MVMB v. Gray - Appellant's Reply Brief

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’ REPLY 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: [email protected]

Attorney for Appellants

ORAL ARGUMENT REQUESTED

-1-

TABLE OF CONTENTS

TABLE OF AUTHORITIES………………………………………….. 3

ARGUMENT…………………………………………………………… 35

I. U.S. And Missouri Courts Have Always Acknowledged

That Government’s Ability To Restrict Constitutional

Rights Via The Police Power Is Limited…………………… 5

II. This Case Requires The Court To Address The

Government’s Application Of A Specific, Existing Law,

Not A Hypothetical Alternative………………………..…… 5

A. Forbidding A Non-Veterinarian To Accept Payment

For Work They Could Do For Free Does Nothing To

Protect The Public Health And Safety………………….. 8

B. Enforcing This Law Against Non-Veterinarian Tooth

Floaters Would Diminish Horse Health, Not Improve

It. ………………………………………………………….. 9

C. The Existing Licensing Requirements Do Not Guarantee

That Veterinarians Have The Education, Experience,

Or Qualifications Necessary To Safely Float Horses’

Teeth. ……………………………………………………… 9

D. The Existing Licensing Requirements Do Not Ensure

That Those Offering To Float Horses’ Teeth For Hire

-2-

Will Have Liability Insurance Or Must Post A

Bond……………………………………………………….. 11

III. The Respondent’s Brief Is Replete With Misrepresentations

And Falsehoods……………………………………………..... 12

CONCLUSION………………………………………………………….. 22

APPELLANT’S RULE 84.06 STATEMENT AND

CERTIFICATE OF SERVICE………………………………………… 23

-3-

TABLE OF AUTHORITIES

CASES PAGE(S)

Cornwell v. Hamilton,

80 F.Supp 2d 1101 (S.D. Cal 1999)……………………………… 19-20

Gurley v. Missouri Bd. of Private Investigator Examiners,

361 S.W.3d 406 (Mo. banc 2012)……………………………….. 17-18

Marbury v. Madison,

5 U.S. 137 (1803)…………………………………………………. 5

Merrifield v. Lockyer,

547 F.3d 978 (9th

Cir. 2007)………………………………………. 22

Moler v. Whisman,

147 S.W. 985 (Mo. 1912)……..………………………………….. 8, 15-16

Mugler v. Kansas,

123 U.S. 623 (1887)……………………………………………… 5

Powers v. Harris,

379 F.3d 1208 (10th

Cir. 2004)…………………………………… 18-19

State ex rel. Kansas City v. Public Service Comm’n,

524 S.W.2d 855 (Mo. banc 1975)..………………………………. 6-7

State ex rel. Scott v. Roper¸

688 S.W.2d 757 (Mo. 1985)……………………………………… 17

-4-

STATUTES AND REGULATIONS

Revised Statutes of the State of Missouri, 1879.………………………….. 16

Chapter 340, RSMo.………………………………………………………. 11

Section 340.216.1(5), RSMo……………………………………………....

20 CSR 2270………………………………………………………………. 11

OTHER AUTHORITIES

Louis Adolph Merillat, Veterinary Surgery, Vol. 1, Daniels Co. Press,

Chicago, 1905……………………………………………………… 14

-5-

ARGUMENT

I. U.S. And Missouri Courts Have Always Acknowledged That

Government’s Ability To Restrict Constitutional Rights Via The Police

Power Is Limited.

From this nation’s earliest days the United States Supreme Court made clear that

courts have “a solemn duty” to safeguard citizens’ constitutional liberties against

government intrusion. “That the people have an original right to establish, for their future

government, such principles as, in their opinion, shall most conduce to their own

happiness, is the basis on which the whole American fabric has been erected.” Marbury

v. Madison, 5 U.S. 137, 176 (1803). If a constitutional provision may be disregarded at

the whim of the legislature “then written constitutions are absurd attempts, on the part of

the people, to limit a power, in its own nature illimitable.” Id. at 177. The U.S. Supreme

Court has rejected the notion that constitutional rights may be so easily set aside, holding

that if “a statute purporting to have been enacted to protect the public health, the public

morals, or the public safety, [has] no real or substantial relation to those objects, or is a

palpable invasion of rights secured by the fundamental law, it is the duty of the courts to

so adjudge, and thereby give effect to the Constitution.” Mugler v. Kansas, 123 U.S.

623, 661 (1887).

Missouri courts have long followed this rule. The Missouri Supreme Court has

held that although the Government may curtail individual liberty where necessary for true

exercises of the police power, that power is and must be limited if the Constitution is to

-6-

have any legitimacy. “[T]he police power is essential to the achievement of such

objective as protecting the health and safety of the public and… is as broad as need be to

achieve those objectives. At the same time… the police power is not so powerful that it

impairs [constitutional rights] where such impairment is not necessary to achievement of

the objective for which the power is being exercised.” State ex rel. Kansas City v. Public

Service Comm’n, 524 S.W.2d 855, 864 (Mo. banc 1975).

In State ex rel. Kansas City, the Public Service Commission had ordered work to

be done on certain viaducts and the Commission ordered the City of Kansas City to split

the costs of the repairs with the Kansas City Railway Terminal Company. The City

argued that the Commission’s order would violate the Missouri Constitution by

disregarding a contractual agreement under which the Terminal Company was

responsible for all such costs. The Commission responded that even if the contract at

issue was valid, the Commission’s order was an exercise of the state’s police power for

the protection of the public health and safety and was therefore sufficient to justify any

infringement upon the constitutional right to contract. The Missouri Supreme Court

disagreed with the Commission, determining that the Commission had not proven that the

question of who might pay for the work was substantially related to any legitimate health

or safety concerns. Id. at 861. The court held that although the police power allowed the

Commission to mandate how a particular public project should be pursued to advance the

public health and safety, the police power could only justify the infringement of a

constitutional right if the Government first showed that the impairment of that right was

“necessary to achievement of the objective for which the power is being exercised.” Id.

-7-

at 864. Thus, the police power of the state is limited and courts must preserve

constitutional rights unless the Government has demonstrated that the contested

restriction is necessary to achieve the objectives of the police power.

II. This Case Requires The Court To Address The Government’s Application

Of A Specific, Existing Law, Not A Hypothetical Alternative.

This case addresses the Government’s application of a specific, existing law to

specific, existing Missourian. In spite of this fact, the Government argued in its brief that

the Court should rule in its favor because some of the witnesses expressed the opinion

that it might be advisable for the Government to develop a different, purely hypothetical

licensing scheme specifically designed to address horse teeth floaters. Essentially, the

Government has invited the Court to issue an advisory opinion based on laws and

regulations that do not even exist. This is completely unsupported by any precedent.

The only question before the Court is whether it is rational for the Government to enforce

the existing law’s requirements against Brooke Gray, forcing her to take 3,400 hours’

worth of veterinary classes (an infinitesimally small percentage of which actually teach

horse teeth floating or equine dentistry), to incur massive student debt, and to pass the

exams necessary to obtain a veterinarian’s license– all so Gray can accept payment for

work she can already do for free.

For the following reasons, the Government’s application of the law to Brooke

Gray is not rational:

-8-

A. Forbidding A Non-Veterinarian To Accept Payment For Work They Could

Do For Free Does Nothing To Protect The Public Health And Safety.

Although the Government spent a significant part of its brief arguing that it had no

obligation to show that its regulations advance the public health and safety, it ultimately

did make a convoluted suggestion that the public health and safety would be imperiled if

the Government could not prohibit non-veterinarians from getting paid for work they

could otherwise do for free. The record, however, is devoid of any suggestion that

paying a non-veterinarian floater increases the likelihood that they might injure a horse.

To the contrary, both the testimony in this case and the Missouri Supreme Court’s

opinion in Moler v. Whisman¸ 147 S.W. 985 (Mo. 1912), suggest that a worker “who

receives compensation for his toil will take a deeper interest in his work[.]” Id. at 988.

It is also important to note that the law at issue in this case plainly allows non-

veterinarian horse teeth floaters to accept payment for their work – even without any

supervision from licensed veterinarians – if they are full-time employees of the horse’s

owner. Section 340.216.1(5), RSMo. The law imposes no other additional educational,

training, or competency requirements on non-veterinarians who might happen to be horse

owners’ full-time employees. It is inconceivable that the Government would allow

untrained, unsupervised, non-veterinarian full-time employees to accept payment for

floating horses’ teeth if there was, in fact, any genuine health or safety concern associated

with being compensated for this service. This restriction does not advance the public

health or safety in any way.

-9-

B. Enforcing This Law Against Non-Veterinarian Tooth Floaters Would

Diminish Horse Health, Not Improve It.

The Government argued that preventing non-veterinarian teeth floaters from being

paid to provide work they could do for free might somehow improve the quality of care

that horses receive; this assertion is contradicted by the evidence presented at trial. All of

the experts agreed that the cost of veterinary care is escalating and Dr. Messer testified

that many horse owners are finding it impossible to afford providing care for their

animals. Tr. at 304-07. Dr. Allen pointed out that if horse owners cannot afford dental

care for their animals, it would negatively impact horses’ health. Tr. at 480. The record

shows not only that non-veterinarians tend to do a better, more thorough job floating

horses’ teeth, Tr. at 449, but they generally do so more cheaply and conveniently than

licensed veterinarians. Because the evidence in this case shows that the Government’s

enforcement of the law against non-veterinarian teeth floaters would actually harm

horses’ health by lowering both the quality and quantity of their dental care, the

Government cannot argue that its enforcement of the policy is rationally related to

improving horses’ health.

C. The Existing Licensing Requirements Do Not Guarantee That Veterinarians

Have The Education, Experience, Or Qualifications Necessary To Safely

Float Horses’ Teeth.

The Government asserted that preventing non-veterinarian teeth floaters from

accepting payment for work they could otherwise lawfully provide will assure horse

owners that only those with the education, experience, or qualifications necessary to

-10-

safely float horses’ teeth will be able to offer their skills for hire. However, one of the

points upon which the veterinarian witnesses all agreed is that even after completing

3,400 hours of veterinary school and passing the necessary licensing exams, veterinarians

would not be competent to float horses’ teeth without additional training. A licensed

veterinarian could go her entire career (including satisfying every continuing education

requirement)1 without ever developing competence as a horse teeth floater – but if the

veterinarian ever cared to try her hand at it (and presuming she could find a horse owner

willing to entrust his animals to her) the law would nonetheless allow the horse owner to

pay the veterinarian for her efforts. Clearly, the fact that one holds a veterinary license in

no way indicates that such a person has the education, experience, or skills necessary to

safely float horses’ teeth. Indeed, one of the great ironies of this case is that the record

shows that Brooke Gray actually is a highly skilled floater who has demonstrated her

qualifications to and earned the respect of veterinarians and horse owners alike, yet the

Government’s action against her was prompted by a complaint from Dr. Leighr, a

veterinarian who happens to be the only identifiable person shown to have actually

injured horses and people (including himself) while attempting to float teeth. But Dr.

Leighr may lawfully offer his services for hire to Missouri’s horse owners, but Brooke

1 The Respondent urges that continuing education requirements are an important reason

why the Government must be allowed to require horse teeth floaters to become

veterinarians, but nothing in the law or regulations requires a veterinarian to take

continuing education classes related to floating horses’ teeth.

-11-

Gray is a criminal if she does the same without first becoming the horse owners’ full-

time employee.2 That is completely irrational.

D. The Existing Licensing Requirements Do Not Ensure That Those Offering To

Float Horses’ Teeth For Hire Will Have Liability Insurance Or Must Post A

Bond.

At one point in its brief the Government argued that its application of the law

against non-veterinarian tooth floaters assures horse owners that those offering to float

horses’ teeth for hire will have liability insurance or bonding. Resp. Br. at 20. But

nothing in Chapter 340, RSMo., or 20 CSR 2270 currently requires licensed veterinarians

to hold liability insurance or post a bond before they may lawfully accept compensation

for floating horses’ teeth, nor does the law impose such a requirement on non-

veterinarian full-time employees who might float the teeth of their employers’ horses.

Additionally, the record is devoid of any evidence suggesting that the absence of this sort

of requirement is harming or burdening horse owners in any way that might justify such a

governmental mandate. The Government’s argument is a solution in search of a problem.

2 Gray contends that, as is the case with business people of almost every stripe, the most

important people to whom she needs to demonstrate her qualifications are those people

who wish to have her help their horses. She also contends that the risk of losing

customers as a result of providing bad service is a more compelling motivation to do a

good job than a state-run disciplinary system that has allowed Dr. Leighr to continue

offering services even after injuring multiple horses and their owners.

-12-

III. The Respondent’s Brief Is Replete With Misrepresentations And

Falsehoods.

In its effort to manipulate the Court’s thinking on this case, the Respondent’s Brief

introduced several ideas that are not supported by the record. First, the Government

persistently attempted to suggest that one cannot float horses’ teeth according to the

professional definition of that term without engaging in other forms of equine dentistry.

Rather than using the phrase “floater,” as was done by all witnesses and parties

throughout this litigation, the Government hoped to confuse the Court by introducing the

phrase “non-veterinary equine dental practitioner,” which was never used by any of the

parties or witnesses prior to the Respondent’s Brief. The Government further tried to

imply that “floating” is a more comprehensive term than the record suggests by

selectively editing the professional definition offered by its own expert witness. Dr.

Galloway (as well as all the other veterinarian witnesses) stated that the professional

definition of teeth floating is limited to rasping sharp enamel points from cheek teeth, the

horse equivalent of human molars.3 Compare Resp. Br. at 1 with Tr. at 108-09. Dr.

3 The Government also fabricated the notion that floating teeth involves “cutting.” No

witness in the record ever described the process in this manner and the Government’s use

of that term implies something far more invasive and dangerous than the actual process,

which one of the Government’s own experts described as moving rasps or rotary burrs

across the surface of the molars, “almost like you’re filing wood with a wood rasp.” Tr. at

259.

-13-

Galloway explicitly testified that floating does not include work on canine teeth or

incisors. Tr. at 196. Furthermore, when at trial the Government attempted to suggest a

broader definition, Gray objected because (as the Government actually admitted) the

additional practices the Government wished to address went beyond the Appellant’s

conduct; the trial judge sustained Gray’s objection. Tr. at 132-34. This is a vitally

important point because the trial court did not find that Gray engaged in any unlawful

practice other than accepting payment for tooth floating.4 L.F. at 154. And yet the

Respondent’s brief repeatedly attempted to suggest that floating could not be

distinguished from other, more invasive – and more potentially dangerous – equine dental

practices.

Building on its attempt to conflate floating with other equine dental practices, the

Government’s brief also misconstrued Dr. Galloway’s testimony regarding the horses

known as Breeze, Colors, and Lady, incorrectly suggesting that these animals had

suffered injury due to tooth floating. Resp. Br. at 5. The evidence related to the horse

known as Breeze focused on excessive reduction of canine teeth and incisors, which (as

noted above) Dr. Galloway explicitly stated does not constitute tooth floating. Also, Dr.

Galloway did not testify that Colors and Lady were harmed by non-veterinarians floating

their teeth. He specifically testified that the person who had floated Colors’ teeth “did

4 Despite the Respondent’s strenuous efforts to prove otherwise, the trial court quite

pointedly did not find that Gray had improperly sedated horses.

-14-

not do the damage” and stated that Lady was suffering from a “long-standing… fungal

infection” the cause of which Dr. Galloway could not identify. Tr. at 156.

It is unclear why the Government claimed that it is “false” that neither of the

Government’s expert witnesses said they had ever personally seen injuries that had

resulted from floating. It that statement was false, the Government could have identified

testimony from one of its experts stating that they had personally seen injuries that had

resulted from floating. But, in fact, Dr. Galloway specifically stated that aside from Dr.

Leighr’s admission about injuring horses while attempting to float their teeth Dr.

Galloway could not name one specific example of a horse being injured as a result of

basic floating. Tr. at 190. When Dr. Galloway was asked, “Have you personally

encountered an injury caused by a non-veterinarian floating teeth,” his response was,

“Not in a non-veterinarian floating. A non-veterinarian trying to extract a tooth, I’ve

personally seen that. Personally seen misdiagnosis. So from the specific procedure of

floating, I don’t know. I can’t say specifically, no.” Tr. at 188.

The Appellant has made clear that she does not dispute that floating may be

considered a tiny twig on the giant tree of veterinary medicine, and neither does she

dispute that the twig may spring from a branch of that tree that encompasses veterinary

dentistry. But the record shows that for hundreds of years teeth floating has been

separated into its own niche practice, a point most clearly demonstrated by a century-old

veterinary textbook stating that non-veterinarians were called upon to float horses’ teeth

because veterinarians found it “beneath their dignity” to waste their time on “a trifling

-15-

accomplishment that the uneducated can master.” Veterinary Surgery, Vol. 1, by Louis

Adolph Merillat p. 16-17, Daniels Co. Press, Chicago, 1905. Indeed, Missouri has

regulated the practice of veterinary dentistry for more than one hundred years and non-

veterinarian floaters (and other non-veterinarian animal husbandry workers) have been

active in the state that entire time – yet this is the very first lawsuit in which the

Government has suggested that non-veterinarians may be prohibited from earning money

from their labor. It is completely disingenuous and ahistorical to suggest that tooth

floating cannot be considered a well-defined, limited niche profession.

Regarding Gray’s Gains of Industry Argument

Of all the misstatements the Government made about the Missouri Supreme

Court’s decision in Moler v. Whisman, 147 S.W. 985 (Mo. 1912), the most dramatic is

the idea that the law at issue in that case forced anyone to do work for free. To the

contrary, all would-be barbers were free to choose a different line of work or they could

even have avoided the statute’s restrictions by choosing to cut hair in municipalities with

fewer than 5,000 inhabitants. The law at issue in Moler stated that if someone desired to

cut hair in municipalities with more than 5,000 inhabitants they could only do so after

satisfying certain requirements and obtaining a license from the state, and the law forbade

anyone learning or teaching the trade to earn any money from the student’s work. Again,

it was entirely up to the individual to decide if they were willing to provide those

services.5

5 Compare this to the situation in State ex rel. Scott v. Roper¸ 688 S.W.2d 757 (Mo.

-16-

Although it is true that the Appellant’s circumstances in the instant case are

somewhat different from the plaintiffs in Moler – the plaintiffs in that case wanted to

become licensed barbers, while Gray has no interest in becoming a licensed veterinarian

– that factual distinction is irrelevant to the constitutional claim the Appellant is asserting.

Nothing in the text or history of the Gains of Industry clause suggests that it only protects

those who are attempting to follow state-established procedures for licensure in a given

occupation. In fact, this cannot be what the people of Missouri intended in adopting the

Gains of Industry clause, because at the time of its ratification the state legislature did not

require licensure for any profession other than the practice of law. See Revised Statutes

of the State of Missouri, 1879. The Gains of Industry clause anticipated that, left

unchecked, the government might try to deprive citizens of their right to earn money by

applying their skills in a lawful, useful trade, and, as is reflected by the Missouri Supreme

Court’s decision in Moler, the people of Missouri ratified the clause in order to prevent

the government from restricting that right unless the Government had shown that such a

restriction was necessary to protect the public health and safety.

The Respondent’s Brief also implies that a constitutional provision or court

precedent may lose its force if it is not commonly invoked or, in the alternative, that a

law or policy may be immune from a constitutional challenge simply by virtue of the fact

that it has been on the books for a long time. Resp. Br. at 12-13. This suggestion is made

1985), in which a judge relied on a state statute to issue an order forcing an attorney to

provide legal services to represent a client pro bono.

-17-

all the more curious in that the Government immediately discusses State ex rel. Scott v.

Roper¸ 688 S.W.2d 757 (Mo. 1985), in which the Missouri Supreme Court applied the

little-used Gains of Industry clause to invalidate a policy that dated “as far back as

Fifteenth-Century England and pre-Revolutionary America.” Id. at 762. The Missouri

Supreme Court’s decision in Roper demonstrates that if the facts of a case reveal that a

longstanding policy is inconsistent with the rights the people have preserved in their

constitution, it is the policy that must give way, not the constitution.

The Government also severely mischaracterized the Missouri Supreme Court’s

recent holding in Gurley v. Missouri Bd. of Private Investigator Examiners, 361 S.W.3d

406 (Mo. banc 2012). Although the Government depicted that case as a challenge to the

state’s authority to prohibit individuals from earning money for things they could

lawfully do for free, this was not at all the focus of the case. Gurley did not challenge the

Government’s power to create a licensing scheme for private investigators; he explicitly

conceded “both that the state may regulate private investigators’ businesses and that this

particular statute is constitutional as applied to private investigators.” Id. at 411. Thus,

the Missouri Supreme Court had no basis to address that question, nor did it have any

basis to address the Gains of Industry clause. The question before the Gurley court was

whether the First Amendment allowed the private investigators’ licensing scheme to be

applied against those not earning any money for their actions. The court concluded that

the statute was not intended to apply to those who were not being compensated, which is

why it ruled that the law was not overbroad. Id. at 413. That conclusion, along with any

-18-

other conclusion that might be drawn from Gurley, has no applicability whatsoever to the

instant case.

Regarding Gray’s Substantive Due Process Argument

The Government also severely misrepresented several of the cases cited in the

Appellant’s Brief. The Government claims that the cases in which federal courts struck

down state laws limiting the sale of caskets to licensed funeral professionals are not

relevant because those cases dealt with selling a product, not with practicing a licensed

occupation. But in fact the legislatures in each of those cases had made the determination

that selling caskets was the practice of a licensed occupation and should be limited to

persons who had fulfilled those states’ requirements for licensure. In each of those cases

the governments’ attorneys presented almost precisely the same justifications for their

laws that the Government has offered in this case, which is why it is so telling that almost

all of those courts rejected the governments’ arguments. In Powers v. Harris, 379 F.3d

1208 (10th

Cir. 2004), the one case that the Government (correctly) holds up as an

example of a court upholding a licensing requirement for casket sales, the court based its

outcome on the notion that state and local governments have a legitimate state interest in

“dishing out special economic benefits to certain in-state industries,” and suggesting that

this sort of practice is the equivalent of governments’ “national pastime.” Id. at 1221.

Although the Government’s application of the law in this case seems a perfect example of

the use of law to protect a powerful interest group from economic competition, the

Respondent has made no suggestion that this would constitute a “legitimate interest” that

-19-

might justify depriving Gray of her right to earn a living by floating horses’ teeth. Thus,

Powers is inapplicable to the instant case, while the courts’ reasoning in the other casket

sales cases is both on-point and persuasive.

The Respondent’s Brief acknowledges – as it must – that the African hair braiding

cases are even more closely analogous to the instant case. The Government then goes on

to try to distinguish Cornwell v. Hamilton, 80 F.Supp. 2d 1101 (S.D. Cal. 199), by

claiming that the court in that case ruled that African hair braiding “was not

cosmetology” and suggesting that this Court should not follow Cornwell because

Missouri law defines “veterinary dentistry” as “veterinary medicine.” Of course, the

Cornwell court came to exactly the opposite conclusion of what the Respondent’s Brief

suggested, stating: “The Court finds that the profession of natural hair care is a significant

and legitimate branch of cosmetology[.]” Id. at 1107 (emphasis added). The court ruled

that California could not require Cornwell to obtain a cosmetologist license because her

activities constituted such a tiny fraction of the broader field of cosmetology that the

state’s onerous licensing requirements could not rationally be applied to her:

“Assume the range of every possible hair care act to involve tasks A

through Z. From the Court’s perspective, Cornwell’s activities would cover

tasks A, B, and some of C. The State’s cosmetology program mandates

instruction in tasks B through Z. The overlap areas are B and part of C.

This minimal overlap is not sufficient to force Cornwell to attend a

cosmetology school in order to be exposed to D through Z, when she only

-20-

needs B and a portion of C. In sum, the Court finds that the Act as

implemented through regulations is irrational when applied to Dr.

Cornwell.” Id. at 1108.

This is precisely the situation before this Court in the instant case. Even though

the Government has defined “veterinary medicine” broadly enough to include Gray’s

profession, the vast, onerous licensing requirements are so disconnected from the limited

practice of teeth floating that all of the veterinarians who testified in this case stated that

even someone who has fulfilled those requirements will require additional training before

they would be competent to float horses’ teeth. The Cornwell decision is well-reasoned

and directly on point; this Court should find it persuasive and should rule that there is no

rational basis for requiring Gray to obtain a veterinarian’s license before she may

lawfully accept payment for work she may already perform for free.

Regarding the Appellant’s Equal Protection Argument

The Respondent’s Brief argued that in the absence of a formal policy establishing

that a law will be applied differently to different groups of people, courts are entirely

powerless to find an equal protection violation. The implication of the Government’s

argument can be explored by way of an analogy:

The Fraternal Order of Police sometimes gives out special bumper stickers to

citizens who donate to their charity. Imagine that the troopers in the Missouri Highway

Patrol decided amongst themselves that they would refrain from pursuing or ticketing any

-21-

driver who displays one of these bumper stickers. Anyone without one of those bumper

stickers would not receive any such leniency. One person ticketed for driving two miles

per hour over the speed limit challenges the way the Highway Patrol is selectively

enforcing the law, and the evidence in the case makes clear that the Highway Patrol is

aware of and routinely ignores bumper-stickered drivers moving at more dangerous

speeds – but there is no formal policy for the ticketed driver to target. Is there an equal

protection violation?

The Government argues that there is not. Even if it is clear that law enforcement

is turning a blind eye to violations committed by an identifiable group of people, and

even if the record shows that the behaviors being tolerated are more dangerous to the

public health and safety than the behaviors for which other drivers are being ticketed, the

Government contends that this sort of selective application of the law is a matter left to

the discretion of those tasked with enforcing it and therefore is beyond the Court’s

authority to review. But if this is correct, it would allow the Government to engage in an

enormous range of favoritism while evading any sort of judicial review. In a state and

nation that demand that laws treat citizens equally, this outcome is intolerable.

The record in this case shows that virtually everyone in the horse world is aware

that for centuries non-veterinarian farriers have been paid to provide services

significantly more dangerous to both horse and rider than the services provided by other

animal husbandry workers. Yet when the Veterinary Medical Board decided to take

action against animal husbandry workers, they ignored the ones who pose the greatest

-22-

legitimate threat to the public health and safety and instead targeted those whose services

pose very little threat to the public health and safety. Merrifield v. Lockyer, 547 F.3d 978

(9th

Cir. 2007), makes clear that in such a circumstance courts have the authority to forbid

the Government from continuing with such selective enforcement of the laws. The

Government may either take action to prevent non-veterinarian farriers from accepting

payment for their services, or it may return to the century-long status quo in which it did

not target animal husbandry workers at all, but it may not target those earning a living by

providing relatively harmless services while at the same time turning a blind eye to those

whose services pose a greater risk to the public health or safety.

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 Brooke Gray to obtain a veterinary

license before accepting payment for floating horses’ teeth.

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: [email protected]

Attorney for the Appellant

-23-

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 5,087 words, excluding those portions of the brief

listed in Rule 84.06(b) of the Missouri Rules of Civil Procedure (less than the 5,115 word

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: [email protected]

Attorney for the Appellant