Oral argument in Bill of Attainder case

June 13, 2016 | By WENCONG FA

The U.S. District Court for the Eastern District Court of California heard oral argument last week in Fowler v. Lanier. The case involves AB 1513, a state law that created an affirmative defense for agricultural businesses in the wake of surprising California court decisions. This affirmative defense was available to every employer except for Fowler Packing and Gerawan Farming — both of which had been sued by the Union’s general counsel in the past. The carve-outs to AB 1513 allowed those lawsuits to go forward.

Fowler and Gerawan challenged the carve-outs in federal court. PLF represented seven organizations — including California Farm Bureau Federation, California Fresh Fruit Association, and Western Grower — in an amicus brief in support of Fowler and Gerawan. We argued that the carve-outs violate the Bill of Attainder Clause, which forbids the legislature from singling out individuals for punishment without a trial. The Court granted us time for argument.

My argument focused on the main point of contention between the parties: Do the carve-outs impose punishment as originally understood by its drafters? I argued that the carve-outs cannot survive scrutiny regardless of the answer. A court looks at a combination of three factors (historical, functional, and motivational) in determining whether a legislative act imposes punishment. Thus, the carve-outs impose punishment because they function as such (subjecting Fowler and Gerawan to massive liability) and are motivated by punitive intent (AB 1513’s author branded Fowler and Gerawan as “potential bad actors”).

Further, if Defendants were right that the historical analysis ends the inquiry, the great Chief Justice John Marshall must have been wrong. Although a bill of attainder was originally understood narrowly to mean an act that sentenced specific individuals to death, the Supreme Court expanded the list of punishments in 1810 to include banishment and confiscation of property. I’ll side with John Marshall on this one, and PLF hopes that the Court will do so as well.