Reply Brief — Delano Farms Co. v. California Table Grape Commission

AUG 27 2019

— =SEMCE OF THE CLP RK

| (O

No. 09-1496

In The

Supreme Court of the AUlnited States

DELANO FARMS COMPANY, THE SUSAN NEILL

COMPANY, AND LUCAS BROS. PARTNERSHIP,

etitioners,

CALIFORNIA TABLE GRAPE COMMISSION,

Respondent.

On Petition for Writ of Certiorari

To the United States Court of Appeals for the

Ninth Circuit

REPLY IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

BRIAN C. LEIGHTON HRIK S. JAFFE

701 Pollasky Avenue (Counsel! of Record)

Clovis, CA 93612 ICRIK S. JAFFE, P.C.

(559) 297-6190 5101 34™ Street, NW

Washington, DC 20008

(202) 237-8165

jaffe@es)jpc.com

WiILSON-EPES PRINTING Co , INC) — (202) 769-0096 — WASHINGION, D.C. 20002

TABLE OF CONTENTS

Table of Contents................... - ES AO POR,

Table of Authorities......... ee R= ee Es,

Reasons for Granting the Writ..........0..0. ccc cece <a

J. The Degree and Nature of Actual State

Control Required for the Government

speech Defense Is Squarely Presented by

Both the Decision Below and Petitioners. .......... l

I] The Decision Below Conflicts with this

Court’s Decision In JOPANNS., 2... ccc ccc ccc cc cccccccccccecee 6

Iti. The Decision Below Conflicts with

Decisions in Other Circuits that

Kvaluate Actual Supervision and Control

in Considering the [Issue of Government

PIS eee aeeeaveceeeeeicateie eee v

IV. This Case Involves Recurring Questions

OF PUBLIONAL FUBOPUAIICE.. .ooccscscoccsccccccceccescecsescane 12

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TABLE OF AUTHORITIES

Cases

Cornelius v. NAACP Legal Defense and

Kduc. Fund, Inc., 473 U.S. 788 (1985) ...... intl

Country MeES, Ine " Aawamura,

129 Cal.App.4th 589, 598 (Cal. App. 3 Dist

ZUOD) . eT

Johanns v. Lavestock Marketing Ass'n

544 U.S. 550 (2005) ee lo, 4,9

Keller v. State Bar of California, 496 U.S. |

(1990) 4

Lebron v. National fRawlroad Passenger

Corp., 513 U.S. 374 (1995).

Page v. Lexington County School Dist. One

531 F.4d 275 (CA4 2008) 1O

Roachyv. Stouffer, 560 F.3d 860 (CAR 2009).

REASONS FOR GRANTING THE WRIT

In finding that the Commission engaged in gov-

ernment speech based on the mere potential for state

control of such speech, despite the State’s “passivity”

and the lack of any “actual level of control evidenced

in the record,” App. A23-24, the Ninth Circuit has de-

cided an important First Amendment question con

trary to this Court’s decision in Johanns v. Livestock

Marketing Association, 544 U.S. 550 (2005), and con

trary to the method employed in other circuits when

considering a government-speech defense This

Court should grant certiorari to correct that errone

ous legal standard and restore the requirement of ac

tual government control before speech may be

deemed government speech not subject to the First

Amendment.

I. The Degree and Nature of Actual State Control

Required for the Government Speech Defense

Is Squarely Presented by Both the Decision Be-

low and Petitioners.

Respondent begins its opposition, BIO 1-2, 10-15,

with the seductive red herring that there is a purpor-

tedly independent and unchallenged basis for the de

cision below: that the Commission's status as a “gov-

ernment entity” for some purposes necessarily en

titles it to the government-speech defense for First

Amendment purposes

The panel majority made no such independent

holding, however, and recognized that the govern-

mental status issue was intertwined with the degree

of control exercised by the state qua state. And peti-

tioners certainly have not conceded that an entity’s

mere povernmental status for some purposes is suffi

cient for it to engage in government speech absent

the effective control required by Johanns

Regarding the grounds of the decision below, only

Judge KReimbhardt thought mere government-entity

status was sufficient to invoke the government-

speech defense. App. A24-25. The panel majority, by

contrast, recognized the “uncharted gap” in this

Court’s precedents concerning governmental status

for some I*irst Amendment purposes and deemed the

“question * * * closely related to the government con-

trol question” under Johanns. App. Al5.' Indeed,

Judge Reinhardt recognized the limits of the panel's

discussion of governmental status when criticizing

the panel majority’s “finding” of an “uncharted gap”

and recognition of a “balance” that needed

“tip[pping].”. /d. Respondent’s suggestion that the

Ninth Circuit’s holding is somehow independent of

the question presented is simply incorrect.

Furthermore, the panel majority was certainly cor-

rect in recognizing that it needed more than govern-

ment-entity status in order to resolve the govern-

ment-speech question. Government entities come in

1 The panel's speculation on how it might rule “[wjere we to

decide this appeal based solely on whether the Commission 18 a

povernment entity,’ App. Al5, is not an independent and alter

native holding. Though leaning in a particular direction, the

pancl felt the issues were sufficiently interrelated to require fur

ther analysis of effective control in order to “tip the balance’

It's ultimate ruling “taking into consideration both avenues for

claesification,” App. A8 (emphasis added), reflects its conjunc

tive analysis, not a disjunctive and independent pair of ratio-

nale 3

many forms, exercising varying degrees of govern

ment authority. Many so-called government entities

act sufficiently under color of state law to trigger con

stitutional restrictions, but do not thereby partake in

all governmental immunities. ‘That is precisely the

lesson of the interplay between, and the “gap” created

by, Lebron v. National Railroad Passenger Corp., 513

US. 374 (1995), and Keller v. State Bar of California,

496 U.S. 1 (1990).

As this Court recognized in Keller, the characteri

zation of a speaker as a government entity for some

purposes does not resolve whether such entity is en

titled to all the legal privileges of government — and,

In particular, to the government-speech defense.

There was no dispute in Ae//er that the California

State Bar was a povernment entity — as held by the

California Supreme Court — and this Court described

it as a “regulated state agency” under California law.

496 U.S. at 10. But, according to this Court and like

the Commission here, the State Bar was not a “typt

cal” government agency because it had limited mem-

bership and member-based funding, lacked substan

tive regulatory authority, and was answerable to the

narrow interests of its members rather than to the

varied and competing mterests ci the citizenry as a

whole. /d. at 11-13.

Thus, notwithstanding the Bar’s government sta-

tus under California law, this Court concluded that

the

differences between the State Bar, on the one

hand, and traditional government agencies

and officials, on the other hand, render un

availing respondent’s argument that it 1s not

subject to the same constitutional rule with

respect to the use of compulsory dues as are

labor unions representing public and private

employees.

Id. at 11-13. Keller thus confirms that mere status as

a “government” entity does not resolve whether the

government-speech defense apples.

Leebron likewise recognized the essential differ-

ences between government status for purposes of con-

stitutional restrictions on conduct and government

status for purposes of legal zmmunities for such con-

duct. Distinguishing previous statements rejecting

Kleventh Amendment immunity for certain state-

related corporations, this Court held that

it does not contradict those statements to hold

that a corporation is an agency of the Govern-

ment, for purposes of the constitutional obliga-

tions of Government rather than the “privileg-

es of the government,” when the State has

specifically created that corporation for the

furtherance of governmental objectives, and

not merely holds some shares but controls the

operation of the corporation through its ap

poimntees.

513 U.S. at 399 (emphasis added). The level of gov-

ernment control in Leebron made Amtrak sufficiently

governmental to trigger the constraints of the First

Amendment, but not necessarily the “privileges of the

rovern » a

government.

¢ Indeed, had Amtrak been a government speaker, its deci

sions concerning what advertising to accept on its property pre

sumably would have fallen squarely within the editorial discre

The panel majority correctly recognized that yov

ernment status under Leehron was insufficient to re-

solve the government-speech issue, and necessarily

proceeded to the effective-control question under -J/o-

Manns. Indeed, this Court in Johanns recognized

much the same point when it distinguished the

speech of the governmental entity in Ae//er as subject

to a lesser “degree of government control over the

message’ than existed under the beef program, where

every word of its speech was “developed under official

government supervision.” Sohanns, 544 U.S. at 561-

62.

Contrary to respondent's further suggestion, BLO

10-11, petitioners have never conceded that’ mere

government status was sufficient to make the Com

mission's speech “government speech.” Rather, dis

tinguishing nominally “governmental” conduits for

private group) speech from genuine’ povernment

speakers expressing the government’s own message,

petitioners have repeatedly emphasized the need to

evaluate the degree of control by the State and its of

ficers themselves. Although recognizing the Commis-

sions governmental status for some purposes, peti

tioners have consistently argued that not all puta-

tively governmental entities engage in government

speech. Respondent’s own citations, BIO 11, to peti

tion of such a speaker, and hence been immune from, rather

than subject to, First Amendment challenpe

Reply Brief for Appellants (CA9), at 12-15 (distinguishing

the Commission from typical arms of the State because it is a

corporate body separate from the government proper, may sue

and be sued, 18 composed of private competitors rather than

government employees, hires ita own non-government staff, may

sue the Secretary himself, and cannot bind the State or create

b

tioners’ supposed concessions amply demonstrate the

qualified nature of petitioners’ recognition of the

Commission's limited government status

Finally, the question presented in the Petition

whether the speech of the Commission is government

speech “where the government has virtually no au

thority over or involvement in generating or review

ing such speech” — does not depend on whether the

Commission 1s Characterized as governmental or pri

vate, or whether the Ninth Circuit had dependent or

independent rationales for its decision. It simply

asks whether actua/ control by the State and its offic

ers 1s necessary to make the Commission’s speech

that of the government itself, rather than the speech

of the table grape producers who populate and fund

the Commission. ‘That question takes issue with all

constructions of the Ninth Circuit's reasoning that

would excuse the lack of actual, effective control as

required by Johanns

I]. The Decision Below Conflicts with this Court’s

Decision in Johanna.

As the Petition notes, at 18-15, Johanns based its

holding on extensive evidence of the Secretary's ac

tual and detailed control over the speech generated

by the beef program. The Secretary had discretio

nary authority over every word spoken through the

state hability by its actions or contracts); cf, Country Kggs, Inc

v. Kawamura, 129 Cal.App.4th 589, 598 (Cal. App. 3 Dist. 2005)

(California Hyg Commission’s “broad authority, independent of

the Department [of Food and Agriculture],” meant that it was

not an arm of the State and the State was not lable for claims

arising from its activities)

program, initiated, vetoed, and/or edited the pro

grams speech, and reviewed and approved all promo

tional messages. 544 U.S. at 554, 560-61, 563

In this case by contrast, California’s Secretary of

Food and Apriculture is entirely uninvolved in the

operations of the ‘Table Grape Commission, has vir

tually no discretionary authority over the content of

the Commission's speech, and in fact exercises no

control whatsoever over the messages disseminated

by the Commission The differences could not be

starker

Respondent nonetheless argues that while Jo

Manns discussed the detailed control by the Secretary

there, it did not hold such control was actually neces

sary to establish government speech. BIO 17. Ac

cording to respondent it 1s sufficient that the legisla

ture established the general parameters for promot

ing table grapes and gave the Secretary limited over

sight authority. BIO 15-17.

As described in the Petition, however, the Secre

tarys appointment, removal, and oversight authority

are extremely constrained and provide him no ability

to exert discretionary control over the content of the

Commission's speech. Pet. 11-12, 16-17 (no authority

to contro] Commission’s speech on “public interest”

grounds; no actual supervision or review of speech;

must appoint elected representatives of table-grape

industry; no discretionary removal authority, only to

enforce minimum qualifications; Secretary can be

sued for interfering with Commission’s discretion

within the parameters of the statute; existence, con

tinuation, and termination of Commission deter

mined by producers, not Secretary)

Virtually all discretion regarding the content of

promotional speech remains in the hands of the

growers representatives on the Commission. Indeed,

the Ketchum Act’s appointment, removal, and review

provisions are designed to /rmit the Secretary’s au

thority and to enhance the discretion of those Com

missioners At best the Secretary can enforce the

outer statutory boundaries of the program. Within

those boundaries, however, the Secretary is largely

powerless over the content of the Commission’:

speech and can be sued by the Commission if he in

terferes with its discretion

Rather than dictate its own message that grower:

would help convey, the legislature instead merely au

thorized growers to collect industry-wide fees to con

vey the industry’s own self-promotional message if a

majority of the industry so chose. The choices wheth

er to speak and what to say belong to the growers, not

the State. That the legislature placed limits on the

fee-collection power it offered to the growers and the

general nature of the speech for which such coerced

fees could be used does not convert that speech into

government speech. It is, and remains, a limited faci

litation of private group speech.4

While Johanns may not have established the level

of contro! therein as the absolute minimum required

* Lamited public forum cases corroborate that content limita

tions on speech facilitated by the government do not avoid First

Amendment scrutiny by converting private speech into govern

ment speech. See, e.g., Cornelius v. NAACP Legal Defense and

Kducational Fund, Inc., 473 U.S. 788, 793, BOO (1985) (First

Amendment challenge to content and source restrictions on cha

ritable solicitations in a limited forum directed at federal work

ere)

9

to show government speech, it nonetheless rebutted

any suggestion that’ wholly unsupervised speech

would qualify when it distinguished Ae//er by em

phasizing that the speech of the State Bar was “not

developed under official government supervision.”

Johanns, 544 U.S. at 561-62. Under respondent's

view and the Ninth Circuit’s holding, this Court's ex

tensive discussion of the Secretary's actual control

and its grounds for distinguishing Ae//er are reduced

to mere dicta and actual control or supervision are

unnecessary. Such a view conflicts with and under

mines this Court's decision in Johanns. Whatever

the minimum degree of control for finding povern

ment speech, Johanns requires some actual control)

rather than the utter passivity evidenced in this case

Jil. The Decision Below Conflicts with Decisions in

Other Circuits that Evaluate Actual Supervi-

sion and Control in Considering the Issue of

Government Speech.

Unlike the decision below, cases in other circuit:

do consider the government's actual control over

speech when considering a government-speech de

fense to a First Amendment claim. Pet. 18-23. Res

pondent seeks to distinguish such cases by arguing

that they involve different programs without legisla

tively approved messages. BIO 20-22. Such distinc

tions do not bear upon the legal question presented

by the Petition, and do not negate the conflicting ap

proaches to evaluating government speech in other

circuits.

That the government-speech issue arises in a va

riety of contexts in addition to agricultural promo

10

tions merely demonstrates the broad reach and im-

plications of the government-speech doctrine and

does not change the essential legal standards for de

termining whether the government itself is speaking

Mach conflicting circuit case cited Johanns and each

considered the actual control exercised by the gov-

ernment

In ftoach v. Stouffer, 560 F.3d &60, 864-68 (CA

2009), the State established content parameters for

its specialty license-plate program, though it let pri

vate parties determine the details of the message

within such parameters. The Eighth Circuit cited

Johanns, recognized that government speech turned

on the degree of control, and analyzed the actual con

trol exercised by the State. Even in the face of some

editorial control by the State and final approval au-

thority over all applications, the court rejected the

government-speech defense. See Pet. 19-20. Both the

methodology and the result regarding government

speech in Floach conflicts with the Ninth Circuit's de

cision below, notwithstanding that different pro

yrams were involved

In Page v. Lexington County School D1st. One, 531

3d 275, 282-86 (CA4 2008), the Fourth Circuit ap-

plied Johanns control test by looking to the actual

control exercised by the government when affirma-

tively conveying its own message by selecting mate-

rials to include on a school web-site. Pet. 22.

Respondent suggests, BIO at 22, that the message

in Page did not originate with the government and

hence the case is distinguishable. That is simply

ry. J

wrong. ‘The overall message in Page — opposing a

proposed tax credit/voucher proposal — in fact did ori

1]

ginate with, and was dictated by, the school district

via a formal resolution. 531 F.3d at 278. The court

nonetheless looked to the actual level of a district

employee's control in the selection process of the

speech included on the web-site in furtherance of that

message. In our case, by contrast, the State does not

dictate any message; it merely authorizes the growers

to organize and to collect funds for a limited message

if they so chose. It is the growers that decide whether

and how to speak and they are not subject to any

meaningful control within the limits of their authori

zation. Page is an example of the proper analysis for

evaluating government speech and its approach con

flicts with the Ninth Circuit’s disregard for the lack of

any actual control by the State.

l‘inally, even absent a split within the class of

agricultural promotion cases themselves, this Court

has granted several petitions for this Term that have

not alleged any split - merely an important question

or one with substantial economic significance. See,

e.g., Petition at 5, Schwarzenegger v. Hnatertainment

Merchants Ass'n (No. 08-1448) (May 19, 2009) (ac

knowledging lack of a split); Petition at 8, Costco

Wholesale Corp. v. Omega, S.A. (No. 08-1423) (May

18, 2009) (same); Petition, -lores-Villar v. United

States (No. 09-5801) (Aug. 3, 2009) (no split alleged);

Petition at 11-12, Chamber of Commerce v. Candela

ria, (No. 09-115) (July 24, 2009) (same). Given the

size of the market even for commodities covered by

California marketing commissions alone, this case 1s

similarly significant and warrants this Court’s con

sideration regardless of the scope or nature of the cir

cuit conflict

iz

IV. This Case Involves Recurring Questions of Na-

tional Importance.

The Petition noted the importance of this case in

terms of the number and cconomic importance of the

programs affected, even just in California, and the

widespread implications of a broad government

speech standard that would climinate First Amend-

ment scrutiny across a variety of areas

Respondent suggests, BIO 23-24, that the case 1s of

limited impact because the Commission is atypical.

BIO 23. But California has many similar commis-

sions covering its largest commodities. See Market-

ing Orders Ayreements, Counsels and Commission

Laws, www.cdia.cal. pov/mkt/mkt/ordslaws. html (last

viewed Aug. 26, 2010) (isting California commodity

commissions for Apples, Asparagus, Avocados, Blu-

eberries, Dates, Cat lowers, Forest Products, Grape

Rootstock Improvement, Kiwifruit, Peppers, Rice, Sea

Urehins, Sheep, Strawberries, Table Grapes, Wal-

nuts, Wheat, and Wineprapes). The degree of actual

supervision and control of these commissions by the

State, while somewhat variable, 1s limited by design,

and hence the decision below will likely impact all

such Commissions.

Respondent also suggests, BIO 24, that the deci-

sion below is too narrow to reach political speech or

speech in other contexts, and hence is unimportant.

Qf course, nothing in the Ninth Circuit’s approach to

vovernment speech turns on the commercial nature of

the speech. And when the government genuinely

speaks it routinely conveys political messages repard-

inv legislation, international affairs, and government

policy. The government-speech doctrine necessarily

li

reaches political speech because much of the business

of government is, by definition, political. A broad gov-

ernment-speech doctrine allowing compelled support

for private groups who convey a favored message will

almost inevitably encompass political speech, with

deeply troubling consequences for First Amendment

freedoms. Furthermore, the political safeguards and

accountability touted by respondent will be less than

meaningless when the government can simply point

to its non-involvement and the vast discretion af-

forded private speakers such as the Table Grape

Commissioners. Without hands-on responsibility for

the speech generated by promotion programs, there 1s

no reason to imagine that the electorate will attribute

such speech to the government rather than to the

growers, and any political accountability justification

for not applying the First Amendment simply evapo

rates

CONCLUSION

For the reasons above, this Court should grant the

petition for a writ of certiorart.

Respectfully submitted,

MRIK S. JAFFE

(Counsel of Record)

MRIK S. JAFFE, PLC

5101 34 Street, N.W

Washington, D.C. 20008

(202) 237-8165

BRIAN C. LEIGHTON

701 Pollasky Avenue

Clovis, CA 93612

(559) 297-6190

Counsel for Petitioners

Dated: August 27, 2010