Wileman Bros. & Elliott v. Lyons 12/17/01 CA5

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2002 » Wileman Bros. & Elliott v. Lyons 12/17/01 CA5

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F032298

Case Date: 03/21/2002

Preview:Filed 12/17/01

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT WILEMAN BROS. & ELLIOTT, INC., F032298 Plaintiff and Appellant, (Super. Ct. No. 94-166231) v. WILLIAM LYONS, JR., as Secretary, etc.,

OPINION
Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Tulare County. Patrick J. O'Hara, Judge. Thomas E. Campagne & Associates and Jeffrey C. Heeren for Plaintiff and Appellant. Bill Lockyer, Attorney General, Richard M. Frank and Charles W. Getz IV, Assistant Attorneys General, Edna Walz, Ronald A. Reiter, Seth E. Mermin and Tracy L. Winsor, Deputy Attorneys General, for Defendant and Respondent.

SEE DISSENTING OPINION OF LEVY, J. Kahn, Soares & Conway, George H. Soares, Dale A. Stern and Robert S. Hedrick for California Avocado Commission, California Apple Commission, California Asparagus Commission, California Cut Flower Commission, California Date Commission, California Egg Commission, California Forest Products

Commission, California Grape Rootstock Improvement Commission, California Kiwifruit Commission, Lake County Winegrape Growers Commission, LodiWoodbridge Winegrape Growers Commission, California Pepper Commission, California Pistachio Commission, California Rice Commission, California Sheep Commission, California Strawberry Commission, California Tomato Commission, California Walnut Commission, and California Wheat Commission as Amici Curiae on behalf of Defendant and Respondent. -ooOooThis is an appeal from a final judgment rejecting constitutional challenges by appellant Wileman Bros. & Elliott, Inc., to a marketing order for California plums implemented by respondent's predecessor as Secretary of the Department of Food and Agriculture (collectively, the Secretary) in 1994. In addition, appellant challenges an order requiring it to pay to the Secretary $37,343.13 in collection fees and penalties for late payment of marketing order assessments. Facts and Procedural History Various state and federal agencies impose assessments on producers and handlers of foods to pay for generic advertising programs involving the particular foods. These programs do not specifically target a particular brand of beef, milk, plums, or other food; instead, they generally encourage the public to eat more of the product. (See generally Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 476480.) For over 12 years, appellant has been fighting against laws imposing advertising assessments on plums produced in California. (See Glickman v. Wileman Bros. & Elliott (1997) ___ U.S. ___, ___ [117 S.Ct. 2130, 2135].) Beginning in 1988, appellant filed an administrative challenge to advertising assessments imposed under a

2 .

federal plum marketing order. That challenge eventually was rejected by the United States Supreme Court. (Id. at p. ___ [117 S.Ct. at p. 2142].) The federal marketing order was terminated in 1991. The state marketing order was implemented in the 1994 harvest season. Appellant filed this action challenging the state order in June of 1994. The complaint raised issues under the state Administrative Procedures Act (APA) (Gov. Code,

Download Wileman Bros. & Elliott v. Lyons 12/17/01 CA5.pdf