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: [email protected]
Attorney for Appellants
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TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………… 4
INTRODUCTION AND SUMMARY……………………………….. 7
JURISDICTIONAL STATEMENT…………………………………. 9
STATEMENT OF FACTS…………………………………………… 10
A. Animal Husbandry Workers and Veterinarians…………….. 10
B. The Complaint and the Instant Case…………………………. 15
C. Animal Husbandry Under Missouri Law……………………. 20
D. Evidence Shows that Non-Veterinarians Can Be Skilled
Floaters…………………………………………………………. 22
E. Regarding Veterinarians’ Education…………………………. 23
F. The Veterinarian Witnesses’ Testimony……………………… 25
G. Rising Costs of Ownership Endanger Horses………………… 29
H. Farriery: Similar to Floaters’ Work, But More Dangerous…. 31
POINTS RELIED ON………………………………………………… 33
STANDARD OF REVIEW……………………………………………. 34
ARGUMENT…………………………………………………………… 35
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
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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……………………………………………….... 35
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 By
Providing Horse Owners With Better Quality, More
Affordable Service Than Most Veterinarians.....…………………. 46
III. The Trial Court Erred In Holding That The Government
May Selectively Enforce Its Veterinary Laws Because The
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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….……………………... 58
CONCLUSION…………………………………………………………. 62
APPELLANT’S RULE 84.06 STATEMENT AND
CERTIFICATE OF SERVICE………………………………………… 63
APPENDIX……………………………………………………………… A1-A17
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TABLE OF AUTHORITIES
CASES PAGE(S)
Bd. of Regents v. Roth,
408 U.S. 564 (1972)……………………………………………... 46
Casket Royale, Inc. v. Mississippi,
124 F.Supp.2d 434 (2000)………………………………………. 48
City of St. Louis v. McCann,
57 S.W. 1016 (Mo. banc 1900)………………………………….. 36
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)………………………………… 34
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)……………... 9
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Habhab v. Hon,
536 F.3d 963 (8th Cir. 2008)………………………………………. 46
Heath v. Motion Picture Mach. Operators Union No. 170,
290 S.W.2d 152 (Mo. 1956)………………………………………. 47
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)……………………………. 36
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)…………………………………. 35
Richardson v. State Highway & Transp. Com’n,
863 S.W.2d 876 (Mo. banc 1993)………………………………… 39
StopAquila.org v. City of Peculiar,
208 S.W.3d 608 (Mo. banc 2007)……………………………….. 35
St. Joseph Abbey v. Castille,
835 F.Supp.2d 149 (E.D. La. 2011)………………………………. 48, 52-53
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STATUTES
Mo. Laws 1905 [H.B. 254]……………………………………………….. 11
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. …………………………………………………. 23
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………………………... 9
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,
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Cato Institute (2010)…………………………………………………… 38-39
Walter Gellhorn, The Abuse of Occupational Licensing,
44 U. Chi. L. Rev. 6, 11 (1976).………………………………………. 43
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
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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)
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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
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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, 446-
47. 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).
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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-
2 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.
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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
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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 non-
veterinarian 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
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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 non-
veterinarian 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
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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-
5 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.
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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 state’s veterinary laws. § 340.210. It comprises
five licensed veterinarian members, including the state veterinarian, and one non-
veterinarian public member, all of whom are appointed by the governor. § 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.
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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 22-
24; (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
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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.
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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).
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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.
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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 non-
veterinarian 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
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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 non-
veterinarian 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
12 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).
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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 105-
06. 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 non-
veterinarians 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
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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
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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 horses’
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.
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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 non-
veterinarians 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 non-
veterinarians 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
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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
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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.
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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 non-
veterinarian 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.
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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
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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).
-36-
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. 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.
-37-
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
-38-
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
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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
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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
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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
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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.
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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
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“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 non-
veterinarian 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
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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.
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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 non-
veterinarian 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.
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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
By Providing Horse Owners With Better Quality, More Affordable Service
Than Most Veterinarians.
The Fourteenth Amendment and Article I, section 10, of the Missouri Constitution
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
18 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.
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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, 223-
24 (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
-49-
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.
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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
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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
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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 requirements—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 government’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 Horses’ 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
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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 non-
veterinarians 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 non-
veterinarian 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
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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 non-
veterinarian 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!
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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 non-
veterinarian 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 non-
veterinarians 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.
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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
-61-
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
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make such a distinction. The government’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 “veterinary medicine” 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 non-
veterinarian 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: [email protected] Attorney for the Appellant
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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: [email protected] Attorney for the Appellant