Positive Liberty

Here is the audio of my oral argument yesterday before the Ninth Circuit Court of Appeals in Merrifield v. Melton, a case I blogged about a while back, when it was in the trial court. And here is an editorial about it in today’s Daily Recorder (with a marvelous graphic!)

On behalf of the Pacific Legal Foundation, I represent Alan Merrifield and a business group called the California Nuisance Wildlife Control Operators Association. Their business is to keep vertebrate pests—everything from bats to birds to raccoons and squirrels—out of buildings, using non-pesticide methods. Instead, they use spikes or screens or traps, or other mechanical devices.

But the state of California has a law that requires these people to get what are essentially exterminator licenses. They’re required to spend two years learning how to handle pesticides, and then take a test that is almost entirely devoted to pesticides—pesticides they don’t use.

Worse, the license is only required if you deal with pigeons, rats, and mice—but not if you deal with any other kind of animal. So as I put it in the oral argument, if you put spikes on a building to keep pigeons off of it, you don’t need a license, but if you put the same spikes on the same building to keep seagulls off, you do.

Even more telling, the state’s expert witness testified under oath that the law was designed for simple protectionism. I describe that in some length on pp 35-36 of this law review article.

The oral argument was before Judges Hawkins, O’Scannlain, and Wardlaw, and I thought it went really well. It was in the beautiful Courtroom One of the Ninth Circuit’s building in San Francisco—which is one of the few buildings that survived the 1906 earthquake. It used to be the California Supreme Court, so it is overlaid with marble and statuary—they really knew how to make courtrooms back then. And, true to California’s history, Courtroom One still has a visible bullet hole from where a witness was shot to death on the stand in the 1910s.

The judges seemed to really know the case and understand the arguments well, particularly Wardlaw, who at one point asked a question that she could only have asked if she’d really read the papers in the case carefully. But my favorite part came when Judge O’Scannlain said (something to the effect of) “The state wins if they can give us a rational basis for the law, but we’re having a hard time finding one!”

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