"It was a cold, brief, but bright January day in 2005 when Marvin
and Laura Horne, Kerman CA 1st called talk about their problem with the USDA."
Dave Domina of Domina Law Group recalls the conversation.
"We raise raisins. The government takes just about half the crop away
from us under a federal regulation in the Raisin Marketing Order left
over from 1947. We are going broke. We want to resist the taking of our
raisins and need help." That is what Domina recalls of Mr. Horne's
description of his legal problem.
Domina went to California. "I learned the raisin business as best
I could, and learned of the raisin law in the Marketing Order." We
decided to take USDA to task by defending against an enforcement action
it brought administratively to impose fines and penalties on Mr. and Mrs.
Horne." The Hornes decided to divide the marketing order and refused
to pay levied fines or set aside raisins. Instead, they joined with a
handful of neighbors, purchased processing equipment, and began to clean,
bag, and sell their own reasons to the public.
"But USDA said this was illegal too," Domina noted. "So,
we went to court. We knew the case would have to be settled on appeal
and could never be ended at the trial court level. We expected a complex
And the Horne's got a complex process! But, in the end they won…
after two victories … yes two… in the Supreme Court of the
United States! The first win was 9-0 in 2013. It set the stage for an
even bigger, and highly extraordinary return to the Supreme Court for
a second time in the same case!
Final and full victory came for the Horne's on June 22, 2015.
Horne v USDA, an 8-1 decision adopted the same arguments Dave Domina made in the trial
court in 2005, on appeal on the first round of appeals, and after Domina's
handoff to Brian Leighton of Clovis CA. "Brian did a great job! He
never gave up on the case or clients and was a pleasure to work with and
to support from long distance." Domina Law did not handle the case
in the Supreme Court.
The Takings Clause of the Fifth Amendment requires the government to pay
just compensation when it takes private property for a public use. But
the 1949 Raisin Marketing Order" allows the U.S. Department of Agriculture
to demand a portion of each year's California raisin crop, free of
charge. The title to those raisins passes to the Raisin Administrative
Committee, which is allowed to use the raisins for government purposes.
Those purposes include giving the raisins away for free to school lunch
programs or selling them for foreign export. If it sells them, the government
gets to use the proceeds to fund its own operations.
In the Supreme Court decision issued on June 22, 2015 in
Horne v. Department of Agriculture, the U.S. Supreme Court struck down the Raisin Marketing Order's regulatory
set aside or reserve program as an unconstitutional violation of the Fifth
Amendment. The Opinions of the Justices may be read
"The reserve requirement imposed by the Raisin Committee is a clear
physical taking," wrote Chief Justice John Roberts in the Majority
Opinion for the Court. Roberts continued, "Actual raisins are transferred
from the growers to the Government. Title to the raisins passes to the
The Court also makes unequivocally clear the categorical duty of government
to pay just compensation when it takes personal property… just
as when it takes real estate. Any distinction between the two was vaporized by the
Horne decision. "Government has a categorical duty to pay just compensation
when it takes your car, just as when it takes your home."
Roberts' opinion was joined in full by Justices Antonin Scalia, Anthony
Kennedy, Clarence Thomas, and Samuel Alito. Justice Stephen Breyer, joined
by Justices Elena Kagan and Ruth Bader Ginsburg, concurred in part and
dissented in part. Justice Sotomayor filed a solo dissent, in which she
sided entirely with the USDA. "The government may condition the ability
to offer goods in the market on the giving-up of certain property interests
without effecting a
per se taking," Sotomayor asserted.
"I am delighted for the Horne family, and the raisin industry,"
Dave Domina said. Trying this case and establishing the entire record
of proceedings, with issues highlighted, briefed, argued and preserved
for two successful appearances in the United States Supreme Court, was
a professional highlight, for Domina. It likely would be for any lawyer.
For more information,
listen to NPR's coverage of the issue.