Amicus Curiae Brief — Gerawan Farming, Inc., Petitioner v. Agricultural Labor Relations Board

No. 17-1375

In The

Supreme Court of the United States

-------------------------- ♦ ---------------------------

GERAWAN FARMING, INC.,

v.

Petitioner,

AGRICULTURAL LABOR RELATIONS BOARD,

Respondent.

-------------------------- ♦ --------------------------

On Petition for Writ of Certiorari to the

Supreme Court of California

-------------------------- ♦ --------------------------

MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE AND

BRIEF AMICI CURIAE OF THE

NATIONAL FEDERATION OF INDEPENDENT BUSINESS

SMALL BUSINESS LEGAL CENTER AND SOUTHEASTERN

LEGAL FOUNDATION IN SUPPORT OF PETITIONER

-------------------------- ♦ -------------------------Karen R. Harned

Luke A. Wake*

Counsel of Record

NFIB SMALL BUSINESS

LEGAL CENTER

1201 F Street, NW, Suite 200

Washington, DC 20004

(202) 314-2061 (Telephone)

(615) 916-5104 (Facsimile)

luke.wake@nfib.org

Counsel for Amici Curiae

Kimberly S. Hermann

SOUTHEASTERN

LEGAL FOUNDATION

2255 Sewell Mill Road, Suite 320

Marietta, Georgia 30062

(770) 977-2131 (Telephone)

(770) 977-2134 (Facsimile)

khermann@southeasternlegal.org

Counsel for Amici Curiae

Bradley A. Benbrook

Stephen M. Duvernay

BENBROOK LAW GROUP, PC

400 Capitol Mall, Suite 1610

Sacramento, California 95814

(916) 447-4900 (Telephone)

(916) 447-4904 (Facsimile)

steve@benbrooklawgroup.com

Counsel for Amici Curiae

Dated: April 27, 2018

THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036

(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com

i

MOTION OF THE NATIONAL FEDERATION

OF

INDEPENDENT

BUSINESS

SMALL

BUSINESS

LEGAL

CENTER

AND

SOUTHEASTERN LEGAL FOUNDATION FOR

LEAVE TO FILE BRIEF AS AMICI CURIAE

Pursuant to Supreme Court Rule 37.2(b), the

National Federation of Independent Business Small

Business Legal Center (“NFIB Legal Center”) and

Southeastern Legal Foundation (“SLF”) respectfully

request leave to file an amici curiae brief in this

matter. In support of the motion, amici state:

1. On behalf of the amici curiae, the NFIB Legal

Center requested consent from both the

Petitioner and Respondent, as well as from

the United Farm Workers of America (UFW),

to file the proposed amici curiae brief. This

request was timely, in accordance with

Supreme Court Rule 37.2.

2. The Petitioner granted consent in writing. The

Respondent acknowledged the request and

said that it “does not oppose” the proposed

amici curiae brief. Likewise, UFW responded,

saying that it “does not oppose” this filing.

3. The NFIB Legal Center and SLF seek leave to

file in this matter because this case raises an

important issue of significance throughout the

country. NFIB Legal Center—representing

the interest of the nation’s small business

community—has a great interest in this case

because of the potential that the decision

below may embolden other states and or

Congress to experiment with compulsory

arbitration regimes that will single-out small

ii

businesses

for

individualized

legal

proscriptions. Likewise, as an advocate for

individual rights and constitutional principles,

SLF has an interest here. Amici have

submitted respective statements of interest

more fully explaining their organizational

interest in the case.

4. Amici believe that the proposed brief offers

valuable perspective and expertise. What is

more, NFIB Legal Center participated as

amicus curiae in the proceedings below, both

in the California Court of Appeals and in the

California Supreme Court. Though the

California Supreme Court reversed, NFIB

Legal Center believes that its amicus curiae

was especially helpful for the California Court

of Appeals in elucidating the class-of-one

doctrine, including in demonstrating the

degree to which compulsory arbitration will

result in different legal proscriptions for

similarly situated businesses.

5. At this stage, the proposed amici curiae brief

speaks to the implications of the California

Supreme Court’s decision below, and

specifically it’s potential to embolden special

interest groups to lobby for individualized

compulsory arbitration regimes in Congress

and in the states. Further, the proposed brief

will assist the Court in reviewing the petition

for certiorari by emphasizing the common

doctrinal thread between the Equal Protection

Clause and the Due Process Clause of the

Fourteenth Amendment—i.e., the need for

iii

neutrality and impartiality in any legitimate

act of governance.

Amici curiae respectfully request leave to file the

attached brief.

Respectfully submitted,

Karen R. Harned

Luke A. Wake*

Counsel of Record

NFIB Small Business Legal Center

1201 F Street, NW, Suite 200

Washington, DC 20004

(202) 314-2061 (Telephone)

(615) 916-5104 (Facsimile)

luke.wake@nfib.org

Kimberly S. Hermann

Southeastern Legal Foundation

2255 Sewell Mill Rd, Ste. 320

Marietta, GA 30062

(770) 977-2131 (Telephone)

(770) 977-2134 (Facsimile)

khermann@southeasternlegal.org

Bradley A. Benbrook

Stephen M. Duvernay

Benbrook Law Group, PC

400 Capitol Mall, Ste. 1610

Sacramento, CA 95814

(916) 447-4900 (Telephone)

(916) 447-4904 (Facsimile)

steve@benbrooklawgroup.com

iv

QUESTION PRESENTED

Whether the State of California violates the Due

Process and Equal Protection Clauses of the

Fourteenth Amendment when compelling nonconsenting parties into a contractual relationship.

v

TABLE OF CONTENTS

Page

MOTION OF THE NATIONAL FEDERATION

OF

INDEPENDENT

BUSINESS

SMALL

BUSINESS

LEGAL

CENTER

AND

SOUTHEASTERN LEGAL FOUNDATION FOR

LEAVE TO FILE BRIEF AS AMICI CURIAE ........... i

QUESTION PRESENTED ........................................ iv

TABLE OF CONTENTS............................................. v

TABLE OF AUTHORITIES ..................................... vii

INTEREST OF AMICI CURIAE................................ 1

SUMMARY OF ARGUMENT .................................... 3

THE STATE HAS NO POWER TO COMPEL A

BUSINESS TO SUBMIT TO A COLLECTIVE

BARGAINING AGREEMENT ................................... 5

A. The State Cannot Compel Non-Consenting

Parties to Agree to Anything ........................... 5

a. The Decision Below Repudiates Valid

Supreme Court Precedent .......................... 5

b. The ALRA’s Regime of Individualized

Legal Proscriptions Violates Due

Process ........................................................ 8

B. The ALRA’s System of Individualized

Legal Proscriptions Violates the Equal

Protection Clause ........................................... 11

a. The Decision Below Contravenes this

Court’s Class-of-One Doctrine .................. 11

vi

i. Where an Agency or Political

Subdivision is Vested with Authority

to Issue Individualized Directives,

There is Tremendous Potential for

Inconsistent Results ............................ 11

ii. There is No Rational Basis ................. 13

b. The Decision Below Invites Special

Interest

Groups

to

Lobby

for

Individualized Legal Proscriptions .......... 18

CONCLUSION ......................................................... 20

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Boy Scouts of America v. Dale,

530 U.S. 640 (2000) ............................................... 9

Bustamante v. Intuit, Inc.,

141 Cal.App.4th 199 (2006) .................................. 8

Chamber of Commerce v. Brown,

554 U.S. 60 (2008) ............................................... 16

Cleburne v. Cleburne Living Center,

437 U.S. 432 (1985) ............................................. 10

Craigmiles v. Giles,

312 F.3d 220 (6th Cir. 2002) ............................... 16

Dorchy v. Kansas,

264 U.S. 286 (1924) ....................................... 2, 4, 5

Eastern Enterprises v. Apfel,

524 U.S. 498 (1998) ............................................. 15

Forum for Academic & Institutional Rights, Inc.,

547 U.S. 47 (2007) ................................................. 9

Genesis Envtl. Servs. v. San Joaquin Valley

Unified Air Pollution Control Dist.,

113 Cal.App.4th 597 (2003) ................................ 15

Gentry v. City of Murrieta,

36 Cal.App.4th 1359 (1995) ................................ 13

Gerawan Farming, Inc. v.

Agricultural Labor Relations Bd.,

3 Cal.5th 1118 (2017) ............................ 6, 9, 12, 14

viii

Gerhart v. Lake Cnty., Mont.,

637 F.3d 1013 (9th Cir. 2011) ............................. 11

Hayes v. Missouri,

120 U.S. 68 (1887) ............................................... 12

Hess Collection Winery v.

Agricultural Labor Relations Bd.,

140 Cal. App. 4th 1584 (2006)......................... 3, 13

Horne v. U.S. Dept. of Agriculture,

135 S.Ct. 2419 (2015) .......................................... 15

Hurado v. California,

110 U.S. 516 (1884) ....................................... 10, 11

Koontz v. St. Johns River Water Mgmt. Dist.,

133 S.Ct. 2586 (2013) .......................................... 15

Las Lomas Land Co., LLC v. City of Los Angeles,

177 Cal.App.4th 837 (2009) ................................ 14

Lazy Ranch Ltd. v. Behrens,

546 F.3d 580 (9th Cir. 2008) ............................... 15

Mengel Co. v. Nashville Paper Prods. &

Specialty Workers Union No. 513,

221 F.2d 644 (6th Cir. 1955) ................................. 8

Merrifield v. Lockyer,

547 F.3d 978 (9th Cir. 2008) ............................... 16

NC State Bd. of Dental Examiners v. FTC,

135 S.Ct. 1101 (2015) .......................................... 18

NFIB v. Sibelius,

132 S.Ct. 2566 (2012) ............................................ 5

NLRB v. Jones & Laughlin Steel Corp.,

397 U.S. 99 (1970) ................................................. 7

ix

Peick v. Pension Ben. Gaur. Corp.,

724 F.2d 1277 (7th Cir. 1983) ............................... 8

St. Joseph Abbey v. Castille,

712 F.3d 215 (5th Cir. 2013) ............................... 16

State Oil Co. v. Kahn,

522 U.S. 3 (1997) ................................................... 7

Thomas v. Collins,

323 U.S. 516 (1945) ............................................. 16

United States v. Lopez,

514 U.S. 549 (1995) ............................................... 5

United States v. Morrison,

529 U.S. 598 (2000) ............................................... 5

United Steelworkers of Am. v. United States,

361 U.S. 39 (1959) ................................................. 7

Vance v. Bradley,

440 U.S. 93 (1979) ............................................... 17

Vill. of Willowbrook v. Olech,

528 U.S. 562 (2000) ................................... 2, 11, 13

West Coast Hotel Co. v. Parrish,

300 U.S. 379 (1937) ............................................... 6

Wolff Packing Co. v. Ct. of Indus. Relations of Kan.,

262 U.S. 522 (1923) ..................................... passim

Wolff Packing Co. v. Ct. of Indus. Relations of Kan.,

267 U.S. 552 (1925) ..................................... passim

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. I ...................................... 9, 15, 16

U.S. CONST. amend. XIV................................ i, 3, 8, 12

x

STATUTES

Cal. Lab. Code §§ 1164-1164.13 ................................. 3

Cal. Lab. Code § 1164 ................................................. 3

Cal. Lab. Code § 1164(e) ........................................... 12

Cal. Lab. Code § 1164.3(d) .......................................... 3

Cal. Lab. Code § 1164.11(b) ...................................... 17

RULE

Sup. Ct. R. 37.6 ........................................................... 1

OTHER AUTHORITIES

1 BLACKSTONE, COMMENTARIES 44 ................ 10

Bernard H. Siegan, PROPERTY RIGHTS: FROM

MAGNA CARTA TO THE FOURTEENTH

AMENDMENT (Transaction Publishers, 2001) ...... 10

Bryant M. O’Keefe, The Employee Free Choice

Act’s Interest Arbitration Provision: In Whose Best

Interest?, 115 Penn St. L. Rev. 211 (2010) ................. 7

H.R. 800, 110th Cong. (2007) ..................................... 2

H.R. 1409, 111th Cong. (2009) ................................... 2

H.R. 1696, 109th Cong. (2005) ................................... 2

H.R. 3619, 108th Cong. (2003) ................................... 2

H.R. 5000, 114th Cong. (2016) ................................... 2

xi

Jazmine Ullua and John Myers, In Historic

Move, Gov. Jerry Brown expands overtime pay

for California farmworkers, Los Angeles Times

(Sep.

12,

2016),

available

online

at

http://www.latimes.com/politics/la-pol-sac-farmwo

rkers-overtime-signed-20160912-snap-story.html

(last visited Apr. 25, 2018) ....................................... 17

Jerre S. Williams, The Compulsory Settlement of

Contract Negotiation Labor Disputes, 27 Tex. L.

Rev. 587 (1949) ........................................................... 6

Josh Blackman, Equal Protection From Eminent

Domain: Protecting the Home of Olech’s Class of

One, 55 Loy. 697 (2009) ............................................ 18

Paul B. Stephan III, Barbarians Inside the Gate:

Public Choice Theory and International Economic

Law, 10 Am. U. J. Int’L. & Pol. 745 (1995).............. 19

Steven P. Croley, Theories of Regulation:

Incorporation the Administrative Process, 98

Colum. L. Rev. 1 (1998) ............................................ 19

1

INTEREST OF AMICI CURIAE1

The NFIB Small Business Legal Center (NFIB

Legal Center) is a nonprofit, public interest law firm

established to provide legal resources and be the

voice for small businesses in the nation’s courts

through representation on issues of public interest

affecting small businesses. The National Federation

of Independent Business (NFIB) is the nation’s

leading small business association, representing

members in Washington, D.C., and all 50 state

capitals. Founded in 1943 as a nonprofit,

nonpartisan organization, NFIB’s mission is to

promote and protect the rights of its members to

own, operate and grow their businesses.

NFIB represents member businesses nationwide,

and its membership spans the spectrum of business

operations, ranging from sole proprietor enterprises

to firms with hundreds of employees. While there is

no standard definition of a “small business,” the

typical NFIB member employs 10 people and reports

gross sales of about $500,000 a year. The NFIB

membership reflects American small business.

To fulfill its role as the voice for small business,

the NFIB Legal Center frequently files amicus briefs

in cases that will impact small businesses. The

Center files in this case because it raises an

important issue. Specifically, the Center voices

concern that compulsory “collective bargaining

agreements” will improperly singles-out small

1 In accordance with Rule 37.6, Amici state that no counsel for

a party authorized any portion of this brief and no counsel or

party made a monetary contribution to fund the brief’s

preparation or submission.

2

businesses for individualized legal proscriptions—

above and beyond generally applicable law. What is

more, the California Supreme Court’s decision may

encourage other state legislatures to implement

similar regimes—i.e., targeting select agricultural

businesses for heightened regulatory burdens.

Finally, the decision below may embolden more

aggressive initiatives. For example, there is real

concern that California’s Agricultural Labor

Relations Act may serve as a model in Congress for

legislation forcing business in other industries to

submit to government-imposed (non-consensual)

collective bargaining agreements. See e.g., H.R.

5000, 114th Cong. (2016); H.R. 1409, 111th Cong.

(2009); H.R. 800, 110th Cong. (2007); H.R. 1696,

109th Cong. (2005); H.R. 3619, 108th Cong. (2003).

Southeastern Legal Foundation (SLF), founded in

1976, is a national non-profit, public interest law

firm and policy center that advocates constitutional

individual liberties, limited government, and free

enterprise in the courts of law and public opinion.

SLF drafts legislative models, educates the public on

key policy issues, and litigates regularly before the

Supreme Court. SLF has an interest both in

reaffirming this Court’s decisions in Wolff Packing

Co. v. Ct. of Indus. Relations of Kan., 262 U.S. 522

(1923); Dorchy v. Kansas, 264 U.S. 286 (1924); Wolff

Packing Co. v. Ct. of Indus. Relations of Kan., 267

U.S. 552 (1925), and in seeking clarification from

this Court on the proper application of the class of

one doctrine set forth in Vill. of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000).

3

SUMMARY OF ARGUMENT

The California Agricultural Labor Relations Act

(“ALRA”) requires targeted businesses to submit to

“mandatory interest arbitration.” Cal. Lab. Code

§§ 1164-1164.13. This “interest arbitration” is not

truly arbitration, but rather a compulsory regime

that culminates with imposition of unique legal

burdens for a targeted business and its employees.

Hess Collection Winery v. Agricultural Labor

Relations Bd., 140 Cal. App. 4th 1584 (2006).

Whereas consent and a meeting of the minds have

always been the hallmark of a legitimate contract,

California purports to invoke its police powers to

compel assent to a collective bargaining agreement

in a manner that violates both the Due Process and

Equal Protection Clauses of the Fourteenth

Amendment.

The ALRA authorizes a labor union (“Petitioning

Union”), claiming to represent the employees of an

agricultural company, to petition the California

Agricultural Labor Relations Board for an order

compelling the company to submit to interest

arbitration, wherein an “arbitrator” is assigned to

write a “collective bargaining agreement.” Cal. Labor

Code § 1164. Once that “agreement” is approved by

the Board, it becomes effective law governing

employer-employee relations—binding only upon the

subject business and the Petitioning Union, while

affecting the lives of employees who (as in this case)

may not even support the union. Id. § 1164.3(d).

Thus, in imposing individualized legal burdens, the

ALRA regime arbitrarily creates a “class of one” for

no reason beyond the fact that the company has

fallen into the cross-hairs of union operatives.

4

The California Supreme Court upheld this regime

as a supposedly “rational” approach to advance

California’s goal of promoting collective bargaining

agreements in an industry for which the legislature

thought labor unions were lacking in power. This

does not justify singling-out businesses for special

legal burdens because this Court has said that it is

beyond the police powers of the state to compel

nonconsenting parties into a contract. Wolff Packing

Co. v. Ct. of Indus. Relations of Kan., 262 U.S. 522

(1923); Dorchy v. Kansas, 264 U.S. 286 (1924); Wolff

Packing Co. v. Ct. of Indus. Relations of Kan., 267

U.S. 552 (1925). But, the opinion below repudiated

this Court’s decisions in the Wolff Packing cases,

sweeping aside the entire trilogy as a vestige of the

Lochner era. Accordingly, this Court should grant

certiorari to reaffirm that the state has no legitimate

interest in compelling collective bargaining

agreements under the Due Process Clause, and to

further clarify that the ALRA’s system of

individualized legal proscriptions violates the Equal

Protection Clause—i.e., imposing unique legal

burdens without justification.

5

THE STATE HAS NO POWER TO COMPEL A

BUSINESS TO SUBMIT TO A COLLECTIVE

BARGAINING AGREEMENT

A. The

State

Cannot

Compel

NonConsenting Parties to Agree to Anything

a. The Decision Below Repudiates Valid

Supreme Court Precedent

In the opinion below, the California Supreme

Court suggests that nothing in the realm of economic

regulation is beyond the purview of state regulation

in the post-Lochner era. In the same vein many

commentators once argued that nothing was beyond

the reach of federal regulation. Commerce Clause

jurisprudence has since drawn a line in the sand,

over which the federal government may not step.

Those who thought federal commerce powers to be

without limit were repudiated in United States v.

Lopez, United States v. Morrison, and still again in

NFIB v. Sibelius. 514 U.S. 549 (1995); 529 U.S. 598

(2000); 132 S.Ct. 2566 (2012). Likewise, this Court

should repudiate the California Supreme Court’s

ruling that the State may compel non-consenting

parties to enter a contract. That assertion of power

crosses a line set long ago in Wolff Packing Co. v. Ct.

of Indus. Relations of Kan., 262 U.S. 522 (1923);

Dorchy v. Kansas, 264 U.S. 286 (1924); Wolff

Packing Co. v. Ct. of Indus. Relations of Kan., 267

U.S. 552 (1925).

State and federal authorities can certainly

restrict economic liberties in enumerable ways

without running into constitutional problems. As the

small business community knows all too well,

California law imposes extensive and ever-changing

6

regulations governing every aspect of the employeremployee relationship. Additionally, federal law

imposes burdens on top of the requirements of state

law. And these restrictions are usually subject only

to rational basis review when challenged on

substantive grounds. But a governmental directive

purporting to compel a contractual agreement

between non-consenting parties is another matter—

the proverbial ‘bridge too far.’

The California Supreme Court acknowledged that

this Court struck-down a Kansas law that had

established a Commission with authority to impose

contracts upon unwilling parties in Wolff Packing

Co.. But, while the assailed ALRB regime is, in every

material respect, identical to the stricken Kansas

regime, the California Court upheld the ALRA on

the assumption that Wolff Packing Co. has been

repudiated by post-Lochner cases. Gerawan

Farming, Inc. v. Agricultural Labor Relations Bd., 3

Cal.5th 1118 (2017) (citing West Coast Hotel Co. v.

Parrish, 300 U.S. 379, 400 (1937)). But, this Court

has never backed away from its holding that a

compelled contract violates due process. Jerre S.

Williams, The Compulsory Settlement of Contract

Negotiation Labor Disputes, 27 Tex. L. Rev. 587, 62223 (1949) (observing that despite the “tenor of [New

Deal] era decisions … the Wolff cases have not been

overruled[,]” and suggesting that “compulsory

settlement legislation” may infringe upon “individual

liberties…”).

To the contrary, while applying a highly

deferential standard in other due process cases, this

Court’s opinions signaled the continued validity of

Wolff Packing Co.’s essential holding during the

7

height of the New Deal era. For example, this Court

upheld the National Labor Relations Act “at least in

part because it ‘does not compel agreements between

employers and employees.’” Bryant M. O’Keefe, The

Employee Free Choice Act’s Interest Arbitration

Provision: In Whose Best Interest?, 115 Penn St. L.

Rev. 211, 216 (2010) (quoting NLRB v. Jones &

Laughlin Steel Corp., 397 U.S. 99 (1970)). Justice

Hughes’ opinion in Jones & Laughlin Steel Corp.

recognized this to be an important consideration in

his due process analysis—a compelling sign that

there would have been a problem if the NLRA

had been construed to compel contracts upon

non-consenting parties. NLRB, 397 U.S. at 45;

see also United Steelworkers of Am. v. United States,

361 U.S. 39, 74-75 (1959) (Douglas, J., dissenting)

(citing the Wolff cases).

Moreover, this Court has said, in accordance with

the doctrine of stare decisis, that it does not overrule

past precedent by mere inference or implication—but

only in directly addressing and departing from past

precedent. State Oil Co. v. Kahn, 522 U.S. 3, 20

(1997) (“Despite what Chief Judge Posner aptly

described as Albrecht’s ‘infirmities, [and] its

increasingly moth-eaten foundations,’ there remains

the question whether Albrecht deserves continuing

respect under the doctrine of stare decisis.”)

(internal citations omitted). Accordingly, if we are to

abandon Wolff Packing Co., it is not for the

California courts to lead the way. This Court alone

should make that decision, or else reaffirm Wolff

Packing Co. as controlling precedent. State Oil Co. at

20 (“The Court of Appeals was correct in applying

[the doctrine of stare decisis] … despite

disagreement… for it is this Court’s prerogative

8

alone to overrule one of its precedents.”). Until then

nothing more should be inferred than what this

Court has said directly: “[A] system [of compulsory

arbitration] infringes the liberty of contract and

rights of property guaranteed by the due process

clause of the Fourteenth Amendment.” Wolff

Packing Co., 267 U.S. at 569. Thus, while the State’s

prerogative to regulate the terms of a contract is

undoubtedly broad, the supposed power to mandate

an unwilling party to enter a contract remains

subject to the highest level of constitutional scrutiny.

See Peick v. Pension Ben. Gaur. Corp., 724 F.2d 1277

(7th Cir. 1983) (distinguishing between stateimposed “compulsory settlements” and a mere

requirement to enter arbitration as a means of

encouraging voluntary settlement); see also Mengel

Co. v. Nashville Paper Prods. & Specialty Workers

Union No. 513, 221 F.2d 644, 647 (6th Cir. 1955)

(citing Wolff Packing for the proposition that

“compulsory arbitration, without right to have the

issue determined by court action is invalid.”).

b. The ALRA’s Regime of Individualized

Legal Proscriptions Violates Due

Process

A contract creates private law, altering the legal

rights of the parties only through voluntary assent to

its terms. Bustamante v. Intuit, Inc., 141

Cal.App.4th 199, 208 (2006) (a valid contract

requires “mutual consent.”). For this reason, it is

hornbook law that a contract requires a “meeting of

the minds.” By contrast, the ALRA regime presumes

that the police powers of the state may either

affirmatively compel assent or may simply override

the need for mutual agreement. Yet, viewed in either

9

light, a state mandated compulsory contract between

private parties is fraught with constitutional

infirmities.

It would make little sense to say that the ALRA’s

compulsory arbitration regime truly forces assent.

That would require an especially Orwellian

conception of the police powers—which would both

defy reality and contravene First Amendment

principles.2 This is likely why the California

Supreme Court characterized the ALRA not as

requiring affirmative assent, but as a direct and

forcible

imposition

of

substantive

legal

requirements. Gerawan Farming, Inc., 3 Cal.5th at

1089 (“If the parties do not reach an agreement on

all terms through mediation, the mediator resolves

the disputed terms and submits a proposed contract

to the Board, which can then impose that contract on

the parties.”) (emphasis added).

But in assuming the state’s power to override

objections from a non-consenting party, the decision

not only purported to bury the Wolff Packing Co.

trilogy but departed from still older constitutional

precepts. The fundamental problem is that it is

beyond the power of a legislative body to make

For one, the state cannot literally compel a meeting of the

minds. And in any event, an order requiring assent to a

contract would unquestionably violate the First Amendment

both in compelling a communicative act and in violating the

freedom of association. See Forum for Academic & Institutional

Rights, Inc., 547 U.S. 47, 61 (2007) (“[F]reedom of speech

prohibits the government from telling people what they must

say.”); Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000)

(“Freedom of association … plainly presupposes a freedom not

to associate.”).

2

10

private law as between individuals or incorporated

entities. The foundational concept of due process

is that one may only be denied property rights, or

other liberties, in accordance with generally

applicable public law. Bernard H. Siegan,

PROPERTY RIGHTS: FROM MAGNA CARTA

TO THE FOURTEENTH AMENDMENT, 39

(Transaction Publishers, 2001) (observing that

“Blackstone defined ‘law’ as ‘a rule of civil conduct

prescribed by the supreme power in a state,

commanding what is right and prohibiting what is

wrong[,]” and explaining that this means “a law

must not be ‘a transient, sudden order from a

superior to or concerning a particular person; but

something permanent, uniform, and universal.’”)

(emphasis added) (quoting 1 BLACKSTONE,

COMMENTARIES 44). Accordingly, individualized

impositions—applicable only to a specific party—are

not lawful at all. Cf. Cleburne v. Cleburne Living

Center, 437 U.S. 432, 452 (1985). (“[E]lements of

legitimacy and neutrality [must] characterize the

performance of the sovereign’s duty to govern

impartially.”); Siegan, supra at 39 (“A law which

only affects and exhausts itself upon a particular

person’s rights or interests and has no relation

to the community in general ‘is rather a

sentence than law.’”) (quoting 1 BLACKSTONE,

COMMENTARIES 44). Without general application,

a purported legal imposition stands patently in

conflict with the rule of law. Hurado v. California,

110 U.S. 516, 535-36 (1884) (“Law is something more

than mere will exerted as an act of power. It must be

not a special rule for a particular person or a

particular case, but … the ‘general law’ … which

11

govern[s] society…”) (internal citations omitted)

(emphasis added).3

B. The ALRA’s System of Individualized

Legal Proscriptions Violates the Equal

Protection Clause

a. The Decision Below Contravenes this

Court’s Class-of-One Doctrine

i. Where an Agency or Political

Subdivision

is

Vested

with

Authority to Issue Individualized

Directives, There is Tremendous

Potential for Inconsistent Results

Individualized legal proscriptions are inherently

suspect because the law can only be viewed as

rationale if similarly situated individuals are treated

the same. Vill. of Willowbrook v. Olech, 528 U.S. 562,

564 (2000). For this reason, the class of one doctrine

places the burden on the State to prove that it has a

rational justification for treating an individual

differently from the larger class. Gerhart v. Lake

Cnty., Mont., 637 F.3d 1013, 1023 (9th Cir.). Yet the

California Supreme Court upheld the ALRA’s

compulsory arbitration scheme notwithstanding the

fact that the state failed to demonstrate either that:

(a) the regime would apply identical proscriptions on

similarly situated business, or; (b) that there is a

3 Due process “thus exlud[es]… acts of attainder, bills of pains

and penalties, acts of confiscation, acts reversing judgments,

and acts directly transferring one man’s estate to another,

legislative judgements and decrees, and other similar special,

partial, and arbitrary exertions of power under the forms of

legislation.” Id. Simply put, “[a]rbitrary power… is not law,

whether manifested as the decree of a personal monarch or [as

the legislative will] of an impersonal multitude.” Id.

12

rational basis for targeting specific companies.

Instead, the opinion blithely dispensed with the

class of one doctrine in concluding that there are

sufficient safeguards to “minimiz[e] arbitrary or

irrational differences between collective bargaining

agreements…” Gerawan Farming, Inc., 3 Cal.5 th at

1144-46.

But there are no meaningful standards cabining

the Agricultural Labor Relation Board’s discretion,

and therefore no guarantee that similarly situated

businesses will be treated alike. See Hayes v.

Missouri, 120 U.S. 68, 71-72 (1887) (explaining that

the Fourteenth Amendment “requires that all

persons subjected to … legislation be treated alike,

under like circumstances and conditions, both in the

privileges conferred and in the liabilities imposed.”).

All that the ALRA requires is that (a) the arbitrator

must take into account several (non-exclusive)

considerations before submitting a proposed contract

for the Board’s approval, and (b) the final terms

must be justified by the record.4 In other words, the

ALRA vests power in the hands of a single person to

craft terms for an imposed “contract” simply in

accordance with his or her own sense of good

governance or personal conceptions of social justice.

The arbitrator may consider: “(1) the stipulations of the

parties; (2) the financial condition of the employer…; (3) the

corresponding wages, benefits, and terms and conditions of

employment in other collective bargaining agreements covering

similar agricultural operations with similar labor requirements;

(4) the corresponding wages, benefits, and terms of employment

in comparable firms or industries in geographical areas with

similar economic conditions…; and (5) the average consumer

prices for goods and services according to the California

Consumer Price Index, and the overall cost of living, in the area

where the work is performed.” Cal. Lab. Code § 1164(e).

4

13

For example, the mediator in this case might

have chosen to propose a contract that would have

allowed Petitioner to continue with its preexisting

compensation

system

because

the

record

demonstrates that the company already paid

substantially higher than the industry average.

Instead the arbitrator recommended—and the Board

approved—terms requiring the company to increase

wages by $.50 per hour and an additional 12.5% for

piece-rates. The decision could just as well have been

to compel the company to increase wages by only 20,

or 30 cents. To the extent the record supported

compelling an increase of 50 cents per hour, the

contract might well have been approved with a

recommendation for an increase to $.75 or $1.75. The

record could arguably support any of these divergent

choices. Gentry v. City of Murrieta, 36 Cal.App.4th

1359, 1366 (1995) (explaining that an agency

decision will be upheld where “supported by

substantial evidence.”). Therefore, contrary to the

opinion below, there is little or no guarantee that a

different arbitrator—assigned the task of crafting a

collective bargaining agreement in a nearly identical

scenario—would exercise judgment in the same

manner or apply the same calculus. Hess, 140 Cal.

App. 4th at 1616 (Nicholson, J., dissenting)

(observing that this process “results in disparate

treatment within the class of employers without an

initial collective bargaining agreement because the

agreement imposed on each employer in this class

will be different.”) (emphasis added).

ii. There is No Rational Basis

Despite acknowledging that Olech requires a

“[showing] that ‘(1) the plaintiff was treated

differently from other similarly situated persons,

14

(2) the difference in treatment was intentional, and

(3) there was no rational basis for the difference in

treatment[,]’” the California Supreme Court never

identified a legitimate rational basis for this

compulsory arbitration regime. Gerawan Farming,

Inc., 3 Cal.5th at 1144. (quoting Las Lomas Land

Co., LLC v. City of Los Angeles, 177 Cal.App.4th 837,

858 (2009)). Instead, the opinion simply dispenses

with the need for identifying a rational basis where a

legislative body has decided upon a system of

individualized legal proscriptions. As Justice Liu put

it, “the [entire] point of the [ALRA] scheme is to

make agreements tailored to the parties’

individualized circumstances and relationships.”). In

the view of the California Supreme Court, it was

enough to say that there was a rational basis for the

system as a whole: “We conclude that the MMC

[provisions of the ALRA] [are] not facially invalid on

equal protection grounds because the Legislature

had a rational basis for enacting the [] statute to

facilitate collective bargaining agreements…”

But as set forth in Section I, California does not

have a legitimate state interest in compelling

contractual agreements between non-consenting

parties. As such, the opinion below failed to provide

a legitimate explanation for why any specific

business is to be targeted for “individualized”

treatment. What is more, there can be no rational

basis for individualized rulemaking proceedings in

the legislature’s cited goal of bettering working

conditions for agricultural employees. Surely such

concerns could justify generally applicable regulation

tailored for the agricultural industry. But,

generalized concerns justify only generalized

regulation—not special directives targeted upon a

15

single employer. See Lazy Ranch Ltd. v. Behrens,

546 F.3d 580, 590 (9th Cir. 2008) (holding that

although “administrative costs might be a valid

reason to deny a bidder a lease, it simply does not

offer a basis for treating conservationists different

from other bidders.”); Genesis Envtl. Servs. v. San

Joaquin Valley Unified Air Pollution Control Dist.,

113 Cal.App.4th 597, 606 (2003) (“[I]f a rational

classification is applied unevenly, the reason for

singling out a particular person must be rational and

not the product of intentional and arbitrary

discrimination.”).

There can be no mistake as to what this regime is

intended to accomplish. The only reason that the

ALRA’s compulsory arbitration scheme addresses

the “individualized circumstances” of a specific

employer is that the subject business has yet to

enter a collective bargaining agreement. But again,

the right to withhold assent to a contract is protected

by the Due Process Clause—if not other

constitutional precepts.5 And the Legislature’s

5 In addition to raising serious First Amendment problems, a

compulsory contract would also likely raise a problem under

the Takings Clause in so far as a forcible contract should

require one party to transfer personal property to another. See

Horne v. U.S. Dept. of Agriculture, 135 S.Ct. 2419, 2425-26

(2015) (affirming that per se rules apply when the government

appropriates money for public use); Koontz v. St. Johns River

Water Mgmt. Dist., 133 S.Ct. 2586, 2600 (2013) (clarifying that

the Takings Clause applies where there is a “direct link

between the government’s demand and a specific … property.”);

see also Eastern Enterprises v. Apfel, 524 U.S. 498, 540-544

(1998) (Kennedy J., concurring and dissenting in part)

(suggesting that the Takings Clause is implicated where a

government imposition “operate[s] upon or alters an identified

property interest…”).

16

finding that agricultural employees are somehow

uniquely impotent in their capacity to effectively

exert their interests in concerted action is beside the

point because that line of argument improperly

assumes that the State has the power to compel

contracts to address that concern. Indeed, it cannot

be that the State has a rational basis for forcing a

business into an “individualized” rulemaking regime

simply because the business has chosen to exercise

its constitutional rights. Cf. Thomas v. Collins, 323

U.S. 516, 537 (1945) (recognizing that employers

have a First Amendment right to oppose

unionization); Chamber of Commerce v. Brown, 554

U.S. 60, 66-68 (2008) (same).

Finally, the fact that a labor union wishes to force

a specific business to abide by heightened legal

standards to advance its economic interests is an

insufficient basis for imposing special legal

requirements upon the targeted business. See St.

Joseph Abbey v. Castille, 712 F.3d 215, 222-23 (5th

Cir. 2013) (holding that regulation serving no

purpose but “economic protectionism” or “favoritism”

cannot survive rational basis review); Merrifield v.

Lockyer, 547 F.3d 978, 991 n.15 (2008); Craigmiles v.

Giles, 312 F.3d 220 (6th Cir. 2002). And it does not

matter whether a business is (or is not) capable of

paying higher wages or providing greater benefits.

What matters is that the California Legislature has

already weighed competing social and economic

considerations in saying what wages are owed and in

dictating working conditions as a matter of general

law—including in imposing industry specific

17

standards.6 As such, the question remains: Why

should a labor union have the capacity to coerce a

business into either “voluntarily” accepting

heightened standards or having more burdensome

standards forcibly imposed through compulsory

arbitration?7

See e.g., Jazmine Ullua and John Myers, In Historic Move,

Gov. Jerry Brown expands overtime pay for California

farmworkers, Los Angeles Times (Sep. 12, 2016),

available online at http://www.latimes.com/politics/la-pol-sacfarmworkers-overtime-signed-20160912-snap-story.html (last

visited Apr. 25, 2018).

6

The compulsory arbitration process is permissible only

regarding agricultural employers who have engaged in unfair

labor practices in the past. Cal. Lab. Code § 1164.11(b). But,

this cannot serve as a rational basis for targeting select

employers for individualized treatment because there is simply

no nexus to the bargaining process in question. If conduct

unrelated to the bargaining process can trigger compulsory

arbitration and individualized treatment, the California

Legislature might just as well have said that a Petitioning

Union can target a business if the company conducts operations

on even-numbered calendar days, or if the owner chews bubblegum. See Vance v. Bradley, 440 U.S. 93, 97 (1979) (explaining

that there would be no rational basis in a case in which a

regulation was imposed upon a targeted group [or individual]

for a reason wholly unrelated to the achievement of a

legitimate purpose). In this case the targeted business is said to

have committed an unfair labor practice over a quarter-century

ago, prior to UFW’s certification as the exclusive representative

of Gerawan’s employees, and long before UFW reemerged from

its (unexplained) decade-long absence to demand a collective

bargaining agreement—ostensibly on behalf of employees who

no longer want union representation.

7

18

b. The Decision Below Invites Special

Interest

Groups

to

Lobby

for

Individualized Legal Proscriptions

When government issues a directive that is only

applicable to a single targeted business, there is a

substantial likelihood that the law-giver has been

captured by the interests of those parties standing to

benefit from the directive. See Josh Blackman,

Equal Protection From Eminent Domain: Protecting

the Home of Olech’s Class of One, 55 Loy. 697, 742

(2009) (discussing a case in which General Motors

had “exerted a disproportionate… determinant

influence upon the public policy process [to prompt a

municipality to initiate eminent domain] [,]” and

concluding that “GM had captured the political

process.”). To some extent, this is a risk with any

legislative action; however, it is an especially great

risk when a lone business may be singled-out as easy

prey. Indeed, parties who are singled-out by

government action “are less likely to influence the

political process and hence more vulnerable to state

action that benefits [other] private parties.” Id. at

743-46 (arguing that meaningful “class of one”

scrutiny is necessary to deter “rent seeking”).

Yet in blessing the ALRA’s system of

individualized rulemaking proceedings, the opinion

below invites politically powerful interest groups—

labor unions, consumer groups, environmental

organizations, and others—to push for adoption of

similar compulsory arbitration regimes in the states

or at the federal level. Cf. NC State Bd. of Dental

Examiners v. FTC, 135 S.Ct. 1101 (2015) (concerning

anticompetitive conduct on the part of a governing

board that had been captured by special interests).

19

Special interest groups stand to benefit from ad hoc

individualized schemes because they can avoid

unified resistance on the part of the broader

regulated community when targeting select

businesses for special obligations. Paul B. Stephan

III, Barbarians Inside the Gate: Public Choice Theory

and International Economic Law, 10 Am. U. J. Int’L.

& Pol. 745, 748 (1995) (explaining that an organized

interest group has an inherent advantage, and “can

outcompete … less efficient groups in the market for

political loyalty.”).

Public choice theory tells us, that a special

interest group will be willing to expend substantial

resources in lobbying for a regulation that harms the

economic interests of others, so long as it promises

greater economic benefits than the amount expended

in the process. Steven P. Croley, Theories of

Regulation:

Incorporation

the

Administrative

Process, 98 Colum. L. Rev. 1, 35 (1998). Even when

the adverse economic impacts of regulation are

diffused among the entire population or a large class

of individuals, the transactional costs associated

with coordinating a successful opposition are usually

prohibitive—meaning that special interest groups

will often succeed in pushing for regulation to

advance their economic interests, resulting in

diffused economic harms to the public. Stephan, 10

Am. U. J. Int’L. & Pol’y at 750. But here, the risk of

anti-democratic rent-seeking behavior is all the

greater—and inherently more perverse—because the

economic impacts are limited to individually

targeted victims.

20

CONCLUSION

For the foregoing reasons, the petition for

certiorari should be granted.

Respectfully submitted,

Karen R. Harned

Luke A. Wake*

Counsel of Record

NFIB Small Business Legal Center

1201 F Street, NW, Suite 200

Washington, DC 20004

(202) 314-2061 (Telephone)

(615) 916-5104 (Facsimile)

luke.wake@nfib.org

Kimberly S. Hermann

Southeastern Legal Foundation

2255 Sewell Mill Rd, Ste. 320

Marietta, GA 30062

(770) 977-2131 (Telephone)

(770) 977-2134 (Facsimile)

khermann@southeasternlegal.org

Bradley A. Benbrook

Stephen M. Duvernay

Benbrook Law Group, PC

400 Capitol Mall, Ste. 1610

Sacramento, CA 95814

(916) 447-4900 (Telephone)

(916) 447-4904 (Facsimile)

steve@benbrooklawgroup.com