GERAWAN FARMING v. AGRICULTURAL LABOR RELATIONS BOARD (UNITED FARM WORKERS OF AMERICA)

Amicus Curiae Brief of National Federation of Independent Business Small Business Legal Center, Cato Institute, California Farm Bureau Federation, California Fresh Fruit Association, Western Growers Association, and Ventura County Agricultural Association

Cal.May 23, 2016

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA No. 8227243 GERAWAN FARMING,INC. Petitioner, Vv AGRICULTURAL LABOR RELATIONS BOARD, Respondent, UNITED FARM WORKERSOF AMERICA, ETCOURT Real Party in Interest. F fn. E D After an Opinion by the Court ofAppeal, MAY 23 2016 Fifth Appellate District am pM (Case Nos. F068676 and F068526) Frank A. McGuire Clerk Deputy On Appeal from the Superior Court of Fresno County (Case No. 13CECG01408, Honorable Donald S. Black, Judge) APPLICATION TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF OF THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, CATO INSTITUTE, CALIFORNIA FARM BUREAU FEDERATION, CALIFORNIA FRESH FRUIT ASSOCIATION, WESTERN GROWERSASSOCIATION, AND VENTURA COUNTY AGRICULTURAL ASSOCIATION IN SUPPORT OF PETITIONER GERAWAN FARMING,INC. LUKE A. WAKE,No. 264647 DAMIENM.SCHIFF, No. 235101 NFIB Small Business Legal Center Pacific Legal Foundation 921 11th Street, Suite 400 930 G Street Sacramento, California 95814 Sacramento, California 95814 Telephone: (916) 448-9904 Telephone: (916) 419-7111 Facsimile: (916) 916-5104 Facsimile: (916) 419-7747 Email: Luke.Wake@nfib.org E-mail: dms@pacificlegal.org Attorneys for Amici Curiae National Federation of Independent Business Small Business Legal Center, Cato Institute, California Farm Bureau Federation, California Fresh Fruit Association, Western Growers Association, and Ventura County Agricultural Association TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......0.00000. 000 0c cece eee cece eee iti APPLICATION TO FILE AMICUS CURIAE BRIEF ................ 1 IDENTITIES AND INTERESTS OF PROPOSED AMICI CURIAE ....2 AMICUS CURIAE BRIEF .......0000 00.000 cece cece cece. 5 INTRODUCTION AND SUMMARY OF ARGUMENT ............. 5 ARGUMENT...ceceence e ccc ccceee. 8 I. THE COMPULSION REGIME VIOLATES EQUAL PROTECTION ..........0.0. 000000 c cee eee cece eee 8 A. Government May NotInvidiously orIrrationally Target Individual Persons or Businesses ................... 8 B. The Compulsion RegimeIrrationally Targets Individual Agricultural Employers ................. 9 C. Asa Quasi-Legislative Creation, the Compulsion RegimeIs Subject to the Constitutional Prohibitions on Irrational Government Targeting...................... 11 D. Judicial Review ofIrrational, Quasi-Legislative Targeting Is Essential to Fight Back Against Agency Capture and to Smoke Out Biased Decision-Making ........ 13 E. Judicial Review ofIrrational, Quasi-Legislative Targeting Ensures That All Groups in Society Have a Meaningful Opportunity to Participate in the Laws and Regulations That Govern Them ............ 15 IW. THE COMPULSION REGIME VIOLATES THE NON-DELEGATION DOCTRINE ..................... 17 Page A. The Legislature May Not Delegate the Resolution ofFundamental Policy Issues ................. 17 B. Vigorous Enforcement of the Non-Delegation Doctrine Prevents Dangerous Concentrations of Powerand Thereby Protects Important Democratic Values ofAccountability and Public Deliberation ........... 19 C. Vigorous Enforcement ofthe Non-Delegation Doctrine Thwarts the Anti-Democratic Dangers ofRent-Seeking ............0. 000.00. c eee eeeee 20 D. The Compulsion Regime Violates the Non-Delegation Doctrine ...........0.0.0.0..0000000-. 21 1. The Legislature Failed to Resolve the Fundamental Issues of Agricultural Labor Disputes ................. 21 2. The Compulsion Regime Lacks Meaningful Safeguards ...........00..00..0...0.00.. 24 3. Invalidating the Compulsion Regime Would Vindicate the Key Democratic Values Undergirding the Non-Delegation Doctrine ............ 26 CONCLUSION ..... 0... 000ccc cece eee eee aes 27 CERTIFICATE OF COMPLIANCE .............00.000-000 cee. 29 DECLARATION OF SERVICE BY MAIL -ij- TABLE OF AUTHORITIES Page Cases Arnel Dev. Co. v. City ofCosta Mesa, 28 Cal. 3d 511 (1980) .......... 12 Birkenfeld v. City ofBerkeley, 17 Cal. 3d 129 (1976) ............. 18, 22 Blumenthal v. Bd. ofMed. Exam’rs, 57 Cal. 2d 228 (1962) ........... 18 Calvert v. County ofYuba, 145 Cal. App. 4th 613 (2006) ............. 12 Carson Mobilehome Park Owners’ Ass’n v. City ofCarson, 35 Cal. 3d 184 (1983) 2...eeeee 18 City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...... 8,14 City ofGlendale v. Marcus Cable Assocs., LLC, 231 Cal. App. 4th 1359 (2014) ©...eee. 22 Coastside Fishing Club v. Cal. Resources Agency, 158 Cal. App. 4th 1183 (2008) ......000. 00.0 eee eee eee 22 Dep't ofTransp. v. Ass’n ofAm. Railroads, 135 S. Ct. 1225 (2015) 2...eeeeee 20, 27 Duarte Nursery, Inc. v. Cal. Grape Rootstock Improvement Comm’n, 239 Cal. App. 4th 1000 (2015) ............ 25 Engquist v. Or. Dep’t ofAgric., 553 U.S. 591 (2008) ............. i1-i2 Genesis Envtl. Servs. v. San Joaquin Valley Unified Air Pollution Control Dist., 113 Cal. App. 4th 597 (2003) .............00000-. 10 Gerawan Farming, Inc. v. United Farmworkers ofAm., 39 ALRB No.13 (Aug. 21, 2013) .....00 0.00 eee eee 25 Gerhart v. Lake County, 637 F.3d 1013 (9th Cir. 2011) .............. 10 Golightly v. Molina, 229 Cal. App. 4th 1501 (2014) .............0... 25 - ili - Page Griffith Co. v. NLRB, 545 F.2d 1194 (9th Cir. 1976) ................. 5 Harris v. McRae, 448 U.S. 297 (1980) ..0 0.00 eee ee eee. 8 Hess Collection Winery v. Cal. Agric. Labor Relations Bd., 140 Cal. App. 4th 1584 (2006) ..... 6, 10, 12, 14-15, 21 Indus. Union Dep’t, AFL-CIO vy. Am. Petroleum Inst., 448 U.S. 607 (1980) 200.cecece. 19 Int'l Union v. Occupational Safety & Health Admin., 938 F.2d 1310 (D.C. Cir. 1991)...eeeee 22 Kugler v. Yocum, 69 Cal. 2d 371 (1968) .......... 000000000. 17-18, 24 Las Lomas Land Co., LLC v. City ofLos Angeles, 177 Cal. App. 4th 837 (2009) ©... 0.00 eee eee ee 11-12 Law Sch. Admission Council, Inc. v. State, 222 Cal. App. 4th 1265 (2014) 2.02ee. 14 Lazy YRanch Lid. v. Behrens, 546 F.3d 580 (9th Cir. 2008) ....... 10-11 Massingill vy. Dep't ofFood & Agric., 102 Cal. App. 4th 498 (2002) 2.00.0.23 McHugh v. Santa Monica Rent Control Bd., 49 Cal. 3d 348 (1989) 2...eeee. 27 Nat'l Woodwork Myrs. Ass’n v. NLRB, 386 U.S. 612 (1967) ....... 000. 5 Nixon v. Administrator ofGeneral Servs., 433 U.S. 425 (1977) ........ 14 Pacific Legal Foundation v. Brown, 29 Cal. 3d 168 (1981)... 22... 22 People v. Rhodes, 126 Cal. App. 4th 1374 (2005) ................... 11 People v. Williams, 175 Cal. App. 3d Supp. 16 (1985) ............... 23 Squires v. City ofEureka, 231 Cal. App. 4th 577 (2014) ............. 11 -iv- Page Sturgeon v. County ofLos Angeles, 191 Cal. App. 4th 344 (2010) ...... 25 U.S. Dep’t ofAgric. v. Moreno, 413 U.S. 528 (1973) ................ 14 Village of Willowbrook v. Olech, 528 U.S. 562 (2000) .............. 8-9 Wilsonv. State Bd. ofEduc., 75 Cal. App. 4th 1125 (1999) ........... 23 Statutes 29 U.S.C. § 15203)00ceceeee cece eee, 5 Cal. Stats. 2002, ch. 1145, § 1, at 7401 20... 22-23 Lab. Code § 204.2...ccccece cece. 21 §§ 510-512 .cececc ccc eee. 21 §§ 1164-1164.13 2.eeeee. 6 § 1164(a) ..6.eeecece eee. 9 § 1164(b)20.1.29 § 1164(e) 6, 9-10 § 1164(€)(1)-(5)..ccccece ee eee 6 § 1164(e)(3) .0.eeecee. 9-10 § 1164.3(a)2...cececee eee. 24 § 1164.3(a)(1)-(3) 20.cece cece eee 7 § 1164.3(b) 26.cececee eee. 24 § 1164.3(e)0ccccece eee eeee 7 § 1164.5(b) 26.ccccece cece ee 7, 24 § 1182.12 .eeecee2 Page Regulations Cal. Code Regs.tit. 8, § 20407(a)(2) .....0 0000. cee eee. 25 § 20407(b) 2...ccccece eee eee ee ee eeee 9 Constitutions U.S. Const. amend. XTV, § 1 2.0.0.0... 00000 cece cee eee 8 USS. Const. art. 1, § 9, cl. 3.00000 0000ceee 14 Cal. Const. art. 1], § 7(a) 2...cece cece eee 8 Cal. Const. art. 1, §9 220...cccec cee eee 14 Cal. Const. art. IV, §1 200...cee cece eeee 17 Rule Cal. R. Ct. 8.520) 2...cccce ccc cence neeeeee I Miscellaneous 8 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 784, p.311 ..... 0.00.0. eee eee 23 Alexander, Larry & Prakash, Saikrishna, Reports ofthe Nondelegation Doctrine’s Death Are Greatly Exaggerated, 70 U. Chi. L. Rev. 1297 (2003) 2.0...eeeene 17 Araiza, William D., Flunking the Class-Of-One/Failing Equal Protection, 55 Wm. & Mary L. Rev. 435 (2013) .......... 9, 13 Barkow,Rachel E., Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15 (2010)........ 13-14 Bice, Scott H., Rationality Analysis in Constitutional Law, 65 Minn. L. Rev. 1 (1980)...0.eeeeee 12 -Vi- Page Blackman, Josh, Equal Protectionfrom Eminent Domain: Protecting the HomeofOlech’s Class ofOne, 55 Loy. L. Rev. 697 (2009) ..... 15 Criddle, Evan J., When Delegation Begets Domination: Due Process ofAdministrative Lawmaking, 46 Ga. L. Rev. 117 (2011) .......... 19 Croley, Steven P., Theories ofRegulation: Incorporating the Administrative Process, 98 Colum. L. Rev. 1 (1998) .............. 13 Dripps, Donald A., Delegation and Due Process, 1988 Duke L.J.657 2.00cccccc cece eee 20-21 Ely, John Hart, Democracy and Distrust: A Theory ofJudicial Review (1980) 1.0.0... 0... cee cece eee 15 Farber, Daniel A. & Frickey, Philip P., The Jurisprudence ofPublic Choice, 65 Tex. L. Rev. 873 (1987) .............0000 0, 16 Farina, Cynthia R., Deconstructing Nondelegation, 33 Harv. J.L. & Pub. Pol’y 87 (2010) ... 00.eeeee 26 Gray, C. Boyden, The Searchfor an Intelligible Principle: Cost-Benefit Analysis and the Nondelegation Doctrine, 5 Tex. Rev. L. & Pol. 1 (2000) .........0000 0.00 eee 20 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) ......... 5-7, 11 Hasen, Richard L., Lobbying, Rent-Seeking, and the Constitution, 64 Stan L. Rev. 191 (2012) ....2.eee.20 Holman, Jennifer, Re-Regulation at the CPUC and California’s Non-Delegation Doctrine: Did the CPUC Impermissibly Convey Its Powerto Interested Parties?, 20 Environs 58 (June 1997) ....... 18 Lawson, Gary, Delegation and Original Meaning, 88 Va. L. Rev. 327 (2002) ... 0.0.0...eee 23-24, 26 - Vii - Page Locke, John, The Second Treatise ofGovernment, in Two Treatises ofGovernment(Peter Laslett, ed. Cambridge 1988) ....... 17 Lowi, Theodore J., Two Roads to Serfdom: Liberalism, Conservatism and Administrative Power, 36 Am. U. L. Rev. 295 (1987) .......... 19 Macey, Jonathan R., Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum. L. Rev. 223 (1986) ........00000 00000. 15-16 Massey, Calvin R., The Non-Delegation Doctrine and Private Parties, 17 Green Bag 2d 157 (2014) ................ 21 Molina, Jesse, Comment, Broken Promises, Broken Process: Repairing the Mandatory Mediation Conciliation Process in Agricultural Labor Disputes, 21 San Joaquin Agric. L. Rev. 179 (2012) ............. 16-17, 25-26 Redish, Martin H., The Constitution as Political Structure (1995) ...... 26 Rosen, Philip B. & Greenberg, Richard I., Constitutional Viability ofthe Employee Free Choice Act’s Interest Arbitration Provision, 26 Hofstra Lab. & Emp. L.J. 33 (2008) .........00000.0..0..00.000. 5 Schoenbrod, David, The Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223 (1985) ........ 24-25 Stewart, Richard B., The Reformation ofAmerican Administrative Law, 88 Harv. L. Rev. 1667 (1975) ............... 14 Sunstein, Cass R., Js OSHA Unconstitutional?, 94 Va. L. Rev. 1407 (2008)... 00.0.cee eee 22, 24 Sunstein, Cass R., Js the Clean Air Act Unconstitutional?, 98 Mich. L. Rev. 303 (1999) .. 0.0.eee 19-20 - Vili - APPLICATIONTO FILE AMICUS CURIAE BRIEF TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE OF THE CALIFORNIA SUPREME COURT: Pursuantto California Rule ofCourt 8.520(f),! the National Federation of Independent Business Small Business Legal Center, Cato Institute, California Farm Bureau Federation, California Fresh Fruit Association, Western Growers Association, and Ventura County Agricultural Association respectfully apply to file the accompanying amicus curiaebrief in support of Petitioner Gerawan Farming, Inc. The Proposed Amiciare familiar with the parties’ arguments. They believe that the attachedbriefwill aid the Court in its consideration of the issues presented in this case. In particular, the brief provides useful background ontheoriginsofand policies underlying the equal protection and non-delegation arguments discussedin the parties’ briefs. This background supports the conclusion that the Mandatory Mediation and Conciliation Process is unconstitutional. ' The Proposed Amiciaffirm that no counsel for any party authoredthis brief in whole or in part, and no counsel or party made a monetary contribution intendedto fund the brief’s preparation or submission. No person other than the Proposed Amici, their members, or their counsel made a monetary contribution to the brief’s preparation or submission. -|- IDENTITIES AND INTERESTS OF PROPOSED AMICI CURIAE The National Federation ofIndependent Business Small Business Legal Center is a nonprofit, public interest law firm established to provide legal resources. The Center serves as a voice for small business in the nation’s courts through representation on issues of public interest affecting small business. To fulfill that role, the Center frequently files amicusbriefs in cases that will affect the small business community. The Centerseeksto file in this case becauseit raises an important issue for small business owners, especially in the agricultural industry: the constitutionality ofa regimethat targets select businesses for imposition of individualized regulation and burdens. Such a regime unfairly singles out a targeted company for imposition ofheightened legal requirements—beyondthose generally applicable—without any special justification. The Centerfiled an amicusbriefin the court ofappealin support of Gerawan. The Cato Institute is a nonpartisan public-policy research foundation established in 1977 and dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s Centerfor Constitutional Studies was established in 1989 to help restore the principle of limited constitutional governmentwhichis the foundation ofliberty. To advancethis end, Cato publishes books and studies, conducts conferences, and producesthe annual Cato’ Supreme Court Review. This caseis ofinterest to Cato because it implicates the doctrines of equal protection and the separation of powers, both ofwhich are critical to maintaining limited government. 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 havein total more than 53,000 members, including nearly 29,000 agricultural members. One of the Farm Bureau’s purposesis to represent, protect, and advance the economicinterests of California’s farmers and ranchers. Many ofthese farmers and ranchers are consideredagricultural employers under the state’s Agricultural Labor Relations Act. They are or may become engagedin collective bargaining under the Act. Accordingly, laborlaw arbitration issues like those raisedin this action are ofdirect interest to these Farm Bureau members. The Farm Bureaufiled an amicusbriefin the court of appeal 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 deciduoustreefruit. With origins dating to 1921, the Association currently represents by volume approximately 85% of 13 permanentfresh fruit commodities, valued at over $3 billion in the state. The Association serves as the primary public policy representative for these growers, shippers, and packers for the aforementioned commodities on issuesat both the state and federallevels, including matters pertaining to labor and employmentdisputes. Foundedin 1926, Western Growers Association is a trade association ofCalifornia, Arizona, and Colorado farmers who grow,pack, and ship almost 50% ofthe nation’s produce anda third ofAmerica’s fresh organic produce. Its mission is to enhance the competitiveness and profitability of its members. With offices and dedicated staff in Washington, D.C., and Sacramento, California, Western Growersis the leading public policy advocate forthe fresh produce industry and has a longstanding interest in employment and labor matters. The Association filed an amicusbriefin the court ofappealin support of Gerawan. The Ventura County Agricultural Associationis 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 Agricultural Labor Relations Act in Ventura and Santa Barbara Counties. These businesses represent the entire spectrum of tree fruits, row crops, berries, nursery, and other agricultural commodities. Through its General Counsel, the Association has a long-standing history of representingits membersin labor and employmentmatters, including arbitration issues, arising underthe state’s Agricultural Labor Relations Act. The Association filed an amicusbrief in the court of appeal in support of Gerawan. AMICUS CURIAE BRIEF INTRODUCTION AND SUMMARYOF ARGUMENT Unique in the nation, California compels agricultural employers and their employees’ unionsto assent to collective bargaining agreements. See Philip B. Rosen & Richard I. Greenberg, Constitutional Viability of the Employee Free Choice Act’s Interest Arbitration Provision, 26 Hofstra Lab. & Emp. L.J. 33, 51 (2008) (noting that California is the only state that has imposed binding interest arbitration on private employers and employees). Rather than being negotiated at arm’s length, these agreements’ terms are dictated to the parties by a “mediator.”* See Jordan T.L. Halgas, Reach an Agreement orElse: MandatoryArbitration Under the CaliforniaAgricultural Labor Relations Act, 14 San Joaquin Agric. L. Rev. 1, 27 (2004) (“In effect, [California agricultural labor relations law] require[s] that the arbitrator becomethe ‘masterdrafter’ ofthe parties’ collective bargaining agreement.”). * The National Labor Relations Act does not apply to farm laborers. 29 U.S.C. § 152(3) (defining “empioyee”so as not to include “any individual employed as an agricultural laborer”). Farm laborer unions generally have acceptedthat exclusion because it allows them and their members to pursue secondary boycotts, an activity prohibited under federal law. 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, 10-11 (2004). 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 induce or coerce him to cease doing business with an employer with whom the union(is) engaged in a labor dispute”) (quoting Nat’! Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 622 (1967)). This compulsion is the result of the Mandatory Mediation and Conciliation Process (“Compulsion Regime”), Lab. Code §§ 1164-1 164.13, “a legislative labyrinth that creates many more problemsthanit could ever solve.” Halgas, supra, at 2. Under the Compulsion Regime, the mediator “may consider those factors commonly consideredin”labor arbitration when crafting the terms of a collective bargaining agreementthat will be imposed on the parties. Lab. Code § 1164(e) (emphasis added). Such factors includethe financial condition of the employer, industry-standard wages and benefits, and the collective bargaining agreements reachedbyotherparties. See id. § 1164(e)(1)-(5). But the Compulsion Regime does not require the mediator to consider—muchless be bound by—any factor.* See id. It does not explain how much weight should be assigned to any factor. See id. It contains no standard or goal toward which the mediator should aim. See id. § 1164(e) (directing merely that certain factors may be considered “[i]n resolving the issues in dispute”). Rather, the Compulsion Regime grants the mediator nearly unlimited discretion to compelthe parties’ assent to whatevertermsthe mediator wishes. It gives no assurancethatthe collective bargaining agreements that result will > But see Hess Collection Winery v. Cal. Agric. Labor Relations Bd., 140 Cal. App. 4th 1584, 1606-08 (2006) (relying on the canon of constitutional avoidance to construe the Compulsion Regime to require that mediator considerthe listed factors). treat similarly situated agricultural employers in like manner.’ 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 labor board review ofthe mediator’s decision). The Compulsion Regimeis unconstitutional, for two reasons. First, it imposes mini-labor codes to govern therelations ofindividual employers and their employees’ unions. It does not provide any safeguard to ensure that similarly situated employers or unions will be treated similarly. It allows mediators to wield legislative authority irrationally and arbitrarily. It therefore denies affected parties the equal protection of the laws, in violation ofthe United States and California Constitutions. Second, the Compulsion Regime delegates substantial legislative authority to private-party mediators. It does not provide these mediators with any goal or purpose that they mustachieve in drafting collective bargaining agreements. It does not give them any * The Compulsion Regime’s major proponents were the unions. See Halgas, supra,at 9 (“[T]he UFWwasthe major supporter ofthe Mandatory Arbitration Bills... .”). Cf id. at 22 (“Growers responded that the UFW backed the passageofthe Bills as a wayto beg politicians for union contractsthatit (was) too weak to win on its own.” (internal quotation marks omitted)). They supported the Regime because, under California labor law, they would retain their right to strike and to engage in secondary activity. See id. at 33. In public employment, where bindinginterest arbitration is more common, the rights to strike and to engage in secondary activity are usually given up in exchange for binding interest arbitration. See id. -7- standardor rule by whichto achieve any goal or purpose. It fails to establish any adequate safeguardsagainst the abusive exercise of the power delegated. The Compulsion Regimetherefore violates the non-delegation doctrine and the separation ofpowers. The judgmentofthe court of appeal should be affirmed. ARGUMENT I THE COMPULSION REGIME VIOLATES EQUAL PROTECTION A. Government May Not Invidiously or Irrationally Target Individual Persons or Businesses The federal and California Constitutions guarantee to all persons the “equal protection ofthe laws.” See U.S. Const. amend. XIV, § 1; Cal. Const. art. I, § 7(a). Equal protection of the laws means that the government must treat similarly situated individuals in the same manner. City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). This constitutional right forbids class legislation based on invidiouscriteria. See Harris v. McRae, 448 ULS. 297, 322 (1980). It also prohibits the arbitrary burdening of individuals as individuals, 7.e., as a “class of one.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). Unconstitutional“class ofone” regulation occurs when: (i) the governmenttreats a person or business differently from other similarly situated persons; (ii) the differential treatmentis intentional; and (iii) the differential treatmentlacks any rational basis. Jd. See William D. Araiza, Flunking the Class-Of-One/FailingEqualProtection, 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 memberofa racial or other group”). B. The Compulsion RegimeIrrationally Targets Individual Agricultural Employers The Compulsion Regime cannot be reconciled with the Equal Protection Clause’s prohibition on arbitrary individualized regulation. The Regimedictates 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 agreementdrafted by the mediator. Lab. Code § 1164(a)-(b). This “agreement” operates as individualized labor legislation. It governs wages, hours,andall other significant employment issues between the employer and its employees. But the Regimecontains no standards or other meansto ensure thatsimilarly situated employers within the class of those employers made subjectto it will be treated in like manner. It merely directs that the mediator “may consider”variousfactors in “resolving the issues in dispute.” 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 Compulsion Regime does not even mandate that the mediator consider, for example, “collective bargaining agreements covering similar agricultural operations with similar labor requirements.” Lab. Code § 1164(e)(3). Moreover, even ifthe mediatorwere required to take any factors into account whendrafting collective bargaining agreements, the Compulsion Regimeallows the mediator complete freedom to assign whatever weight—or noneat all—to any factor.” Cf Lab. Code § 1164(e). It is irrelevantthat the Regimeseeksto vindicate the state’s legitimate interest in resolving agricultural labor disputes. The “class of one” doctrine requires that the governmentarticulate a rational basis for the manner of regulation, i.e., regulating on an individual rather than a broader basis. Genesis Envil. Servs. v. San Joaquin Valley Unified Air Pollution Control Dist., 113 Cal. App. 4th 597, 606 (2003) (“{I]f a rational classification is applied unevenly, the reason for singling out a particular person must be rational and not the product of intentional and arbitrary discrimination.’’); Gerhart v. Lake County, 637 F.3d 1013, 1023 (9th Cir. 2011) (“{T]herational basis prong ofa ‘class of one’ claim turns on whetherthereis a rational basis for the distinction, rather than the underlying government action.”). See Lazy YRanch Ltd. v. Behrens, 546 F.3d 580, 590 (9th Cir. 2008) (“[Although] ° Hence, merely mandating the considerationofcertain factorsstill would not guarantee that similarly situated employers would be subject to similar agreement terms. See Hess, 140 Cal. App. 4th at 1616-17 (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 a mediator’s decision in any other case under Labor Code section 1164 and the related statutes.”). -10- administrative costs might be a valid reason to deny a bidder a lease, it simply does not offer a basis for treating conservationists different from other bidders.”). That any given collective bargaining agreement may turn out to be rational cannotjustify the irrational targeting which producedit. The Compulsion Regimeestablishes a framework whereby otherwise similarly situated agricultural employers are subjectto arbitrarily varying labor regulations. See Halgas, supra, at 31 (noting that the “arbitrator, whowill 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”). Cf People v. Rhodes, 126 Cal. App. 4th 1374, 1383 (2005) (“Underthe equal protection clause, [a] classification must be reasonable, not arbitrary . . . .” (internal quotation marks omitted)). The Regime does not comport with the equal protection of the laws. C. As a Quasi-Legislative Creation, the Compulsion RegimeIs Subject to the Constitutional Prohibitions on Irrational Government Targeting Sometypesofdiscretionary and individualized government decision- makingare not subjectto “class of one” analysis. See Engquist v. Or. Dep’t ofAgric., 553 U.S. 591, 603-05 (2008) (discretionary government employment decisions); Squires v. City of Eureka, 231 Cal. App. 4th 577, 595 (2014) (discretionary enforcementofland-use ordinances); LasLomasLand Co., LLC v. City ofLos Angeles, 177 Cal. App. 4th 837, 860 (2009) (discretionary land- -ll- use entitlement decision-making). The Compulsion Regime directs the discretionary exercise ofgovernment power onan individualizedbasis. Thus, at first blush, the Regime seemsakin to the “discretionary decisionmaking based on a vast array ofsubjective,individualized assessments”thatis exempt from “class of one” review. Engquist, 553 U.S. at 603. There is, however, a critical difference between (i) the kinds of government decision-making that have been exempted from “class of one” review and (ii) what the mediator does pursuant to the Compulsion Regime. The formerare analogous to executive or quasi-adjudicative decision-making.° In contrast, the Regime authorizes mediators to exercise quasi-legislative power. Hess, 140 Cal. App. 4th at 1597-98 (majority op.). 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 thatthe “rational basis”testis “the standard that all legislation must meet to survive constitutional attack . . . under the ... equal protection clause.”). Therefore, the Engquistline ofcases should have no bearing onthe constitutionality ofthe individualized but nonetheless quasi-legislative agreements whichresult from the Compulsion Regime. ° Part ofthe challenged decision in LasLomas concerned rezoning, LasLomas, 177 Cal. App. 4th at 843, whichis a quasi-legislative act, Arnel Dev. Co. y. City ofCosta Mesa, 28 Cal. 3d 511, 516 (1980). Butthe core ofthe dispute in Las Lomas was about a proposed major subdivision, see Las Lomas, 177 Cal. App.4th at 843, approval ofwhichis a quasi-adjudicative act, see Calvert v. County ofYuba, 145 Cal. App. 4th 613, 622 (2006). -12- D. Judicial Review of Irrational, Quasi-Legislative Targeting Is Essential to Fight Back Against Agency Capture and to Smoke Out Biased Decision-Making For policy reasons as well, maintaining “class of one” review for individualizedlegislative action—notwithstandingits slight similarity to other individualized forms of government power—makes sense. To exclude any exercise oflegislative power from rational basis equal protection review, on the ground that the poweris exercised on an individual basis, would threaten the fundamentalprinciple that the “government [must] always act pursuantto a public purpose.” Araiza, supra, at 460. Superficially inoffensive classifications mayin reality reflect officials’ own personalinterests or those ofprivate parties. See id. at 461. Hence, “class of one”reviewis essential to mitigate the effects of the private “capture” of legislative authority. Cf Steven P. Croley, Theories ofRegulation: Incorporating the Administrative Process, 98 Colum.L. Rev. 1, 5 (1998) (explainingthat capture occurs when “agencies deliver regulatory benefits to well organized political interest groups, which profit at the expense of the general, unorganized public”). Notably,the risks ofsuch capture under the Compulsion Regimeare especially strong because one party—the union—is a regular player in mediation disputes. Cf Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15, 22 (2010) (“[T]he comparative overrepresentation of regulatedorclient interests in the process -13- of agency decision results in a persistent policy bias in favor of these interests.” (quoting Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1713 (1975))). Additionally, “class of one” review of all legislative classifications helps to smoke out improper motivations. See Cleburne, 473 U.S. at 446 (under equalprotection rational basis review, the government“maynotrely on a classification whoserelationship to an asserted goalis so attenuatedasto render the distinction arbitrary or irrational,” or simply reflects “a bare . . . desire to harm a politically unpopular group” (quoting U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973))). Without such salutary review, an enterprising legislature or governmentofficial exercising quasi-legislative powercouldclassify irrationally, arbitrarily, or even with animus, so long as the burdensomeclassifications were issued on a per-personbasis.” The Compulsion Regimepresents a substantialrisk ofarbitrary action. The mediator “hold[s] [the agricultural employer], and nootheragricultural employer, to the terms of a private legislator’s decision,” yet is bound by “no ’ The absence ofsuch review would be especially pernicious given that the Bill of Attainder Clauses of the United States and California Constitutions, see U.S. Const. art. I, § 9, cl. 3; Cal. Const. art. I, § 9—which limit the Legislature’s ability to regulate on an individual basis—typically apply only to formally “punitive” action. Nixon v. Administrator ofGeneral Servs., 433 U.S. 425, 472-73 (1977); Law Sch. Admission Council, Inc. v. State, 222 Cal. App. 4th 1265, 1298-99 (2014). See also Nixon, 433 U.S. at 471 (“However expansivethe prohibition against bills of attainder, it surely was not intended to serve as a variantofthe equal protection doctrine . °. .”). -14- standards”to ensure consistency among the agreements. Hess, 140 Cal. App. 4th at 1616-17 (Nicholson, J., dissenting). A mediator could require one employer to provide high wages and substantial medical benefits, but could compel another, similarly situated, employer to provide substantially lower wages and benefits. The only “reason”for the differing treatment would be the mediator’s inscrutable (and possibly malign) judgment based on the weighing of unlimited factors. Maintaining “class of one” review for legislative and quasi-legislative action therefore helps to prevent such abuses of government power. E. Judicial Review of Irrational, Quasi-Legislative Targeting Ensures That All Groupsin Society Have a Meaningful Opportunity to Participate in the Laws and Regulations That Govern Them Judicial review ofindividualized legislative and quasi-legislative action also serves the goal of “representation reinforcement,”i.e., the protection of “those groups in society to whose needs and wisheselectedofficials have no apparent interest in attending.” Josh Blackman, Equal Protection from Eminent Domain: Protecting the Home ofOlech’s Class ofOne, 55 Loy. L. Rev. 697, 742 (2009) (quoting John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 151 (1980)). The principle of representation reinforcement acknowledges that the Legislature rarely is interested in rectifying an injustice done to one regulated individual, as opposed to groups of such individuals. See Jonathan R. Macey, Promoting Public-Regarding -15- Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum.L. Rev. 223, 231-32 (1986) (“[T]helawsthat are enacted will tend to benefit whichever small, cohesive special interest groups lobby most effectively.”). Afterall, itis “[r]esponsiveness to broadconstituencies,” rather than to individual citizens’ complaints, that “is an important aspect of representation,” Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 Tex. L. Rev. 873, 889 ( 1987) (emphasis added). Representation reinforcement seeks to remedythat inadequacy. The Compulsion Regime thwarts such reinforcement. Because the Compulsion Regime results in individualized legislation, employers who are unfairly burdened by it cannot readily band together with other employers to lobby the Board or the Legislature for redress. Their problem is that each is in a “class of one” with, by definition, discrete and different (and likely incommensurable) grievances. Even if that were not the case, targeted employers still might forego any protest and quietly accept otherwise objectionable terms. They reasonably would fear being made subject to worse terms imposedin retaliation. See Jesse Molina, Comment, Broken Promises, Broken Process: Repairing the Mandatory Mediation Conciliation Process in AgriculturalLaborDisputes, 21 San Joaquin Agric. L. Rev. 179, 198 (2012) (“In the [mandatory mediation andconciliation] framework even ifboth parties participate, a union or grower can feel pressured to accept a collective bargaining term in fear that the mediator may impose a term on them, which -16- greatly inhibits the parties’ freedom to bargain and negotiate.”). They also mightfail to object because they lack the substantial resources necessary to litigate the matter through the administrative and judicial appeal process. Hence, the only realistic and meaningful remedy for such grievances—onethat ensuresthat all segments ofsociety have a voice in self- government—is the “class of one” review that the Equal Protection Clause guarantees. Under that review, the Compulsion Regime mustfall. I THE COMPULSION REGIME VIOLATES THE NON-DELEGATION DOCTRINE A. The Legislature May Not Delegate the Resolution of Fundamental Policy Issues The California Constitution vests the legislative powerofthe state in the Legislature. Cal. Const. art. IV, § 1. Although the Judiciary has interpreted this vesting so as notto prohibit all delegations, it nevertheless has imposed important limitations.’ See generally Kugler v. Yocum, 69 Cal. 2d 371, 375 (1968) (“[T]he doctrine prohibiting delegation oflegislative power * The doctrine can betraced at least as far back as John Locke. See John Locke, The Second Treatise ofGovernment, in Two Treatises ofGovernment 265, § 141 at 363 (Peter Laslett, ed. Cambridge 1988). (“[Power] being derived from the People bya positive voluntary Grant and Institution, can be no other, than whatthat positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no powerto transfer their Authority ofmaking Laws,andplaceit in other hands.”), quoted in Larry Alexander & Saikrishna Prakash, Reports of the Nondelegation Doctrine’s Death Are Greatly Exaggerated, 70 U. Chi. L. Rev. 1297, 1297 (2003). -17- ... 1s well established in California.”). Specifically, the Legislature may not “(1) leave[] the resolution of fundamental policy issues to others or (2) failf] to provide adequatedirection for the implementationofthat policy.” Carson Mobilehome Park Owners’ Ass’n v. City of Carson, 35 Cal. 3d 184, 190 (1983). Both limitations must be observed to avoid an unconstitutional delegation. See Birkenfeld v. City ofBerkeley, 17 Cal. 3d 129, 169 (1976). The first limitation imposes upon the Legislature the duty to “effectively resolve the truly fundamentalissues.” Kugler, 69 Cal. 2d at 376. The secondlimitation imposes the duty “to establish an effective mechanism to assure the proper implementation of its policy decisions.” Jd. at 376-77. Such “proper implementation” may be achievedthroughthelegislative setting of channeling standards. See id. at 375-76. It also may be achieved by establishing adequate “safeguards,” such as vigorous judicial review. See id. at 381-82. See also Jennifer Holman, Re-Regulation at the CPUC and California’s Non-Delegation Doctrine: Did the CPUCImpermissibly Convey Its Power to Interested Parties?, 20 Environs 58, 61 (June 1997) (“[T]he availability of judicial review is . . . commonly cited as one of the most important and effective safeguards.”). Either way, the reason for requiring standards or safeguards is that, in their absence, “effective review of the exercise of the delegated power[is] impossible.” Blumenthal v. Bd. ofMed. Exam rs, 57 Cal. 2d 228, 236 (1962). -18- B. Vigorous Enforcement of the Non-Delegation Doctrine Prevents Dangerous Concentrationsof Power and Thereby Protects Important Democratic Values of Accountability and Public Deliberation Because the non-delegation doctrine is a corollary ofthe principle of the separation of powers, its enforcement helps to prevent dangerous concentrations of power. See Evan J. Criddle, When Delegation Begets Domination: Due Process ofAdministrative Lawmaking, 46 Ga. L. Rev. 117, 125-26 (2011) (“[T]he nondelegation doctrine should be viewed primarily as an expression of the . . . commitment to republican liberty.”). See also Theodore J. Lowi, Two Roads to Serfdom: Liberalism, Conservatism and Administrative Power, 36 Am. U. L. Rev. 295, 296 (1987) (“[T]he delegation of broad and undefined discretionary power from the legislature to the executive branch deranges virtually all constitutional relationships and prevents attainment of the constitutional goals of limitation on power, substantive calculability, and procedural calculability.”). Butjust as important for this case, the doctrine also protects democratic values of accountability and public deliberation. See Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring) (observingthat the doctrineserves the “important function[]” of ensuring that “important choicesofsocial policy are madeby [the legislature], the branch of our Government most responsive to the popular will”). The doctrine helps to “ensur[e] a deliberative democracy” by encouraging -19- “accountability [as well as] reflectiveness.” Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 Mich. L. Rev. 303, 336 (1999). It promotes “public accountability” by requiring the Legislature “to make specific decisions, thereby incorporating the viewsofthe public.” C. Boyden Gray, The Search for an Intelligible Principle: Cost-Benefit Analysis and the Nondelegation Doctrine, 5 Tex. Rev. L. & Pol. 1, 21 (2000). These protections are fundamentalto a free society. See Dep’t ofTransp.v. Ass’n ofAm. Railroads, 135 S. Ct. 1225, 1234 (2015) (Alito, J., concurring) (“Liberty requires accountability.”’). C. Vigorous Enforcement of the Non-Delegation Doctrine Thwarts the Anti-Democratic Dangers of Rent-Seeking By precluding the Legislature from passing off difficult issues, the doctrine also protects against the rent-seeking’? dangers of unfettered delegation. Such protection is critical, for “[w]hen citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences.” Dep't ofTransp., 135 S. Ct. at 1234 (Alito, J., concurring). That temptation is strong because “delegation enablesindividuallegislators to reducethe political costs ofpolicies that injure relatively uninterested voters, withoutlosing credit for benefits bestowed onthose interest groups intensely ° “Broadly speaking, [rlent seeking is the socially costly pursuit of wealth transfers.” Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 Stan L. Rev. 191, 228 (2012) (internal quotation marks omitted). - 20 - enough motivatedto trace the chain ofpower.” Donald A. Dripps, Delegation and Due Process, 1988 Duke L.J. 657, 668. Thus, the needfor the doctrine’s protection is particularly acute where,as here, the attempted delegation is to private parties. See Hess, 140 Cal. App. 4th at 1608 (acknowledgingthat “the mediatoris a private person rather than a publicly accountable official”). For in that instance, the government “ce[des] power to unelected and politically unaccountable persons who haveevery incentive to exercise the delegated powerfor their own ends.” Calvin R. Massey, The Non-Delegation Doctrine and Private Parties, 17 Green Bag 2d 157, 167 (2014). D. The Compulsion RegimeViolates the Non-Delegation Doctrine 1. The Legislature Failed to Resolve the Fundamental Issues of Agricultural Labor Disputes The Compulsion Regimeviolates the non-delegation doctrine as well as the democratic values that animate it because the Legislature has not resolved the fundamentalpolicy questions ofagricultural labor disputes. How high should wages be? What should the employer’s profit margin be? How and whenis time offto be made available? The Compulsion Regimeis silent as to all of these issues.'° It provides no direction as to how they should be '° The Legislature certainly knows how to set broadly applicable worker protections. See, e.g., Lab. Code § 204 (rules for when and how workers are to be paid); id. §§ 510-512 (rules for the length of the workday and meal periods); id. § 1182.12 (minimum wageforall industries). -21- resolved.'' Instead, it merely establishes aforum for their binding resolution. Such discretion cannot be squared with the non-delegation doctrine. See Int’l Union v. Occupational Safety & Health Admin., 938 F.2d 1310, 1317 (D.C. Cir. 1991) (allowing an agency to regulate “to the verge of economic ruin”or “to do nothingat all” would “raise a serious nondelegation issue”), discussed in Cass R. Sunstein, Is OSHA Unconstitutional, 94 Va. L. Rev. 1407, 1417-20 (2008). Cf Coastside Fishing Club v. Cal. Resources Agency, 158 Cal. App. 4th 1183, 1209 (2008) (holding as sufficiently elaborated a legislative grant requiring a plan to serve six specified goals and to contain five specified elements). To be sure, “[w]hen the Legislature delegatesits power, standards may be implied by the statutory purpose to avoid arbitrary action.” City of Glendale v. Marcus Cable Assocs., LLC, 231 Cal. App. 4th 1359, 1380 (2014). In enacting the Regime, the Legislature declared its purpose to be to “ensure "In Pacific Legal Foundation v. Brown, 29 Cal. 3d 168, 201 (1981), this Court rejected a non-delegation challenge to the State Employer-Employee Relations Act, which allows the Governorto collectively bargain with state employee unions regarding wages, hours, and other conditions ofemployment. Permitting the head of the executive branch to negotiate with employees of executive branch agenciesis a substantially less dramatic delegation than that contained in the Compulsion Regime. In Birkenfeld, this Court rejected a non- delegation challenge to a municipal charter amendment governing adjustments for maximum rents. 17 Cal. 3d at 168. This Court reasoned that the amendment’s delegation of power was sufficiently constrained by a list of nonexclusive factors combined with a clear statement of purpose. Jd. In contrast, here the Compulsion Regimeis not limited to the narrow legislative matter of setting wages but instead extends to all issues relating to employment. -22- B e a t e S t e ” amore effective collective bargaining process between agricultural employers and agricultural employees.” Cal. Stats. 2002, ch. 1145, § 1, at 7401. That in turn would “ameliorate the working conditions and economic standing of agricultural employees, create stability in the agricultural labor force, and promote California’s economic well-being by ensuring stability in its most vital industry.” Jd. These legislative declarations mean simply that the Compulsion - Regime’s purposeis to do goodforthe agricultural industry. Such bland and broad assertion cannot resolve the fundamentalpolicy questions overhow best to achieve that end. Although the Legislature generally may delegate the “attainment of the ends”ofits policy, Wilson v. State Bd. ofEduc., 75 Cal. App. 4th 1125, 1146 (1999), accepting as adequate a very broadarticulation ofpolicy would eviscerate the non-delegation doctrine. Laws are supposedto serve the common good, see Massingill v. Dep’t ofFood & Agric., 102 Cal. App. 4th 498, 504 (2002) (noting the “powerofthe state to [enact] reasonable regulation for the general welfare”) (quoting 8 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 784, p. 311), but the Legislature could not constitutionally delegate to an agency the powerto regulate “as you think best for the People.” See People v. Williams, 175 Cal. App. 3d Supp. 16, 23 (1985) (“The power. . . to determine the general purpose or policy to be achieved by the law andto fix the limits of its operation cannot be delegated.”). See also Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 372-73 -23- (2002) (“The act of legislation is not completed simply by announcing an ambition; . . . the legislature [must] specify how and to what extent those ambitions should be realized.”), summarizing David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223, 1227 (1985); Cass R. Sunstein, Js OSHA Unconstitutional?, 94 Va. L. Rev. 1407, 1407 (2008) (observing that a statute directing an agency to “Do what you believe is best” would violate the nondelegation doctrine). Thus, the Compulsion Regime doesnot resolve the fundamentalissues of agricultural labor disputes.'* 2. The Compulsion Regime Lacks Meaningful Safeguards The Compulsion Regimealso lacks effective safeguards. The Board’s review of the mediator’s decision, and the court of appeal’s review of the Board’s decision—essentially “arbitrary and capricious” or “abuse of discretion” review, see Lab. Code §§ 1164.3(a), 1164.5(b)—is extremely deferential." This absence of meaningful standards undercuts even the * For the same reasonsarticulated in this section, the Compulsion Regime lacks standardsto channelthe delegation oflegislative power. Cf Kugler, 69 Cal. 2d at 375-76 (“[L]egislative power may properly be delegated if channeled by a sufficient standard.”’). '? Notably, even the Board itself is powerless to review uncontested issues. See Lab. Code § 1164.3(b) (the Board mustorderas final those provisions of the mediator’s report not petitioned for review). Thus, a union that does not adequately represent its workers could agree to employment terms odiousto those workers. The Compulsion Regime leaves them without recourse. -24 - minimal review authorized by statute. Cf Schoenbrod, supra, at 1239 (“A statute thatfails to make key choicesreflectslittle in the wayoflegislative will and so will allow a wide range of ‘lawful’ agency activity.”). Adequate safeguards could include statutory backstops, multiple layers of de novo review, and notification procedures to allow the Legislature to redress unjust applications.'* The Regimeaffords noneofthese protections: the mediator has no backstop to the terms he may impose;his decisionis not subject to de novo review; his assemblingofthe record is not subject to the Evidence Code’; and his decisions take effect without any lengthy notice period. In short, the Regime provides no safeguard to ensure that individual '* See Duarte Nursery, Inc. v. Cal. Grape Rootstock Improvement Comm’n, 239 Cal. App. 4th 1000, 1019 (2015) (finding adequate safeguards where an agency’s oversight included the power to order the delegate “to cease or correct any acts not in the public interest” and where the delegate’s discretion was limited by maximum assessment rates); Golightly v. Molina, 229 Cal. App. 4th 1501, 1517-18 (2014) (finding adequate safeguards where an agency’s oversight included multiple layers of presumably de novo review coupled with spending caps); Sturgeon v. County ofLos Angeles, 191 Cal. App.4th 344, 354 (2010)(finding adequate safeguards where an agency was required to report inconsistencies to the Legislature and where adverseaction had to be preceded by a lengthy notice period, which would allow the Legislature to rectify any inappropriate action). '° For example, on-the-record discussions before the mediator are exempt from the Evidence Code’s confidentiality provisions governing mediation. See Cal. Code Regs.tit. 8, § 20407(a)(2); Molina, supra, at 194-95. Interestingly, employees are forbidden to attend even on-the-record portions of the mediation. See Gerawan Farming, Inc. v. United Farmworkers ofAm., 39 ALRB No.13, at 10 (Aug. 21, 2013) (“W]e do not think the public interest in the process of reaching an agreement as to the terms of a collective bargaining agreementis served by public presence during that process.”). -25- agricultural employers will be treated fairly and consistently. See Molina, supra, at 204 (“[T]he [Process] violates the ethical mandatesofthe California Rules of Court, American Bar Association, Model Standards for Mediators, and the Arbitrator Code.”). 3. Invalidating the Compulsion Regime Would Vindicate the Key Democratic Values Undergirding the Non-Delegation Doctrine Overturning the Compulsion Regime would serve the purposes underlying the non-delegation doctrine. Demanding that the Legislature establish the basic contours ofcollective bargaining agreements would signal to the public what their representatives believe is most important in the agricultural employer-employee relationship. That signaling would enable the electorate to hold legislators accountable for their choices, see Martin H. Redish, The Constitution as Political Structure 136-37 (1995) (“[A]ccountability for lawmakers constitutes the sine qua non of a representative democracy.”), quoted in Lawson, supra, at 374, rather than letting them pass off the difficult decisions to others, see Cynthia R. Farina, Deconstructing Nondelegation, 33 Harv. J.L. & Pub. Pol’y 87, 95 (2010) (“Lawyers andpolitical scientists alike have charged that delegation enables the legislature to punt the really tough policy choices.”). It also would - 26 - guarantee that the liberty of contract otherwise enjoyed by employers and employees would not be abridged “unless diverse membersof[the Legislature] have been able to agree on a particular form of words.” Sunstein, supra, at 336. Thatis “an important safeguard of freedom.” Jd. See Dep’t ofTransp., 135 S. Ct. at 1237 (Alito, J., concurring) (“The principle that Congress cannot delegate away its vested powersexists to protect liberty.”). Finally, it would serve the doctrine’s purposeof “avoiding or minimizing unchecked power,” McHugh v. Santa Monica Rent Control Bd., 49 Cal. 3d 348, 362 (1989), by requiring that mediators’ drafting discretion be circumscribed by meaningful standards and goals. Overturning the Regime would therefore serve the public’s interest in a free and open democracy as much as it would the business interests of agricultural employers and employees. CONCLUSION The Compulsion Regimecreates an unfair system whereby agricultural employers can be made subjectto irrational and arbitrary labor regulation. Through its unchecked grant of legislative power to private mediators, the Regimethreatens fundamental republican and democratic values ofseparation ofpowers and accountability. The Regimeis unconstitutional. -27- The judgmentofthe court of appeal should be affirmed. DATED: May 16, 2016. Respectfully submitted, DAMIEN M. SCHIFF Pacific Legal Foundation LUKE A. WAKE NFIB Small Business Legal Center py (ODA ¢ DAMIEN M. SCHIEE Attorneys for Amici Curiae National Federation of Independent Business Small Business Legal Center, Cato Institute, California Farm Bureau Federation, California Fresh Fruit Association, Western Growers Association, and Ventura County Agricultural Association - 28 - CERTIFICATE OF COMPLIANCE Pursuant to California Rule of Court 8.204(c)(1), I hereby certify that the foregoing APPLICATION TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF OF THE NATIONAL FEDERATION OF INDEPENDENTBUSINESS SMALLBUSINESS LEGAL CENTER, CATO INSTITUTE, CALIFORNIA FARM BUREAU FEDERATION, CALIFORNIA FRESH FRUIT ASSOCIATION, WESTERN GROWERS ASSOCIATION, AND VENTURA COUNTY AGRICULTURAL ASSOCIATION IN SUPPORT OF PETITIONER GERAWAN FARMING, INC., is proportionately spaced, has a typeface of 13 points or more, and contains 6,592 words. DATED: May 16, 2016. E-DAN 7 DAMIEN M. SCHTFE -29. DECLARATION OF SERVICE BY MAIL I, Tawnda Elling, declare as follows: J am a resident of the State of California, residing or employed in Sacramento, California. I am overthe age of 18 years and am not party to the above-entitled action. Mybusiness address is 930 G Street, Sacramento, California 95814. On May16, 2016, true copies ofAPPLICATION TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF OF THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, CATO INSTITUTE, CALIFORNIA FARM BUREAU FEDERATION, CALIFORNIAFRESHFRUITASSOCIATION, WESTERN GROWERS ASSOCIATION, AND VENTURA COUNTY AGRICULTURAL ASSOCIATION IN SUPPORT OF PETITIONER GERAWAN FARMING,INC. were placed in envelopes addressed to: David A. Schwarz Michael A. Behrens Trell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067-4211 C. Russell Georgeson Georgeson, Belardineli and Noyes 7060 North Fresno Street, Suite 250 Fresno, CA 93720-2984 Ronald H. Barsamian Barsamian Saqui and Moody 1141 West Shaw Avenue, Suite 104 Fresno, CA 93711 Jose A. Barbosa Agricultural Labor Relations Board 1325 J Street, Suite 1900 Sacramento, CA 95814 Benjamin M. Glickman Office of the Attorney General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Mario Martinez Thomas P. Lynch Martinez Aguilasocho & Lynch, APLC P.O. Box 11208 Bakersfield, CA 93389-1208 Scott A. Kronland Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Court Clerk Fresno County Superior Court 1130 O Street Fresno, CA 93721-2220 Court Clerk Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 which envelopes, with postage thereon fully prepaid, were then sealed and deposited in a mailbox regularly maintained by the United States Postal Service in Sacramento, California. I declare under penalty ofperjury that the foregoingis true and correct and that this declaration was executed . 16th day of May, 2016, at NidEL TAWNDAELLING Sacramento, California.