• January 2, 2013

True libertarians and free-market lovers never met a government regulation they did not dislike.  At the extreme, they embrace a complete market free-for-all in which Americans should be able to buy and sell whatever they please to whomever they please, whether it is a kidney, sexual favors, or some oily substance claimed to cure cancer but having no health benefit and perhaps even posing a health risk or two.

Most libertarian-leaning Americans do not embrace the extreme and absolutist position, however.  They recognize the need for regulation of pharmaceuticals, for example, but they still have a firm and deep conviction that “the government goes way too far” in regulating our daily lives.

So should the city of Minneapolis be able to regulate tree trimmers and require that any tree-trimming business doing business in the city employ a certified arborist, “responsible for property and tree protection, provid[ing] supervision of tree servicing, and comply[ing] with all applicable American National Standards for Arboricultural…standards“?

James Dolphy has a tree-trimming business but alleges that he cannot afford to hire a licensed arborist.  Supported by the libertarian public interest group, The Institute for Justice (IFJ), Dolphy argues that this requirement deprives him of his constitutional right to “due process,” to “equal protection,” and his “fundamental right…to pursue his chosen livelihood.”  (I, myself, have been the beneficiary of the IFJ, joining with them in an effort to allow Minnesota lawyers to enjoy on-line on-demand continuing legal education, as most lawyers are able to do across the country, by the way.)

As an ideological centrist who does not have a deep mistrust and antipathy for the role of government in my life, my first reaction is to reject Dolphy (and the IFJ’s) quest.  There is no clear disconnect between seeking to ensure competent tree care in a city and the public good and, it seems to me, the people of the City of Minneapolis, through their elected representatives, should be able to set standards for tree trimmers in the City.  This seems, in short, like rational regulation.  This does not strike me on its face as some irrational money-grab by bloated, corrupt, and greedy city officials.

It seems that Hennepin County District Court Judge Robert A. Blaeser might agree with me.  He threw Dolphy’s case out of court.  He was reversed on appeal, however.

The trial court judge jumped the gun, the Minnesota Court of Appeals held.

Let’s say, for example, after investigation (also known as “discovery” by civil litigators), it were to come to light that that a cabal of shady tree-trimmers, with deep roots in fertile but fetid city government, manipulated the system to target and exclude Dolphy personally for some impermissible motive (or just to maintain their oligopoly).  Might that not violate his constitutional rights?

On this record, we agree that a reasonable opportunity to present all material made pertinent to a motion for summary judgment, as required under rule 12.02, includes an opportunity to conduct discovery. We therefore hold that the district court erred in treating the city’s motion to dismiss as one for summary judgment in the absence of formal discovery, and we reverse and remand for further proceedings consistent with this opinion. Although we decide that summary judgment was premature, we express no opinion regarding whether summary judgment would be appropriate on an adequately developed record.

Mr. Dolphy and the IFJ live to fight another day, having won a battle.  But, I predict, their prospects in the overall war are bleak.

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