“Being the little guy against the government can feel like a David and Goliath thing and the idea we could win is tremendous.”
These are the words of a small raisin grower in the Central Valley of California whose livelihood now rests in the hands of the United States Supreme Court.
The case is Horne vs. Department of Agriculture (link to SCOTUSblog). At issue is a small group of about 50 raisin growers in the Central Valley who decided to fight back against the government for what they felt was the “ taking” of their raisins without just compensation, a violation of 5th Amendment protections, after the USDA said they were in violation of a marketing order that was intended to stabilize crop prices and dates to 1937.
News outlets like MSNBC, The New York Times , McClatchy and others have been making light of the case with headlines like “Thorny questions for Justices” and “Supreme Court Chews over case”, which describe the growers with quotes like
“Nearly a dozen burly California raisin growers watched intently Wednesday as Supreme Court justices struggled to figure out how their industry works.”
Even Comedy Central got in on the game with this bit featured in Michelle Ray’s (@GaltsGirl, GulchCast on Vigilant Liberty Radio) article at IJReview “Fed. Govt. hired 24/7 Security team to bring down outlaw farmer for Raisin a ‘Dangerous’ product”
What they forget is these are actual people with real lives who have been affected by the big hand of government, and they have been waiting for justice for a long time.
One such grower, who’s been a part of the fight from the start with Marvin Horne, is Mike Jerkovich. Making the trip back east to hear arguments in front of the Supreme Court, Jerkovich says “this struggle hasn’t just been going on for the last 2 years, but for 15 years.” This was not the first time the case was in front of the Supreme Court; in 2013 Horne won a unanimous victory after the SCOTUS found the case could be heard in a regular district court, sending it back to the 9th Circuit to review the decision. The 9th Circuit ruled a second time against the growers and Horne, leaving the highest court of the land to decide the case.
Jerkovich says it started back in 2000 when a small group of farmers got together and held meetings to discuss what they felt was an unfair practice by the government, which was that they agreed to give up a portion of their crops to a reserve program…at that time it was 47%…and in return they would get nothing. This eventually led to Marvin Horn building a packing house to pack his own raisins.
Other growers, including Jerkovich, decided to do the same. The idea being they would be the producers of their crop, not handlers, and not fall under what they saw as an unfair marketing order. The order determines how the raisins are packed and processed, and says handlers will have to withhold part of their crop for a reserve tonnage. However, the order said that growers are to be compensated for the withheld tonnage, which according to him has not happened. After deciding that Horne wasn’t setting aside reserves, the USDA determined he was in violation of the marketing order. And he was not alone, with Jerkovich and the other growers refusing as well. He says “that’s when things got interesting”.
Soon after that growers started noticing private investigators on their land. Realizing it was the government that was harassing and spying on them, he said
“The PI’s would take pictures of everyone coming into the plant. At the packing plant Marvin even caught them photographing the employee’s children coming off the bus after school.”
He recalls the time he was followed back to his place after leaving the plant. “The PI’s started taking pictures of what I was doing on my own property”.
This continued until the day he and a friend got photographic evidence of what the USDA was doing. According to Jerkovich, “…the investigators had stopped a grower’s truck full of raisins on its way to the plant by standing in the middle of the roadway”.
Jerkovich and Horne then notified the RAC (Raisin Administrative Committee) that this act, “…was interfering with interstate commerce and they weren’t going to tolerate it”. After that he says all the private investigators disappeared. But this would not be the end of things, as the government then tried another technique or as he put it, “upping the ante”.
Growers who refused to put aside a portion of their crop, were told that the USDA would no longer inspect their raisins. With no inspection of their crop there would be no crop and with no crop there would be no profit. Deciding then to bypass them they called the state department of food and agriculture to do the inspections.
But he says:
“it was this next and final attempt by big brother that made them unite and finally fight back, the Government ordering Horne to pay fines and penalties of more than $650,000 dollars for not going along with the marketing order.”
That’s when he, Marvin, and other growers decided enough was enough. Their case ended up getting all the way to the Supreme Court after the Ninth Circuit Court of Appeals ruled against them. He made the trip and recalled some of the things the Justices said that day, such as:
“I am kind of upset. You should not be here and wasting your money being here. This should have been taken care of by the 9th Circuit court. You know, this is from 1934, it’s outrageous, it’s just like a dinosaur and it should be extinct.”
Jerkovich and others figured it would go 6-3 in their favor, but the justices ruled a unanimous decision and the case was sent back to the Ninth Circuit court with the stipulation that they vote on the “taking of the raisins”.
When it returned to them, the judges disregarded what the Supreme Court said and held firm to their original ruling. As the government says, because the Hornes “voluntarily” put their crops into the stream of commerce they are subject to the marketing order.
In September they found out they were headed back to the Supreme Court. Oral arguments from the case can be found here (PDF from US Supreme Court).
Jerkovich says “I have a good feeling about the case and I think it will go 6-3 in our favor”. And it’s not surprising he feels that way with the comments coming from the justices like:
“Taking without just compensation would be an unconstitutional condition for putting something into the stream of commerce… ”
“Could a government say to a manufacturer of cell phones, you can sell cell phones, however every 5th one you have to give to us?”
Chief Justice Roberts then said to laughter:
“This is different because you come up with the truck and you get the shovels and you take their raisins probably in the dark of night…”.
Interesting to note when Jerkovich was in court last week:
I meet 2 farmers, from Oregon, who grow cherries and say they too have been dealing with a similar issue with government marketing orders. For the last 4 years, the government has been trying to do the same thing with the cherry reserve.
And while it is true that the marketing order under question deals not only with grapes, but also cherries and many other crops including almonds, pistachios, pears, and olives just to name a few. Jerkovich says:
The attorneys feel the Justices will be dealing with how to make a ruling on the raisin case, without having it affect all of the other crops.
When I asked him was he going to be relieved this battle was almost over, his answer was surprising,
“My feeling by doing all this we fought the government. It really was a David and Goliath thing. I’m looking forward to the results. As a group all we really want is for the government to leave us alone and let us pack our raisins in peace. But the whole experience has really been incredible.”
A decision on the case is expected by the first of July.
(Full disclosure: the author has a familial relationship with Mike Jerkovich.)