Court rules labor bill carve-outs justification 'does not survive constitutional scrutiny'

By Nancy Crist | Jan 12, 2017

SAN FRANCISCO — A federal appeals court gave a green light to two growers who claim a state labor law violates their 14th Amendment right to equal protection, but rejected their charge of political targeting.

Fresno growers Fowler Packing Co. and Gerawan Farming Inc. filed a lawsuit in January 2016 claiming the labor deal struck by Gov. Jerry Brown and the Legislature in 2015 illegally excludes them from safe-harbor benefits afforded to every other grower in the state.

The 9th Circuit Court of Appeals upheld the Eastern District Court's ruling that the plaintiffs lacked the basis for a 14th Amendment “bill of attainder” claim. This refers to passage of a law that inflicts punishment without a judicial review. Ruling on the case were judges Richard Clifton, Paul Watford, and Ronald Gould.

The court's opinion, written by Gould, concluded that the bill's exemptions “do not impose punishment upon plaintiffs. Because punishment is a necessary element of a bill of attainder, the district court properly dismissed this claim.”

The dismissal of the bill of attainder claim was a disappointment to Wen Fa, staff attorney for Pacific Legal Foundation (PLF), who filed an amicus or “friend of the court” brief in its support. He argued the plaintiffs are, in fact, being punished.

“I think what the court did in this case is take the very narrow, historical view of punishment rather than looking at the precedent from more recent court decisions,” Fa told The Northern California Record.

While the 17th-century definition of punishment was usually associated with death, courts have since expanded that slim definition many times to include “banishment and even the inability to receive government funds,” Fa said. His amicus brief was filed on behalf of Western Growers, California Fresh Fruit Association, African-American Farmers of California, California Farm Bureau Federation and Fresno County Farm Bureau.

In reversing the lower court's dismissal, the appellate court found that the Legislature's justification for cutting the plaintiffs out of the labor deal was illegal “because the only reason the carve-outs were included in the final bill was to procure the support of the UFW ... that justification alone does not survive constitutional scrutiny,” Gould wrote. The case was returned to district court for additional review.

The PLF is no stranger to bill of attainder arguments. The organization litigated and won a case for Alan Merrifield in 2008. Merrifield owned a structural pest-control business, which caught and/or killed mice, rats and pigeons using traps, screens and other tools rather than pesticides.

The state Legislature had adopted an exemption to the pest-control license statute in 1995 so that those in the profession of trapping and removing pests were excluded from the licensing that pesticide companies, which handled toxic chemicals, were required to have. The provision did not include companies that exterminated rats, mice and pigeons — the focus of Merrifield's company. The court ruled that the state's singling out of these three pests was unconstitutional.

“I do think in some cases there is an unfortunate presumption of government control,” Fa said regarding the types of lawsuits brought to the PLF in recent years. “Our organization believes there should be a presumption of liberty. People are free to act however they want as long as they respect the rights of others.”

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