DELANO FARMS COMPANY v. CALIFORNIA TABLE GRAPE COMMISSION

Respondent’s Response to Amicus Curiae Brief

Cal.March 21, 2016

SUPREME COURT COPY CASE No. 8226538 IN THE SUPREME COURT OF CALIFORNIA DELANO FARMS COMPANY, FOUR STARFRUIT,INC., GERAWAN FARMING,INC., BIDART BROS., and BLANC VINEYARDS, Petitioners, Vv. THE CALIFORNIA TABLE GRAPE COMMISSION, Hep 24 af WE ea gle. way LotbE Eek Respondent. . eemee RESPONDENT THE CALIFORNIA TABLE GRAPE COMMISSION’S . ANSWERTO AMICUS CURIAEBRIEFS After Decision by the Court of Appeal, Fifth Appellate District, Case No. F067956 On Appeal from the Superior Court for the State of California, County of Fresno, Case Nos. 636636-3 (lead case), 642546, 01CECG1127, 01CECG2292, 01CECG2289, and 11CECG0178, Hon. Donald S. Black BAKER MANOCK & JENSEN, PC WILMER CUTLER PICKERING * Robert D. Wilkinson #100478 HALE AND DORR LLP 5260 North Palm Avenue, Fourth Floor Seth P. Waxman(pro hac vice) Fresno, California 93704 Thomas G. Saunders (pro hacvice) Telephone: 559.432.5400 Ari Holtzblatt (pro hac vice pending) Facsimile: 559.432.5620 Thomas G. Sprankling #294831 rwilkinson@bakermanock.com 1875 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: 202.663.6000 Facsimile: 202.663.6363 seth.waxman@wilmerhale.com Attorneysfor Respondent The California Table Grape Commission CASE NO. 8226538 IN THE SUPREME COURT OF CALIFORNIA DELANO FARMS COMPANY, FOUR STAR FRUIT,INC., GERAWANFARMING,INC., BIDART BROS., and BLANC VINEYARDS, Petitioners, Vv. THE CALIFORNIA TABLE GRAPE COMMISSION, Respondent. RESPONDENT THE CALIFORNIA TABLE GRAPE COMMISSION’S ANSWER TO AMICUS CURIAE BRIEFS After Decision by the Court of Appeal, Fifth Appellate District, Case No. F067956 On Appeal from the Superior Court for the State of California, County of Fresno, Case Nos. 636636-3 (lead case), 642546, 01CECG1127, 01CECG2292, 01CECG2289, and 11CECG0178, Hon. Donald S. Black BAKER MANOCK & JENSEN, PC * Robert D. Wilkinson #100478 5260 North Palm Avenue, Fourth Floor Fresno, California 93704 Telephone: 559.432.5400 Facsimile: 559.432.5620 rwilkinson@bakermanock.com WILMER CUTLER PICKERING HALE AND DORR LLP Seth P. Waxman (pro hac vice) Thomas G. Saunders (pro hacvice) Ari Holtzblatt (pro hac vice pending) Thomas G.Sprankling #294831 1875 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: 202.663.6000 Facsimile: 202.663.6363 seth.waxman@wilmerhale.com Attorneysfor Respondent The California Table Grape Commission TABLE OF CONTENTS Page TABLE OF AUTHORITIES.0....ccecceeesceeecceereeeneeeeesessseeseessseesssasseeensessseeees il INTRODUCTION.........cccccccscccssecesereeeeeeneeenesesesssesessseeeseeeeeeeesessesesnesesasenees 1 ARGUMENT. ......ccccccccsscsccsccsseceseecssserecseceeeeeeesseeeneeecsseeeesesaeaeaensseseeeesseaessees 3 I. GOVERNMENT SPEECH DOES NOT REQUIRE ATTRIBUTION J... ccccccccccccecsceeeceenecneeeieetseeeeeeseeeeceesseeseseseneeeeneeeenas 3 1. CATO’S ATTEMPTS TO NARROW THE GOVERNMENT SPEECH DOCTRINE SHOULD BE REJECTED...eee 8 CONCLUSION oo... ccccccccccesecceneecsneeeeeeesnecseeeaecseeceneasensaeeeeeesessenseeenseeeaas 11 CERTIFICATE OF WORD COUNT CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page(s) CASES Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th Looeecccesececeseessesssnesseessaeessecaeeaesarestessesars 3 Cochran v. Veneman (3d Cir. 2004) 359 F.3d 263, judgment vacated sub nom. Lovell v. Cochran (2005) 544 U.S. 1058 voceeeeecenseeeeeneeees 6 Gallo Cattle Co. v. Kawamura (2008) 159 Cal.App.4th 948 ooo. ccecesecseneeetreseseetsereeteeneeens 4,5,7 Gavaldon v. DaimlerChrsyler Corp. . (2004) 32 Cal.4th 1246 o...ccccccceesesceneeseesesesseerseeetersistetseeeneeensetete 3 Gerawan Farming, Inc. v. Kawamura . (2004) 33 Cal4th 1ee eeccccecceeeceeeeeseeeseceseeesesescessreestetnsceneeseneens 6, 11 Glickman v. Wileman Brothers & Elliott, Inc. (1997) 521 U.S. 4ST vecceeeeseceeeereteeeeeenenenneneneissneneneneeeeeeentraneeatans 11 Johanns v. Livestock Marketing Association (2005) 544 US. 550 ooo ececcceeseeteerereeteesesseesenseneneseeneees 1, 4, 7, 9, 10 Keller v. State Bar ofCalifornia (1990) 496 U.S. 1 wieccicecsccesetescesseeees 9 Mansell v. Board ofAdministation ofPublic Employees’ Retirement System (1994) 30 Cal.App.4th 539...cece 3 Pleasant Grove City v. Summum (2009) 555 U.S. 460...ceceteens 5 Walker v. Texas Division, Sons ofConfederate Veterans, Inc. (2015) 135 S. Ct. 2239 eeeecceeeneseereereeteeeesenseeseseessenenseseees 4,5, 10 STATUTES AND RULES Cal. Sup. Ct. Rule 8.500... ceccceseeeeecteereeeneeenseeeeeeesessessnessessesssesnenssestees 3 il OTHER AUTHORITIES California Table Grape Commission, About the California Table Grape Commission, http://www.grapesfrom california.com/aboutus.php (last visited Mar. 17, 2016)... 3 lil INTRODUCTION Asexplained in the California Table Grape Commission’s Answer Brief, the constitutionality of the advertising program that the Legislature charged the Commission with carrying out readily follows from the principles articulated by the U.S. Supreme Court in Johanns v. Livestock Marketing Association (2005) 544 U.S. 550. Applying that decision, the Court of Appeal correctly held that the Commission’s speech is government speech, andthat Petitioners’ free speech claim therefore fails as a matter of law. That holding should be affirmed for two independentreasons: (i) the Commissionis itself a governmententity, and (11) the message of the Commissionis “effectively controlled” by the State (id. at 560). Numerousfeatures of the Commission andits speech support these conclusions. The California Legislature created the Commissionto further the governmental objective of promoting California table grapes, and defined by statute the Commission’s generic-promotion message with precision. The Commission’s board members are appointed and subjectto removal by the Secretary of the California Department of Food and Agriculture (“CDFA”). The Commission is subject to CDFA’s oversight authority, which includes the powerto reverse the Commission’s actions. And the Commission is expressly treated as a governmententity under multiple provisions of the Government Code—including the Public Records Act and the Bagley-Keene Open Meeting Act—which guarantee . the Commission’s transparency and accountability. Together, these and other characteristics establish that the Commission is a governmententity, and that its speech is government speech. (Answer Br. 19-52; CDFA Br. 15-19.) Amicus DKT Liberty Project “DKT”or “Amicus DKT’’) contends that the Commission’s advertisements cannot be government speech because viewers allegedly do not attribute them to the government. Not only is this argument waived, but Johannsrejected this attribution theory, and DKT offers no compelling reason for this Court to adopt a different rule under California law. The arguments made by Amici The Cato Institute, Institute for Justice, and Reason Foundation (“Cato”) fare no better. Cato’s assertion that the government speech doctrine unduly restricts private speech rights ignores that the Commission’s speech complements, rather than competes with, private speech. It also ignores the government speech doctrine’s critical role in ensuring the government can perform core functions without constantly confronting a heckler’s veto. Cato’s claim that the Commission cannot be a governmententity because it can be abolished by referendum wasrejected by Johanns, which recognized that such a referendum mechanismis entirely consistent with government speech and,if anything, providesa political safeguard that actually reinforces the Commission’s status as a government speaker. And Cato’s reliance on cases precluding | the governmentfrom “taking sides”in elections is misplaced, not the least becauseit is stipulated that the Commission’s speechis neither political nor ideological. In sum, DKT and Cato offer no sound basis for rejecting the conclusion that the Commission’s advertisements are government speech. The decision of the Court of Appeal should be affirmed. ARGUMENT I. GOVERNMENT SPEECH DOES NOT REQUIRE ATTRIBUTION Echoing Petitioners, DKT argues that the Commission cannot invoke the government speech doctrine becauseits advertisements cannot “actually be attributed by a listener to the government.” (DKTBr. 2; see also Petitioners’ Br. 25-27, 35-37; Reply Br. 21-23.) As explained in the Commission’s AnswerBrief (at 48-49), this attribution argument is waived because Petitioners failed to raiseit in the Court of Appeal. (Gavaldonv. DaimlerChrsyler Corp. (2004) 32 Cal.4th 1246, 1265 [“As a generalrule, we address only issues that have been raised in the Court of Appeal.”]; Cedars-Sinai Med. Center v. Superior Court (1998) 18 Cal.4th 1, 6; Cal. Sup. Ct.Rule 8.500(c)(1).) DKT makes no attempt to dispute this point or otherwise endorse Petitioners’ claim that they preserved the argument by briefly mentioning attribution below. (Reply Br. 21.) Nor could it, since such fleeting and ambiguousreferencesare insufficient to avoid waiver. (See Mansell v. Board ofAdmin. ofPub. Emps.’ Ret. Sys. (1994) 30 Cal.App.4th 539, 545-546.) In any event, the attribution theory fails on the merits. Requiring attribution whenever the government speaks would severely interfere with legitimate government objectives. Consider, for example, a program that distributes grants for non-profits to run 15-second anti-smoking ads. An attribution requirement would force the organizations to waste valuable airtime informing viewers that the government paid for each ad—airtime that could instead be spent on the government’s important public health message. Or consider a program that enlists former gang members to dissuade teenagers from joining a gang: an attribution requirement would compel the former gang members to begin each conversation by identifying themselves as agents of the State. “Were the Free Speech Clause interpreted” to require attribution in such programs “government would not work.” (Walker v. Texas Div., Sons ofConfederate Veterans, Inc. (2015) 135 S. Ct. 2239, 2246.) ~ It is thus unsurprising that both the U.S. Supreme Court and the lower California courts have squarely rebuffed Petitioners’ and DKT’s attribution theory. As DKT concedes(at 4), Johanns “rejected” any attribution requirement under federal law: “The dissent cites no prior practice, no precedent, and no authority for this highly refined elaboration [i.e., its suggested attribution requirement]—not even anyone who has ever before thoughtofit.” (Johanns, supra, 544 U.S. at 564 n.7.) The Third Appellate District likewise rejected the theory under the California Constitution in a decision that DKT never cites, Gallo Cattle Co. v. Kawamura (2008) 159 Cal.App.4th 948: “We find the reasoning of the Johanns majority more persuasive than Justice Souter’s dissent. We do not agree that the posited threat of a greaterlikelihood of outrage and intemperate response [in assessmentcases] warrants creation of a novel special disclosure requirement.” (Jd. at 963.) None of DKT’s arguments for deviating from Johanns and overruling Gallo is persuasive. First, like Petitioners, DKT claimsthat in Walker, supra, 135 S. Ct. 2239, and Pleasant Grove City v. Summum (2009) 555 U.S. 460, the Supreme Court “backtracked” from Johanns’ holding that the government may speak without attribution. (DKT Br. 16; see also Petitioners’ Br. 26-27, 37; Reply Br. 22-23.) But this argument misunderstandstherole attribution played in those cases. Unlike Johanns, Walker and Summum involvedsuits seeking to compel the governmentto transmit a private party’s message—byissuing a license plate with a Confederate flag in Walker and by erecting a religious monumentin a public park in Swnmum. Inthat context, the risk was that the public would erroneously believe “the State has endorsed th[e] [private party’s] message” (Walker, supra, 135 8. Ct. at 2249 [emphasis added]), frustrating the State’s ability to “select the views that it wants to express” (Summum, supra, 555 U.S. at 468.) Far from silently overturning Johannsby requiring attribution of the government’s messagein the circumstances here, Summum and Walker reaffirmed Johanns’ basic insights while seeking to avoid misattribution of private messages to the governmentin the circumstances of those cases. (CDFA Br. 19.) Second, DKT contends that in Gerawan Farming, Inc. v. Kawamura (2004) 33 Cal.4th | (“Gerawan IP’), this Court deemed “the attributability of speech to the government”to be “a major factor in whether a targeted subsidy program produces government speech.” (DKT Br. 15-16; see also id. at 21-22.) Gerawan IT, however, neversettled on a specific test for governmentspeech under the California Constitution. (CDFA Br. 17-18.) The Court merely identified attribution as one amongseveral “‘questions that may be” relevant on remand, and noted that “other courts”—i.e., not the U.S. Supreme Court and not this Court—‘ha[d] found”that question “significant.” (GerawanII, supra, 33 Cal.4th at 28 [emphasis added]; see also CDFA Br. 18.) Tellingly, the single decision Gerawan II referenced on this point waslater vacated by the U.S. Supreme Court in light of Johanns. (Cochran v. Veneman (3d Cir. 2004) 359 F.3d 263, 273, judgment vacated sub nom. Lovell v. Cochran (2005) 544 U.S. 1058.) It would makelittle sense to read Gerawan IT’s tentative suggestions based on a now-supersededfederal decision as definitively imposing an attribution requirement under California law. Third, DKT contends that “democratic theory” requires attribution because withoutattribution it is “impossible”for citizens to hold government accountable for its speech. (DKT Br. 5, 11.) But DKT never explains why individual advertisements must be expressly attributed to the State for there to be political accountability. The Commission’s status as a public entity created by the Legislature is no secret. (E.g., infra p. 8.) Moreover, regardless of attribution, table grape advertisements, like the beef advertisements at issue in Johanns,“are subject to political safeguards more than adequate to set them apart from private messages.” (Johanns, supra, 544 U.S. at 563; see Answer Br. 25-30, 36-40.) DKT seemsto accept that government generally can be held democratically accountable withoutattribution, since it does not claim that disclosure is required for all government speech. If political safeguards work across the board without attribution, it is difficult to see why they would fail solely for the compelled . subsidization of generic commodity advertising. (See Gallo, supra, 159 Cal.App.4th at 963.) Finally, even if an attribution requirementexisted, it would be satisfied here. DKT’s contention that the Commission’s advertisements are not sufficiently attributed to the State (DKT Br. 22) is simply wrong and entirely ignores the Commission’s rebuttal of this contention (AnswerBr. 51-52). Like Petitioners, who neverrelied on or developed anyattribution theory below (Answer Br. 48-49), DKT points to no actual evidence that the tagline “Grapes from California”is inconsistent with attribution to the State of California. To the contrary, like Petitioners, DKT concedes(at 23) that viewers of the Commission’s ads are often directed to its website. That website clearly identifies the Commission as a government speaker: The California Table Grape Commission was established by an act ofthe state’s legislature in 1967.... The commission’s importanceto the state and its mandate—to maintain and expand markets for fresh California grapes and to create new and largerintrastate, interstate, and foreign markets—was reaffirmed andits authorities broadened by the legislature in 1995, 1997 and again in 2001. (Cal. Table Grape Comm’n, About the California Table Grape - Commission, http://www.grapesfromcalifornia.com/aboutus.php(last visited Mar. 17, 2016).) DKT’s argument(at 23) that the Commission has a “*.com,” rather than a “‘ca.gov” URL alsofails, given the numberof counties, cities, school districts, water districts, courts, police departments, and waste management commissions that would similarly run afoul of such a URL-based government speech test. (See Answer Br. 52 & n.17.) Il. CATO’S ATTEMPTS TO NARROW THE GOVERNMENT SPEECH DOCTRINE SHOULD BE REJECTED Cato does not join DKT’s argumentregardingattribution. Instead, Cato offers three arguments of its own for narrowing the government speech doctrine. Those arguments should be rejected. First, Cato attacks the government speech doctrine based on the erroneous premise that government speech necessarily crowdsout private speakers from the marketplace of ideas. (Cato Br. 4-8.) Allowing governmentto participate fully in public debates enriches and expands those debates, it does not contract them. “If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed.” (Keller v. State Bar ofCalifornia (1990) 496 U.S. 1, 12-13.) Moreover, evenif in other settings government speech might burden private speech, that is decidedly not true here. The undisputed evidence submitted below shows that the Commission’s advertising and other activities have increased overall demand for California table grapes. (CT- 2:374 [CTGC SSUMF 4129]; CT-7-1371 [Alston Decl. 927] [Commission’s promotion activities “have a substantial, positive, and statistically significant effect on demand”].) For example, thanks in no small part to the Commission’s assessment-funded efforts, “40% [of California table grapes] are now exported,” as Petitioners acknowledged in the Court of Appeal (Opening C.A.Br. 26). (See also CT-3:511-517 [Nave Decl. 9102-116] [describing international market-access efforts]; CT- 2:408-409 [Giumarra Decl. J§6-8] [same].) The larger market for grapes creates more opportunities for individual growers to engage in their own speech in an effort to expand their market share. The Commission’s speech thus complements, rather than competes with, private speakers. In its rush to criticize the government speech doctrine, Cato also ignores the critical function the doctrine serves. “[S]ome government programs involve,or entirely consist of, advocating a position.” (Johanns, supra, 544 U.S. at 559.) To run “a successful recycling program,” for example, city government must be free to “writ[e] householders asking them to recycle cans and bottles.” (Walker, supra, 135 S. Ct. at 2246.) “Were the Free Speech Clause interpreted” to stop the government from speaking, “government would not work.” (bid; see also Johanns, supra, 544 U.S. at 574 [Souter, J., dissenting] [““To govern, governmenthas to say something, and a First Amendment heckler’s veto of any forced contributionto raising the government’s voice in the ‘marketplace of ideas’ would be out of the question.”’].) Second, Cato contends that the Commission cannot be a government entity becauseit can be abolished by a vote of table grape growers. (Cato Br. 10-12.) As Cato acknowledges(at 10), Petitioners do not even make this argument, and for good reason. The Beef Orderat issue in Johanns was subject to a similar referendum mechanism: “Congress ... required a referendum among producers before permanently implementing the checkoff, and allowed the Secretary to call another referendum upon demandof a ‘representative group’ comprising 10 percentof cattle 10 S N M P A s A M oe producers.” (Johanns, supra, 544 U.S. at 563 n.6.) The Court in Johanns viewed the referendum notas a signal that the Beef Board’s speech wasnot government speech, but rather as a “political safeguard[]” that reinforcedits status as governmentspeech. (/d. at 563 & n.6; cf Gerawan IT, 33 Cal.4th at 26 [“Such participation (by agricultural producers in a referendum) may be a legitimate means offurthering the government interest.”’].) The same is true here. Finally, Cato attacks the very notion of government speech based on cases saying that the governmentshould not“take sides” in elections. (Cato Br. 12-15) These cases havelittle relevance here, however, given the parties’ stipulation that “[t]he Commission has not run political or ideological advertisements.” (CT-8:1721 [SF 928]; see also Glickmanv. Wileman Bros. & Elliott, Inc. (1997) 521 U.S. 457, 469-470 [the Ketchum | Act does not “compel the [growers] to endorse orto finance any political or ideological views.”] .) Speech promoting the purchase of California table grapes plainly does not present the same constitutional concerns as a government agency campaigning foror against a ballot measure. CONCLUSION For the foregoing reasons and the reasons given in Respondent’s Answer Brief and the CDFA’s AmicusBrief, the judgment of the Court of Appeal should be affirmed. 1] DATED: March 18, 2016 Respectfully submitted, py. MYL Robert D. Wilkinson #100478 WILMER CUTLER PICKERING HALE AND DORR LLP Seth P. Waxman (pro hac vice) Thomas G. Saunders (pro hac vice) Ari Holtzblatt (pro hac vice pending) ThomasG. Sprankling #294831 BAKER MANOCK & JENSEN, PC Robert D. Wilkinson #100478 Attorneys for THE CALIFORNIA TABLE GRAPE COMMISSION 12 CERTIFICATE OF WORD COUNT Pursuant to Rule of Court 8.520(c)(1), I hereby certify that, including footnotes, the foregoing brief contains 2,448 words. This word count excludes the exempted portionsofthe brief as provided in Rule of Court 8.520(c)(3). As permitted by Rule of Court 8.504(c)(1), the undersigned hasrelied on the word count feature of Microsoft Word 2010, the computer program used to prepare this brief, in preparing this certificate. DATED: March 18,2016 By: \AnX Robert D. Wilkinson #100478 WILMER CUTLER PICKERING | HALE AND DORR LLP Seth P. Waxman (pro hac vice) Thomas G. Saunders (pro hacvice) Ari Holtzblatt (pro hac vice pending) ThomasG. Sprankling #294831 BAKER MANOCK & JENSEN, PC Robert D. Wilkinson #100478 CERTIFICATE OF SERVICE STATE OF CALIFORNIA, COUNTY OF FRESNO Atthe time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Fresno, State of California. Mybusiness address is 5260 North Palm Avenue, Fourth Floor, Fresno, CA 93704. On March18, 2016, I served true copies of the following documents described as RESPONDENT THE CALIFORNIA TABLE GRAPE COMMISSION’S ANSWER TO AMICUS CURIAEBRIEFSon the interested parties in this action as follows: SEE ATTACHED SERVICELIST BY MAIL:I enclosed the documents in a sealed envelope or package addressedto the personsat the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am familiar with Baker Manock & Jensen’s practice for collecting and processing correspondence for mailing. On the same day that the correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the lawsof the State of California that the foregoingis true and correct. Executed on March 18, 2016, in Fresno, Califorsa. SERVICE LIST Brian C. Leighton, Esq. Law Offices Of Brian C. Leighton 701 Pollasky Avenue Clovis, CA 93612 Howard A. Sagaser, Esq. Sagaser Watkin & Wieland PC 7550 N. Palm Avenue, Ste 201 Fresno, CA 93704 Danielle R. Sassoon Kirkland & Ellis LLP 601 Lexington Avenue New York, NY 10022 Michael W. McConnell Kirkland & Ellis LLP 655 15th Street NW #1200 Washington, DC 20005 The Honorable Donald Black Fresno County Superior Court 1130 “O”Street Fresno, CA 93721 Clerk of the Court Court of Appeal, 5th Appellate District 2424 Ventura Street Fresno, CA 93721 Linda Gandara Deputy Solicitor General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Attorney for Plaintiffs and Petitioners — Delano Farms Co., Blanc Farms Co., Blanc Vineyards, LLC,FourStar Fruit, Inc., Gerawan Farming, Inc. and Bidart Bros. Attorney for Plaintiffs and Petitioners Attorney for Plaintiffs and Petitioners Attorney for Plaintiffs and Petitioners Superior Court Judge Appellate Court Attorney for Amicus Curiae California Department of Food and Agriculture Bradley A. Benbrook Stephen M. Duvernay Benbrook Law Group, PC 400 Capitol Mall, Ste. 1610 Sacramento, CA 95814 Jessica Ring Amunson Jenner & Block LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 Attorney for Amici Curiae Cato Institute, Institute For Justice, and Reason Foundation Attorney for Amicus Curiae DKT Liberty Project