[00:00:01] Speaker 02:
We'll now turn to 23-391, Johnson v. Smith.

[00:00:05] Speaker 02:
I don't think there's any need for security at this point.

[00:00:10] Speaker 02:
I assume they were all here to hear Johnson v. Smith, but I guess not.

[00:00:15] Speaker 02:
Mr. McRoberts, you may proceed.

[00:00:17] Speaker 04:
May it please the Court, I'm Sam McRoberts for the Plaintiffs, Appellants, and Ms.

[00:00:22] Speaker 04:
Maddow.

[00:00:23] Speaker 04:
The District Court should be reversed.

[00:00:26] Speaker 04:
The government's surprise warrantless searches of the Johnson Point homestead

[00:00:30] Speaker 04:
and the business records violate the Fourth Amendment to the United States Constitution.

[00:00:36] Speaker 04:
This case should be an easy one under the pervasively regulated industry framework set forth in City of Los Angeles versus Patel.

[00:00:45] Speaker 04:
At top, Patel made clear, this is an incredibly narrow exception which cannot be permitted to swallow the rule.

[00:00:53] Speaker 04:
But if training a hunting dog from a rural homestead in Cowley County, Kansas is a pervasively regulated industry,

[00:01:00] Speaker 04:
for which the Fourth Amendment's warrant requirement does not apply, then practically every regulated business in Kansas is also pervasively regulated.

[00:01:09] Speaker 01:
I mean, you agree it is subject to a statute?

[00:01:13] Speaker 04:
Doctrine and handling is subject to a statute.

[00:01:14] Speaker 01:
Yeah.

[00:01:15] Speaker 01:
And that statute has a certain regulatory scheme built into it?

[00:01:21] Speaker 04:
It does.

[00:01:21] Speaker 01:
OK.

[00:01:22] Speaker 01:
So I mean, I guess the question is whether it is a pervasively regulated

[00:01:30] Speaker 01:
industry for lack of a better term?

[00:01:33] Speaker 04:
That's exactly the heart of this case.

[00:01:35] Speaker 04:
And Patel sets forth the framework for whether or not a business can be considered pervasively regulated.

[00:01:42] Speaker 04:
And going to your honor's questions about whether or not there's regulation, in Patel, hotels have been regulated since the 1780s, almost 220 years more than this inspection version.

[00:01:55] Speaker 04:
And in Patel, the court said that was not enough to turn hotels into a pervasively regulated industry.

[00:02:03] Speaker 00:
Anything corresponding to the same sort of inspection regime and notice that there would be inspections in Patel and hotels?

[00:02:13] Speaker 00:
Wasn't, weren't they just trying to get receipts?

[00:02:16] Speaker 00:
Who'd stayed there?

[00:02:17] Speaker 04:
It was more than receipts.

[00:02:19] Speaker 04:
It was basically a law book.

[00:02:20] Speaker 04:
And so in Patel, what was happening was the city would come in and ask to see the, basically a registrar who had been there.

[00:02:29] Speaker 00:
Investigating crimes.

[00:02:30] Speaker 04:
Well, that was part of it.

[00:02:32] Speaker 04:
It was also, in theory, the government was advancing that it would help prevent crimes.

[00:02:38] Speaker 04:
So not exactly investigating crimes themselves, because as all pervasively regulated cases say, if it's used for a criminal purpose, if these surprise warning searches are for a criminal purpose,

[00:02:49] Speaker 04:
then the pervasively regulated exception cannot apply.

[00:02:53] Speaker 00:
Are you saying that the Kansas legislature overstepped or not?

[00:02:57] Speaker 04:
They did overstep in multiple ways, and so did the administrative agency that imposed these regulations.

[00:03:04] Speaker 04:
What's important under Patel is that it set forth limiting principles.

[00:03:08] Speaker 04:
So after Berger, what happened was this pervasively regulated industry exception became the rule.

[00:03:14] Speaker 04:
Circuits and trial courts started holding that all sorts of businesses

[00:03:18] Speaker 04:
were pervasively regulated and therefore could be searched without a warrant.

[00:03:22] Speaker 04:
Patel set forth some limiting principles that in order for a business to be considered pervasively regulated, it wasn't just enough that there were regulations.

[00:03:33] Speaker 04:
It had to be intrinsically dangerous.

[00:03:35] Speaker 04:
It had to raise public welfare concerns or raise serious or urgent risks of criminal activity.

[00:03:43] Speaker 04:
Hotels, even though sometimes people can use them for criminal activities, was not enough

[00:03:48] Speaker 04:
to turn it into a pervasively regulated instrument.

[00:03:51] Speaker 04:
The same thing here.

[00:03:52] Speaker 04:
At 12-6, on these facts, before the district court, there is nothing at all that would indicate that training and handling a hunting dog in Cowley County, Kansas is intrinsically dangerous, that it raises... You've touched on the issue that concerns me.

[00:04:11] Speaker 02:
You think this is an easy case.

[00:04:12] Speaker 02:
I think it's an impossible case.

[00:04:16] Speaker 02:
We could not find a single case involving whether something is pervasively regulated and therefore searches are admitted.

[00:04:25] Speaker 02:
That was decided on the pleadings.

[00:04:29] Speaker 02:
You need a factual development in this case.

[00:04:33] Speaker 02:
If they have evidence that there's a real problem with kennels like this, they need to put it on.

[00:04:40] Speaker 02:
You need to put on your arguments about the facts.

[00:04:45] Speaker 02:
We don't have anything to plead.

[00:04:47] Speaker 02:
Do you know of any case in this area that's been cited on the pleadings?

[00:04:53] Speaker 04:
So first, I would say that yes, I agree with the court that this is an inherently facts-based question, which is why we think it's an easy one.

[00:05:01] Speaker 04:
the district court erred by dismissing our case.

[00:05:04] Speaker 04:
If the government has evidence that training and handling hunting dogs is inherently dangerous, they do need to put on the evidence.

[00:05:10] Speaker 01:
Did you allege that it wasn't?

[00:05:12] Speaker 04:
Yes.

[00:05:12] Speaker 01:
Did they contest that?

[00:05:14] Speaker 04:
No.

[00:05:15] Speaker 04:
OK.

[00:05:16] Speaker 04:
And going back to your honor's question, Patel was actually decided on 12B6.

[00:05:20] Speaker 04:
It was?

[00:05:21] Speaker 04:
Yes.

[00:05:22] Speaker 04:
They had a lot of history there.

[00:05:24] Speaker 04:
That was presented, I think, by Meekins.

[00:05:27] Speaker 04:
But what I think was really important is the court

[00:05:31] Speaker 04:
it wasn't inherently dangerous just by doing a comparative analysis to the other industries that had been deemed pervasively regulated.

[00:05:40] Speaker 04:
And so going back to Your Honor's question, that's why we think this is an easy case.

[00:05:44] Speaker 04:
We alleged that this is not intrinsically dangerous, that it does not pose an inherent risk to the public welfare, that it does not raise an urgent or serious risk of criminal activity.

[00:05:53] Speaker 04:
We put all of that in the complaint.

[00:05:56] Speaker 04:
And by dismissing our case, the district court ignored 12B6.

[00:06:00] Speaker 04:
the government has not advanced any argument still to this day that trading and handling hunting dogs is intrinsically dangerous at all.

[00:06:08] Speaker 04:
And so for those reasons, this cannot be considered a pervasively regulated industry on these facts at this stage of the case.

[00:06:17] Speaker 00:
Are you saying that we should say that the Oklahoma or rule that the Oklahoma or the Kansas statute is unconstitutional?

[00:06:26] Speaker 04:
Yes.

[00:06:26] Speaker 00:
Okay.

[00:06:27] Speaker 00:
And as far as the

[00:06:29] Speaker 00:
Most recent part of your argument on inherent dangerousness, you're treating that like it's a pillar.

[00:06:35] Speaker 00:
But in fact, in Patel, where that even came up was a footnote responding to Justice Scalia's other opinion.

[00:06:43] Speaker 00:
And it's not like every court has treated inherent dangerousness like it, in fact, is a pillar.

[00:06:49] Speaker 00:
So what if we don't think that it is?

[00:06:52] Speaker 04:
Even if this court does not take the view that it is a pillar, it is still an important factor to be considered when determining whether or not a business is considered pervasively regulated.

[00:07:03] Speaker 04:
The government in this case, now for the first time on appeal, says that dangerousness is a factor.

[00:07:09] Speaker 04:
That was in footnote 15 of their brief.

[00:07:12] Speaker 04:
So even if the court does not accept our view that it is an outcome-determinative factor, it is still an important one that the district court did not consider at all

[00:07:21] Speaker 04:
And the government never raised that issue below.

[00:07:23] Speaker 01:
Who does the dangerousness have to flow to?

[00:07:25] Speaker 01:
In this case, it seems like the regulations and the statute are aimed at protecting the dogs.

[00:07:35] Speaker 01:
And in the other examples, it seems like the danger is to protect the public from people from danger.

[00:07:43] Speaker 04:
We think the best way to view dangerousness is whether or not the public is protected.

[00:07:50] Speaker 04:
That is the import, I think, of Patel and the other cases as well.

[00:07:55] Speaker 04:
Mexican gold fishing out of the Fifth Circuit did address dangerousness and also said that it was a factor to be considered.

[00:08:04] Speaker 04:
And that just came out in 2023.

[00:08:07] Speaker 04:
Another factor that's critically important in this case is whether or not the industry was subjected to warrantless searches at or near the time of the founding.

[00:08:15] Speaker 04:
Hotels, again, had been regulated since the 1780s

[00:08:18] Speaker 04:
But what was important in that case was that even though they were regulated, there was no evidence that they were searched without a warrant at or near the time of the family.

[00:08:27] Speaker 04:
In this case, there's no evidence that dog trainers and handlers were also warrantedly searched at or near the time of the family.

[00:08:34] Speaker 04:
So for all of those factors, it shows that the district court committed a reversible error by dismissing our case.

[00:08:43] Speaker 04:
Even if, though, this court were to hold that dog training and handling is a pervasively regulated mystery, which we don't think this court should do, but even if it did, the inspection regime still violates all three of the Berger prompts.

[00:08:57] Speaker 04:
In other words, the exception cannot apply unless then you go into the Berger three-prong analysis.

[00:09:04] Speaker 04:
I'm not going to address Berger prompt one.

[00:09:07] Speaker 04:
We briefed it.

[00:09:09] Speaker 04:
Part of our case, if the court were to fine us for basically regulating, turns on Berger's Prompt 2 and 3.

[00:09:17] Speaker 04:
In this case, there is no evidentiary support at all in the record that would suggest that warrantless searches are necessary.

[00:09:26] Speaker 04:
That's the verbiage from Berger.

[00:09:28] Speaker 04:
Warrantless searches must be necessary.

[00:09:31] Speaker 04:
The district court misstated and misapplied that test.

[00:09:34] Speaker 04:
There are several reasons why warrantless searches

[00:09:37] Speaker 04:
of the Johnson Boyd Homestead are not necessary.

[00:09:41] Speaker 04:
First, the legislature's language itself undercuts this entire necessity argument.

[00:09:46] Speaker 04:
Under 47-1709B, once a person is licensed, the government may inspect.

[00:09:54] Speaker 04:
It doesn't say that the government shall inspect.

[00:09:56] Speaker 04:
It says may.

[00:09:57] Speaker 04:
So by virtue of using that word, it undercuts the necessity argument.

[00:10:03] Speaker 04:
Same with the legislature's use of an administrative search warrant process.

[00:10:09] Speaker 04:
If an individual refuses to allow a search, the government is able to secure an administrative warrant under 1709K.

[00:10:18] Speaker 04:
Because there is an administrative warrant, the legislature has made it clear that warrantless searches are not necessary.

[00:10:26] Speaker 04:
There's also nothing in the facts that suggests that warrantless searches are necessary and

[00:10:33] Speaker 04:
What's critically important is that Mr. Johnson is operating under a veterinary care plan.

[00:10:40] Speaker 04:
He's also inspected by a veterinarian at least once a year.

[00:10:45] Speaker 04:
So for all of those reasons, warrantless searches are not necessary.

[00:10:49] Speaker 04:
We also pleaded in our complaint that the parts about whether or not an animal is being mistreated, things like that cannot be quickly remedied.

[00:10:58] Speaker 04:
So if the government did have to go get an administrative warrant and it took 15 minutes or 30 minutes, that cannot be quickly fixed.

[00:11:07] Speaker 04:
So the government cannot establish, at least on these facts, at this stage, that one of the searches are necessary.

[00:11:15] Speaker 04:
So for those reasons, they cannot satisfy Burger Prom 2.

[00:11:19] Speaker 04:
But the government cannot satisfy Burger Prom 3 as well.

[00:11:23] Speaker 04:
There again, the district court misstated and misapplied that standard.

[00:11:27] Speaker 04:
What's important about Burger Prong 3 is that it limits and constrains the inspector's ability.

[00:11:35] Speaker 04:
The regime has to provide a constitutionally adequate substitute for a warrant.

[00:11:40] Speaker 04:
It has to say when and where and how often the inspector can conduct these warrantless inspections.

[00:11:47] Speaker 04:
But in this case, the way that the regime is set up, it does not constrain inspector discretion.

[00:11:54] Speaker 04:
They are able to search 10 times a day

[00:11:57] Speaker 04:
every day for that inspection period.

[00:12:00] Speaker 04:
So there is an administrative regulation that sets up windows, a nine month window for the best performing individuals like Scott Johnson.

[00:12:12] Speaker 04:
Even under that regime, a best performing individual like Scott could be searched more often than a lesser performing schedule because there's an overlap between the windows.

[00:12:23] Speaker 04:
But more importantly,

[00:12:25] Speaker 04:
During that window period, it does not say that an inspector can only do it one time or only two times.

[00:12:31] Speaker 04:
It says they can go during that nine month period.

[00:12:35] Speaker 04:
So that does not sufficiently constrain the inspector even during that window period.

[00:12:41] Speaker 04:
But here's where it even gets worse.

[00:12:42] Speaker 04:
According to the government's handbook, they don't even have to follow the administrative regulation.

[00:12:47] Speaker 04:
If they want to, they can decide when and how often to search

[00:12:53] Speaker 04:
a regulated business.

[00:12:55] Speaker 04:
All they have to do is ask their supervisor and that would allow them to search every single day for as long as they want to.

[00:13:06] Speaker 02:
All this is alleged in the complaint.

[00:13:09] Speaker 04:
We have alleged that the inspection, yes, we have alleged that it violates murder promissory, that it is not sufficient.

[00:13:18] Speaker 02:
Have you explained

[00:13:19] Speaker 02:
What the manual says, is that in your complaint?

[00:13:23] Speaker 04:
We attach the manual to the complaint as an exhibit.

[00:13:25] Speaker 04:
We have referenced portions of the manual in our complaint, as well as our briefing.

[00:13:31] Speaker 04:
And at pages 83 and 90 of the record, that goes to the inspector being able to decide when and how often they search and whether or not they can go outside of that administrative regulation.

[00:13:45] Speaker 04:
So for all of those reasons,

[00:13:47] Speaker 04:
This warrantless search regime violates the fourth amendment under the pervasively regulated industry framework set forth in Patel.

[00:13:54] Speaker 04:
If there are no further questions, I would like to reserve the balance on its own.

[00:13:58] Speaker 03:
Thank you.

[00:13:59] Speaker 03:
May it please the court.

[00:14:00] Speaker 03:
My name is Curtis Wired and I represent Justice Smith, the County of Wyoming, Kansas and the National Health Commissioner.

[00:14:06] Speaker 03:
I'll go straight to Patel because that seems to be the heart of the case here.

[00:14:10] Speaker 03:
The Supreme Court did not overrule or fundamentally alter the closely regulated business exception.

[00:14:15] Speaker 03:
The passage that the opponents rely upon illustrates that the court was simply comparing the facts of the case to its prior decisions.

[00:14:22] Speaker 03:
And that's what the 5th, 6th, 7th, and 9th Circuits have all said reading that passage.

[00:14:29] Speaker 03:
I think more to the point, the 5th Circuit made an excellent point when it said that there's no historical or textual reason why the 4th Amendment distinguishes between industries that are inherently

[00:14:44] Speaker 03:
In addition, Patel is distinguishable because, as the court explained there, a hodgepodge of regulations was not enough to create a comprehensive scheme that put the licensees on notice that they would be subject to periodic inspections.

[00:14:58] Speaker 03:
As we laid out in the brief, the Kansas Pet Animal Act provides a comprehensive scheme that makes licensees aware that they will be subject to routine inspections at particular intervals with enough discretion for the investigators

[00:15:14] Speaker 03:
sure that they have some element of surprise, but at the same time provide the licensees an opportunity to know roughly when they'll be inspected.

[00:15:22] Speaker 02:
You're saying that notice was given by this specific statute today.

[00:15:26] Speaker 02:
Would there have been any reason to think that before the statute was enacted?

[00:15:35] Speaker 02:
I'm seeing whether the state can bootstrap itself, essentially saying we can

[00:15:44] Speaker 02:
closely regulate this industry and have warrantless inspections, et cetera, because we say so in this statute, so you are on notice.

[00:15:56] Speaker 02:
Was there any notice before this statute?

[00:16:00] Speaker 03:
Prior to the statute, I don't know.

[00:16:02] Speaker 03:
The nine-month windows are actually in the regulations promulgated by the commissioner.

[00:16:07] Speaker 03:
So on your bootstrapping point, though,

[00:16:16] Speaker 03:
and therefore be subject to the fourth amendment.

[00:16:18] Speaker 02:
That makes some sense, doesn't it?

[00:16:20] Speaker 02:
Because otherwise, it has no teeth to say it has to be a closely regulated business.

[00:16:29] Speaker 02:
We decide we're going to make it a closely regulated business in search.

[00:16:33] Speaker 02:
You seem to acknowledge that that's an issue.

[00:16:36] Speaker 03:
Of course, yeah.

[00:16:37] Speaker 03:
And the Supreme Court has noted this.

[00:16:39] Speaker 03:
The Berger standard is what protects businesses from that.

[00:16:46] Speaker 03:
That's only the first step in the analysis.

[00:16:49] Speaker 03:
You still have to have a substantial state interest, the inspections must be necessary to fulfill those interests, and the laws have to be sufficiently served and regular.

[00:16:58] Speaker 02:
So how do we get around the absence of evidence supporting

[00:17:04] Speaker 02:
the government's position here.

[00:17:06] Speaker 02:
If we're deciding this on a 12b6, we have allegations that those requirements are not satisfied.

[00:17:14] Speaker 02:
You may have great evidence to support it, but how can we... We have nothing to look at.

[00:17:20] Speaker 03:
Well, two parts to that.

[00:17:22] Speaker 03:
First is that it's common sense that people mistreat dogs that are being kenneled overnight.

[00:17:27] Speaker 03:
I think that's common sense.

[00:17:28] Speaker 03:
Our citations in the brief too, stories illustrating this,

[00:17:31] Speaker 03:
They're totally strange.

[00:17:32] Speaker 03:
They're just for illustration purposes.

[00:17:34] Speaker 03:
They're not meant to play at back angle.

[00:17:38] Speaker 02:
Let me examine that common sense.

[00:17:41] Speaker 02:
That makes sense for breeders who are going to sell the dogs.

[00:17:45] Speaker 02:
Maybe they are pretty sloppy with their care of the dogs because

[00:17:53] Speaker 02:
They just need the ones that survive to do that.

[00:17:56] Speaker 02:
Here, the owner is keeping dogs that somebody else owns.

[00:18:01] Speaker 02:
Those people are not going to turn over their dogs for this care if they have concerns about it.

[00:18:07] Speaker 02:
And they're checking on it.

[00:18:08] Speaker 02:
So you have an inherent interest of the owners of the dogs in these kennels treating the dogs properly, which is not true if it's a breeder seller.

[00:18:21] Speaker 02:
So why is it common sense to think that someone who runs this type of kennel is going to abuse the dogs and think it's going to stay in business for any length of time?

[00:18:32] Speaker 03:
I mean, as they explain in their complaint that they hold dogs at their facility for weeks, months, years on end, sometimes the dogs spend their entire lives in their care.

[00:18:41] Speaker 03:
I don't know how often they're checking in on them.

[00:18:44] Speaker 03:
The regulations that are promulgated... Okay, go ahead.

[00:18:48] Speaker 03:
So the regulations that are promulgated

[00:18:51] Speaker 03:
are not concerned about dog training or specific to that industry.

[00:18:55] Speaker 03:
They're concerned about the welfare of the animals because they're staying there overnight.

[00:18:59] Speaker 03:
They're at the complete mercy.

[00:19:01] Speaker 02:
So don't you need evidence, though, that there's a problem with this sort of stuff?

[00:19:08] Speaker 02:
You have some arguments that they mistreated.

[00:19:12] Speaker 02:
I have questions about that.

[00:19:14] Speaker 02:
But evidence could convince the court one way or the other.

[00:19:18] Speaker 02:
Don't you need to put on that evidence?

[00:19:19] Speaker 03:
Well, I think if there's

[00:19:23] Speaker 03:
There is testimony before the Senate Agriculture and Natural Resources Committee on March 8th.

[00:19:29] Speaker 03:
Is this in the pleading?

[00:19:30] Speaker 03:
Is this in the complaint?

[00:19:31] Speaker 03:
I don't think it was in the complaint.

[00:19:33] Speaker 03:
So how can we consider that?

[00:19:34] Speaker 03:
Well, legislative history, I think, for the relevant, the law can be considered by the court.

[00:19:40] Speaker 03:
It's easily accessible as any legal research, right?

[00:19:44] Speaker 02:
So it's stuff we take judicial notice of?

[00:19:46] Speaker 02:
I suppose so, Your Honor.

[00:19:48] Speaker 02:
I'm not sure we... Well, that's an interesting question.

[00:19:51] Speaker 02:
That's an interesting question.

[00:19:53] Speaker 03:
But there was testimony at that hearing of certain individuals that were concerned about the fact that under the prior regime prior to 2018.

[00:20:01] Speaker 02:
And this testimony, I'm sorry I'm delaying your question for quite a bit.

[00:20:05] Speaker 01:
He's going to keep you so long I'm going to forget what my question is.

[00:20:08] Speaker 01:
We'll write it down now.

[00:20:11] Speaker 02:
Was this testimony related to this type of kennel?

[00:20:16] Speaker 03:
I don't know if it was particularly

[00:20:21] Speaker 03:
were concerned about licensees receiving particular notice.

[00:20:25] Speaker 03:
And I apologize.

[00:20:26] Speaker 03:
I meant to include this in my brief, but it fell off of my checklist.

[00:20:30] Speaker 03:
So I am sorry about that.

[00:20:32] Speaker 03:
But there is testimony about licensees receiving prior notice of routine inspections and being able to, so people were able to effectively clean up their act before they entered into, or before they were inspected.

[00:20:46] Speaker 01:
Okay, so here's my question.

[00:20:48] Speaker 01:
Is this basically a case of first impression as having the harm being protected against by the statutory regime being one that goes to the protection of animals as opposed to going toward the protection of the public?

[00:21:09] Speaker 03:
As far as a case of first impression in that regard, I don't necessarily think so.

[00:21:15] Speaker 03:
I mean, this court did.

[00:21:17] Speaker 03:
to address a wild animal exhibitor.

[00:21:20] Speaker 03:
And this court said that it was closely regulated by the Animal Welfare Act.

[00:21:24] Speaker 03:
I think that case is actually pretty instructive here.

[00:21:27] Speaker 03:
In that case, Patel was referenced in the briefing.

[00:21:32] Speaker 03:
And in fact, the decision was issued a year and a half after the court's decision in Patel.

[00:21:37] Speaker 03:
Surely, if this court thought that the Supreme Court had significantly narrowed

[00:21:49] Speaker 01:
Right.

[00:21:50] Speaker 01:
Yeah, the big cats case, I mean, that's probably not a great case for fleshing out this distinction because if I'm keeping tigers at my house and they get out, they can really be very dangerous.

[00:22:06] Speaker 01:
The same is probably not the case for dogs.

[00:22:09] Speaker 01:
And especially when you've got a statute that doesn't purport to be

[00:22:15] Speaker 01:
Making sure you're keeping dangerous animals caged up in a proper manner or something.

[00:22:20] Speaker 03:
I might push back a little bit on that, because actually I believe the facts in Big Cats, the federal inspectors were at the facility because they believed the tiger cub was in danger.

[00:22:30] Speaker 03:
The tiger cub's health itself was in danger.

[00:22:33] Speaker 03:
So in the same way, we're concerned about the health and welfare of the animals here, just as the federal inspectors did.

[00:22:41] Speaker 01:
Do you have any authority for the idea that

[00:22:45] Speaker 01:
around, around the time of founding that the founders would have looked at the fourth amendment or the original public meaning where, where the, at the time the fourth amendment would be construed to be allowing searches for the protection of animals, welfare.

[00:23:04] Speaker 03:
Yeah, actually the US Supreme court already rejected this argument in Donovan versus Dewey.

[00:23:08] Speaker 03:
That case, if you recall, that dealt with the surface mining regulations that had only been in effect for about 15 years.

[00:23:16] Speaker 03:
The court said that while the duration of the regulation will often be an important factor, the pervasiveness and regularity will ultimately carry the most weight.

[00:23:24] Speaker 03:
The court said that if history was the sole criterion, it would lead to absurd results because Congress and the states wouldn't be able to respond to emerging technologies.

[00:23:36] Speaker 01:
The example they gave... Okay, so I guess what your answer is, is you don't have any authority

[00:23:42] Speaker 01:
Contesting what I said or going against what I said, but it doesn't matter because the Supreme Court's rejected that as a ground.

[00:23:50] Speaker 01:
I suppose that's... Okay, fair enough.

[00:23:54] Speaker 03:
There they said the nuclear power industry, if it was limited to only businesses that were around at the time of the founding, obviously nuclear power could be... And I think more specific to this circuit, this circuit and many other circuits have held that the commercial trucking industry is closely regulated.

[00:24:10] Speaker 03:
obviously not around at the time of the founding.

[00:24:17] Speaker 01:
I guess one of the problems I have is what's not pervasively regulated under your argument.

[00:24:24] Speaker 01:
I mean, we've got courts, maybe not from your jurisdiction, but barbers have been found to be pervasively regulated.

[00:24:34] Speaker 01:
Restaurants, obviously.

[00:24:40] Speaker 01:
They attempted the argument with hotels and failed.

[00:24:44] Speaker 01:
I mean, it seems like any time you want to legislate in the field, the argument can be made that there's going to be pervasive regulation.

[00:24:53] Speaker 03:
Yeah.

[00:24:54] Speaker 03:
Again, that goes back to my prior point that the burger standard really guards this doctrine from abuse.

[00:25:00] Speaker 03:
And that's where you still have to have a substantial state interest.

[00:25:03] Speaker 03:
You can't just simply regulate a business

[00:25:05] Speaker 03:
into this exception.

[00:25:08] Speaker 02:
How do you show that substantial state interest?

[00:25:11] Speaker 02:
That's what I'm curious about here.

[00:25:13] Speaker 02:
You mean as a factual matter?

[00:25:15] Speaker 02:
As a factual matter.

[00:25:16] Speaker 02:
Where do you see the substantial state interest incorporated into the complaint?

[00:25:21] Speaker 03:
I believe, I mean my understanding is that courts all the time consider state interests on their face if there's legal argument inside also.

[00:25:38] Speaker 02:
necessary to advance that interest.

[00:25:43] Speaker 02:
That is one of the problems.

[00:25:44] Speaker 02:
If it turns out, for example, that factually these kennels just don't present problems, then how do you justify the statute?

[00:25:56] Speaker 03:
Again, Your Honor, I return to my prior answer that I think it's common sense that people mistreat animals who are kenneled for weeks, months, and years on end.

[00:26:03] Speaker 02:
Well, let me ask the question I asked upside.

[00:26:08] Speaker 02:
I asked if there were any cases that decided an issue of this sort on the pleadings.

[00:26:13] Speaker 02:
And he gave one example, Patel, where the court threw it out.

[00:26:19] Speaker 02:
Do you know anywhere this type of regulation has been affirmed by the court on the pleadings?

[00:26:28] Speaker 03:
I don't know of any because I haven't looked through the cases to see the specific procedural posture.

[00:26:33] Speaker ?:
But then bringing up Patel, I think, is a good point.

[00:26:36] Speaker 03:
As you mentioned earlier, Your Honor, there was a lot of history in that case.

[00:26:39] Speaker 03:
The court considered the long history of the hotel industry, and if it was, I'm assuming he's correct in saying that it was decided on a 12-B-6 motion, I think that's proof that this court can go forward with a legislative history of the bill, the substantial state interest, and an analysis of the Pet Animal Act.

[00:27:08] Speaker 03:
And one last thing I wanted to mention too on Patel, going to Judge Phillips' earlier question, I think another distinguishing factor there was that that regulation gave police officers the direct ability to go into a hotel and look at the registry.

[00:27:23] Speaker 03:
Here we're dealing with animal facility inspectors who are not law enforcement officers.

[00:27:28] Speaker 03:
They're only charged with enforcing the act.

[00:27:35] Speaker 03:
I have nothing further.

[00:27:36] Speaker 03:
I would ask that you please affirm the district court.

[00:27:52] Speaker 04:
One quick point.

[00:27:54] Speaker 04:
Big Cats is not instructive because the parties in that case agreed that it was pervasively regulated.

[00:28:01] Speaker 04:
In this case, we're disputing that dog training and handling is pervasively regulated.

[00:28:06] Speaker 04:
So Big Cats is an instructive in this case.

[00:28:09] Speaker 04:
And then going to the historical analysis, in Patel, it made clear that it wasn't the duration of regulation that mattered.

[00:28:18] Speaker 04:
Because again, hotels have been regulated since the 1780s.

[00:28:22] Speaker 04:
What mattered was that hotels were not warrantlessly surged at or near the time of the founding.

[00:28:28] Speaker 04:
And in cases from the Supreme Court since Patel, the Supreme Court has made clear what was important when considering exceptions to the Fourth Amendment, or whether or not they existed at or near the time of the founding, like in Camellia and the community care tongue exception, and the Lang and the Fling Misamina exception.

[00:28:45] Speaker 04:
So for all of those reasons, and because dog training and handling was not subjected to warrantless searches at or near the time of the founding, the exception does not apply here.

[00:28:54] Speaker 00:
The Kansas legislature obviously felt there was a need.

[00:28:58] Speaker 00:
that there was animals needed to be protected in this fashion, passed the law, which isn't that easy to do.

[00:29:06] Speaker 00:
What do you say are the limits to what the Kansas legislature could do with its concern?

[00:29:11] Speaker 04:
I think Your Honor's question goes to the heart of whether or not the legislature can regulate a business or an industry.

[00:29:18] Speaker 04:
And we're not here challenging the legislature's ability to require the license for Scott Johnson to train and handle dogs.

[00:29:27] Speaker 04:
The limits, the legislature can't legislate away the Fourth Amendment's requirements.

[00:29:33] Speaker 04:
So the limits to what they can do are set forth in cases like Patel.

[00:29:39] Speaker 04:
They cannot just legislate away the Fourth Amendment.

[00:29:43] Speaker 04:
And so the limits are set forth.

[00:29:44] Speaker 04:
There are certain limiting principles that inspectors can't just go on to somebody's property.

[00:29:50] Speaker 00:
But answer the question as far as what can Kansas allow?

[00:29:55] Speaker 00:
It's concerned that dogs are being treated poorly in kennels, whether trained or whether housed for vacations or whatever else.

[00:30:04] Speaker 00:
What can it do?

[00:30:04] Speaker 00:
Does it have to have a complaint from a citizen saying, we heard dogs yelping and we saw ribs sticking out and so forth, and then it goes to a court and gets a search warrant based on a violation of animal cruelty statute?

[00:30:19] Speaker 00:
Is that the limit?

[00:30:21] Speaker 04:
I don't think that that would be the limit.

[00:30:24] Speaker 04:
So if I understand the court's question, that wouldn't be the only example where they could conduct a search.

[00:30:29] Speaker 04:
I think that the limiting principles are set forth in Camereta and C and Battelle.

[00:30:34] Speaker 04:
And so the government can conduct searches.

[00:30:38] Speaker 04:
I think they have the ability to do that, but that is certain described by the warrant requirements.

[00:30:43] Speaker 04:
So at default, the rule is if you're going to search a home or a homestead like here, you need to have a traditional search warrant.

[00:30:51] Speaker 04:
But even if that's not the case, when it is a routine inspection, like how it's been characterized in this case, they need at least an administrative warrant.

[00:31:00] Speaker 04:
And there is an administrative warrant search process baked in by the legislature.

[00:31:06] Speaker 02:
What do you say to the use of legislative history to provide the factual support for the need for this type of search without a warrant?

[00:31:17] Speaker 04:
I think it's improper, and I think it's improper just as the government has done in this case to cite newspaper articles.

[00:31:23] Speaker 02:
Newspaper articles, that's... But what about testimony?

[00:31:28] Speaker 02:
at a legislative hearing.

[00:31:30] Speaker 04:
I don't believe that the government can use legislative testimony at a hearing, especially because it's unclear so far that has anything to do with training and handling hunting dogs, that has anything to do with this case.

[00:31:42] Speaker 04:
And if they wanted to raise it, they should have done it in their 12B6 motion or in their responsive brief.

[00:31:47] Speaker 04:
And they have not done that.

[00:31:49] Speaker 02:
Thank you, counsel.

[00:31:50] Speaker 02:
Case submitted.

[00:31:51] Speaker 02:
Counselor excused.