DELANO FARMS COMPANY v. CALIFORNIA TABLE GRAPE COMMISSION

Respondent’s Supplemental Brief

Cal.July 10, 2017

SUPREME COURT FILED JUL 1 02017 Jorge Navarrete Clerk CASE No. 8226538 IN THE SUPREME COURT OF CALIFORNIA Deputy DELANO FARMS COMPANY, FOUR STAR FRUIT,INC., GERAWANFARMING,INC., BIDART BROS., and BLANC VINEYARDS, Petitioners, V. THE CALIFORNIA TABLE GRAPE COMMISSION, Respondent. SUPPLEMENTAL BRIEF OF RESPONDENT THE CALIFORNIA TABLE GRAPE COMMISSION PURSUANTTO RULE8.520(d) | 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 Brian M. Boynton #222193 Telephone: 559.432.5400 Thomas G. Saunders (pro hac vice) Facsimile: 559.432.5620 Ari Holtzblatt (pro hac vice) 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 TABLE OF CONTENTS Page TABLE OF AUTHORITIESoeccccessessessetessestseneeesseeesenestsesesenresseeeaes ii CERTIFICATE OF WORD COUNT CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page(s) CASES Delano Farms Co. v. California Table Grape Commission (9th Cir. 2009) 586 F.3d 1219.eseeeseceseecerseeseessetsesscsteeeenerees 5 Johannsv. Livestock Marketing Association (2005) 544 US. S50Leeessceseesscesseacneeseestsneesneeceneecsassetseeaseeseeenesees 4 Matal v. Tam (2017) 137 S. Ct. 1744 oeecccceeseenecteeseetsesterseesseeessaeeaees 1, 2,3, 4,5 Paramount Land Co. v. California Pistachio Commission (9th Cir. 2007) 491 F.3d 1003...csceseesteeeeeteeeetseerseneceeeeseeeeesaes 5 Walker v. Texas Division, Sons ofConfederate Veterans, Inc. (2015) 135 S. Ct. 2239 eeecssscccsscesesecsenseceeceeseneeseeaseseesserenseessaeens 5 STATUTES AND RULES Cal. Food & Agric. Code § 65500(f) vu... cc ceescscetetsesescessteneceeassessrsssseseneees 2 Cal. R. Ct. 8.520(G)(1) oo. eeccscscceceseesseeseceseesesssressieeeeesaeeeseesesetestsessessateess 1 ii Pursuant to Rule 8.520(d)(1) of the California Rules of Court, Respondent The California Table Grape Commission respectfully submits this supplemental brief responding to the Petitioners’ June 27, 2017 supplementalbrief regarding the U.S. Supreme Court’s recent decision in Matal v. Tam (2017) 137 S. Ct. 1744. In Matal, the U.S. Supreme Court concluded that the First Amendmentbars the government from refusing to register trademarksthat the government considers disparaging. One of the arguments that the Court rejected in reaching that conclusion wasthat trademarks are a form of government speech. Respondent agrees with Petitioners that Matalis “instructive” (Petitioners Supp. Br. 2), although not in the waysthat Petitioners claim. oeThe Court in Matal began by explaining why “‘the Government’s ownspeech ... is exempt from First Amendmentscrutiny.’” (Supra, 137 S. Ct. at 1757.) ““[I]t is not easy,’” the Court explained, “‘to imagine how government could function’ if it were subject to the restrictions that the First Amendmentimposeson private speech.” (/bid.) “When the governmententity embarks on a course ofaction, it necessarily takes a particular viewpoint andrejects others.” (/bid.) The government-speech doctrine is thus “essential” because it preserves the “ability” of “government entities ... to speak freely.” Ud. at 1757-1758.) The Court then offered “a simple example” of government speech: “millions of posters”that the federal government producedanddistributed during the Second World War“to promote the war effort.” (Matal, supra, 137 S. Ct. at 1758.) These posters delivered a government-selected set of messages—“urging enlistment, the purchase of war bonds,and the conservation of scarce resources.” (/bid.) The poster campaign described in Matal closely resembles the work of the California Table Grape Commissionat issue in this case. Like the federal government promoting enlistment, war bonds, and conservation, the State of California is delivering a government-selected promotional message: the generic promotion of California table grapes. (See Answer Br. 36-37 [quoting Food & Agric. Code § 65500(f)].) Of course, the California Legislature has created a commission to carry outthat promotional task. But no one could seriously contendthat the federal government’s poster campaign in support of the war effort would have becomeprivate speech had the government created a commission to produce anddistribute its posters—especially if, as here, that commission wereitselfa government entity. The wartime poster example described in Matal thus reinforces the conclusion that the Commission’s speech is government speech. Petitioners nonetheless contend that Matal’s conclusion that “[t]rademarksare private, not government, speech” (Supra, 137 S. Ct.at 1760) bolsters their argument that the governmentexercisestoolittle control and oversight over the Commission’s messagesfor those messages to qualify as government speech. (Petitioners Supp. Br. 3-4.) But the private trademarksat issue in Matalare nothing like the State of California’s efforts to promote California table grapes. As the Supreme Court explained in Matal, trademarks are names and phrasesthat private parties “dream up” and use to promote their businesses and products. (Supra, 137 S. Ct. at 1758.) They do not in any way represent messages created by the federal government. The governmentdoes not initiate their creation, has no authority to edit or reject them based on the viewpoint expressed (other than if they are found to be disparaging), and cannot remove them from the register unless a party moves for cancellation. ([bid.) In contrast, it was the California Legislature that created the message promoting California table grapes that is specified in the Ketchum Act. (Answer Br. 36-37). Moreover, this governmental message is conveyed by a governmental entity that was specially created by the Legislature for that purpose andis itself subject to further governmentoversight. The Commission’s board membersare all appointed and subject to removal by the Secretary of the California Department of Food and Agriculture (“CDFA”)—whichis particularly important since the power to appoint and remove has long been recognized as the lynchpin of governmental control. (Id. at 26, 37-38.) And the Commission is subject to CDFA’s oversight authority, which includes the powerto reverse the Commission’s actions (Id. at 27, 39-41}—a powerthat the Patent and Trademark Office notably lacked (Matal, supra, 137 S. Ct. at 1758). Together, these features establish that the Commission’s messagesare “effectively controlled” by the State. (Johanns v. Livestock Marketing Assn. (2005) 544 U.S. 550, 560.) Petitioners also argue that Matal “confirms Johann’s directive that advertisements must be ‘established’ ‘from beginning to end’ by the governmentto constitute government speech.” (Petitioners Supp. Br. 4-5 [capitalization omitted].) But the passage that Petitioners highlight in Matal simply quotes language from Johanns andbriefly describes some of the facts of that case. (Matal, supra, 137 S. Ct. at 1759.) The scant attention paid Johannsis unsurprising, given the Court’s observation that “(t]he Government’s involvement in the creation of these beefs ads bears no resemblance to anything that occurs when a trademark is registered.” (Ibid. [emphasis added].) As for Johannsitself, the Commission has already explainedthat the Court in that case did not require line-by-line oversight for a promotional program to qualify as governmentspeech. (AnswerBr. 44-46.) The Supreme Court said the particular procedures in Johanns were “more than adequate” (Supra, 544 U.S. at 563 [emphasis added]), and the Ninth Circuit has likewise confirmedthat Johanns “did not set a floor or define minimum requirements” (Paramount Land Co.v. California Pistachio Com. (9th Cir. 2007) 491 F.3d 1003, 1011; see also Delano Farms Co.v. California Table Grape Com. (9th Cir. 2009) 586 F.3d 1219, 1227 [same}). Finally, Petitioners wrongly contend that Matal’s discussion of Walker v. Texas Division, Sons ofConfederate Veterans, Inc. (2015) 135 S. Ct. 2239, supports their argument that CDFAinsufficiently controls the Commission’s promotional messages. Walker and Matal were not compelled subsidy cases, and neither involved a challengeto a statutorily predefined message. Rather, both cases involved messages“initially proposedby private parties.” (Walker, 135 8S. Ct. at 2244-2245 [emphasis added]; see also Matal, supra, 137 S. Ct. at 1758 [“Federal Government does not dream up these marks.”].) It is that feature—which is missing here—that places Walker at “the outer bounds of the government-speech doctrine.” (Matal, supra, 137 S. Ct. at 1760.) Whatever review by the State might be required before a privately designed message(such as a license plate design or a trademark) becomes government speech, no similar degree of government involvementis necessary when the Legislature itselfdefined the message. (See AnswerBr. 46-47.)! ' After previously (and incorrectly) arguing that government speech requiresattribution (Petitioners Merits Br. 25-27, 35-37), Petitioners now In sum, nothing in Matal casts doubt on the conclusion that the Commission’s promotional messages are governmentspeech. DATED:July 7, 2017 Respectfully submitted, By: Ben“. Bayle Brian M. Boynton #222193 WILMER CUTLER PICKERING HALE AND DORR LLP Seth P. Waxman (pro hac vice) Brian M. Boynton #222193 Thomas G. Saunders (pro hac vice) Ari Holtzblatt (pro hac vice) BAKER MANOCK & JENSEN, PC Robert D. Wilkinson #100478 Attorneys for THE CALIFORNIA TABLE GRAPE COMMISSION concedethat attribution “is of no consequence”(Petitioners Supp. Br. 7). The Commission agrees, (Answer Br. 48-52.) But even if the law were otherwise, the Commission’s messages would be sufficiently attributed to the State to qualify as government speech. (See id. 51-52.) CERTIFICATE OF WORD COUNT Pursuant to Rule of Court 8.520(c)(1) & (d)(2), I hereby certify that, including footnotes, the foregoing brief contains 1,153 words. This word count excludes the exemptedportions of the brief as provided in Rule of Court 8.520(c)(3). As permitted by Rule of Court 8.520(c)(1), the undersigned hasrelied on the word count feature of Microsoft Word 2016, the computer program usedto prepare this brief, in preparing this certificate. DATED:July 7, 2017 By: Be 1, Bayto— Brian M. Boynton #222193 WILMER CUTLER PICKERING HALE AND DORR LLP Seth P. Waxman (pro hac vice) Brian M. Boynton #222193 Thomas G.Saunders (pro hac vice) Ari Holtzblatt (pro hac vice) BAKER MANOCK & JENSEN, PC Robert D. Wilkinson #100478 CERTIFICATE OF SERVICE DISTRICT OF COLUMBIA At the time ofservice, I was over 18 years of age and nota party to this action. I am employedin the District of Columbia. My business address is 1875 Pennsylvania Avenue, NW Washington, DC 20006. On July 7, 2017, I served true copies of the following documents described as SUPPLEMENTAL BRIEF OF RESPONDENT THE CALIFORNIA TABLE GRAPE COMMISSION PURSUANT TO RULE8.520(d) on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the documents in a sealed envelope or package addressed to the personsat the addresseslisted in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am familiar with Wilmer Cutler Pickering Hale and Dorr’s practice for collecting and processing correspondencefor 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 lawsofthe State of California that the foregoingis true and correct. Executed on July 7, 2017, in the District of Columbia. bon. Bata Brian M. Boynton 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,Four Star 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