FRESNO, CA — A 14-year legal challenge to the constitutionality of the state
law establishing the California Table Grape Commission was resolved Oct. 5
in favor of the commission when the U.S. Supreme Court declined to review a
The plaintiffs who filed the original complaint have contended that the law
establishing the commission and authorizing its programs was in violation of
the First Amendment, but the U.S. Court of Appeals in November 2009 upheld
an earlier U.S. District Court ruling rejecting the First Amendment challenge.
According to an Oct. 5 press release from the commission, "the plaintiffs in
the case asked the U.S. Supreme Court to review the Court of Appeals
decision, but the Supreme Court today announced that it would not do so. As
a result, the Court of Appeals' decision now marks the final resolution of the
The release quotes Kathleen Nave, president of the commission, as saying,
“since [the commission’s founding in] 1967, the majority of California’s fresh
grape farmers have looked to the commission to help increase demand for
their product. Every five years they have voted to continue working together,
through the commission, because it makes a difference. This case has been a
cloud over their efforts, and it is a welcome relief to finally have it end in their
The plaintiffs — Delano Farms Co., Lucas Bros. and The Susan Neill Co. — had
initially filed suit against the commission in U.S. District Court in Fresno in
1996, holding that being compelled to pay assessments for generic
advertising programs for grapes constituted a violation of free speech.
As is often the case, the litigation process has been lengthy and convoluted.
At one point, the district court sided with the commission, but that decision
was reversed on appeal. The commission then submitted amended arguments
maintaining that its activities constituted government speech and were not,
therefore, in violation of the First Amendment. District Court Judge Oliver
Wanger again ruled in favor of the commission.
According to the commission press release, in that April 2008 ruling, Judge
Wanger “rejected a First Amendment challenge to the commission’s
programs, concluding, among other things, that the speech of the
commission, a creation of the state legislature, is that of the government and
therefore immune from constitutional challenge.”
That decision upheld by the Court of Appeals and the just-announced
decision of the U.S. Supreme Court not to review the case mean that the 2009
ruling of the Court of Appeals will stand.
The press release quoted Seth Waxman, legal counsel for the commission, as
saying, “The Court of Appeals’ decision in favor of the commission is well
reasoned and thorough. It definitively holds that the law establishing the
commission does not violate the First Amendment.”
Calls to the offices of Clovis, CA, attorney Brian Leighton, who represented
the plaintiffs, were not immediately returned. However, an Oct. 6 article in the
Fresno Bee stated that Mr. Leighton “said the legal fight is not over,” noting
that “a similar case is pending” with the California Supreme Court.
Commission President Kathleen Nave was not immediately available to
comment on that pending case.