No, the Constitution does not allow legislators to act as judges

April 01, 2016 | By WENCONG FA

You’ve read about it in history books. You’ve seen in it on The Tudors. During the seventeenth century, British Parliament presided over specific cases, heard evidence on criminal charges, and voted on the guilt of individuals accused of certain wrongs.

The practice shocked the Framers. They ratified the bill of attainder clauses in the United States Constitution to stop legislative encroachment of the judicial power in both Congress and state legislatures. Yet the California legislature ignored this command, and essentially determined guilt on the part of two California agricultural businesses.

Last October, the legislature enacted Assembly Bill 1513 in response to California court decisions interpreting the state’s minimum wage law and its application to piece-rate compensation. In those decisions, California courts held that common employment practices were illegal under California minimum wage law. This subjected California businesses to massive liability in the form of back wages and statutory penalties.

AB 1513’s safe harbor provision allows most California businesses to avoid statutory penalties if they promptly pay back wages. Yet, to obtain the support of the United Farm Workers, the legislature excluded two businesses — Fowler Packing and Gerawan Farming — from the safe harbor by way of statutory carve-outs.

The carve-outs violate the Bill of Attainder Clause. The Clause forbids the California legislature from enacting laws that single out particular individuals for punishment. Laws like AB 1513. As we argue in this amicus brief, filed on behalf of seven organizations, AB 1513’s carve-outs exclude Fowler and Gerawan — and only Fowler and Gerawan — from the safe harbor. What’s more, the carve-out inflict punishment on Fowler and Gerawan within the meaning of the Bill of Attainder Clause by denying them a benefit (i.e. relief under the safe harbor) available to every other employer in California.

By ignoring the Bill of Attainder Clause, the legislature has also ignored the doctrine of the separation-of-powers. The public would naturally view the carve-outs as a legislative declaration of guilt. Yet it is the role of the judiciary to determine guilt, and no court has found Fowler and Gerawan any more culpable than other businesses in California. Perhaps the California legislature should take a cue from Chief Justice John Marshall, who said long ago that although the legislature prescribes general rules of society, the application of those rules to individuals is emphatically the role of the judiciary.