October 27, 2016

What does the Bill of Attainder Clause say about newfangled punishments?

By Wen Fa Attorney

Three years ago, California businesses faced crippling liability in the wake of court decisions interpreting the state’s minimum wage laws. This year, the state legislature enacted Assembly Bill 1513, which allows businesses to avoid statutory liability if they promptly paid back wages in accordance with those decisions. Yet, to secure the support of a powerful union, the legislature crafted carve-outs to prevent two businesses — Fowler Packing and Gerawan Farming — from taking advantage of this law.

The carve-outs violate the Bill of Attainder Clause, which prohibits legislatures from singling out individuals for punishment. Today Pacific Legal Foundation filed this friend-of-the-court brief, which asks the Ninth Circuit to restore the Constitution’s robust protection against bills of attainder.

The legislature attempts to evade the prohibition on bills of attainder by arguing that the carve-outs do not impose traditional forms of punishment, such as death or banishment. Yet the Bill of Attainder Clause prevents the legislature from imposing any form of punishment on specified individuals, regardless of whether such punishment is conventional or innovative.

For example, the Supreme Court has invalidated legislation that prohibited certain government employees from receiving federal funds. The Court recognized that although such legislation did not impose a death sentence, it stigmatized those affected by deeming them unworthy to receive the same funds that flow to their peers. AB 1513’s carve-outs operate in a similar manner. By denying Fowler and Gerawan the relief afforded to every other business in California, the legislature has branded Fowler and Gerawan with a badge of infamy. Accordingly, the Ninth Circuit should take a hint from the Supreme Court, and use the Bill of Attainder Clause to invalidate the carve-outs in AB 1513.

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Gerawan Farming v. Agricultural Labor Relations Board

Gerawan Farming is a family-owned company that grows grapes and stone fruit in the San Joaquin Valley. Unique in the nation, a California statute compels agricultural employers and their employees’ unions to assent to collective bargaining agreements. Rather than being negotiated at arm’s length, these agreements’ terms are dictated to the parties by a “mediator” who has nearly unlimited discretion to compel the parties’ assent to whatever terms the mediator wishes. A California appellate court struck down this scheme that imposed an unwanted “agreement” on Gerawan, but the California Supreme Court granted review. Representing an array of agricultural and constitutional liberty groups, PLF filed an amicus brief arguing that this compulsory regime is unconstitutional.

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