Merrifield v. Lockyer ( 2008 )

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,
No. 05-16613
v.
D.C. No.
BILL LOCKYER, Attorney General,
CV-04-00498-MMC
Defendant,
and  ORDER
AMENDING
KELLI OKUMA, Registrar of the OPINION AND
California Structural Pest Control AMENDED
Board; GRETCHEN A. BRIGAMAN, OPINION
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

14673
14674 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
Amended October 22, 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 14677
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.
14678 MERRIFIELD v. LOCKYER
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.
ORDER
Appellants’ motion for clarification is GRANTED.
The opinion filed in this case on September 16, 2008, slip
op. at 12915, is amended as follows:
At slip op. at 12942, second to last paragraph, lines 4-5:
Delete “and shall enjoin the Board from denying him a
Branch II license to engage in his chosen profession”.
The petition for rehearing and rehearing en banc remains
pending. Subsequent petitions for rehearing will be enter-
tained.
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
MERRIFIELD v. LOCKYER 14679
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
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-
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.”
2
Submitting a bid to a public agency without a license qualifies as such
misdemeanor. Cal. Bus. & Prof. Code § 7028.15(a).
14680 MERRIFIELD v. LOCKYER
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.
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-
MERRIFIELD v. LOCKYER 14681
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
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
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).
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).
14682 MERRIFIELD v. LOCKYER
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
“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
MERRIFIELD v. LOCKYER 14683
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-
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.
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.
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).
14684 MERRIFIELD v. LOCKYER
[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-
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
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).
MERRIFIELD v. LOCKYER 14685
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.”
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
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)).
14686 MERRIFIELD v. LOCKYER
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).
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
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).
MERRIFIELD v. LOCKYER 14687
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
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-
14688 MERRIFIELD v. LOCKYER
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-
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
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.
MERRIFIELD v. LOCKYER 14689
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
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
11
Although not directly applicable, Craigmiles does have a helpful dis-
cussion regarding how, in either a due process or an equal protection anal-
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.
14690 MERRIFIELD v. LOCKYER
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.
§ 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-
MERRIFIELD v. LOCKYER 14691
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
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
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.
14692 MERRIFIELD v. LOCKYER
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
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
MERRIFIELD v. LOCKYER 14693
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
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.
14694 MERRIFIELD v. LOCKYER
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
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
MERRIFIELD v. LOCKYER 14695
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
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
14696 MERRIFIELD v. LOCKYER
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
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-
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).
MERRIFIELD v. LOCKYER 14697
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.”
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,
14
The record corroborates Paulsen’s testimony regarding the impetus for
the bill.
14698 MERRIFIELD v. LOCKYER
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
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 v. LOCKYER 14699
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
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
15
We conclude that mere economic protectionism for the sake of eco-
nomic protectionism is irrational with respect to determining if a classifi-
14700 MERRIFIELD v. LOCKYER
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-
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.
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.
MERRIFIELD v. LOCKYER 14701
[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 Merri-
field.
AFFIRMED in part & REVERSED in part and
REMANDED. Costs are to be awarded to Appellant.
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.