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

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION, CATO INSTITUTE,

CALIFORNIA FARM BUREAU FEDERATION,

CALIFORNIA FRESH FRUIT ASSOCIATION,

WESTERN GROWERS ASSOCIATION, AND

VENTURA COUNTY AGRICULTURAL

ASSOCIATION IN SUPPORT OF PETITIONER

ILYA SHAPIRO

TREVOR BURRUS

Cato Institute

1000 Massachusetts Ave. NW

Washington, D.C. 20001

Telephone: (202) 218-4600

E-mail: IShapiro@cato.org

E-mail: Tburrus@cato.org

DAMIEN M. SCHIFF

Counsel of Record

ERIN WILCOX

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: dschiff@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation, et al.

i

QUESTION PRESENTED

Does a state’s imposition of labor agreements on

non-consenting private employers and employees,

without any requirement that such agreements be

consistent across businesses or industries, violate the

Equal Protection Clause of the Fourteenth

Amendment?

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iv

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

INTRODUCTION AND SUMMARY OF REASONS

FOR GRANTING THE PETITION ............................ 3

REASONS FOR GRANTING THE PETITION ......... 7

I. ARBITRARILY BURDENING INDIVIDUALS AS

INDIVIDUALS VIOLATES THE PRINCIPLE

THAT LAWS SHOULD BE OF GENERAL

APPLICABILITY................................................... 7

A. Laws Should Be of General Applicability ....... 7

B. The Compulsion Regime Is An

Unconstitutional “Class-Of-One” Regulation

and Therefore Violates the Principle That

Laws Should Be of General Applicability ..... 10

(i)

The Compulsion Regime Treats Each

Agricultural Employer Differently

From Other Similarly Situated

Agricultural Employers ..................... 11

(ii)

This Differential Treatment

Is Intentional ..................................... 12

(iii) There Is No Rational Basis for Singling

Out Agricultural Employers............... 12

II. THIS CASE PROVIDES AN OPPORTUNITY

TO DELINEATE THE ENGQUIST

EXCEPTION TO OLECH ................................ 13

iii

III. LEFT UNCHECKED, THE COMPULSION

REGIME’S ARBITRARY BURDENING OF

INDIVIDUALS AS INDIVIDUALS WILL

SPREAD FAR BEYOND CALIFORNIA.......... 16

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

iv

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) ................................................. 8

Analytical Diagnostic Labs, Inc. v. Kusel,

626 F.3d 135 (2d Cir. 2010)................................... 15

Bankers Life & Cas. Co. v. Crenshaw,

486 U.S. 71 (1988) ................................................. 16

Bruner v. Zawacki,

997 F. Supp. 2d 691 (E.D. Ky. 2014) ...................... 1

City of Cleburne v. Cleburne Living Ctr.,

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

District of Columbia v. Heller,

554 U.S. 570 (2008) ................................................. 8

Douglas Asphalt Co. v. Qore, Inc.,

541 F.3d 1269 (11th Cir. 2008) ............................. 15

Engquist v. Oregon Department of Agriculture,

553 U.S. 591 (2008) .......................................... 13-16

Flowers v. City of Minneapolis,

558 F.3d 794 (8th Cir. 2009) ................................. 15

Franks v. Rubitschun,

312 F. App’x 764 (6th Cir. 2009) ........................... 16

Gerhart v. Lake County,

637 F.3d 1013 (9th Cir. 2011) ............................... 13

Griffith Co. v. NLRB,

545 F.2d 1194 (9th Cir. 1976) ................................. 4

Hanes v. Zurick, 578 F.3d 491 (7th Cir. 2009)......... 16

Hess Collection Winery v. Cal. Agric. Labor Relations

Bd., 45 Cal. Rptr. 3d 609 (Ct. App. 2006)... 5, 12, 14

v

Hurtado v. People of State of Cal.,

110 U.S. 516 (1884) ................................................. 9

J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127 (1994) ................................................. 9

Lazy Y Ranch Ltd. v. Behrens,

546 F.3d 580 (9th Cir. 2008) ................................. 13

Mathers v. Wright,

636 F.3d 396 (8th Cir. 2011) ................................. 15

Merrifield v. Lockyer,

547 F.3d 978 (9th Cir. 2008) ................................... 1

Nat’l Woodwork Mfrs. Ass’n v. NLRB,

386 U.S. 612 (1967) ................................................. 4

Village of Willowbrook v. Olech,

528 U.S. 562 (2000) .............................. 10, 13-14, 16

Towery v. Brewer,

672 F.3d 650 (9th Cir. 2012) ................................. 15

U.S. Department of Agriculture v. Moreno,

413 U.S. 528 (1973) ................................................. 9

Constitutional Provisions

U.S. Const. amend. XIV, §1 ...................................... 10

Statutes

29 U.S.C. § 152(2) ..................................................... 18

29 U.S.C. § 152(3) ..................................................... 18

29 U.S.C. §152(c) ......................................................... 4

An Act, Pub. L. No. 95-95, § 129(b), 91 Stat.685,

(1977) ……………………………………………………..17

Cal. Lab. Code § 1164(a)-(b) ................................. 7, 11

Cal. Lab. Code §§ 1164(e)(1)-(5) ................................. 5

vi

Cal. Lab. Code §§ 1164-1164.13 ................................. 4

Cal. Lab. Code § 1164.3(a)(1)-(3), (e) .......................... 6

Cal. Lab. Code § 1164.5(b) .......................................... 6

Cal. Lab. Code § 1164(e) .................................. 5, 11-12

Cal. Lab. Code § 1164(e)(3)……………………………11

Cal. Code Regs. tit. 8, § 20407(b) ............................. 11

Legislative Material

H.R. 1409, 111th Cong. (2009) ................................. 18

H.R. 1696, 109th Cong. (2005) ................................. 18

H.R. 3619, 108th Cong. (2003) ................................. 18

H.R. 5000, 114th Cong. (2016) ................................. 18

H.R. 800 § 3(3) (110th Cong., 2007) ......................... 19

H.R. 800, 110th Cong. (2007) ................................... 18

S. 1041, 110th Cong. (2007)...................................... 18

S. 1925, 108th Cong. (2003)...................................... 18

S. 560, 111th Cong. (2009)........................................ 18

S. 842, 109th Cong. (2005)........................................ 18

Other Authorities

Araiza, William D.,

Flunking the Class-of One/Failing Equal

Protection, 55 Wm. & Mary L. Rev. 435 (2013).... 10

Blackstone, William,

1, Commentaries on the Laws of England 303

(Wayne Morrison ed., Cavendish Publ’g 2001) ....... 7

Bice, Scott H.,

Rationality Analysis in Constitutional Law,

65 Minn. L. Rev. 1 (1980) ...................................... 14

vii

Carlson, Ann E.,

Energy Efficiency and Federalism,1 San Diego J.

Climate & Energy L. 11 (2009) ............................. 17

Gilfoil, Andrew,

Baby You Can Drive My Car: Rethinking

Greenhouse Gas Emissions Preemption in Light of

Massachusetts and Green Mountain Chrysler,

28 St. Louis U. Pub. L. Rev. 559 (2009) ............... 17

Hagen, Alex M.,

Mixed Motives Speak in Different Tongues:

Doctrine, Discourse, and Judicial Function in

Class-of-One Equal Protection Theory,

58 S.D. L. Rev. 197 (2013)................................ 14-15

Halgas, Jordan T.L.,

Reach an Agreement or Else: Mandatory

Arbitration Under the California Agricultural

Labor Relations Act,

14 San Joaquin Agric. L. Rev. 1 (2004) ........ 4, 6, 13

Locke, John,

Second Treatise of Government § 22 (C.B.

Macpherson ed., Hackett Publ’g Co. 1980) ............. 8

Marcus Tullius Cicero,

On the Laws, in On the Commonwealth and On

the Laws 105 (James E.G. Zetzel ed., 1999) .......... 7

National Labor Relations Board,

S. Rep. No. 573,

74th Cong., 1st Sess. 12 (1935). ....................... 18-19

Pappas, Michael,

Singled Out, 76 Md. L. Rev. 122 (2016) ................. 8

viii

Rosen, Philip B. & Greenberg, Richard I.,

Constitutional Viability of Employee Free

Choice Act’s Interest Arbitration Provision,

26 Hofstra Lab. & Emp. L.J. 33 (2008) ......... 3-4, 19

Wall, Michael H.,

The Regional Greenhouse Gas Initiative and

California Assembly Bill 1493: Filling the

American Greenhouse Gas Regulation Void,

41 U. Rich. L. Rev. 567, 577 (2007) ...................... 17

Zoldan, Evan C.,

Reviving Legislative Generality,

98 Marq. L. Rev. 625 (2014). ................................ 7-9

1

INTEREST OF AMICI CURIAE 1

Founded in 1973, Pacific Legal Foundation

(PLF) is widely recognized as the largest and most

experienced nonprofit legal foundation of its kind.

PLF litigates nationwide to secure all Americans’

inalienable rights to live responsibly and productively

in pursuit of happiness. PLF has repeatedly litigated

in defense of the right of individuals and businesses to

earn an honest living free from unreasonable

government interference. See Merrifield v. Lockyer,

547 F.3d 978 (9th Cir. 2008); Bruner v. Zawacki, 997

F. Supp. 2d 691 (E.D. Ky. 2014).

The Cato Institute is a nonpartisan publicpolicy research foundation established in 1977 and

dedicated to advancing the principles of individual

liberty, free markets, and limited government. Cato’s

Robert E. Levy Center for Constitutional Studies was

established in 1989 to help restore the principle of

limited constitutional government, which is the

foundation of liberty. To advance this end, Cato

publishes books and studies, conducts conferences,

and produces the annual Cato Supreme Court Review.

The California Farm Bureau Federation is

a California non-governmental voluntary membership

organization. Its members are 53 county Farm

Bureaus representing farmers and ranchers in 56

California counties. Those 53 county Farm Bureaus

1 No counsel for any party authored this brief in whole or in part,

and no person or entity other than amici curiae funded its

preparation or submission. More than 10 days in advance, all

parties received notice of the intended filing of this brief. Letters

of consent to the brief’s filing from all parties are on file with the

Clerk.

2

have in total nearly 40,000 members, including nearly

27,000 agricultural members. One of the Farm

Bureau’s purposes is to represent, protect, and

advance the economic interests of California’s farmers

and ranchers. Many of these farmers and ranchers are

considered agricultural employers under the state’s

Agricultural Labor Relations Act. They are or may

become engaged in collective bargaining under the

Act. Accordingly, labor law arbitration issues like

those raised in this action are of direct interest to

these Farm Bureau members. The Farm Bureau filed

in the courts below an amicus brief in support of

Gerawan.

The California Fresh Fruit Association is a

voluntary public policy association that represents

growers, packers, and shippers of California table

grapes, blueberries, kiwi, pomegranate, and

deciduous tree fruits. With origins dating to 1921, the

Association currently represents by volume

approximately 85% of 13 permanent fresh fruit

commodities, valued at over $3 billion in the state of

California. The Association serves as the primary

public policy representative for these growers,

shippers, and packers for the aforementioned

commodities on issues at both the state and federal

levels, including matters pertaining to labor and

employment disputes.

Founded in 1926, the Western Growers

Association is a trade association of California,

Arizona, and Colorado farmers who grow, pack, and

ship almost 50% of the nation’s produce and a third of

America’s fresh organic produce. Its mission is to

enhance the competitiveness and profitability of its

members. With offices and dedicated staff in

3

Washington, D.C., and Sacramento, California,

Western Growers is the leading public policy advocate

for the fresh produce industry and has a longstanding

interest in employment and labor matters.

The

Ventura

County

Agricultural

Association is a nonprofit agricultural trade

association. Its membership consists of over 90% of

the agricultural employers and farm labor contractors

subject to the jurisdiction of the California

Agricultural Labor Relations Act in Ventura and

Santa Barbara Counties. These businesses represent

the entire spectrum of fruit trees, row crops, berries,

nursery, and other agricultural commodities. Through

its General Counsel, the Association has a longstanding history of representing its members in labor

and employment matters arising under California’s

Agricultural Labor Relations Act.

This case is important to Amici because the

California Supreme Court’s decision threatens the

foundational principle that laws and regulations

should be generally applicable, and thereby invites

the arbitrary burdening of individuals as individuals.

This principle is a critical justification for the doctrine

of equal protection, which itself is crucial for the

protection of individual rights.

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION

In 49 states and the District of Columbia, a

private employer and its employees have the right to

agree, or not, to a collective bargaining agreement. See

Philip B. Rosen & Richard I. Greenberg,

Constitutional Viability of Employee Free Choice Act’s

Interest Arbitration Provision, 26 Hofstra Lab. &

4

Emp. L.J. 33, 51 (2008) (noting that California is the

only state that has imposed binding interest

arbitration on private employers and employees).

California, alone, compels agricultural employers and

their employees to assent to collective bargaining

agreements dictated to them by a so-called

“mediator.” 2 See Jordan T.L. Halgas, Reach an

Agreement or Else: Mandatory Arbitration Under the

California Agricultural Labor Relations Act, 14 San

Joaquin Agric. L. Rev. 1, 27 (2004) (“In effect,

[California agricultural labor relations law] require[s]

that the arbitrator become the ‘master drafter’ of the

parties’ collective bargaining agreement.”).

This stark departure from the norm of allowing

private employers and employees to negotiate their

own collective bargaining agreements is the result of

the California Mandatory Mediation and Conciliation

Process

(“Compulsion

Regime”),

Cal.

Lab.

Code §§ 1164-1164.13, “a legislative labyrinth that

creates many more problems than it could ever solve.”

Halgas, supra, at 2. The most disturbing facet of the

Compulsion Regime is that it requires the state

imposition, through the mediator, of a collective

2 The National Labor Relations Act does not apply to farm

laborers. 29 U.S.C. § 152(c) (defining “employee” so as not to

include “any individual employed as an agricultural laborer”).

Farm laborer unions generally have accepted that exclusion

because it allows them and their members to pursue secondary

boycotts, an activity prohibited under federal law. See Halgas,

supra, at 27. Cf. Griffith Co. v. NLRB, 545 F.2d 1194, 1199 (9th

Cir. 1976) (describing prohibited “secondary boycotts” as “union

pressure directed at a neutral employer the object of which (is) to

introduce or coerce him to cease doing business with an employer

with whom the union (is) engaged in a labor dispute.”) (quoting

Nat’l Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 622 (1967)).

5

bargaining agreement drafted solely by the mediator

and applicable only to one specific agricultural

employer and its employees.

This “mini labor code”—for it is not properly

termed a “collective bargaining agreement” because it

is not collective, bargained for, or agreed to by the

parties—creates a mediator who wields almost

unlimited discretion. Factors commonly considered in

labor arbitration when crafting the terms of a

collective bargaining agreement, such as the financial

condition of the employer, industry-standard wages

and benefits, and collective bargaining agreements

reached by other parties, are the only factors that may

be considered by the mediator under the Compulsion

Regime. Cal. Lab. Code §§ 1164(e)(1)-(5). The

mediator is not required to consider, nor is he bound

by, any factor. 3 See id. In fact, the Compulsion Regime

does not even explain how much weight each factor

should be assigned, or provide a standard or goal

towards which the mediator should aim. See id.

§ 1164(e) (directing merely that certain factors be

considered “[i]n resolving the issues in dispute.”).

Instead, the mediator has virtually unfettered

discretion to compel the parties’ assent to whatever

terms the mediator dictates, with no assurance to the

employer or its employees that the collective

bargaining agreements that result will treat similarly

situated agricultural employers or employees in a like

3 But see Hess Collection Winery v. Cal. Agric. Labor Relations

Bd., 45 Cal. Rptr. 3d 609, 624-27 (Ct. App. 2006) (relying on the

canon of constitutional avoidance to construe the Compulsion

Regime to require that the mediator consider the listed factors).

6

manner. 4 See id. § 1164.3(a)(1)-(3), (e) (limiting the

labor board’s review of a mediator’s decision to

relevance to employment conditions, clearly erroneous

factual findings, arbitrary and capricious conclusions,

corruption, fraud, and misconduct); id. § 1164.5(b)

(substantially circumscribing judicial review of the

labor board’s review of the mediator’s decision).

This Court should grant review for two reasons.

First, the California Supreme Court’s decision runs

afoul of the fundamental principle that laws and

regulations should apply generally to all members of

society, thereby violating the Equal Protection Clause

of the Fourteenth Amendment by arbitrarily

burdening individuals as individuals. Second, because

California is a regulatory leader among the states, the

negative effects of the Compulsion Regime could

easily spread to infect other jurisdictions.

4 The Compulsion Regime’s major proponents were the unions.

See Halgas, supra, at 9 (“[T]he UFW was the major supporter of

the Mandatory Arbitration Bills . . .”). Cf. id. at 22 (“Growers

responded that the UFW backed the passage of the Bills as a way

to beg politicians for union contracts that it (was) too weak to win

on its own.” (internal quotation marks omitted)). The unions

supported the Compulsion Regime because, under California

labor law, they would retain the right to strike and engage in

secondary activity. See id. at 33. In public employment, where

binding interest arbitration is more common, the rights to strike

and engage in secondary activity are usually given up in

exchange for binding interest arbitration. See id.

7

REASONS FOR GRANTING THE PETITION

I

ARBITRARILY BURDENING INDIVIDUALS

AS INDIVIDUALS VIOLATES THE

PRINCIPLE THAT LAWS SHOULD BE

OF GENERAL APPLICABILITY

A. Laws Should Be of General Applicability

By dictating that each agricultural employer

and its employees be subject to an individual collective

bargaining agreement drafted by a state-imposed

mediator, Cal. Lab. Code § 1164(a)-(b), the

Compulsion Regime is not a law of general

applicability.

Mediator-imposed agreements are

specific to the particular agricultural employer and its

employees and do not apply to any of the agricultural

employer’s competitors, no matter how alike they are.

The principle that laws should apply generally

to all members of society, rather than single out

certain individuals for special treatment, dates back

at least to the Roman Republic and is woven into the

fabric of our Constitution. Cicero condemned as

“unjust” the Roman legislative practice of bestowing

special treatment on select individuals. Evan C.

Zoldan, Reviving Legislative Generality, 98 Marq. L.

Rev. 625, 652 (2014) (quoting Marcus Tullius

Cicero, On the Laws, in On the Commonwealth and

On the Laws 105, 173 (James E.G. Zetzel ed., 1999)).

Millennia later, Blackstone argued that acts of a

legislature must be “universal”; a law applicable to a

single individual “has no relation to the community in

general” and is “rather a sentence than a law.” Id.

(citing 1 William Blackstone, Commentaries on the

8

Laws of England 303 (Wayne Morrison ed., Cavendish

John Locke wrote that to be

Publ’g 2001)). 5

considered a law, a rule must be “common to every one

of that society.” Id. (quoting John Locke, Second

Treatise of Government § 22 (C.B. Macpherson ed.,

Hackett Publ’g Co. 1980)).

The Framers of our Constitution, “[w]earied by

a decade of special laws, and recalling the history of

abusive special legislation enacted by Parliament . . .

rejected the power of the legislature to declare named

individuals ineligible for the protections of the

standing laws.” Zoldan, supra, at 652. 6 The Framers

recognized the inherent risks of singling out

individuals and were concerned for the legitimacy of

any government that did so. See Michael Pappas,

Singled Out, 76 Md. L. Rev. 122, 126 (2016). In

response, they “sought to structure government to

prevent majorities or particularly influential interest

groups from treating themselves preferentially or

their enemies detrimentally.” Id. (noting that the

Constitution reflects a strong preference for the

general applicability of laws). The Bill of Attainder,

Ex Post Facto, and Title of Nobility Clauses all

This Court has said that Blackstone’s works “constituted the

preeminent authority on English law for the founding

generation.” District of Columbia v. Heller, 554 U.S. 570, 593-4

(2008) (quoting Alden v. Maine, 527 U.S. 706, 715 (1999)).

5

6 The prevalence of special litigation is closely akin to the classof-one doctrine and relies on the same philosophical and

jurisprudential underpinning. See, e.g., Zoldan, supra, at 628

(“The principle that rules of conduct ought to apply generally to

all of society’s members, rather than single out individuals for

special treatment, has long been advocated by jurists and

philosophers of law.”).

9

illustrate an intent to prevent a government actor

from singling out an individual for different

treatment. Zoldan, supra, at 653.

The Equal Protection Clause incorporates this

concern with protecting the individual against his or

her government. See J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127, 152 (1994) (Kennedy, J., concurring in

the judgment) (“The Equal Protection Clause and our

constitutional tradition are based on the theory that

an individual possesses rights that are protected

against lawless action by the government.”); see also

U.S. Department of Agriculture v. Moreno, 413 U.S.

528, 534 (1973) (“For if the constitutional conception

of ‘equal protection of the laws’ means anything, it

must at the very least mean that a bare congressional

desire to harm a politically unpopular group cannot

constitute a legitimate government interest.”). Less

than 20 years after the passage of the Fourteenth

Amendment, this Court noted that “[l]aw is something

more than mere will exerted as an act of power,” and

there “must be not a special rule for a particular

person or a particular case . . . ” Hurtado v. People of

State of Cal., 110 U.S. 516, 535 (1884). The ability to

enforce limitations against arbitrary government

power “is the device of self-governing communities to

protect the rights of individuals and minorities, as well

as against the power of numbers, as against the

violence of public agents transcending the limits of

lawful authority, even when acting in the name and

wielding the force of government.” Id. (emphasis

added).

The Founders’ fear of influential groups

wielding state power against their enemies has

become a reality in California.

10

B. The Compulsion Regime Is An

Unconstitutional “Class-Of-One”

Regulation and Therefore Violates the

Principle That Laws Should Be

of General Applicability

In Village of Willowbrook v. Olech, this Court

recognized that the arbitrary burdening of individuals

as individuals, i.e., as a “class-of-one,” is

unconstitutional. 528 U.S. 562, 564 (2000). The

Constitution guarantees to all persons the “equal

protection of the laws,” and this right means that the

government must treat similarly situated individuals

in the same manner. See U.S. Const. amend. XIV, §1;

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

439 (1985). Unconstitutional class-of-one regulation

occurs when: (i) the government treats a person or

business differently from other similarly situated

persons; (ii) the differential treatment is intentional;

and (iii) the differential treatment lacks any rational

basis. Olech, 528 U.S. at 564; see William D. Araiza,

Flunking the Class-of-One/Failing Equal Protection,

55 Wm. & Mary L. Rev. 435, 455 (2013) (explaining

that, in class-of-one claims, “the plaintiff is singled out

as an individual, not as a member of a racial or other

group.”). The regulations produced by the Compulsion

Regime, like the collective bargaining agreement

imposed on Petitioner and its employees, fit firmly

within this definition of unconstitutional class-of-one

regulation.

11

(i)

The Compulsion Regime Treats

Each Agricultural Employer

Differently From Other Similarly

Situated Agricultural Employers

The Compulsion Regime targets individual

agricultural employers by dictating that each

agricultural employer that cannot come to an

agreement with its employees’ union must be made

subject, at the union’s instigation, to a collective

bargaining agreement drafted by the mediator. Cal.

Lab. Code § 1164(a)-(b). This so-called “agreement”

operates as individualized labor legislation affecting a

single employer. It governs wages, hours, and all other

significant issues between the employer and its

employees, yet the Regime contains no standards or

other means to ensure that similarly situated

employers within the class of those employers made

subject to it will be treated in a like manner. Instead,

it merely directs that the mediator “may consider”

various factors in “resolving the issues in dispute.”

Cal. Lab. Code § 1164(e) (emphasis added); Cal. Code

Regs. tit. 8, § 20407(b) (“In determining the issues in

dispute, the mediator may consider those factors

commonly applied in similar proceedings . . .”)

(emphasis added). The mediator is not even required

to consider, for example, “collective bargaining

agreements covering similar agricultural operations

with similar labor requirements.” Cal. Lab. Code

§ 1164(e)(3). Moreover, even if the mediator were

required to take any factors into account when

drafting a collective bargaining agreement, the

Compulsion Regime gives the mediator complete

12

freedom to assign whatever weight—or none at all—

to any factor. 7 Cf. Cal. Lab. Code § 1164(e).

(ii)

This Differential

Treatment Is Intentional

By its very terms, the Compulsion Regime

treats individual agricultural employers differently.

The Regime’s failure to mandate any factors that the

mediator must consider necessarily results in each

agricultural employer being treated differently from

other similarly situated employers. Cf. Cal. Lab.

Code § 1164(e). The Regime grants mediators nearly

boundless discretion to write the agreement, with no

limits to provide uniformity. See id. There is nothing

within the Compulsion Regime to prevent the

imposition of an agreement that disadvantages a

single employer without applying to similarly situated

competitors. The absence of any standards or limits to

the mediator’s discretion strongly suggests an intent

to treat like agricultural employers differently.

(iii)

There Is No Rational

Basis for Singling Out

Agricultural Employers

It is irrelevant that the Compulsion Regime

seeks to vindicate the state’s legitimate interest in

resolving agricultural labor disputes. The class-of-one

Hence, merely mandating the consideration of certain factors

still would not guarantee that similarly situated employers

would be subject to similar agreement terms. See Hess, 45 Cal.

Rptr. 3d at 633 (Nicholson, J., dissenting) (“[T]he discrimination

is arbitrary because there are no standards set forth pursuant to

which the mediator’s decision in this case will be the same as the

mediator’s decision in any other case under Labor Code section

1164 and the related statutes.”).

7

13

doctrine requires that the government articulate a

rational basis for the manner of regulation, i.e.,

regulating on an individual rather than a broader

basis. Gerhart v. Lake County, 637 F.3d 1013, 1023

(9th Cir. 2011) (“[T]he rational basis prong of a ‘class

of one’ claim turns on whether there is a rational basis

for the distinction, rather than the underlying

government action.”). See Lazy Y Ranch Ltd. v.

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

(“[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

any other bidders.”). That any given collective

bargaining agreement may turn out to be rational

cannot justify the irrational targeting which produced

it.

The Compulsion Regime establishes a

framework whereby otherwise similarly situated

agricultural employers and their employees are

subject to arbitrarily varying labor regulations. See

Halgas, supra, at 31 (noting that the “arbitrator, who

will not likely have any special economic expertise,

will set the economic terms of a contract at a rate . . .

which could [be] higher than the employer can

actually pay.”) The Regime does not comport with the

equal protection of the laws.

II

THIS CASE PROVIDES AN OPPORTUNITY

TO DELINEATE THE ENGQUIST

EXCEPTION TO OLECH

In Olech, the Court broadly recognized that a

class-of-one claim does not depend on group

membership, but can include the singling out of an

individual from others similarly situated for no

14

rational purpose. 528 U.S. at 564. In Engquist v.

Oregon Department of Agriculture, this Court clarified

its holding in Olech to exclude state actions “which by

their nature involve discretionary decision-making

based on a vast array of subjective, individualized

assessments,” and in particular discretionary

government employment decisions. 553 U.S. 591,

603-05 (2008). Through Olech and Engquist, the

class-of-one equal protection claim “expresses the

principle of impartiality at the heart of the Equal

Protection Clause, but is divorced from the groupcentered tiered scrutiny of traditional equal protection

analysis.” Alex M. Hagen, Mixed Motives Speak in

Different Tongues: Doctrine, Discourse, and Judicial

Function in Class-of-One Equal Protection Theory, 58

S.D. L. Rev. 197 (2013).

The instant case presents an opportunity for

this Court to demarcate the boundaries of the

Engquist exception to Olech. Unlike the executive or

quasi-adjudicative decision-making exercised in

discretionary government employment decisions, see

Engquist, 553 U.S. at 603-05, the mediators under the

Compulsion Regime exercise quasi-legislative power.

Hess, 45 Cal. Rptr. 3d at 617-18. No class of legislative

activity has ever been entirely exempted from equal

protection review. See Scott H. Bice, Rationality

Analysis in Constitutional Law, 65 Minn. L. Rev. 1, 3

(1980) (noting that the “rational basis” test is “the

standard that all legislation must meet to survive

constitutional attack . . . under the . . . equal protection

clause.”). Therefore, the Engquist line of cases should

have no bearing on the constitutionality of the

individualized but nonetheless quasi-legislative

agreements which result from the Compulsion

Regime.

15

Multiple circuit courts have extended the

Engquist public employment decisions exception to

other contexts, while others have refused to do so,

creating a need for clarity in this area. See Hagen,

supra, at 249 n.40 (comparing Towery v. Brewer, 672

F.3d 650, 660 (9th Cir. 2012) (rejecting death row

prisoners’ class-of-one challenge to Arizona’s lethal

injection protocol by reasoning that decisions on such

matters “such as which drug protocol to use, which

people to select for the execution team, and whether

to use a central femoral IV” are by statute relegated

to the discretion of the Director of Prisons, with no

requirement of uniformity); Flowers v. City of

Minneapolis, 558 F.3d 794, 799-80 (8th Cir. 2009)

(class-of-one claim against police officers based on

“directed patrol” of plaintiff’s residence made for a

“poor fit” and “while a police officer’s investigative

decisions remain subject to traditional class-based

equal protection analysis, they may not be attacked in

a class-of-one equal protection claim”); Douglas

Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th

Cir. 2008) (“We have little trouble applying the

reasoning in Engquist, directed at a the [sic]

government-employee

relationship,

to

the

circumstances in this case involving a governmentcontractor relationship.”); with, e.g., Mathers v.

Wright, 636 F.3d 396, 400-01 (8th Cir. 2011)

(concluding that allegations of teacher’s intentional

misconduct stated class-of-one claim because conduct

in question “exceeded the scope of professionally

acceptable choices and was not discretionary”);

Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d

135, 141-43 (2d Cir. 2010) (acknowledging the circuit

split and declining to extend Engquist to limited

discretion exercised pursuant to state’s sovereign

16

regulatory power); Franks v. Rubitschun, 312 F. App’x

764, 766 n.3 (6th Cir. 2009) (declining to apply

Engquist to denial of parole); Hanes v. Zurick, 578

F.3d 491, 495 (7th Cir. 2009) (declining to apply

Engquist to police discretionary conduct, reasoning

that police officers, “in contrast to public employers,

exercise the government’s sovereign power” and have

less discretion than government employers)).

Thus, this case presents the Court with an

opportunity to provide needed clarity on the scope of

the Engquist limitation to the class-of-one doctrine,

and to reaffirm that no exercise of legislative power is

exempt from equal protection review.

III

LEFT UNCHECKED, THE COMPULSION

REGIME’S ARBITRARY BURDENING OF

INDIVIDUALS AS INDIVIDUALS WILL

SPREAD FAR BEYOND CALIFORNIA

This Court has previously held that singling

out individuals in an irrational and arbitrary manner

violates the Equal Protection Clause “under even [this

Court’s] most deferential standard of review.” Bankers

Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83 (1988);

see also Olech, 528 U.S. at 565. The California

Supreme Court’s opinion below substantially weakens

this Court’s ban against singling out individuals for

irrational and arbitrary treatment for all

Californians. See App. 27 (finding that “individualized

determinations are rationally related to the

Legislature’s legitimate interest in ensuring that

collective bargaining agreements are tailored to the

unique circumstances of each employer”). If the Equal

Protection Clause no longer stands between

17

Californians and class-of-one violations, then more

than just agricultural employers and farm workers

are at risk.

California is a nationwide regulatory leader.

See, e.g., Pub. L. No. 95-95, § 129(b), 91 Stat. 685, 750

(1977) (amending Clean Air Act to allow other states

to adopt California’s new motor vehicle emission

standards if the state’s standards “are identical to the

California standards for which a waiver has been

granted for such model year”); Andrew Gilfoil, Baby

You Can Drive My Car: Rethinking Greenhouse Gas

Emissions Preemption in Light of Massachusetts and

Green Mountain Chrysler, 28 St. Louis U. Pub. L. Rev.

559, 565 (2009) (California “holds a unique position as

a regulatory leader among the states”); Michael H.

Wall, The Regional Greenhouse Gas Initiative and

California Assembly Bill 1493: Filling the American

Greenhouse Gas Regulation Void, 41 U. Rich. L. Rev.

567, 577 (2007) (describing California as a “figurehead

of progressive environmental legislation”); Ann E.

Carlson, Energy Efficiency and Federalism, 1 San

Diego J. Climate & Energy L. 11, 20 (2009) (noting

that California “is the de facto regulatory leader for

appliances not subject to federal standards”). Now

that California has shown the way in regulating

agricultural employers and employees, other states

and the federal government may follow if this Court

does not check their advance. The Compulsion Regime

could easily be replicated for agricultural employers

and employees in other states. The California

Supreme Court’s disregard of the class-of-one doctrine

will embolden other government actors, both in

California and beyond, to do the same.

18

There have already been significant efforts at

the federal level to apply compulsory interest

arbitration, the system at the heart of the Compulsion

Regime, to all private employers and employees, by

amending the National Labor Relations Act. To date,

the Employee Free Choice Act has been introduced

five times in the U.S. House of Representatives and

four times in the U.S. Senate. See H.R. 3619, 108th

Cong. (2003); H.R. 1696, 109th Cong. (2005); H.R. 800,

110th Cong. (2007); H.R. 1409, 111th Cong. (2009);

H.R. 5000, 114th Cong. (2016); S. 1925, 108th Cong.

(2003); S. 842, 109th Cong. (2005); S. 1041, 110th

Cong. (2007); S. 560, 111th Cong. (2009). Among other

things, the Employee Free Choice Act seeks to amend

the National Labor Relations Act to require

compulsory interest arbitration for all employers

covered by the latter—meaning almost all private

employers and employees in the country. 8

Compulsory interest arbitration has never been

applied to those covered by the National Labor

Relations Act, and it is contrary to the intent of that

law. At the time of its passage, the Act’s proponents in

the Senate pointedly noted that they “wishe[d] to

The only employers that the National Labor Relations Act

excludes are the “United States or any wholly owned

Government corporation, or any Federal Reserve Bank, or any

State or political subdivision thereof, or any person subject to the

Railway Labor Act, as amended from time to time, or any labor

organization (other than when acting as an employer), or anyone

acting in the capacity of officer or agent of such labor

organization.” 29 U.S.C. § 152(2). The only employees excluded

are agricultural laborers, domestic service workers, individuals

employed by their parent or spouse, independent contractors,

supervisors, and those whose employers are subject to the

Railway Labor Act. Id. § 152(3).

8

19

dispel any false impression that this bill is designed to

compel the making of agreements or to permit

governmental supervision of their terms.” Senate

Comm. On Education and Labor, National Labor

Relations Board, S. Rep. No. 573, 74th Cong., 1st Sess.

12 (1935). Indeed, the proponents “stressed that the

duty to bargain collectively does not carry with it the

duty to reach an agreement, because the essence of

collective bargaining is that either party shall be free

to decide whether proposals made to it are

satisfactory.” Id. (emphasis added).

Much like the Compulsion Regime in

California, the Employee Free Choice Act institutes

compulsory interest arbitration, to be performed by

panels without any administrative safeguards. For

example, the bill simply directs that if mediation

efforts fail, the parties will be referred to an

arbitration board “established in accordance with

such regulations as prescribed by the [Federal

Mediation and Conciliation] Service,” which renders a

decision binding on the parties for two years. H.R.

800 § 3(3) (110th Cong., 2007). The Federal Mediation

and Conciliation Service, a federal agency run by a

single presidential appointee, has wide latitude to

prescribe regulations. See Rosen, supra, at 46-47. Like

the Compulsion Regime, the Employee Free Choice

Act would allow the arbitration panel complete

discretion whether to consider comparable wages or

benefits, or terms and conditions of employment in the

collective bargaining agreements of similarly situated

employers. Id. at 57. Under the bill, the federal

government would impose collective bargaining

agreements on newly-organized employers, while

competitors in the same industry with pre-existing

20

contracts or no union presence would not be subject to

these government mandates. Id. at 56.

With thousands of mediators imposing unique

collective bargaining agreements on thousands of

private employers and employees, the adoption of

California’s Compulsion Regime in other states or by

Congress would constitute an assault on the

safeguards against arbitrary government power

which the Framers intended to preserve in the

Constitution. This Court should review the lower

court’s holding to check this potential flood of assaults

upon the right to equal protection.

CONCLUSION

For the foregoing reasons, and those stated in the

petition, the petition for a writ of certiorari should be

granted.

DATED: May, 2018.

Respectfully submitted,

DAMIEN M. SCHIFF

Counsel of Record

ERIN WILCOX

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: dschiff@pacificlegal.org

ILYA SHAPIRO

TREVOR BURRUS

Cato Institute

1000 Massachusetts Ave. NW

Washington, D.C 20001

Counsel for Amici Curiae Pacific Legal Foundation, Cato

Institute, California Farm Bureau Federation, California Fresh

Fruit Association, Western Growers Association, and

Ventura County Agricultural Association