MVMB v. Gray - Appellants' Brief by David Roland

WD75162

IN THE MISSOURI COURT OF APPEALS, WESTERN DISTRICT

MISSOURI VETERINARY MEDICAL BOARD, Petitioner-Respondent, v. BROOKE GRAY and B & B EQUINE DENTISTRY, Defendant-Appellant. ________________________________________________________________ APPEAL FROM THE FORTY-THIRD CIRCUIT COURT The Honorable Thomas Chapman, Judge ________________________________________________________________ APPELLANTS’ BRIEF ________________________________________________________________

DAVID E. ROLAND, MBE #60548 Freedom Center of Missouri 5938 De Giverville Ave. Saint Louis, MO 63112 Phone: 314-604-6621 Fax: 314-720-0989 Email: dave@mofreedom.org Attorney for Appellants

TABLE OF CONTENTS TABLE OF AUTHORITIES…………………………………………

INTRODUCTION AND SUMMARY………………………………..

JURISDICTIONAL STATEMENT………………………………….

STATEMENT OF FACTS……………………………………………

A. Animal Husbandry Workers and Veterinarians……………..

B. The Complaint and the Instant Case………………………….

C. Animal Husbandry Under Missouri Law…………………….

D. Evidence Shows that Non-Veterinarians Can Be Skilled Floaters………………………………………………………….

E. Regarding Veterinarians’ Education………………………….

F. The Veterinarian Witnesses’ Testimony………………………

G. Rising Costs of Ownership Endanger Horses…………………

H. Farriery: Similar to Floaters’ Work, But More Dangerous….

POINTS RELIED ON…………………………………………………

STANDARD OF REVIEW…………………………………………….

ARGUMENT……………………………………………………………

I. The Trial Court Erred In Ruling That The Government May Prohibit Brooke Gray From Accepting Compensation For Animal Husbandry Services She Could Otherwise Lawfully Provide, Because The Missouri Supreme Court Ruled In -1-

Moler v. Whisman, 147 S.W. 985 (Mo. 1912), That Although The Government May Impose Occupational Regulations Designed To Protect The Public Health And Safety, It May Not Arbitrarily Prohibit Citizens From Accepting Compensation For Services They Could Otherwise Lawfully Provide, In That Article I, Section 2, Of The Missouri Constitution Secures Citizens’ Right To Enjoy The Gains Of Their Own Industry………………………………………………....

II. The Trial Court Erred In Ruling That The Government May Deny Brooke Gray’s Right To Earn A Living By Receiving Payment For Floating Horses’ Teeth Because Such A Restriction Is Not Rationally Related To Any Legitimate State Interest In That The Evidence Showed That Floating Is Unlikely To Endanger Horses’ Health or Safety, The Requirements For Veterinary Licensure Are Onerous And Do Not Prepare One To Float Horses’ Teeth, And NonVeterinarian Floaters Promote Horses’ Well-Being By Providing Horse Owners With Better Quality, More Affordable Service Than Most Veterinarians.....…………………. III.

The Trial Court Erred In Holding That The Government

May Selectively Enforce Its Veterinary Laws Because The -2-

Government Has No Rational Basis For Taking Action Against Non-Veterinarian Teeth Floaters While Declining to Take Action Against Non-Veterinarian Farriers In That The Evidence Shows That The Work Done By Non-Veterinarian Farriers Is Significantly More Likely To Result in Harm To Horses and Humans Than Teeth Floating….……………………...

CONCLUSION………………………………………………………….

APPELLANT’S RULE 84.06 STATEMENT AND CERTIFICATE OF SERVICE…………………………………………

APPENDIX………………………………………………………………

A1-A17

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TABLE OF AUTHORITIES

CASES

PAGE(S)

Bd. of Regents v. Roth, 408 U.S. 564 (1972)……………………………………………...

Casket Royale, Inc. v. Mississippi, 124 F.Supp.2d 434 (2000)……………………………………….

City of St. Louis v. McCann, 57 S.W. 1016 (Mo. banc 1900)…………………………………..

Clayton v. Steinagel, 2012 WL 3242255 (D. Utah August 8, 2012)……………………

48, 52, 55

Cornwell v. Hamilton, 80 F.Supp 2d 1101 (S.D. Cal 1999)………………………………34, 48, 51-52, 55 Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)……………………………………….34, 47-50, 52-53 Estate of Overbey v. Chad Franklin National Auto Sales North, LLC, 361 S.W.3d 364 (Mo. banc 2012)…………………………………

Fisher v. State Highway Commission of Missouri, 948 S.W.2d 607 (Mo. banc 1997)…………………………………

38, 40

Great Rivers Habitat Alliance v. City of St. Peters, 2012 WL 3656292 (Mo. App. W.D. Aug. 28, 2012)……………... -4-

Habhab v. Hon, 536 F.3d 963 (8th Cir. 2008)……………………………………….

Heath v. Motion Picture Mach. Operators Union No. 170, 290 S.W.2d 152 (Mo. 1956)……………………………………….

Kansas City Premier Apartments v. Missouri Real Estate Commission, 344 S.W.3d 160 (Mo. banc 2011)………………………………...

38, 40

Massage Therapy Training Inst. v. Missouri State Bd. of Therapeutic Massage, 65 S.W.3d 601 (Mo. App. S.D. 2002)…………………………….

Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2007)……………………………………….

34, 47, 59-61

Moler v. Whisman, 147 S.W. 985 (Mo. 1912)……..………………………………….. passim Pearson v. Koster, 367 S.W.3d 36 (Mo. banc 2012)………………………………….

Richardson v. State Highway & Transp. Com’n, 863 S.W.2d 876 (Mo. banc 1993)…………………………………

StopAquila.org v. City of Peculiar, 208 S.W.3d 608 (Mo. banc 2007)………………………………..

St. Joseph Abbey v. Castille, 835 F.Supp.2d 149 (E.D. La. 2011)……………………………….

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48, 52-53

STATUTES Mo. Laws 1905 [H.B. 254]………………………………………………..

Section 340.200(28), RSMo………………………………………………. 14 Section 340.202, RSMo…………………………………………………… 16 Section 340.210, RSMo…………………………………………………… 16 Section 340.216, RSMo……………………………………………………20, 41, 57-58 Section 340.216.1(5), RSMo…………………………………………….... 21, 42 Section 340.228, RSMo. ………………………………………………….

Section 340.276, RSMo…………………………………………………...

9, 58

Section 340.294, RSMo. ………………………………………………….

18, 20, 21

CONSTITUTIONAL PROVISIONS Fourteenth Amendment to the U.S. Constitution…………………………

34, 46, 62

Article I, Section 2 of the Missouri Constitution…………………………

passim

Article I, Section 10 of the Missouri Constitution………………………..

34, 46, 62

Article V, Section 3 of the Missouri Constitution………………………...

OTHER AUTHORITIES Dirty Jobs with Mike Rowe, “The Goat is Mine,” Discovery Channel television Broadcast December 13, 2011……………………………………….. 21 Louis Adolph Merillat, Veterinary Surgery, Vol. I, Daniels Co. Press Chicago (1905)………………………………………………………..7, 11 Timothy Sandefur, The Right to Earn a Living: Economic Freedom and the Law, -6-

Cato Institute (2010)…………………………………………………… 38-39 Walter Gellhorn, The Abuse of Occupational Licensing, 44 U. Chi. L. Rev. 6, 11 (1976).……………………………………….

INTRODUCTION AND SUMMARY Domesticated horses commonly develop sharp enamel points on their teeth that, left untreated, can lacerate the horses’ cheeks and tongues, causing the animals great discomfort, hampering their performance, and potentially even shortening their lives. For hundreds of years humans have used tools to file down those sharp enamel points – a practice called “floating” the teeth – so the horses could be healthier and could better serve their owners. Even as veterinary medicine developed as a distinct field of specialization, veterinarians tended to leave many mundane tasks to non-veterinarian animal husbandry workers, such as branding and castrating cattle or putting horseshoes on horses. Specifically regarding teeth floating, an eminent veterinarian explained in 1905 that veterinarians typically avoided this kind of work, “not because it is difficult, tedious or dangerous,” but because it was considered “rather beneath the dignity of the learned veterinarian to float the teeth of horses” because that task was “a trifling accomplishment that the uneducated can master.” Veterinary Surgery, Vol. I by Louis Adolph Merillat p. 16-17, Daniels Co. Press, Chicago, 1905. Brooke Gray, the Appellant in this case, is a skilled horse teeth floater. Under current Missouri law, she (or any other person, regardless of education, experience, or -7-

skill) may lawfully do all the teeth floating she wants—just as long as no grateful horse owner gives her anything of value in appreciation for her work. Because she does not hold a veterinary license, it is a criminal offense for her to be compensated for any of her work with horses. Gray does not want to be a veterinarian, but she would like to earn a living by getting paid for work that she would otherwise lawfully be free to provide. The Government filed this action against Gray in order to prevent her from doing so; it contends that Gray may only accept payment for her work if she first attends and graduates from veterinary school, which could require an investment of more than one hundred thousand dollars and at least 3,400 classroom hours of education. The record shows that out of those 3,400 classroom hours in veterinary school, only one half-hour would directly address the practice of floating horses’ teeth. Thus, even if Gray had the time, financial resources, and desire necessary to attend veterinary school, the education she would receive would not significantly improve her ability to float horses’ teeth. Gray concedes that Missouri’s veterinary licensing laws may make perfect sense for those who wish to be veterinarians, but because floating horses’ teeth is such an infinitesimally small element of veterinary school Gray contends that it makes no sense whatsoever to require a horse teeth floater to become a veterinarian before they may accept payment for work that would otherwise already be lawful. As a result, she is arguing that by initiating this action against her the Government is applying those laws in a way that unconstitutionally (1) denies her right to enjoy the gains of her own industry by prohibiting her from accepting payment for work that is otherwise perfectly lawful, (2) -8-

creates an irrational restriction on to her right to earn a living in a traditional, relatively harmless profession, and (3) denies her the equal protection of the laws by selectively enforcing the laws against her and other animal husbandry workers while taking no action against non-veterinarian farriers who are being paid for animal husbandry work that the evidence shows is significantly more likely to endanger the health of both horses and humans. The Appellant respectfully asks this Court to recognize her constitutional rights and to protect them against the Government’s unconstitutional application of Missouri’s veterinary laws.

JURISDICTIONAL STATEMENT This is an appeal of a judgment of the Clinton County Circuit Court in favor of the Petitioner-Respondent, Missouri Veterinary Medical Board (“the Respondent,” “the Board,” “MVMB,” or “the Government”), against the Defendant-Appellant, Brooke Gray (“the Appellant,” or “Gray”), entered on December 21, 2011. The Respondent brought this action under Section 340.276, RSMo. Neither party to this case is presenting a question for which the Missouri Supreme Court is given exclusive appellate jurisdiction under Article V, section 3 of the Missouri Constitution.1 1

If the Appellant were seeking the invalidation of any statute (as the trial court

mistakenly concluded), direct appeal to the Missouri Supreme Court would have been proper. Because this appeal only asks whether the MVMB is constitutionally applying statutes that are facially valid, jurisdiction lies with this Court. Great Rivers Habitat -9-

STATEMENT OF FACTS A. Animal Husbandry Workers and Veterinarians Animal husbandry is a branch of agriculture concerned with the care and breeding of domesticated animals; it is one of the most ancient practices associated with human civilization. Non-veterinarians have been engaged in animal husbandry “probably since animals were kept.” Tr. at 313. When humans domesticated horses we discovered that, unlike human teeth, horses’ teeth continue to grow for most of their lives and they frequently develop sharp enamel points on their cheek teeth, which are the equine equivalent of human molars. Harris Depo. at 11. Left untreated, these sharp enamel points can cut or ulcerate a horse’s cheeks and tongue, causing the horse discomfort, inhibiting its ability to eat or perform for its owner, and even potentially leading to infections or other complications that could cause the horse’s death. Tr. at 429-31. For hundreds of years animal husbandry workers have used metal tools periodically to remove (or “float”) these sharp enamel points, thus allowing domesticated horses to live more comfortable, more productive, and longer lives. Tr. at 432. The well-established technical definition of teeth floating is: “rasping or removing sharp enamel points from the vestibular aspect [the cheek side] of the maxillary [upper] cheek teeth and the lingual aspect [the tongue side] of the mandibular [lower] cheek teeth.” Tr. at 96, 109, 243, 44647. The primary goal of floating is “to remove parts of the horse’s tooth that are injurious

Alliance v. City of St. Peters, 2012 WL 3656292, *13 (Mo. App. W.D. Aug. 28, 2012). -10-

to the horse and that would therefore interfere with its comfort, performance, and longevity.” Tr. at 462. The Missouri legislature began regulating the practice of veterinary medicine around 1905, and its first statutes did specifically restrict the practice of veterinary dentistry to licensed veterinarians.2 At that time, however, many veterinarians considered it “beneath their dignity” to float horses’ teeth.3 Tr. at 436. It has only been in recent years that equine teeth floating became a part of significant numbers of veterinary practices.4 Tr. at 437. Because veterinarians have not historically been inclined to take on relatively simple animal husbandry tasks such as teeth floating and horseshoeing, non-

See Mo. Laws 1905 [H.B. 254], pp. 209-212 – Medicine and Surgery: Veterinary

Surgery Act. (“AN ACT to regulate the practice of veterinary surgery, medicine and dentistry, create a veterinary examining board in the state of Missouri and prescribing a penalty for the violation thereof.”). 3

See Veterinary Surgery, Vol. I by Louis Adolph Merillat p. 16-17, Daniels Co. Press,

Chicago, 1905. (“The veterinarian consigns dental operations to others because it is rather beneath the dignity of the learned veterinarian to float the teeth of horses; not because it is difficult, tedious or dangerous, but because animal dentistry is regarded as a trifling accomplishment that the uneducated can master.”) 4

This expansion coincided with the development of power tools that made floating an

easier job. Tr. at 125-26, 260-62, 264, 481, 507. -11-

veterinarians have continued to provide these sorts of services in this state during the entire time that Missouri has regulated veterinary medicine and veterinary dentistry, and both in Missouri and nationwide many animal owners continue to trust non-veterinarians to help them care for their livestock. Defendant’s Exhibit 5 at 18, 20-22, Tr. at 444-45. Farriers, in particular, have been relatively open about the work that they do on horses’ lower legs and hooves, sometimes working in association with veterinarians, but frequently working without veterinary supervision. Tr. at 296, 299-300, 385-86, 477-78; see also Strain Depo. at 58-59. Non-veterinarians who want to learn to float horses’ teeth can do so by attending specialized schools such as the Academy of Equine Dentistry, where students are taught to identify oral conditions that might interfere with a horse’s comfort, performance and longevity, and to float the horses’ teeth in such a way that those conditions can be managed. Tr. at 422. The schools offer courses ranging from basic anatomy to the study of various types of dental overgrowths that can occur in a horse’s mouth, and the classes are taught by a combination of veterinarian and non-veterinarian equine dental specialists. Tr. at 423. Students at the Academy of Equine Dentistry get to practice on “forty or fifty horses at each session,” and these students’ instructors carefully observe and evaluate their work. Tr. at 448. At trial, the only witness who had extensively observed the teaching at the Academy of Equine Dentistry concluded that the school provides “very thorough knowledge and training in good basic dental floating which will help horses live longer by preventing more serious problems later on.” Tr. at 423-24. He -12-

also testified that after evaluating the work of a large number of non-veterinarian teeth floaters he found that their work tends to be noticeably more thorough than floating performed by licensed veterinarians. Tr. at 449-50. Research shows that many who deal with horses also consider non-veterinarians important sources of information about horses’ health as well as trusted caregivers for their animals. A U.S. Department of Agriculture study has shown that, nationwide, 77.4% of horse operations rate farriers as a “very important” or “somewhat important” source of information about equine health care. Def. Ex. 5 at 18; Tr. at 294-97. Nearly one-quarter of horse operations rate non-veterinarian equine dentists as a “very important” or “somewhat important” source of information about equine health care. Def. Ex. 5 at 18. Across the country, the vast majority of work done on horses’ hooves, including trimming, routine shoeing, and corrective shoeing, is done by farriers. Def. Ex. 5 at 20. Although most horse operations do not provide dental care for their animals, research shows that about 5% of all operations rely upon non-veterinarian equine dentists and “as the size of the operation increased, the percentage of operations where an equine dentist (nonveterinarian) provided primary dental care increased.” Def. Ex. 5 at 21 (showing that more than 20% of operations housing 20 or more horses relied upon nonveterinarian equine dentists). Of the various types of horse operations, those housing racehorses were most likely to provide dental care for their animals and racing operations were also more likely to rely on a non-veterinarian equine dentist to work on the animals’ teeth than they were to use a licensed veterinarian. Def. Ex. 5 at 22; Tr. at 445 (“[O]n the -13-

racetrack it is far more common to have a non-veterinarian doing the dental… floating, because you can see the results directly by winnings or lack thereof in the race horses”). Missouri’s statutes regulating the practice of veterinary medicine assumed their current form two decades ago, Tr. at 65-66, and the statutes now define “veterinary medicine” to include “diagnosing, treating, changing, alleviating, rectifying, curing or preventing any animal disease, deformity, defect, injury, or other physical or mental condition[.]” § 340.200(28). The wording of this definition is so broad that witnesses had difficulty identifying any interaction with an animal that would not fall under the definition. Tr. at 70-71, 311; Strain Deposition at 59-63. The Missouri Veterinary Medical Board is the regulatory agency responsible for supervising the practice of veterinary medicine and enforcing the state’s veterinary laws. § 340.210. Within the past ten years, the Board has begun telling non-veterinarian animal husbandry workers that they have been breaking the law, threatening these workers with criminal prosecution because they accept payment for providing Missouri’s animal owners such traditional services as castrating or dehorning cattle (see Defendant’s Exhibit 1), performing animal massage (see Defendant’s Exhibit 2), and floating horses’ teeth. Despite this recent trend of threatening traditional animal husbandry workers, the MVMB has never sent a similar letter or taken any sort of action against a nonveterinarian farrier. Tr. at 66, 303. This case represents the first time in Missouri history that the Government has asked a court to rule that a non-veterinarian animal husbandry -14-

worker is prohibited from accepting payment for services they could otherwise lawfully provide. Tr. at 65. B. The Complaint and the Instant Case Dr. David Leighr is a licensed Missouri veterinarian whose business address is 19615 Highway 92, Kearney, Missouri 64060. Tr. at 72-73. About forty percent of his practice involves working with horses, sometimes including equine dental services. Tr. at 73. Leighr charges $100 to float a horse’s teeth. Tr. at 86. At trial, Leighr admitted to having personally caused multiple injuries to horses while attempting to float their teeth. Tr. at 96-97, 99. Although several veterinarians testified in the course of this case, Dr. Leighr is the only identifiable person, veterinarian or non-veterinarian, that the record shows to have injured either a horse or another person while attempting to float teeth.5 Between 2004 and 2007 the American Association of Equine Practitioners and the Missouri Veterinary Medical Association expressed their opinion that it is not lawful for non-veterinarians to float horses’ teeth in Missouri and they instructed their members to “educate [their clients] about the illegalities of the work in the state of Missouri as well as some of the reasons you should use your veterinarian.” Tr. at 76. As a result, in September 2007 and again in January 2010 Dr. Leighr submitted a formal complaint to the Board regarding Brooke Gray, also offering the names of several other non-

Dr. Allen did testify to having seen “several” injuries to horses that resulted from simple

teeth floating, “most of them” caused by licensed veterinarians. Tr. at 473-74. -15-

veterinarians whom he suspected of being paid to float teeth in the state of Missouri. Tr. at 33, 94-95. Leighr admitted that he had no information suggesting that Gray or any of these other non-veterinarians had ever injured an animal. Tr. at 95. The Board is the regulatory agency responsible for supervising the practice of veterinary medicine and enforcing the stateâ&#x20AC;&#x2122;s veterinary laws. Â§ 340.210. It comprises five licensed veterinarian members, including the state veterinarian, and one nonveterinarian public member, all of whom are appointed by the governor. Â§ 340.202. The Board sometimes receives questions and complaints related to services that might be provided to animal owners. Tr. at 30-31, 41-45. Most of the questions the Board receives are presented by licensed veterinarians attempting to discern what constitutes the unauthorized practice of veterinary medicine. Tr. at 67. If a veterinarian complains that a non-veterinarian is engaging in the unauthorized practice of veterinary medicine, the Board may conduct an investigation and decide to take action against that person. Tr. at 36. Brooke Gray is one of thousands of experienced, non-veterinarian animal husbandry workers who sometimes provide assistance to Missouri citizens who own livestock; she is the owner and sole proprietor of an unincorporated business called B&B Equine Dentistry. L.F. at 153. Gray does not hold a license issued by the Missouri Veterinary Medical Board, nor has she licensed B&B Equine Dentistry as a veterinary facility. L.F. at 153. She has never claimed to be a veterinarian, nor does she wish to

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expend the effort, time, and resources required to become a veterinarian; Gray would simply like to use her skill as a horse teeth floater to help provide for her family. Two licensed veterinarians offered testimony on Gray’s behalf as part of this case. Dr. Sean Strain is the official veterinarian for the Kansas City Police Department’s Mounted Patrol, Strain Depo. at 6, and he has personal knowledge of Gray’s skills and her good reputation. Strain Depo. at 26-27. He testified that he is very confident in her abilities as a floater, Strain Depo. at 34, and that he would have no qualms about recommending her to a horse owner. Strain Depo. at 47-48. Dr. Cathy Harris, a licensed veterinarian with twenty-eight years’ worth of experience treating horses, Harris Depo. at 5, also testified on Gray’s behalf. Harris has had several opportunities to evaluate Gray’s work, and Harris described herself as being “impressed,” and stated that Harris’s clients have also been pleased with Gray’s work. Harris Depo. at 13-15. Harris developed such confidence in Gray that Harris entrusted her own horse to Gray’s care when the horse’s teeth needed floating. Harris Depo. at 32-33. One other witness made special note of Gray’s skill. Although the Government subpoenaed Sterling Silver in order to prove that Gray had broken the law, Silver compared Gray’s work against that provided by both veterinarians and other non-veterinarians and stated, “There wasn’t nobody as good as her.” Silver Depo. at 16. Silver and his wife also submitted a letter to the Board offering high praise for Gray’s work, stating that she “is exceptionally professional and thorough.” Defendant’s Ex. 4.

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When the Board received Leighr’s first complaint against Gray, it instructed the Executive Director issue a letter informing Gray of its determination that she could not lawfully accept payment for floating horses’ teeth, and threatening criminal prosecution if she did so. Tr. at 36; Plaintiff’s Ex. 7. When the Board received Leighr’s second complaint against Gray, it enlisted a private investigator to compile a report, then referred the matter to the Attorney General’s Office to initiate this legal action against Gray. Tr. at 44-45. On September 3, 2010, the Missouri Veterinary Medical Board filed a Petition in the Clinton County Circuit Court alleging that Brooke Gray had engaged in the unlawful practice of veterinary medicine because she accepted payment for floating horses’ teeth and asking the court to enjoin her from accepting such payment in the future. L.F. at 12. Gray initially denied that tooth floating constituted the practice of veterinary medicine, L.F. at 17, but prior to the trial she stipulated that floating horses’ teeth would constitute changing the horse’s physical condition. Tr. at 24. Because the Government had alleged that Gray had engaged in acts that, if proven, would constitute multiple Class A Misdemeanors,6 she exercised her Fifth Amendment right not to answer any of the Government’s allegations related to potentially criminal behavior. L.F. at 20-22. 6

“Any person who violates any provision of sections 340.200 to 340.330 shall, upon

conviction in a court of competent jurisdiction, be adjudged guilty of a class A misdemeanor for each offense. The unlawful practice of veterinary medicine shall be deemed a separate offense for each animal treated by any person engaged in such unlawful practice.” § 340.294. -18-

Nevertheless, Gray denied the Government’s assertion that tooth floating presents a substantial risk of harm to the health of animals and the interests of people in this state, L.F. at 17, and she asserted several constitutional affirmative defenses. Specifically, she claimed: (1) the constitutional principles of substantive due process will not permit the Government to deny a citizen’s right to earn a living in a common animal husbandry practice that poses no significant threat to the public health, safety or welfare, L.F. at 2224; (2) the Missouri Constitution secures citizens’ right to enjoy the gains of their own industry, which ensures that the Government may not arbitrarily deny citizens the ability to accept payment for services they could otherwise lawfully provide, L.F. at 25-26; and (3) the constitutional principle of equal protection of the laws prohibits the Government from selectively enforcing Missouri’s veterinary laws against one set of non-veterinarian animal husbandry workers while declining to act against non-veterinarian animal husbandry workers whose actions are far more likely to endanger the health, safety or welfare of Missourians and their livestock.7 L.F. at 29-30. Gray contended that the 7

Gray’s Affirmative Defenses also included a claim that the government may not apply

Missouri’s veterinary laws in such a way that would restrict her freedom to share truthful, non-misleading information, L.F. at 26-27, and a claim that principles of procedural due process prevent the government from applying these laws in such a way that citizens cannot know from one day to the next which animal husbandry services non-veterinarians may accept compensation for and which might result in criminal charges. L.F. at 27-29. Although the Petition specifically alleged that Gray had violated the law by having -19-

Government must prove the facts it had alleged and demanded a jury trial, which the trial court denied. L.F. at 3, 30. This matter was heard in Clinton County Circuit Court as a bench trial before Judge Thomas Chapman on September 26-27, 2011. L.F. at 6.

C. Animal Husbandry Under Missouri Law Under the current version of Chapter 340 an animal owner in this state may enlist any person to perform services such as horse teeth floating for their animals, regardless of that person’s training, experience, or skill. If the person serving the animals is a licensed veterinarian or if they are a full-time employee of the animal owner, they may accept payment for the services they provided. § 340.216. But even though it would be lawful for any other person to provide the work as long as they were not being paid, L.F. at 34, Missouri law makes it a Class A misdemeanor for the person who performs these tasks to receive “valuable consideration” from the animal’s owner unless the person performing the tasks either holds a veterinarian’s license or meets one of several exceptions,

“discussed equine dentistry and discussed the ‘floating’ procedure with reporter Dean Houghton,” L.F. at 12, the trial court held that the government had not sought to enjoin Gray’s speech and specifically stated that the injunction it was issuing would not restrain Gray’s speech. L.F. at 158. Thus, Gray’s Free Speech claim is not at issue in this appeal. The Appellant has also chosen not to argue her Procedural Due Process claim as part of this appeal. -20-

including if the person is a “full-time employee” of the animal’s owner.8 §340.294. The “full-time employee” exception explicitly allows such a person to “car[e] for or treat[] any animals belonging to [their employer], with or without the advice and consultation of a licensed veterinarian, provided that the ownership of the animal or animals is not transferred, or employment changed, to avoid the provisions of sections 340.200 to 340.330.”9 § 340.216.1(5). This exception contains no requirement that the employee have any training or experience, nor does the service they might provide for an animal need to have any connection to the purpose for which they are employed; the only limitation is that an employee meeting this exception is not permitted to give immunizations or provide treatments for diseases which are communicable to humans and which are of public health significance. §340.216.1(5). Thus, if an animal owner had the means and the inclination to hire a trusted non-veterinarian animal husbandry worker full-time, the law would allow the worker to accept payment for services such as floating 8

The government explicitly acknowledged in Paragraph 36 of its Reply to Defendants’

Affirmative Defenses that “the statute only gives the Board jurisdiction over compensated activity[.]” L.F. at 34. 9

Not all states restrict the purposes for which animal ownership may be transferred. See,

e.g., Dirty Jobs with Mike Rowe, “The Goat is Mine” (Discovery Channel television broadcast December 13, 2011), available at http://youtu.be/Hfk8fZzsd1s (transferring ownership of a goat so that television show host could lawfully perform acupuncture on the animal). -21-

horses’ teeth. If, on the other hand, the animal owner could not afford to hire that same worker full-time, the worker could still lawfully provide the requested service if they were willing to do so for free – but the law would make that same worker a criminal if they accepted anything of value for their service. §340.294.

D. Evidence Shows That Non-Veterinarians Can Be Skilled Floaters Regarding the presence and reduction of sharp enamel points on horses’ teeth, it is more likely that a horse will suffer negative effects from its teeth not being adequately floated than that a floater will injure the animal by removing too much enamel. Tr. at 475. Floating a horse’s teeth may entail a small risk of injury to the animal or to the floater (especially if the floater lacks experience), but such injuries are very uncommon.10 Tr. at 433-34, 475. “Very many” veterinarians respect the abilities of non-veterinarian floaters and will refer their own clients to these non-veterinarians when horses need their teeth floated.11 Tr. at 453; Strain Depo. at 11-12, 22, 47; Harris Depo. at 15-16. The 10

Most of the witnesses in this case were veterinarians with years’ worth of experience

dealing with horses’ teeth, and yet only two (Dr. Leighr and Dr. Allen) were personally aware of any specific injuries that had resulted from teeth floating; neither of the government’s expert witnesses said they had ever personally seen injuries that had resulted from floating. Tr. at 177, 189. 11

Veterinarians will also refer clients to non-veterinarian farriers when horses need their

hooves trimmed or shoed. Tr. at 477-78. -22-

record includes testimony from horse owners and licensed veterinarians who have personally evaluated teeth floating done by licensed veterinarians and floating done by more than one non-veterinarian floater, and have concluded that the work done by nonveterinarian floaters can be as good as – and in some cases can be better – than the work done by veterinarians. Tr. at 64, 503; Def. Ex. 4; see also Strain Depo. at 26-27.

E. Regarding Veterinarians’ Education To obtain a veterinarian’s license, one must graduate from an accredited school of veterinary medicine, complete a post-graduation veterinary candidacy program, and pass a national and a state exam. § 340.228; Tr. at 27. Dr. Nat Messer testified that even without counting the time required for undergraduate studies, veterinary school requires a student to spend roughly 3,400 hours in a classroom. Tr. at 277-81. At the University of Missouri’s veterinary school, only about one half-hour of the 3,400 required classroom hours classroom time is spent addressing the practice of floating horses’ teeth. Tr. at 277, 280-81. About ten to twelve percent of any given class at veterinary school chooses to focus on equine studies. Tr. at 281. One of these students might have the opportunity to float between ten and twenty horses’ teeth in the course of their four-year veterinary school career. Tr. at 281-82. Even students who specifically focus on equine practice in veterinary school would not be “proficient” at floating horses’ teeth when they left school. Tr. at 281-82. The consensus among the witnesses in this case is that veterinarians do not leave veterinary school prepared to float horses’ teeth without -23-

supervision.12 Dr. Messer testified that “students are in excess of a hundred thousands of dollars in debt when they graduate from veterinary school,” and that figure might be in addition to any student debt they might have carried over from undergraduate studies. Tr. at 303. It has only been in the past few years that veterinary schools started to place any emphasis on equine dentistry, Tr. at 437, and some veterinary schools have hired nonveterinarian floaters to help instruct their students. Tr. at 437-38. Dr. Tom Allen recently reviewed the curriculum at almost every accredited veterinary school in the United States, “looking for information on how many of them included equine dentistry as either required courses or optional courses for veterinary students.” Tr. at 453-54, 495-96. He discovered that most offered optional courses and only three or four veterinarian schools required students to be exposed to equine dentistry. Tr. at 454. When veterinarians want to develop their skill at floating teeth, they either attend continuing education courses that focus on equine dentistry, Tr. at 168-69, 270, or they may attend the same equine dental

See also Tr. at 427-28 (explaining that veterinary schools do not teach that certain

breeds of horse are more susceptible to specific types of injuries from enamel points, whereas this type of information is stressed at the Academy of Equine Dentistry); Strain Deposition at 39 (“[I]f you’re asking me do we get – as veterinarians, do we get adequate education in equine dentistry in school? No.”); Harris Deposition at 23 (describing minimal instruction on horse teeth floating in veterinary school). -24-

academies attended by non-veterinarian floaters. Tr. at 415-16, 434. Some veterinarians also learn from non-veterinarians teeth floaters in less formal settings. See Tr. at 488-89; Strain Deposition at 22.

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F. Regarding the Veterinarian Witnesses’ Testimony At trial the Government relied heavily on the testimony of two veterinarian experts, Dr. Stephen Galloway and Dr. Nat Messer. Dr. Stephen Galloway of Somerville, Tennessee, is an expert on the broad subject of equine dentistry. Tr. at 10506. Seventy-five percent of his personal veterinary practice is made up of equine dental work. Tr. at 104. While the Appellant did not challenge Galloway’s expertise regarding the field of equine dentistry, she asserted that his expertise did not necessarily extend to floating. Tr. at 105-06. Galloway acknowledged that “floating, if you define floating professionally, is one small procedure in the big universe” of veterinary dentistry. Tr. at 186. He has not done any independent research on tooth floating. Tr. at 187. He has not reviewed any specific academic literature regarding the veterinary standard of care for tooth floating. Tr. at 187-88. He has not seen and is not aware of any academic articles discussing injuries caused by non-veterinarian teeth floaters. Tr. at 188-89. Although Galloway claimed to have knowledge of some of the theories advanced by Dale Jeffrey, the founder of the Academy of Equine Dentistry at which many nonveterinarians learn how to float horses’ teeth, Tr. at 173, he offered no testimony as to whether he had personally reviewed the curriculum or teaching at the Academy of Equine Dentistry or any other school where non-veterinarians learn to float teeth. Galloway testified that in his career he has observed only one non-veterinarian performing “odontoplasty.”13 Tr. at 196-97. It was on the basis of that one observation that Dr. 13

Dr. Galloway testified that “odontoplasty” is not “strictly floating according to the -26-

Galloway concluded that non-veterinarians cannot float horses’ teeth without veterinary supervision. Tr. at 168. Galloway testified that the current veterinary standard of care for equine dentistry requires a veterinarian to conduct a full examination of a horse before performing any procedure on the horse’s mouth. Tr. at 112. He testified that only a licensed veterinarian is qualified to perform the sort of evaluations required by the veterinary standard of care relative to equine dentistry. Tr. at 114. He testified that it is possible for horses to be injured in the course of simple floating, particularly through the improper use of power tools. Tr. at 123-24. Although Galloway testified at one point that the use of power tools might increase the incidence of injuries occurring as a result of teeth floating, he admitted that his testimony was just an opinion and was not based on personal observation, any study or other empirical evidence. Tr. at 185-86. Despite the concerns he raised about the potential risks of teeth floating, Galloway testified that in the 15 years of his veterinary career prior to attending the trial he had never personally injured a horse in the course of floating its teeth. Tr. at 188. With the exception of the testimony that Dr. Leighr offered the morning of the trial about injuries Leighr himself had caused, Galloway said he was not personally aware of any other licensed veterinarian that had injured an animal while floating its teeth,14 Tr. at 177, 189, nor had Galloway ever encountered an injury caused by a non-veterinarian floating teeth. Tr. at 188. professional definition.” Tr. at 189-90. 14

Galloway testified that this was the first time he’d ever heard from someone who had -27-

The Government also relied on the testimony of Dr. Nat Messer, who has taught at the University of Missouri College of Veterinary Medicine for twenty-three years. Tr. at 235. Dr. Messer focuses his practice and teaching primarily on horses, including teaching equine dentistry, although he does not frequently see equine patients in need of dental work. Tr. at 244. He gave his opinion that it is possible for horses to suffer harm as a result of teeth floating, Tr. at 251, but he has not reviewed any studies regarding how common it might be for a horse to suffer an injury as a result of floating, Tr. at 312, and he did not testify as to having actually observed any such injuries. Messer has never personally evaluated the work of a non-veterinarian floater. Tr. at 293-94. He is not familiar with the opportunities that non-veterinarians have to learn about floating teeth, Tr. at 271-72, and although he knew of the existence of at least one academy at which non-veterinarians learn about teeth floating, he expressed no familiarity with what is taught there. Tr. at 273. Dr. Messer is not aware of any study that compares the skills of veterinarian floaters to those of non-veterinarian floaters. Tr. at 294. Although he initially testified that non-veterinarians can learn how to float teeth, Tr. at 275-76, toward the end of his testimony he suggested that non-veterinarians were not capable of engaging in a range of activities aside from removing sharp enamel points from horsesâ&#x20AC;&#x2122; teeth. Tr. at 273-74. He is not aware of any academic studies comparing the rate of

injured a horse while floating its teeth, although he also testified that he believed Dr. Leighr had been doing more than basic floating. Tr. at 190. -28-

injuries caused by veterinarian floaters to those caused by non-veterinarian floaters. Tr. at 312. The appellant relied on testimony from Dr. Tom Allen, a Missouri veterinarian with thirty-eight years’ experience and whose practice for the past thirteen years has entirely been dedicated to equine dentistry. Tr. at 412. He co-authored and edited a textbook on the topic, Manual of Equine Dentistry, Tr. at 418-19, which was cited at least seven times in the second edition of Baker and Easley’s Equine Dentistry, Tr. at 420-22, which is the authoritative text on the subject and was referenced by several witnesses over the course of the trial. Tr. at 87, 111, 312, 419.

As part of his equine dentistry

practice he sees and floats the teeth of “approximately 1,500” horses per year. Tr. at 490. Unlike the government’s witnesses, Dr. Allen has extensively and personally observed floating performed by both veterinarians and non-veterinarians, Tr. at 417-18; 422-24. Unlike the Government’s witnesses, he has personally observed the instruction at the Academy of Equine Dentistry in Glenns Ferry, Idaho, a school that teaches many nonveterinarians how to float horses’ teeth. Tr. at 415-16. Reflecting on his personal observation of the work done by non-veterinarian teeth floaters who had trained at equine dental academies, Dr. Allen expressed the opinion that the floating work of the nonveterinarians tends to be noticeably more thorough than floating performed by a veterinarian. Tr. at 449-50; see also Harris Depo. at 23. He also testified that veterinarians were more likely than non-veterinarians to injure horses when floating teeth. Tr. at 473-475; see also Strain Depo. at 21-22; Harris Depo. at 25-26. He stated -29-

that in his observation non-veterinarian floaters are likely to recognize the limits of their abilities and they “have no hesitation whatsoever” to refer horse owners to veterinarians when they identify a condition that needs care beyond simple floating. Tr. at 453; see also Strain Depo. at 47-48. G. Rising Costs of Horse Ownership Endanger Horses “[O]ne of the major problems facing the horse industry today” is that of the unwanted horse. Tr. at 305. The root of this problem is that, particularly in light of the recent economic downturn, horse owners are having difficulty paying for the care of their animals. Tr. at 305-06. About fifteen or twenty years ago respected veterinarian Dr. Jim Kauffman anticipated that eventually animal owners would no longer be able to afford veterinary medicine. Tr. at 307. Indeed, the cost of equipment, medical supplies, and other items veterinarians use (as well as the cost of veterinary education itself) continues to rise, and veterinarians pass those expenses on to their clients. Tr. at 306-07. Additionally, veterinarians continue to increase the “standard of care,” which (perhaps unnecessarily) increases the expense of veterinary services. Tr. at 457-58. The recent trend among veterinarians has been to require ever-more-extensive diagnostic practices as a prerequisite to even basic teeth floating, including the regular use of radiographs. Tr. at 126-27, 267-68, 458. These factors combined “are raising the bar expense-wise beyond the reach of the vast majority of horse owners, and therefore decreasing the well-being of the horse.”15 Tr. at 458, 479. 15

Dr. Allen testified that if he had insisted on taking pre- and post-extraction radiographs -30-

Dr. Leighr charges $100 per attempt to float horses’ teeth. Tr. at 86. Dr. Allen testified that he charges a minimum of $175 to float a horse’s teeth if he has to leave his facility in Patterson, Missouri. Tr. at 439. Dr. Galloway testified that he would not provide service at a horse owner’s farm for less than $130, and that price would not include an additional $40 expense for sedating the horse. Tr. at 182-83. Galloway also testified that due to an increasing emphasis on the use of x-rays in equine dentistry, he now recommends creating radiographs for at least one third of the horses he sees. Tr. at 127. Radiological exams “start in the $125 range” and some horse owners could spend “$500 or $600 shooting x-rays” for their horses. Tr. at 183-84. The cost of radiographs is added on top of any other expenses associated with a veterinarian’s services. Tr. at 183. In contrast to the fees charged by veterinarians, non-veterinarian floaters usually charge anywhere from $50 to $100 and provide service at the location where the horse is stabled. Tr. at 439. One other factor in the rising cost of veterinary care is the shortage of large animal veterinarians. Tr. at 505. Because some veterinarians have recognized that sedatives and power tools have made teeth floating a relatively easy way to make money, Tr. at 507, some veterinarians have threatened to withdraw all animal care from horse owners who as is recommended under the current veterinary standard of care, the cost of the services would have caused the vast majority of the horses’ owners to forego needed tooth extractions. Tr. at 479. By making the radiographs optional rather than mandatory, he “helped horses live longer, better lives.” Tr. at 479-80. -31-

prefer to have their horse’s teeth floated by a non-veterinarian.16 Tr. at 438-39, 506. In large portions of Missouri “equine practitioners are few and far between,” meaning that if a veterinarian refused to help a horse owner’s animals, the owner would face great increases in the cost of care for their horses because they would either have to transport the animals to another veterinarian’s practice or pay an additional fee for the new veterinarian to come to them. Tr. at 504-05. Some horse owners are so worried about losing the services of their veterinarian that they will have the veterinarian float the teeth of one or two of their horses while surreptitiously continuing to have “the vast majority” of their horses’ teeth floated by a non-veterinarian floater. Tr. at 506.

H. Farriery: Similar to Floaters’ Work, but More Dangerous Several of the witnesses offered testimony about the services offered by nonveterinarian farriers. Farriers have their own schools and trade associations. Tr. at 300; Harris Depo. at 27. Farriers tend to focus their work on horses’ hooves and lower legs, particularly trimming hooves and nailing metal shoes to those hooves, sometimes for corrective purposes. Defendant’s Ex. 5 at 20. Farriers also sometimes evaluate horses’ physical condition and make recommendations to veterinarians. Strain Depo. at 58-59. A USDA study revealed that more than seventy-seven percent of horse owners across the 16

Dr. Allen acknowledged that some veterinarians may honestly believe that they are

more capable of floating horses’ teeth than any non-veterinarian could be, but he believes that more are motivated by concern about losing potential sources of money. Tr. at 438. -32-

nation consider farriers to be either a “very important” or “somewhat important” source of information regarding equine health care decisions. Defendant’s Ex. 5 at 18. They do not usually work under the direct supervision of a veterinarian. Tr. at 300. Although the hoof itself is “dead tissue,” Tr. at 311, “the farrier is working a half inch from a vital artery which… if that’s injured is the end of the horse.” Tr. at 477. Veterinarians are not typically interested in displacing farriers from their niche because what farriers do is “an awful lot like work.” Tr. at 477. It is more common to see injuries as a result of farriers’ work than it is to see problems caused by a non-veterinarian teeth floater. Strain Depo. at 60. A mistake made by a farrier poses a greater overall threat to the health of a horse because an injury to the animal’s foot “is going to be the end of the… functional use of the horse.” Tr. at 479. Farriers’ work can also result in injuries severe enough that the injured horse has to be put down. Strain Depo. at 61. The MVMB has never taken any sort of action whatsoever against a non-veterinarian farrier. Tr. at 66.

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POINTS RELIED ON I.

The Trial Court Erred In Ruling That The Government May Prohibit Brooke Gray From Accepting Compensation For Animal Husbandry Services She Could Otherwise Lawfully Provide, Because The Missouri Supreme Court Ruled in Moler v. Whisman, 147 S.W. 985 (Mo. 1912), That Although The Government May Impose Occupational Regulations Designed To Protect The Public Health And Safety, It May Not Arbitrarily Prohibit Citizens From Accepting Compensation For Services They Could Otherwise Lawfully Provide, In That Article I, Section 2, Of The Missouri Constitution Secures Citizens’ Right To Enjoy The Gains Of Their Own Industry. Article I, Section 2 of the Missouri Constitution Moler v. Whisman, 147 S.W. 985 (Mo. 1912)

II.

The Trial Court Erred In Ruling That The Government May Deny Brooke Gray’s Right To Earn A Living By Receiving Payment For Floating Horses’ Teeth Because Such A Restriction Is Not Rationally Related To Any Legitimate State Interest In That The Evidence Showed That Floating Is Unlikely To Endanger Horses’ Health Or Safety, The Requirements For Veterinary Licensure Are Onerous And Do Not Prepare One To Float Horses’ Teeth, And Non-Veterinarian Floaters Promote Horses’ Well-Being -34-

By Providing Horse Owners With Better Quality, More Affordable Service Than Most Veterinarians. Fourteenth Amendment to the United States Constitution Article I, Section10 of the Missouri Constitution Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) Cornwell v. Hamilton, 80 F.Supp.2d 1101 (S.D. Cal 1999)

III.

The Trial Court Erred In Holding That The Government May Selectively Enforce Its Veterinary Laws Because The Government Has No Rational Basis For Taking Action Against Non-Veterinarian Teeth Floaters While Declining to Take Action Against Non-Veterinarian Farriers In That The Evidence Shows That The Work Done By Non-Veterinarian Farriers Is Significantly More Likely To Result In Harm To Horses And Humans Than The Work Done By Teeth Floaters. Fourteenth Amendment to the United States Constitution Article I, section 2 of the Missouri Constitution Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2007)

STANDARD OF REVIEW Appellate courts review constitutional challenges de novo. Estate of Overbey v. Chad Franklin National Auto Sales North, LLC, 361 S.W.3d 364, 372 (Mo. banc 2012). -35-

Appellate courts review a trial court’s interpretation of the Missouri Constitution de novo. StopAquila.org v. City of Peculiar, 208 S.W.3d 608, 611 (Mo. banc 2007). “Constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest.” Id. Appellate courts apply de novo review to questions of law decided in court-tried cases. Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012). “When presented with an issue of mixed questions of law and fact, a reviewing court will defer to the factual findings so long as they are supported by competent, substantial evidence, but will review de novo the application of the law to those facts.” Id.

ARGUMENT I.

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In ruling that the Government may enforce Missouri’s veterinary laws in a way that prevents citizens from accepting payment for lawful work, the trial court below erred in three significant ways. First, it failed to offer any explanation of or historical context for the right that the Gains of Industry clause is intended to protect. In place of such an explanation, the trial court incorrectly stated that “Article I, Section 2 of the Missouri Constitution has never been cited as the basis to upset the licensure requirement for paid, specialized services,” L.F. at 157, completely ignoring the Missouri Supreme Court’s decision in Moler v. Whisman, 147 S.W. 985 (Mo. 1912), which is addressed below. Second, the trial court suggested that the outcome of Gray’s Article I, Section 2, claim should be governed by the Missouri Supreme Court’s decision in City of St. Louis v. McCann, 57 S.W. 1016 (Mo. banc 1900), in which the court rejected an argument that taxes levied on the practice of an occupation denied workers the enjoyment of the gains of their industry. The Appellant has never suggested that Article I, Section 2, might prevent the Government from levying professional taxes; she is arguing that the Government may not prohibit a citizen from realizing any financial gains from doing lawful work. And finally, the trial court erroneously suggested that a claim under the Gains of Industry clause is subject to rational basis analysis, offering a perfunctory statement that it is rational for the Government to prohibit citizens from accepting payment for lawful work if the Government wants to ensure that people providing services are competent. The trial court cited Massage Therapy Training Institute v. Missouri State Bd. of Therapeutic Massage, 65 S.W.3d 601 (Mo. App. S.D. 2002), to -37-

support its statement regarding rational basis, although that case specifically declined to reach any constitutional issues and included no suggestion whatsoever that the Government has a legitimate interest in prohibiting citizens from accepting payment for lawful work. Furthermore, the Appellant has not discovered any case in which a Missouri appellate court has applied the rational basis test to a claim regarding the Gains of Industry clause. For these reasons, this Court should reject the trial court’s conclusion regarding Gray’s Gains of Industry affirmative defense.

The Text and Context of the Gains of Industry Clause “In order to assert our rights, acknowledge our duties, and proclaim the principles on which our government is founded, we declare: “That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.” Article I, Section 2 of the Missouri Constitution. The Missouri Constitution is fairly unique in the sense that its Bill of Rights establishes not only that all citizens enjoy a natural right to life, liberty, and the pursuit of happiness, but Article I, Section 2, also secures citizens’ natural right to “the enjoyment -38-

of the gains of their own industry.” The Missouri Supreme Court has previously addressed the origin and intention of this provision, in Fisher v. State Highway Commission of Missouri, 948 S.W.2d 607 (Mo. banc 1997), but because it did so incompletely it is important for this Court to have additional context in which to understand the meaning and proper application of this natural right. See Kansas City Premier Apartments v. Missouri Real Estate Commission, 344 S.W.3d 160, 174 fn. 6 (Mo. banc 2011) (Wolff, J., dissenting). This provision emerged as part of Missouri’s organic law in 1865, while there was a nationwide push by anti-slavery Republicans to ensure that the former slave states could not enact new laws that would prevent freed slaves from earning a living or owning property. See Fisher, 948 S.W.2d at 609; Timothy Sandefur, The Right to Earn a Living: Economic Freedom and the Law, 40 (2010). Although the condition of newly-freed slaves was the most immediate concern of those engaged in the debate about confirming a constitutional right to enjoy the gains of one’s own industry, the provision was intended to apply for the benefit of all citizens, just as the Equal Protection clauses of the Fourteenth Amendment and Article I, Section 2 of the Missouri Constitution are both intended to apply to all citizens and not just newly-freed slaves. Representative John Bingham, the author of the Fourteenth Amendment’s privileges or immunities clause, noted that proponents of that amendment intended establish constitutional protection for all citizens’ freedom “to work in an honest calling and… to be secure in the enjoyment of the fruits of your toil.” Id. at 41. Another representative argued that the Fourteenth -39-

Amendment should be passed in order to ensure that every person had a right “to carry on his own occupation, to secure the fruits of his own industry, and appropriate them as best suits himself, as long as it is a legitimate exercise of this right and not vicious in itself or against public policy, or morally wrong, or against the natural rights of others[.]” Id. The phrasing adopted by the Missouri Constitutional Convention of 1875 intentionally echoed the terminology used as part of those Congressional debates and was plainly intended to secure Missouri citizens’ fundamental right to earn a living. And, critically, this constitutional provision was adopted to secure this right against governmental interference, just as the other provisions in the Missouri Bill of Rights were designed to protect other fundamental individual rights against governmental interference. Courts must take care to ensure that Missourians’ constitutional right to enjoy the gains of their own industry is given its full effect, and to ensure that their interpretation of the Gains of Industry clause does not reduce it to “quaint 19th Century rhetoric.” Richardson v. State Highway & Transp. Com’n, 863 S.W.2d 876, 884 (Mo. banc 1993) (Holstein, J., concurring). To be sure, the Appellant does not contend that the existence of this right should prevent the legislature from requiring licensure for occupations that affect the public health or safety. To the contrary, the Appellant concedes that, like all other individual rights protected by the constitution, this right must give way where the Government shows that a restriction is necessary to protect the public health and safety. But Missourians included this natural right in their constitution to ensure that “a citizen’s -40-

right to pursue a business, calling, or profession is both a liberty and property right to be guarded as zealously as any other fundamental right.” Fisher, 948 S.W.2d at 613 (Holstein, C.J., dissenting in part and concurring in part). As Judge Wolff recently suggested, “an infringement on the right to pursue a lawful occupation should be evaluated by the same kind of heightened scrutiny that the United States Supreme Court applies to infringements on the right of free speech.” Kansas City Premier Apartments¸ 344 S.W.2d at 174 fn. 6 (Mo. banc 2011) (Wolff, J., dissenting). Thus, the Government may restrict this right, but it should (at a minimum) bear the burden of demonstrating why the challenged restriction is necessary to protect the public health and safety. This is, in fact, essentially how the Missouri Supreme Court has previously applied the Gains of Industry clause to a set of facts similar to those presented in this case.

The Government May Not Generally Prohibit Payment for Lawful Work In Moler v. Whisman, 147 S.W. 985 (Mo. 1912), the Missouri Supreme Court reviewed a challenge to an occupational licensing statute that forbade student barbers or their instructors to accept any compensation for services the students provided. The plaintiff in that case asserted that denying the students or instructors the ability to be paid for the services they provided amounted to an unconstitutional denial of their right to enjoy the gains of their industry; the Missouri Supreme Court agreed. The Moler Court upheld the occupational licensing statute as a whole, due to the Court’s conclusion that the barbering profession as a whole had been shown to have an “intimate relation to the -41-

public health[.]”17 Id. at 988. But the Court ruled that the Government could not prohibit citizens from accepting payment for services that the law otherwise allowed them to provide, noting that “[t]he learned attorney for defendants [had] not assigned any reason or called [their] attention to any fact even remotely indicating that the public health will be promoted, protected, or safeguarded” by that part of the law. Because the law’s defenders had failed to justify the restriction on the plaintiff’s right to accept payment for otherwise lawful labor—to enjoy the gains of their industry—the Court could not permit the prohibition to stand. Thus, if the facts of a case demonstrate that the Government has imposed a restriction on a citizen’s constitutionally-protected right to enjoy financial gain by providing services that would otherwise be lawful, the Government may prevail, but only if it shows that the restriction at issue promotes the public health and safety. But if, as in Moler, the record shows that the protection of the public health and safety is merely a “pretended purpose,” the courts have an obligation to preserve the citizens’ constitutional rights. Id. In the instant case, section 340.216.1 makes it “unlawful for any person not licensed as a veterinarian under the provisions of sections 340.200 to 340.330 to practice veterinary medicine or to do any act which requires knowledge of veterinary medicine for valuable consideration[.]” (emphasis added) Under this statute there is nothing 17

The Appellant in this case has always conceded that Missouri’s veterinary laws are

facially constitutional; this Court need not strike down any statute in order to rule in the Appellant’s favor. -42-

inherently unlawful about horse teeth floating or other similar animal husbandry practices—any non-veterinarian may lawfully engage in these acts as long as they are not compensated in exchange for them. See, contra, § 340.216.1(5) (“only a licensed veterinarian may immunize or treat an animal for diseases which are communicable to humans and which are of public health significance[.]”). Because the law permits citizens to apply their labor to these tasks only on the express condition that they not receive valuable consideration as a consequence of that labor, the Government’s application of the law denies non-veterinarian floaters such as the Appellant of “the enjoyment of the gains of their own industry” in precisely the way that the Missouri Supreme Court ruled unconstitutional in Moler. The Moler court also addressed in dicta the suggestion that the legislature should be permitted to justify its restrictions on payment for lawful services because if those providing the services were permitted to charge for their services they might “become active competitors of licensed barbers.” Id. at 989. The court decried such reasoning as “entirely un-American” because it would discourage thrift and industry among the nation’s citizens and would “close the door of opportunity” to those who deserve the opportunity to prove themselves. This awareness that members of a licensed profession might improperly seek the application of laws in such a way that they would block economic competition rather than protect the public health and safety was later explored and confirmed by Prof. Walter Gellhorn, who observed that established professionals eagerly request the creation of new licensing schemes, claiming they are necessary to -43-

“protect the uninformed public against incompetence or dishonesty” when their real motive is “that members of the licensed group become protected against [] newcomers” and competition. Walter Gellhorn, The Abuse of Occupational Licensing, 44 U. Chi. L. Rev. 6, 11 (1976).

The Record In This Case Does Not Justify Prohibiting Payment for Lawful Services The question then becomes whether the evidence shows that such a restriction is likely to protect the public health and safety. Because Missouri law does not prevent anyone from floating horses’ teeth as long as they do the work for free, the pertinent question is whether the record shows that the public safety would be endangered if a nonveterinarian gets paid for doing this work. Moler specifically addressed this issue, pointing out that “the simplest application of the laws of reason and common sense demonstrates that [one] who receives compensation for his toil will take a deeper interest in his work and learn those things he needs to know… than if he were required to work without pay, hence that part of the law under consideration cannot even be said to promote the public health, which is the pretended purpose for which it was enacted.” Id. at 988. The record in the instant case supports this conclusion from Moler, in that the only testimony that addressed this question was Dr. Allen’s statement that a floater’s ability or performance would not be related to whether or not they were getting paid. Tr. at 476-77. Having failed to show that human health or safety would be endangered if non-veterinarians get paid for work they could otherwise lawfully perform, the evidence -44-

does not support the idea that prohibiting the Appellant from accepting payment for lawful work tends to advance the public health or safety in any way. Consequently, this Court should rule that the Government’s enforcing such a prohibition would unconstitutionally deny Gray and other similarly-situated animal husbandry workers the enjoyment of the gains of their own industry. The Government may argue that citizens’ constitutional rights may also be restricted in order to protect the health and safety of animals. The Appellant is not aware of any Missouri case that supports this idea. Furthermore, Article I, Section 2 of the Missouri Constitution plainly identifies the security of citizens’ rights as “the principal office of government.” Thus, the Government cannot plausibly claim that the constitution allows it to set aside citizens’ fundamental rights based on the mere possibility that an animal might be harmed – if the courts endorsed such an argument, the Government would be empowered to prohibit hunting, horseracing, rodeo, and even raising animals to kill them for food. But even if this Court should determine that concerns about the health and safety of animals might justify the restriction of citizens’ fundamental rights, the record in this case contains no evidence that the health or safety of animals is likely to be affected by whether or not a non-veterinarian is paid for animal husbandry services the non-veterinarian may lawfully provide for free. To the contrary, allowing Gray and other non-veterinarian animal husbandry workers to accept payment for their services seems more likely to increase the supply of quality, affordable animal care and thereby raise the overall health of Missouri’s livestock. -45-

And, finally, insofar as any of the Government’s arguments might hinge on the idea that teeth floating has the potential to injure either horses or humans, the only specific evidence in the record showing a horse or human being injured due to simple teeth floating came from Dr. Leighr – the veterinarian whose effort to eliminate nonveterinarian competition prompted this case – in which he stated that both he and his clients had been injured while he attempted to float horses’ teeth. Tr. at 96-97. Further, the Government offered no research indicating that humans are likely to be injured by simple teeth floating, and the Board’s executive director testified that the Board has never even considered that question. Tr. at 66. Although the witnesses in this case all agreed that it is possible for horses to suffer injury as a result of teeth floating, this risk is so slight that only two of the witnesses in this case, Dr. Leighr and Dr. Allen, testified that they had ever personally observed an injury caused by simple teeth floating and the Government offered no research suggesting that such injuries occur with any frequency. If the Government is permitted to justify deny citizens’ right to earn money by performing an otherwise lawful task simply because there is a mere possibility that the lawful task might at some point result in an injury to a person or an animal, the constitutional right to enjoy the gains of one’s industry would lose any discernible meaning or usefulness. This Court must not allow such an outcome; it should reverse the trial court’s decision and reaffirm Moler’s conclusion that the Gains of Industry clause protects citizen’s rights to accept payment for an otherwise lawful task unless the Government has shown that such payment endangers the public health or safety. -46-

II.

prohibit governments from depriving “any person of life, liberty, or property without due process of law.”18 The U.S. Supreme Court has repeatedly held that the liberty component of the Due Process Clause “denotes not merely freedom from bodily restraint but also the right of the individual to contract [and] to engage in any of the common occupations of life[.]” Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923); see also Habhab v. Hon, 536 F.3d 963, 968 (8th

Missouri courts do not differentiate between due process claims brought under the

Fourteenth Amendment and those brought under Article I, section 10, of the Missouri Constitution. -47-

Cir. 2008) (Fourteenth Amendment protects the liberty to pursue a chosen calling or occupation); Heath v. Motion Picture Mach. Operators Union No. 170, 290 S.W.2d 152, 157 (Mo. 1956) (Fourteenth Amendment protects an individual’s right “to earn a livelihood at any common occupation”). The right to earn a living is, of course, limited by the Government’s power to protect citizens’ health and safety, and courts grant extraordinary deference to laws that are challenged under the rational basis test. See Craigmiles v. Giles, 312 F.3d 220, 22324 (6th Cir. 2002). But beneath all that deference so frequently recited in rational basis cases is the fact that our constitutional system has never given government free rein to impose arbitrary or unreasonable restrictions on a person’s ability to earn a living in a common profession. Where the government attempts to impose restrictions on who may practice a lawful occupation, those restrictions must be rationally related to legitimate government interests. Id. at 224.

Properly Applying the Rational Basis Test Although courts routinely defer to government restrictions on citizens’ economic liberties, a growing list of federal courts has recently applied the principles of substantive due process and/or equal protection to strike down state occupational regulations because the evidence showed that the restrictions imposed on citizens could not be considered rationally related to any legitimate government interests. See Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2007) (applying equal protection principles to strike down irrational -48-

application of pest control regulations); Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) (applying equal protection and due process principles to strike down irrational requirement that casket sellers must be licensed funeral directors); Clayton v. Steinagel, 2012 WL 3242255, (D. Utah August 8, 2012) (applying due process principles to strike down irrational requirement that African–style hairbraiders must obtain cosmetology license before earning a living in their profession); St. Joseph Abbey v. Castille, 835 F.Supp.2d 149 (E.D. La. 2011) (applying due process principles to strike down irrational requirement that casket-makers must be licensed funeral directors); Casket Royale, Inc. v. Mississippi, 124 F.Supp.2d 434 (2000) (applying due process principles to strike down irrational requirement that casket-makers must be licensed by the Board of Funeral Service Licensing); Cornwell v. Hamilton, 80 F.Supp.2d 1101 (S.D. Cal 1999) (applying due process principles to strike down irrational requirement that African-style hairbraiders must obtain cosmetology license before earning a living in their profession). These cases have demonstrated that the rational basis test should not be seen as a mere rubber stamp for any restriction the government might impose on citizens’ right to earn a living. This case presents facts very similar to those found in each of these cases; this Court should find the reasoning these federal courts applied persuasive and follow their lead by ruling that the Missouri government has no rational basis for requiring the Appellant to endure 3,400 hours of veterinary school – only one half-hour of which directly addresses her chosen profession – before she may earn a living by doing work she may already lawfully do for free. -49-

Licensing Requirements Must Reasonably Relate to Government’s Asserted Interest In Craigmiles v. Giles, the state of Tennessee was enforcing a law that prohibited citizens from earning a living selling caskets unless they first became licensed funeral directors. The government asserted that this requirement was related to two interests: (1) protecting vulnerable consumers and ensuring competency in the funeral services profession, and (2) protecting the public health, safety, and welfare. Craigmiles, 312 F.3d 220, 225 (6th Cir. 2002). The trial court acknowledged that each of these were legitimate governmental interests, but held that requiring one to become a licensed funeral director before they could lawfully sell caskets was not rationally related to either of these objectives. Assessing the state’s asserted interest in protecting the public health, safety, and welfare, Sixth Circuit refused to take the Tennessee government’s assertion at face value, but rather it considered whether the evidence supported the government’s claims. The court pointed out that although there was some evidence suggesting that the quality of caskets could potentially impacts the public health, Tennessee law allowed anyone who wished to build a casket and it did not require any particular type of casket (or any casket at all) for burial. Id. The court also noted that no evidence suggested that licensed funeral directors tended to sell safer caskets than those sold by unlicensed retailers, even if the caskets sold by the funeral directors “were systematically more expensive.” Id. at 226. Thus, the court concluded, even if casket selection could generally be said to have -50-

an effect on public health and safety, the restriction at issue in Craigmiles (one must become a licensed funeral director before one could lawfully sell a casket) was not rationally related to the government’s alleged concern. Id. The Sixth Circuit then addressed the government’s asserted interest in ensuring consumer protection against unscrupulous or dishonest casket salespersons. The government stressed that funeral directors were closely regulated and that the licensure requirement allowed the government to impose discipline on those in the industry, but the court noted that even without restricting casket sales to licensed funeral directors laws existed to prevent fraud or other misconduct. Id. The court determined that, far from protecting consumers, the most obvious effect of the statute at issue in that case was to limit competition and to “harm[] consumers in their pocketbooks.” Id. at 228. Addressing the state’s asserted interest in consumer protection, the court stated that there was no evidence that the disciplinary procedures available to punish unethical licensees resulted in better customer service, and it observed that the licensing restrictions actually hurt consumers by making funeral services much more expensive. The trial court left Tennessee’s regulatory scheme for the funeral industry in place, but held that the state could not constitutionally apply its laws to prevent persons other than funeral directors from selling caskets and urns. On appeal, the Sixth Circuit reviewed similar arguments and affirmed the trial court’s ruling that the licensing requirement was an unconstitutional restriction on the right to earn a living.

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Another similar case, Cornwell v. Hamilton, 80 F.Supp.2d 1101 (S.D. Cal 1999), considered a California law that prohibited citizens from earning a living by performing African-style hairbraiding unless they first became licensed cosmetologists. The government in that case argued that the licensing requirement was related to the government’s interest in protecting the health and safety of its citizens, and the court agreed that this was a legitimate government interest. Id. at 1107. But the government also asserted other interests, including an interest in regulating the conduct of professions, and ensuring that those engaged in cosmetology had demonstrated competence and fitness to enter the profession, Id. at 1106, and the court was not persuaded that these interests could be considered “legitimate,” particularly when compared to the very limited scope of the occupation in which the hairbraiders wished to engage. Id. The court acknowledged that the government had defined the practice of cosmetology broadly enough to encompass African-style hairbraiding, but found that natural hair care was a clearly defined and limited subdivision of the practice of cosmetology. Id. at 1107-08. The question before the court in Cornwell, then, was whether the educational requirements for a cosmetology license were sufficiently related to the more limited practice of natural hair care that it could be considered “rational” to require someone who only wanted to braid to become a cosmetologist first. California’s cosmetology law required applicants to undergo 1600 hours of training before they were eligible for licensure, but “just over six percent” of the training materials were relevant to African-style hairbraiding. Id. at 1111. The government had -52-

argued that cosmetology students interested in braiding had the option of taking a specialized course of study that might advance their career objectives, but the court noted that this would only increase the overall time and expense required for a braider to meet the licensing requirementsâ&#x20AC;&#x201D;it would not make the normal coursework more relevant to the braider. Id. at 1112. Addressing the fact that cosmetology schools do teach some sanitation and hygiene, the court found that those courses comprised only four percent of the hours required for the completion of cosmetology school. Id. at 1103 fn. 6. In sum, the court held that requiring African hairbraiders to spend incredible amounts of time and money to obtain a cosmetology license that was (at best) marginally applicable to their chosen profession of African hairbraiding simply could not be considered rationally connected to the governmentâ&#x20AC;&#x2122;s interest in protecting the public health and safety. Id. at 1118-19. The court left the broad cosmetology licensing framework undisturbed and it specified that its order would not protect anyone whose practices went beyond hairbraiding, but it ruled that the state could not constitutionally require citizens to obtain cosmetology licenses if they only wanted to pursue the limited occupation of hairbraiding. Id. at 1119.

Veterinary Education Not Significantly Related to Floating Horsesâ&#x20AC;&#x2122; Teeth The courts in Craigmiles , St. Joseph Abbey, Cornwell, and Clayton each found that the occupational licensing laws at issue imposed enormous educational requirements that were not significantly related to the very limited professions in which the challengers -53-

wished to engage. Just as the casket dealers in Craigmiles and St. Joseph Abbey did not want to be funeral directors, and just as the hairbraiders in Cornwell and Clayton did not want to be cosmetologists, Brooke Gray does not want to be a veterinarian. To the contrary, she only wants to earn a living for her family by floating horses’ teeth, a traditional animal husbandry task with a clearly defined, commonly accepted, and limited scope. In order to lawfully accept payment as a horse teeth floater, however, Missouri law requires Gray to graduate from veterinary school, which could require an investment of more than one hundred thousand dollars and a commitment to at least 3,400 classroom hours of education. The record shows that out of all of those thousands of classroom hours required for veterinary school, only three hours are devoted to equine dentistry— and only one half-hour of classroom time would deal with floating horses’ teeth. Thus, only the tiniest fraction of the education that the Government requires would directly relate to the profession in which Gray wishes to earn a living, and the expert witnesses in this case all agreed that students do not leave veterinary school competent to float horses’ teeth. If this Court is going to rule in the Government’s favor, it must explain why it might be rational for the Government to impose this extraordinary requirement on a citizen before they may accept payment for a task they can already lawfully do for free— especially when the record shows that the required education will not train them in their chosen profession.

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Government Interests Proposed By the Trial Court The trial court below suggested three government interests that might be served by the Government’s requirement that Gray must successfully complete 3,400 hours of veterinary classes before she can accept payment for teeth floating services she may already lawfully provide free of charge: (1) Ensuring that persons practicing certain professions are competent and accountable, L.F. at 175; (2) assuring that persons who accept compensation for professional services have the training, qualification, and accountability to do so, L.F. at 175; and (3) promoting sound animal husbandry. L.F. at 175. Even under the forgiving standards of the rational basis test it is not sufficient for a court to simply determine that the government might have an interest in a particular end—that interest must be “legitimate” and there must be a rational relationship between that interest and the restriction the government has placed on the practice of a profession. Gray does not in any way concede the legitimacy of the interests that the trial court identified as potential justifications for requiring her to attend veterinary school before she may earn money as a teeth floater, but it may be easier to simply point out that both the evidence and common sense defy the notion that the interests asserted by the trial court are served by requiring someone who wants to earn a living floating horses’ teeth to undertake a vastly arduous and expensive education… that will not teach them the skill they intend to use.

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It is important to clarify that, very similar to the relationship between African hairbraiding and cosmetology in Cornwall and Clayton, the record in this case shows that floating horses’ teeth is a distinct, niche profession that has been practiced by nonveterinarians for hundreds of years, largely because veterinarians considered such work “beneath their dignity.” Teeth floaters have established their own academies where students spend weeks focusing entirely on building the knowledge and skills applicable to their craft, and Dr. Allen, the one expert witness in this case who has carefully evaluated both the education provided at one of these academies and the work of many of its nonveterinarian graduates, stated that these non-veterinarians tend to be better floaters than most veterinarians. Tr. at 449-50. By contrast, the record shows that veterinary school does not tend to prepare one to float horses’ teeth without first obtaining additional training elsewhere. Tr. 241-281-82, 427-28. The courts in Cornwell and Clayton recognized that even if African-style hairbraiding could be classified as a sub-genre of cosmetology, it could not be considered rational to force someone who only wanted to braid hair to attend (and pay for) 1,600 hours’ worth of classes, most of which were utterly unrelated to the braider’s chosen field. See Cornwell 80 F.Supp.2d at 1110 (finding irrational an education requirement in which only ten percent of curriculum related to citizen’s chosen profession); Clayton 2012 WL 3242255 at *4-5 (finding irrational an education requirement in which a maximum of twenty percent of the curriculum could be considered “minimally relevant” to citizens’ chosen profession). When it comes to floating horses’ teeth, Gray does not -56-

dispute that her profession could be thought of as a tiny twig on the giant tree of veterinary medicine, but the distinction between the two is apparent in the fact that veterinary school does not really teach one to float horses’ teeth. Again, out of 3,400 hours’ worth of veterinary school classes, only one half-hour—just a tiny fraction of one percent of the total educational requirement—is devoted to the single skill with which the floater desires to earn a living. Because horse teeth floating is such a vanishingly insignificant part of what one learns in veterinary school, it is completely bizarre and irrational for the Government to suggest that requiring a would-be floater to attend veterinary school will somehow ensure that the floater will be competent in their chosen profession. The trial court’s second asserted interest was that of ensuring that persons who accept compensation for professional services have the training, qualification, and accountability to do so. There is nothing in the record suggesting that this is a matter of legitimate governmental concern. To the contrary, the record shows that horse owners are well aware of the distinctions between veterinarian horse teeth floaters and nonveterinarian horse teeth floaters, and that a significant number of these horse owners simply prefer the services of non-veterinarians. Even if this interest were assumed to be legitimate, the testimony in this case showed that non-veterinarian floaters tended to provide horse owners with a higher overall quality of service, greater flexibility and convenience, and a lower cost for their services – yet these are the very persons the current system prohibits from providing paid services! -57-

The third government interest asserted by the trial court was that of “promoting sound animal husbandry.” Although this phrase is somewhat ambiguous, it appears from the context that the trial court was suggesting a legitimate state interest in promoting animal health. The Appellant does not concede that promoting animal health is a government interest that would warrant the restriction of citizens’ constitutional rights, but even if it were a legitimate government interest the record in this case demonstrates that the restriction at issue is more likely to harm animal health. The Government’s own expert witness testified that the cost of veterinary care has been rapidly increasing for years, and that veterinarians’ ever-increasing “standard of care” (which now includes the regular use of radiographs) is making it impossible for some animal owners to provide needed services for their horses. Tr. at 305-307. By making it economically impossible for skilled non-veterinarian animal husbandry providers to assist Missouri’s animal owners, a smaller and smaller subset of wealthy owners may end up providing their animals with the best possible care, but the average person will find veterinary care too expensive for them to manage, reducing the quantity of care they can provide their animals. This Court cannot consider it “rational” for the Government to insist on a policy that its own expert has testified is likely to cause the opposite of its intended effect. Accordingly, this Court should find that Government may not constitutionally apply Section 340.216.1 to prevent non-veterinarian horse teeth floaters from earning a living by accepting payment for services that would otherwise be lawful.

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III.

The Trial Court Erred In Holding That The Government May Selectively Enforce Its Veterinary Laws Because The Government Has No Rational Basis For Taking Action Against Non-Veterinarian Teeth Floaters While Declining to Take Action Against Non-Veterinarian Farriers In That The Evidence Shows That The Work Done By Non-Veterinarian Farriers Is Significantly More Likely To Result In Harm To Horses And Humans Than The Work Done By Teeth Floaters. The Appellant asserts that the Government’s application of sections 340.216.1 and

340.276 denies her the equal protection of the law guaranteed by the Fourteenth Amendment and Article I, section 2, of the Missouri Constitution. The record in this case shows that in the past few years the Government has established a pattern of threatening criminal prosecution against non-veterinarians who might be getting paid to provide a range of traditional animal husbandry services ranging from floating horses’ teeth to castrating cattle, all while the Government has taken no action whatsoever against nonveterinarian farriers. The record shows that work done by farriers is very similar to that done by teeth floaters in that each group addresses their efforts to a very limited aspect of the equine body; floaters remove sharp enamel points from teeth, while farriers deal with horses’ hooves and lower legs. Each group has its own schools at which nonveterinarians learn how best to improve the comfort, performance, and longevity of horses. And each group provides horse owners with needed services that, historically, veterinarians were not inclined (and perhaps ill-prepared) to supply. -59-

Farriers are distinct from floaters in that they are a more visible presence in the horse community, but also because (as of yet) veterinarians have shown little interest in taking over the tasks that farriers perform. As Dr. Allen described it, what farriers do may not interest veterinarians because “it’s an awful lot like work” and veterinarians are “too smart to want to pick up a horse’s foot.” Tr. at 477-78. The record also shows that farriers are more likely than horse teeth floaters to injure the horses they work on, and that the consequences of an injury caused by a farrier are more likely to have dire (or even fatal) consequences for the horse. And, for the purposes of Gray’s equal protection claim, the most important difference between these two groups is that the Government is making an effort to prevent floaters from accepting payment for their work, while it has not taken any action whatsoever against any farriers. Gray contends that there is no rational basis for the Government’s failure to treat farriers in the same manner it is treating non-veterinarian floaters. In an equal protection case such as this one, which does not include a suspect class or classification, a court’s responsibility is to evaluate whether the facts on which a classification is apparently based “could reasonably be conceived to be true by the governmental decisionmaker.” Merrifield, 547 F.3d at 989. The state is not required “to verify logical assumptions with statistical evidence… and rational distinctions may be made with substantially less than mathematical exactitude.” Id. (emphasis in original). However, “while a government need not provide a perfectly logical solution to regulatory

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problems, it cannot hope to survive rational basis review by resorting to irrationality.” Id. at 991. (emphasis in original). In Merrifield, the Ninth Circuit evaluated California’s laws regulating pest control professionals, which required pest controllers to be educated in the use and handling of pesticides even if the pest controllers were never going to use pesticides. The plaintiff included a claim that the law’s requirement denied him his right to earn a living under the Due Process clause, asserting that there was no rational basis for requiring someone who would not use pesticides to be trained in the use of those chemicals. The Ninth Circuit rejected the Due Process claim on the grounds that pest controllers who did not themselves use pesticides might still encounter places where pesticides had been used; the Court deemed it rational for the legislature to assume that training in pesticide use could lessen a potential threat to the public health or safety. Id. at 988. But the statute at issue in Merrifield also exempted from the licensure requirement “persons engaged in the live capture and removal or exclusion of vertebrate pests, bees, or wasps from a structure without the use of pesticides.” Id. at 981-82. The statutory definition of “vertebrate pests” included “bats, raccoons, skunks, and squirrels” but did not include “mice, rats, or pigeons[.]” Id. at 982. The plaintiff’s business focused on the pesticide-free removal or exclusion of rodents and pigeons, and he contended that there was no rational basis for turning a blind eye to one group of non-pesticide using pest controllers while denying a similar exemption to the plaintiff. The Court agreed with the plaintiff and ruled that the Equal Protection Clause would not permit the government to -61-

make such a distinction. The governmentâ&#x20AC;&#x2122;s policy could not be considered rational because the evidence showed that the exempted subset of non-pesticide-using pest controllers were, in fact, more likely than the plaintiff to find themselves in a situation that endangered health or safety. Id. at 991. In other words, the court held that the government could not argue on the one hand that the pest controller licensing scheme was necessary for the protection of the public health and safety, then on the other hand exempt from licensure a subset of workers that were shown to be engaging in more dangerous practices. The record in this case shows that non-veterinarian farriers openly provide services within the definition of â&#x20AC;&#x153;veterinary medicineâ&#x20AC;? for compensation and that the services they provide are more likely to cause harm to horses than the services provided by non-veterinarian horse teeth floaters, and yet the Respondent has not threatened any farriers with legal action. This distinction is informal, but the evidence shows that (in no small part because veterinarians do not want to do the work that farriers do) the Veterinary Medical Board is not interested in preventing farriers from engaging in the unlicensed practice of veterinary medicine. This selective application of the law is not rationally related to any legitimate interest the Government might assert, and it is therefore incompatible with the Equal Protection guarantees of the U.S. and Missouri Constitutions.

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CONCLUSION For all of the reasons above, this Court should reverse the trial court’s judgment and should rule that the government may not require a citizen to obtain a veterinary license before accepting payment for floating horses’ teeth because: (1) Missourians’ natural right to enjoy the gains of their industry, secured by Article I, Section 2 of the Missouri Constitution, ensures that as long as the Government has not shown that the public health or safety is put at risk, citizens must be allowed to accept payment for doing work that would otherwise be lawful; (2) the Due Process clauses of the Fourteenth Amendment and Article I, Section 10 of the Missouri Constitution secure citizens’ right to earn a living in a traditional profession and the veterinary licensure requirement at issue in this case is not rationally related to any of the legitimate interests asserted by the Government; and (3) the Equal Protection clauses of the Fourteenth Amendment and Article I, Section 2 of the Missouri Constitution prohibits the Government from acting against non-veterinarian horse teeth floaters while taking no similar action against nonveterinarian farriers. Respectfully submitted, _/s/ David Roland ______________ David E. Roland, MBE #60548 Freedom Center of Missouri 5938 De Giverville Ave. St. Louis, Missouri 63112 Telephone: (314) 604-6621 Facsimile: (314) 720-0989 Email: dave@mofreedom.org Attorney for the Appellant -63-

RULE 84.06(c) CERTIFICATION AND CERTIFICATE OF SERVICE I hereby certify that this brief complies with the type-volume limitation of Rule 84.06(b) of the Missouri Rules of Civil Procedure. This brief was prepared in Microsoft Word 2007 and contains no more than 14,576 words, excluding those portions of the brief listed in Rule 84.06(b) of the Missouri Rules of Civil Procedure (less than the 15,500 limit in the rules). The font is Times New Roman, double-spacing, 13-point type.

I hereby certify that I electronically filed the foregoing with the Clerk of the Missouri Court of Appeals, Western District, by using the Electronic Filing System, and that a copy will be served by the Electronic Filing System upon those parties indicated by the Electronic Filing System and that the following parties shall be served a copy hereof by first class mail on the date the foregoing document was filed with the Clerk: None.

Respectfully submitted, __/s/ David Roland _____________ David E. Roland, MBE #60548 Freedom Center of Missouri 5938 De Giverville Ave. St. Louis, Missouri 63112 Telephone: (314) 604-6621 Facsimile: (314) 720-0989 Email: dave@mofreedom.org Attorney for the Appellant

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