, California, were on the brief.

12920 MERRIFIELD v. LOCKYER

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a state regulatory scheme violates

the equal protection rights of pest controllers.

I

A

Alan Merrifield appeals from a grant of summary judgment

denying his request for a permanent, prospective injunction of

California’s structural pest control licensing requirements. He

engages in “non-pesticide animal damage prevention and bird

control” (“ADP & BC”), which includes installing spikes,

screens, and other mechanical devices in or on buildings and

other structures so as to remove vertebrate pests—e.g.,

skunks, raccoons, squirrels, rats, pigeons, starlings, bats—or

to keep them away from structures. California law requires all

persons engaged in structural pest control to obtain licenses,

with certain statutory exemptions. Merrifield argues that the

applicable licensing requirement is intended for pesticide-

based pest control, and that he should be exempt from such

requirement because he does not use pesticides.1

1

Appellants also include Urban Wildlife Management (“UWM”), a

company that Merrifield owns, and the California Nuisance Wildlife Con-

trol Operators Association (“CNWCOA”), a trade group of businesses that

are “engaged in the nonpesticide removal or exclusion of vertebrate

pests.” Merrifield has standing because he cannot engage in his trade

unless he first satisfies the current licensing requirement or receives an

exemption. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992). The CNWCOA also has standing because its members suffer the

same injuries. See Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S.

333, 342-43 (1977). UWM does not have standing to bring a privileges

and immunities claim because it is a corporation. See W. Turf Ass’n v.

Greenberg, 204 U.S. 359, 363 (1907) (“[A] corporation cannot be deemed

a citizen within the meaning of the clause of the Constitution of the United

States which protects the privileges and immunities of citizens of the

United States . . . .”). For convenience, this opinion refers to the plaintiffs-

appellants as “Merrifield.”

MERRIFIELD v. LOCKYER 12921

Persons who engage in structural pest control without a

license in California face misdemeanor convictions punish-

able by fines of up to $1,000 and six months imprisonment

per violation.2 Cal. Bus. & Prof. Code (“Code”) § 8553. The

state Structural Pest Control Board (“Board”) enforces the

licensing requirements. The record includes correspondence

between Merrifield and Board officials making clear that his

bids for a government project to birdproof the Trans Bay Ter-

minal in San Francisco would not be considered unless he had

a “Branch II” license. On February 21, 1997, the Board

warned Merrifield to comply with the licensing statute. After

quoting the text of the licensing requirement, the letter stated:

It has come to the Board’s attention that you do not

posses [sic] the proper Branch II (General Pest Con-

trol) License or Company Registration Certificate

issued by the Board. It is also apparent that you are

advertising and conducting Rodent Proofing (rats,

mice, etc.) activities.

If you or your firm is conducting any pest control

activity or advertisement which requires a Branch II

License or Company Registration Certificate, you

are ordered to cease and desist all activity unless

properly licensed or are [sic] in compliance with

Section 8555(g) Business and Professions Code.

This notice will be your only warning that any firm

or person which violates the provisions of the Struc-

tural Pest Control Act will be investigated and

appropriate legal action will be initiated through the

District Attorney’s Office. Compliance with these

requirements . . . shall be mandatory by March 31,

1997.

2

Submitting a bid to a public agency without a license qualifies as such

misdemeanor. Cal. Bus. & Prof. Code § 7028.15(a).

12922 MERRIFIELD v. LOCKYER

If you are interested in becoming licensed in Branch

II, please contact the Board’s Licensing or Enforce-

ment Division . . . .

Merrifield has never applied for such a license and claims

none is necessary for his business activity.

B

Since 1941, California has provided that the Board will reg-

ulate those engaged in the business of “structural pest con-

trol.” Cal. Bus. & Prof. Code § 8520. The Board’s “primary

mission,” according to Code section 8520, is “consumer pro-

tection.” Id. The State forbids “any individual to engage or

offer to engage in the business or practice of structural pest

control . . . unless he or she is licensed” in conformity with

state law and the Board’s requirements. Id. § 8550(a). The

applicable statute sets forth a tri-partite licensing scheme:

Branch I for fumigation, Branch II for general pest control,3

and Branch III for termite control. Id. § 8560.

Under the 1941 Code, both pesticide-based and non-

pesticide-based pest control operators were required to obtain

a Branch II license because the term “structural pest control”

was defined to include:

identification of infestations or infections; the mak-

ing of an inspection or inspections for the purpose of

identifying or attempting to identify infestations or

infections of household or other structures by such

pests or organisms; the making of inspection reports,

recommendations, estimates, and bids, whether oral

or written, with respect to such infestations or infec-

tions; and the making of contracts, or the submitting

3

“General pest” control is defined as “[t]he practice relating to the con-

trol of household pests, excluding fumigation with poisonous or lethal

gases.” Cal. Bus. & Prof. Code § 8560(a).

MERRIFIELD v. LOCKYER 12923

of bids for, or the performance of any work includ-

ing the making of structural repairs or replacements,

or the use of insecticides, pesticides, rodenticides,

fumigants, or allied chemicals or substances, or

mechanical devices for the purpose of eliminating,

exterminating, controlling or preventing infestations

or infections of such pests, or organisms.

Id. § 8505 (emphasis added).4

In 1995, the California legislature enacted an express

exemption from the Branch II license requirement for

“[p]ersons engaged in the live capture and removal or exclu-

sion of vertebrate pests, bees, or wasps from a structure with-

out the use of pesticides.” Id. § 8555(g). The new provision

limited its definition of “vertebrate pests” to ensure that per-

sons controlling mice, rats, or pigeons would still need to

obtain Branch II licenses: “ ‘Vertebrate pests’ include, but are

not limited to, bats, raccoons, skunks, and squirrels, but do

not include mice, rats, or pigeons.” Id. (emphasis added).

Obtaining a Branch II license requires proof that the appli-

cant has had at least two years of “actual experience . . . or

the equivalent” working in “the particular branch” for which

a license is desired. Id. § 8562(b). Since 1993, each applicant

has also been required to provide proof of a year of experi-

ence as a licensed Branch II “field representative” or “the

equivalent of that training or experience.” Id. § 8562(f).

Finally, the applicant must pass the Board-administered

Branch II exam with a score of 70 percent or better. Id.

§ 8560(a), (f). The sample Branch II exam and preparation

materials entered in the record reveal that most subject areas

4

The Code uses the term “structural pests” to encompass “household

pests and wood destroying pests or organisms, or such other pests which

may invade households or other structures, including railroad cars, ships,

docks, trucks, airplanes, or the contents thereof.” Cal. Bus. & Prof. Code

§ 8560(a).

12924 MERRIFIELD v. LOCKYER

“relate to the use and storage of pesticides and/or the identifi-

cation and control of invertebrate pests.” Merrifield v. Lock-

yer, 388 F. Supp. 2d 1051, 1054 (N.D. Cal. 2005). The district

court found that “[o]f the 200 questions on the sample exam

supplied, at most 18 questions relate to mice, rats, and/or

nonrodenticide-based mouse or rat control,” six questions

related to “compliance procedures [that] are possibly applica-

ble to all pest-control enterprises,” and “[o]ne question con-

cerns bat droppings.” Id.

C

Faced with the prospect of either punishment if he worked

without a license or enduring much expense and effort to

obtain the license, Merrifield filed this 42 U.S.C. § 1983 suit

against the Board and various other officials5 (collectively

“the Board”) in the district court on February 6, 2004. The

complaint alleged that the Branch II licensing requirement

violates the Equal Protection, Due Process, and Privileges or

Immunities Clauses of the Fourteenth Amendment, and

sought declaratory and injunctive relief. The parties submitted

and amended their filings, and conducted extensive civil dis-

covery, including pages of interrogatories posed by Merrifield

and responses by Board members. Several experts entered

depositions and declarations, including those who testified on

the effectiveness of non-pesticide pest control and on the

potential rationale behind the licensing rules and the 1995

exemption therefrom.

The parties then cross-moved for summary judgment on the

issue of whether the Branch II licensing requirement in sec-

tion 8555(g) was rationally related to a legitimate government

purpose. On August 1, 2005, the district court granted sum-

5

The original complaint named several other state officials, including

Arnold Schwarzenegger, Governor of California; Valerie Brown, Califor-

nia Assemblywoman; and Bill Lockyer, Attorney General of California,

but these defendants were dismissed from the case.

MERRIFIELD v. LOCKYER 12925

mary judgment to the State and denied summary judgment to

Merrifield. Merrifield, 388 F. Supp. 2d at 1064-65. Merrifield

timely appealed.6

II

Merrifield first claims that California’s Branch II pest con-

trol licensing requirement violates the Privileges or Immuni-

ties Clause of the Fourteenth Amendment because it infringes

on his right to practice his chosen profession. The state con-

tends that this provision cannot be invoked by citizens against

the legislative power of their own states, except with regard

to the right to travel.

[1] The Privileges or Immunities Clause of the Fourteenth

Amendment does not expressly contain a home-state restric-

tion, for it states: “No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of

the United States.” U.S. Const. amend. XIV, § 1, cl. 2. How-

ever, the Supreme Court drew tight boundaries around the

Privileges or Immunities Clause of the Fourteenth Amend-

ment in the Slaughter House Cases, 83 U.S. (16 Wall.) 36

(1872). The Court ruled that the clause only secures those

rights which “own their existence to the Federal government,

its National character, its Constitution, or its laws.”7 Id. at 79.

Some examples of Federal privileges or immunities protected

by the Fourteenth Amendment listed by the Supreme Court

were the right to petition the Federal government and to “de-

6

We review a district court’s decision on cross-motions for summary

judgment de novo. Bader v. N. Lina Layers, Inc., 503 F.3d 813, 816 (9th

Cir. 2007).

7

With respect to the Privileges and Immunities Clause of Article IV, the

Slaughter-House Court concluded that “[i]ts sole purpose was to declare

to the several States, that whatever those rights, as you grant or establish

them to your own citizens, or as you limit or qualify, or impose restric-

tions on their exercise, the same, neither more nor less, shall be the mea-

sure of the rights of citizens of other States within your jurisdiction.”

Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 77 (1872).

12926 MERRIFIELD v. LOCKYER

mand the care and protection of the Federal government over

his life, liberty, and property when on the high seas.” Id. at

79. However, the Court made it very clear that the traditional

privileges and immunities of citizenship “which are, in their

nature, fundamental; which belong, of right, to the citizens of

all free governments,” such as the right to engage in one’s

profession of choice, see Corfield v. Coryell, 6 F.Cas. 546,

551-52 (C.C.E.D. Pa. 1823), were not protected by the Privi-

leges or Immunities Clause if they were not of a “federal”

character. Slaughter-House Cases, 83 U.S. (16 Wall.) at 78-

79.

In Saenz v. Roe, 526 U.S. 489 (1999), however, the Court

held that “[d]espite fundamentally differing views concerning

the coverage of the Privileges or Immunities Clause of the

Fourteenth Amendment, most notably expressed in the major-

ity and dissenting opinions in the Slaughter-House Cases, it

has always been common ground that this Clause protects the

third component of the right to travel.” Id. at 503 (citation

omitted). According to the Court, the third component of the

constitutional right to travel protects, “for those travelers who

elect to become permanent residents [of a State], the right to

be treated like other citizens of that State.” Id. at 500. The

Court thus reopened a debate that many had considered fore-

closed by the Slaughter-House Cases.

Merrifield argues that the right to pursue one’s chosen pro-

fession now falls within the purview of the clause arguing that

the Slaughter-House Court’s holding that the right to earn a

living in a common occupation was not among the rights of

national citizenship has since been repudiated. It is true that

the Court has recognized a federal right to pursue one’s cho-

sen profession under substantive due process. Conn v. Gab-

bert, 526 U.S. 286, 291-92 (1999); Schware v. Bd. of Bar

Exam’rs of N.M., 353 U.S. 232, 238-39 (1957). However,

Saenz represents the Court’s only decision qualifying the bar

on Privileges or Immunities claims against “the power of the

State governments over the rights of [their] own citizens.”

MERRIFIELD v. LOCKYER 12927

Slaughter-House Cases, 83 U.S. (16 Wall.) at 77. That case

was limited to the right to travel. The Court has not found

other economic rights protected by that clause, although many

scholars have argued for overruling the Slaughter-House

Cases in toto.8

[2] Given the Slaughter-House Cases limitation on the

Privileges or Immunities Clause of the Fourteenth Amend-

ment, 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.

III

[3] Merrifield next claims that California’s Branch II pest

control licensing requirement violates the Due Process and

Equal Protection Clauses of the Fourteenth Amendment. All

parties agree that rational basis review applies.9

A

Merrifield relies heavily on two recent cases, which struck

down regulatory schemes, to establish both his due process

and equal protection claims: Cornwell v. Hamilton, 80 F.

Supp. 2d 1101 (S.D. Cal. 1999) and Craigmiles v. Giles, 312

F.3d 220 (6th Cir. 2002).

8

Akhil Reed Amar, Substance and Method in the Year 2000, 28 Pepp.

L. Rev. 601, 631 n.178 (2001) (“Virtually no serious modern scholar-left,

right, and center-thinks that this [Slaughter-House Cases] is a plausible

reading of the [Fourteenth] Amendment.”); Douglas W. Kmiec, “God’s

Litigator”, 70 Notre Dame L. Rev. 1247, 1253 n.29 (1995) (reviewing

William Bentley Ball, Mere Creatures of the State? Education, Religion,

and the Courts: A View From the Courtroom (1994)).

9

Under rational basis review, a statute will pass constitutional muster if

it is “rationally related to a legitimate state interest.” City of New Orleans

v. Dukes, 427 U.S. 297, 303 (1976).

12928 MERRIFIELD v. LOCKYER

1

Cornwell involved an “African hair braider” who engaged

in “natural hair care” and asserted that she should be permit-

ted to braid hair without fulfilling California’s cosmetology

licensing requirement. 80 F. Supp. 2d at 1102, 1104-05. The

district court agreed, because Cornwell could not “reasonably

be classified as a cosmetologist as it is defined and regulated

presently,” and “[e]ven if [she] were defined to be a cosmetol-

ogist, the licensing regimen would be irrational as applied to

her because of her limited range of activities,” which over-

lapped only minimally with the types of activities covered in

the state’s principal training curriculum and examination. See

id. at 1108, 1110, 1115 (finding “well below ten percent” of

the curriculum to be relevant to Cornwell’s actual activities

and 11 percent of exam questions to be relevant to Cornwell’s

actual activities). The court viewed this marginal overlap as

constitutionally infirm due to overbreadth (by including per-

sons to whom the license was not relevant) and underinclu-

siveness (by failing to ensure the competency of hair

braiders). The court found the only imaginable justification to

be economic protectionism of the cosmetology industry,

which it deemed illegitimate. Id. at 1117-18 & n.50. Thus, the

licensing requirement violated Cornwell’s due process and

equal protection rights.

In Cornwell, the district court observed that under the

Equal Protection Clause “ ‘sometimes the grossest discrimina-

tion can lie in treating things that are different as though they

were exactly alike.’ ” Id. at 1103 & n.2 (quoting Jenness v.

Fortson, 403 U.S. 431, 442 (1971)). In Jenness, however, the

Supreme Court used the phrase in response to an argument

that a Georgia state election law that treated traditional politi-

cal parties differently than newer parties for ballot qualifica-

tion violated equal protection. Jenness, 403 U.S. at 441-42.

The Court noted that it was rational for Georgia to treat the

two types of political organizations differently based on the

different challenges that each entity faces and Georgia’s need

MERRIFIELD v. LOCKYER 12929

properly to manage elections. Id. The Court cited Williams v.

Rhodes, 393 U.S. 23 (1968), in which it struck down an Ohio

ballot access law due to its different treatment of established

and new political parties. In other words, in both Jenness and

in Williams, the challenged laws imposed different require-

ments on two different groups, traditional and new political

parties. However, in Cornwell the challenge was by an Afri-

can hair stylist who challenged a uniform licensing scheme.

While the reasoning of the district court in Cornwell may be

consistent with our due process analysis, it cannot survive

equal protection analysis.

2

In Craigmiles, the Sixth Circuit affirmed the decision of a

district court, following a bench trial, that the inclusion of cas-

ket merchants within the licensing requirement for funeral

directors violated equal protection and due process. 312 F.3d

at 222. The court cited the district court’s findings that requir-

ing casket sellers to learn the skills of funeral directors did not

further health and safety, because casket sellers did not

engage in funeral activities, such as cleaning and embalming

corpses. The court did discern one possible reason for regulat-

ing casket merchants: “The quality of the caskets used poten-

tially threatens public health.” Id. at 225 (emphasis omitted).

However, the court rejected this rationale for lack of a rela-

tionship to the licensing requirement, which ensured that “the

only difference between the caskets [sold by licensed and

unlicensed persons] is that those sold by licensed funeral

directors were systematically more expensive.” Id. at 225-26.

The court also rejected the government’s argument that the

licensing law helped ensure that persons selling caskets knew

how to respond to customers’ grief (such matters were tested

on the exam). Id. at 228. Having rejected all possible reasons

the government provided or that the court could reasonably

conceive, it concluded that the licensing law imposed a bur-

den upon casket merchants merely “to prevent economic com-

12930 MERRIFIELD v. LOCKYER

petition” with funeral directors. Id. at 225. As such, the law

failed rational basis review.

The casket retailers in Craigmiles argued that their business

was so different from funeral directors that the government’s

interest in public health and safety in regulating funeral direc-

tors was not implicated. Id. In other words, although the cas-

ket sellers brought claims under both the Due Process and

Equal Protection Clauses, and the Sixth Circuit affirmed on

both grounds, their argument was not that they were being

treated differently in violation of the Equal Protection Clause,

but that they were suffering an unconstitutional barrier to

practice their profession— a due process claim.10

3

The plaintiffs in Cornwell and Craigmiles were treated the

same as other groups under the challenged statutory frame-

work. Therefore, the equal protection analytical framework

requiring a rational connection between a legitimate interest

and different classifications was inapplicable to these cases.

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“The Equal Pro-

tection Clause does not forbid classifications. It simply keeps

governmental decisionmakers from treating differently per-

sons who are in all relevant respects alike.”).

Because Craigmiles and Cornwell involved plaintiffs argu-

ing that they were different from other groups and should not

be treated the same, these cases are not directly applicable to

Merrifield’s claim that he is the same as other non-pesticide

exterminators and is being treated differently.11 However, the

10

The cases cited by Craigmiles highlight that an equal protection analy-

sis was not really applicable. City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432 (1985) struck down a law preventing a group home that serviced

the mentally disabled from operating under a zoning law which expressly

classified “the feeble-minded” differently from other groups. Craigmiles,

312 F.3d at 227.

11

Although not directly applicable, Craigmiles does have a helpful dis-

cussion regarding how, in either a due process or an equal protection anal-

MERRIFIELD v. LOCKYER 12931

cases are analogous and applicable to Merrifield’s due process

claim that he is different from pesticide-using exterminators

and should not be treated the same as them, because such

treatment is an unconstitutional barrier on his liberty under

the Due Process Clause.

B

1

[4] Merrifield argues that the licensing requirement for

non-pesticide pest controllers bears no relationship to any

legitimate interest such as public health, safety, or consumer

protection. With respect to Merrifield’s due process claim, the

first aspect of the rational basis test is easily satisfied by the

government’s interests in public health and safety and con-

sumer protection. See Watson v. Maryland, 218 U.S. 173, 177

(1910) (“It is too well settled to require discussion at this day

that the police power of the states extends to the regulation of

certain trades and callings, particularly those which closely

concern the public health.”); cf. Turner Broad. Sys., Inc. v.

FCC, 520 U.S. 180, 189-90 (1997) (finding consumer protec-

tion to be a legitimate federal governmental interest). How-

ever, if the statute is unrelated to these interests, the statute

lacks a rational basis.

2

The Branch II licensing statute includes three requirements:

1) at least two years of “actual experience . . . or the equiva-

lent” working in “the particular branch” for which a license

is desired, Cal. Bus. & Prof. Code § 8562(b); 2) a year of

experience as a licensed Branch II “field representative,” id.

ysis, the history of the legislation in question may affect whether a

government’s action may survive rational basis scrutiny. The relevance of

this portion of Craigmiles is discussed below in Part III.C.

12932 MERRIFIELD v. LOCKYER

§ 8562(f); and 3) passage of the Board-created Branch II

exam with a score of 70 percent or better, id. § 8560(a), (f).

Merrifield asserts that these requirements have no legitimate

purpose for persons engaged in structural pest control without

pesticides, and simply inhibit competition in the marketplace.

We now turn to the individual Branch II license requirements

in light of Merrifield’s due process challenge.

i

[5] Merrifield does not offer any significant argument chal-

lenging the validity of the training requirements. Nor would

that be possible. “A State can require high standards of quali-

fication, such as good moral character or proficiency . . .

before it admits an applicant . . . , but any qualification must

have a rational connection with the applicant’s fitness or

capacity to practice [the profession].” Schware v. Bd. of Bar

Exam’rs, 353 U.S. 232, 239 (1957) (discussing state require-

ments to practice law). The training requirement in section

8562(b) ensures that structural pest controllers have perspec-

tive, judgment, and skills related to their occupation.

Although Merrifield asserts that the pesticide license exami-

nation and training requirements are almost entirely geared

toward establishing an applicant’s expertise with regard to

pesticides and invertebrates, the training requirements do not

require persons to work with pesticides or invertebrates. Mer-

rifield offers no evidence that the state has rejected a person’s

training because it involved non-pesticide work.12 The second

requirement, section 8562(f), requires a year of work as a

Branch II “field representative.” Again, this provision does

not specify that the work must be with pesticides. Therefore,

the licensing scheme does not inflict the same burden as the

scheme in Cornwell, which required a hair braider to engage

in business activities that she otherwise would not have

12

Merrifield does not aver that all current Branch II licensees work with

pesticides, which would leave applicants no option but to work with pesti-

cides.

MERRIFIELD v. LOCKYER 12933

engaged in during the course of her business to get the

license. Cornwell, 80 F. Supp. 2d at 1108, 1110, 1115.

[6] Additionally, unlike the plaintiffs in Cornwell and

Craigmiles, Merrifield offers no reason to believe that train-

ing would not increase the safety of his profession. As the

government points out, the work of non-pesticide pest con-

trollers is not without risk of harm. Like other structural pest

controllers, Merrifield must climb on people’s roofs to install

his pigeon wires and apparatuses; he must enter businesses

and homes; he must deal with pests that can spread disease.

Proper training and oversight would help him to obtain the

requisite skills and competency. Thus, Merrifield’s suggestion

that the training requirements serve no purpose must be

rejected.

ii

[7] Merrifield’s challenge to the third requirement, a 70

percent score on the licensing examination, requires careful

analysis. Merrifield asserts that the examination requirement

exceeds its purpose because the test simply focuses on

pesticide-handling. He relies heavily on the rationale of Corn-

well, which rested much of its analysis on the lack of relevant

hair braiding questions on the cosmetology exam. He cites to

the pesticide-centric questions on the licensing examination

and objects that the test has no relevance for persons who do

not use pesticides. To substantiate this point, Merrifield sub-

mits a sample licensing examination, in which he asserts

“[o]ne hundred and eighty-four of the 200 questions on the

test are entirely irrelevant to what [he] does.” In further sup-

port of his claim, he points to the licensing exemption in sec-

tion 8555(g), which, he believes, belies the government’s

contention that the Branch II requirement is necessary for

non-pesticide pest control.

Merrifield also contends that the licensing scheme fails to

achieve its purpose by being too narrow: “A test that is

12934 MERRIFIELD v. LOCKYER

focused on the use, storage, and disposal of chemical poisons,

and which contains no questions about pigeons or non-

pesticide pest control techniques, cannot fairly evaluate an

applicant’s fitness or capacity to install screens and pigeon

spikes” (emphasis added). If the licensing requirement were

aimed at public health and safety and consumer protection, he

argues, the requirements would have included provisions

regarding non-pesticide techniques as well.

The government responds that “[l]icensure ensures that

structural pest control operators are educated about potential

health threats caused by vertebrate pests, including mice, rats,

and pigeons.” By requiring structural pest controllers to

obtain licenses, the state creates a framework to monitor them

and keep them accountable. Furthermore, requiring persons

who do not use pesticides to learn about the risks of pesticides

is rationally related to the government’s interest in public

safety because persons like Merrifield work in environments

where they may be exposed to pesticides that have been

applied previously and left on-site. Finally, the government

contends that structural pest controllers should be educated on

the various consumer options with respect to pest control, so

that they can advise their customers on the relative effective-

ness and flaws of different control techniques. The govern-

ment offers no evidence that pigeons have been covered in

prior examinations, but points out several aspects of the

examination covering skills and knowledge relevant to all per-

sons engaged in structural pest control.

[8] The merits of the government’s contentions are best

understood by reference to the sample examination itself.

With respect to the exam, a significant number of the ques-

tions on the examination are very relevant for persons like

Merrifield. Other questions on the examination address inver-

tebrate pests, or vertebrate pests that are not mice, rats, or

pigeons. But those questions are equally “irrelevant” to

pesticide-based pest controllers who specialize in targeting

mice, rats, and pigeons. The licensing statute does not fail

MERRIFIELD v. LOCKYER 12935

because it is not tailored to each precise specialization within

a field. “It is enough that there is an evil at hand for correc-

tion, and that it might be thought that the particular legislative

measure was a rational way to correct it.” Williamson v. Lee

Optical, 348 U.S. 483, 488 (1955).

Finally, many more questions do relate directly to Merri-

field’s line of work. For example, 12 questions discuss rats

and mice. Some other questions test the applicant’s ability to

recognize what pest is responsible for an infestation by

describing signs and asking the applicant which animal would

leave such marks. These questions are relevant. Even if the

answer is not “mice,” “rats,” or “pigeons,” a person specializ-

ing in mice, rats, or pigeons should be able to recognize what

traces such pests would not leave. In this way, many questions

that Merrifield discounts as irrelevant, perhaps based on the

fact that their correct answers are not “mice,” “rats,” or “pi-

geons,” in fact test knowledge relevant to all structural pest

control.

Furthermore, several questions address legal requirements

that apply to all persons engaged in structural pest control and

have no relation to the risks of pesticides or to any particular

animal.

[9] Having reviewed the examination questions, we con-

clude that Merrifield’s claims understate their relationship to

his line of work. All three licensing requirements have a con-

nection to competence in the field, and therefore satisfy ratio-

nal basis review. In other words, unlike in Craigmiles,

California has a legitimate public health interest in requiring

all structural pest controllers to obtain licenses. Therefore,

Merrifield’s challenge to the rationality of the licensing

requirement under due process must be rejected.

C

[10] Finally, Merrifield argues that the classification within

the statutory exemption has no rational basis and thus violates

12936 MERRIFIELD v. LOCKYER

equal protection. Section 8555(g) discriminates between non-

pesticide pest controllers of vertebrate animals such as “bats,

raccoons, skunks, and squirrels,” and non-pesticide pest con-

trollers of “mice, rats, or pigeons.” Only the former are

exempt from the licensing requirement. Merrifield argues that

this distinction, based upon the type of pest controlled, is irra-

tional.

1

[11] Under rational basis review, Merrifield’s claim must

be rejected as long as “there is any reasonably conceivable

state of facts that could provide a rational basis” for the chal-

lenged law. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313

(1993). The government is not required to substantiate its rea-

soning with facts. “In an equal protection case of this type . . .

those challenging the legislative judgment must convince the

court that the legislative facts on which the classification is

apparently based could not reasonably be conceived to be true

by the governmental decisionmaker.” Vance v. Bradley, 440

U.S. 93, 111 (1979) (emphasis added). “The State is not com-

pelled to verify logical assumptions with statistical evidence.”

Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812 (1976)

(emphasis added).

The Supreme Court has stated that “[l]egislatures may

implement their program step by step, in . . . economic areas,

adopting regulations that only partially ameliorate a perceived

evil and deferring complete elimination of the evil to future

regulations.” City of New Orleans v. Dukes, 427 U.S. 297,

303 (1976) (internal citation omitted). “States are accorded

wide latitude in the regulation of their local economies under

their police powers, and rational distinctions may be made

with substantially less than mathematical exactitude.” Id.

(emphasis added). Indeed, we must remember that “the judi-

ciary may not sit as a superlegislature to judge the wisdom or

desirability of legislative policy determinations made in areas

MERRIFIELD v. LOCKYER 12937

that neither affect fundamental rights nor proceed along sus-

pect lines.” Id.

In Dukes, the Supreme Court upheld an ordinance which

exempted pushcart owners who had been selling food for at

least 8 years from a general prohibition on pushcarts in the

French Quarter. Id. at 298-99. The Court determined that the

city had a legitimate interest in maintaining the charm of the

French Quarter and that limiting the number of pushcart ped-

dlers by only allowing those who were older, was rationally

related to that interest because the French Quarter’s older ped-

dlers were part of the charm and had more of an established

interest than newer ones. Id. at 304-05.

The Sixth Circuit’s equal protection analysis in Craigmiles

is also instructive. The court considered the history of the leg-

islation and held that the state had “specifically amend[ed]”

the legislation to include casket retailers. 312 F.3d at 227. The

court determined that this fact, the singling out of a particular

economic group, with no rational or logical reason for doing

so, was strong evidence of an economic animus with no rela-

tion to public health, morals or safety. Therefore, the court

concluded that the funeral director licensing scheme which

required casket sellers to obtain a license was unconstitutional

for failure to survive rational basis scrutiny. Id. at 227-29.

2

Here, the record reveals at least one conceivable purpose,

which the government’s expert, Eric Paulsen, discussed in his

testimony. Paulsen worked for the Pest Control Operators of

California (“PCOC”) from 1991 to 1997, for Mission City

Fumigation and California Heat from December 1997 to Sep-

tember 1998, and again for PCOC from September 1998

onward. These jobs gave him insights into the legislative his-

tory of section 8555(g), because he represented the PCOC at

meetings with legislators and Board members involved in

12938 MERRIFIELD v. LOCKYER

reforming the licensing requirements.13 Paulsen explained that

the California legislature decided to change its structural pest

licensing requirements after Assemblywoman Valerie Brown

received complaints from constituents who wanted to exter-

minate pests with “homemade concoctions” that fell within

the Branch II requirements but were not purchased as pesti-

cides. They sought “to have their own license that dealt with

their specialty.” However, Paulsen explained, the legislature

did not want to create “additional licensing categories” and

thus the question became whether to exempt persons who did

not use “dangerous pesticides.”14 Paulsen explained that the

PCOC opposed any licensing exemption, including with

respect to pigeons. “[O]ur position as the Pest Control Opera-

tors of California and my understanding [of] the Structural

Pest Control Board’s position was that the trapping and exclu-

sion of any of these birds [pigeons] really should [require] a

structural pest control license.” When asked about a limited

exemption based on the type of animal targeted, Paulsen

asserted that such a compromise, would “from the lay per-

son’s perspective . . . be irrational.”

13

Contrary to Merrifield’s suggestions, Paulsen did not express the

viewpoint of the government. Merrifield asked the district court to strike

much of Paulsen’s testimony on the grounds that Paulsen was not an

expert on the matters in question—a point the district court rejected due

to “Paulsen’s more than twenty years of experience in the field of struc-

tural pest control.” Merrifield v. Lockyer, 388 F. Supp. 2d 1051, 1063

(N.D. Cal. 2005). Paulsen certainly had the ability to testify to his personal

experiences with the legislature. However, the actual purpose of the legis-

lature did not matter for rational basis review. See FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 313 (1993). Thus the district court held

Paulsen’s statements about the legislative history to be “irrelevant to the

extent they relate to the actual purposes and motivations of the [Board]

and its members,” but “since the Court did not consider the statements for

this purpose, the Court declines to sustain [Merrifield’s] objections to the

statements in this regard.” Merrifield, 388 F. Supp. 2d at 1064 (emphasis

added).

14

The record corroborates Paulsen’s testimony regarding the impetus for

the bill.

MERRIFIELD v. LOCKYER 12939

Merrifield argues that Paulsen’s testimony should be read

to mean that any retention of the licensing requirement was

irrational. The text belies that assertion—Paulsen thought the

removal of the requirement could be viewed as irrational in

the sense that the exempted activities also posed health risks.

However, Paulsen explained at length that the compromise

could be justified on the grounds that mice, rats, and pigeons

are the most common structural pests, and in particular

“[p]igeons are the primary bird which is attacking structures.”

He also posited that the impact of non-pesticide based control

of such pests would be relatively greater insofar as non-

pesticide techniques would be the most common.

Indeed, Merrifield’s experts did not dispute the rationality

of maintaining a licensing requirement for persons engaged in

structural pest control without pesticides. Instead, they argued

that a separate category would be better, because “[t]he field

covered by the Branch [II] category is simply too large to be

covered by one examination.” The record itself reveals that,

as initially proposed, the legislation would have created a sep-

arate licensing category.

3

[12] Generally, the legislature’s decision to remove certain

licensing requirements that it no longer deems essential,

rather than create a new licensing category, is a rational and

quintessentially legislative decision. Despite the reasons given

by the government for the exemption, it does not logically fol-

low from the legislative assumptions that removing the licens-

ing requirement for non-pesticide control of less common

pests—especially those more commonly and effectively con-

trolled by pesticides—would pose a lesser risk to public wel-

fare. Indeed, those engaging in the non-pesticide control of

less common pests are more likely to encounter prior pesti-

cide use or are more likely to recommend that their clients use

pesticides rather than their services. In other words, those

12940 MERRIFIELD v. LOCKYER

exempted under the current scheme are more likely to be

exposed to pesticides than individuals like Merrifield.

The possibility that non-pesticide-using pest controllers

might interact with pesticides or will need the skill to suggest

pesticide use when it would be more effective is the very

rationale that government’s counsel proffered, and we relied

upon, in upholding the requirement that Merrifield obtain a

license under due process grounds. We cannot simultaneously

uphold the licensing requirement under due process based on

one rationale and then uphold Merrifield’s exclusion from the

exemption based on a completely contradictory rationale.

Needless to say, while a government need not provide a per-

fectly logically solution to regulatory problems, it cannot

hope to survive rational basis review by resorting to irratio-

nality.

[13] This case is deceptively similar to Dukes, where the

plaintiffs were prohibited from engaging in the same push-

carting business that others were allowed to engage in. Here,

Merrifield is engaged in the non-pesticide extermination of

pests and those who are exempt from the licensing require-

ment also engage in the same business. In Dukes, the City of

New Orleans drew a classification line based on when a per-

son began his or her pushcart business. Here, the line drawn

by the State is based on what kinds of pests the business

exterminates.

However, unlike in Dukes, there is not a legitimate interest

implicated by the classification. The Supreme Court in Dukes

held that the City of New Orleans was legitimately concerned

with maintaining the charm and beauty of the French Quarter

and the limitation of pushcarts was rationally related to fur-

thering that interest. Here, structural pest control implicates a

state’s health and public safety interest. The Court in Dukes

found that the line drawn was a rational way to balance the

city’s interest in preserving the French Quarter with the estab-

lished interest of older pushcart owners and the fact that some

MERRIFIELD v. LOCKYER 12941

pushcarts actually contributed to the French Quarter’s charm.

Here, however, when applying the state’s own rationale for

requiring pest controllers such as Merrifield to take the licens-

ing exam, the exemption scheme cannot be said to rest on a

rational basis. Therefore, we conclude that Dukes does not

require us to uphold the exemption scheme in this case.

Moreover, just as in Craigmiles, the licensing scheme in

this case specifically singles out pest controllers like Merri-

field 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.15

Although economic rights are at stake, we are not basing our

decision today on our personal approach to economics, but on

the Equal Protection Clause’s requirement that similarly situ-

ated persons must be treated equally. The Craigmiles court

said it best:

Our decision today is not a return to Lochner, by

which this court would elevate its economic theory

over that of legislative bodies. See Lochner v. New

York, 198 U.S. 45 (1905). No sophisticated eco-

15

We conclude that mere economic protectionism for the sake of eco-

nomic protectionism is irrational with respect to determining if a classifi-

cation survives rational basis review. In doing so, we agree with the Sixth

Circuit in Craigmiles and reject the Tenth Circuit’s reasoning in Powers

v. Harris, 379 F.3d 1208, 1218-19 (10th Cir. 2004). Powers rejected the

Sixth Circuit’s conclusion that economic protectionism for its own sake is

irrational. Id. We do not disagree that there might be instances when eco-

nomic protectionism might be related to a legitimate governmental interest

and survive rational basis review. However, economic protectionism for

its own sake, regardless of its relation to the common good, cannot be said

to be in furtherance of a legitimate governmental interest.

12942 MERRIFIELD v. LOCKYER

nomic analysis is required to see the pretextual

nature of the state’s proffered explanations for the

[ . . . ] amendment. We are not imposing our view

of a well-functioning market on the people of [this

state]. Instead, we invalidate only the [decisionmak-

ing body]’s naked attempt to raise a fortress protect-

ing [one subsection of an industry at the expense of

another similarly situated] . . . .

312 F.3d at 229.

[14] Here, the government has undercut its own rational

basis for the licensing scheme by excluding Merrifield from

the exemption. The exemption from the license is given to

those non-pesticide pest controllers who are most likely to

interact with pesticides. Additionally, the non-pesticide pest

controllers who are least likely to interact with pesticides

must remain part of the licensing scheme. Therefore, the

exemption scheme is not supported by a rational basis review.

[15] We conclude that the section 8555(g) license exemp-

tion to the extent it does “not include mice, rats, or pigeons”

is unconstitutional.

IV

For the foregoing reasons, summary judgment in favor of

the State on the exemption issue is reversed. The district

court, on remand, shall enter a judgment in favor of Merrifield

and shall enjoin the Board from denying him a Branch II

license to engage in his chosen profession.

AFFIRMED in part & REVERSED in part and

REMANDED. Costs are to be awarded to Appellant.

MERRIFIELD v. LOCKYER 12943

HAWKINS, Circuit Judge, concurring in part and dissenting

in part:

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, how-

ever, I think it rationally follows from this that the state may

determine which type of service providers should face a test-

ing or licensing requirement and which should not. See, e.g.,

City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (leg-

islatures may adopt regulations that “only partially ameliorate

a perceived evil”). I would affirm across the board.