Roger J. Marzulla
On March 20, the Supreme Court heard argument in the third takings case of the term, Horne et al v. Department of Agriculture, a case in which the government assessed a $700,000 fine against a California raisin farmer who refused to give the government 30 to 48 percent of his raisin crop as required by the Agriculture Department’s marketing order. Mr. Horne claimed that the government’s requirement and the fine were both unconstitutional takings, and that he could assert this defense in the administrative fine hearing. But the Ninth Circuit held that Mr. Horne lacked standing to challenge the fine on Fifth Amendment grounds, and that Mr. Horne must first pay the fine and then sue for just compensation in the Court of Federal Claims in Washington, D.C.
Although many thought the argument would be a showdown on obscure procedural issues involving Agriculture Department administrative law—the grounds on which the Ninth Circuit had dismissed Mr. Horne’s claim--the Solicitor General shocked the Court by announcing that the case should, in fact, be remanded for determination of the merits. The government continued to argue, however, that those merits did not include the Fifth Amendment—that Mr. Horne must first pay the fine and then file his takings claim in the Court of Federal Claims.
The lively argument lept from the constitutionality of agricultural marketing orders to whether a monetary fine could be a taking to who actually owned the raisins of which the government took possession without compensation. The decision in the case will likely have significant ramifications for takings law, as well as challenges to the constitutionality of federal fines for regulatory non-compliance.
- Hon. Roger J. Marzulla, Partner, Marzulla & Marzulla
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