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Texas Agriculture Archive

May 7, 2004

Amicus brief filed in
beef checkoff argument

By Mike Barnett
Editor

Some 50 farm organizations, spearheaded by efforts of the Texas Farm Bureau (TFB), have filed a Friend of the Court Brief in the U.S. Supreme Court in support of Nebraska Cattlemen Inc., asking that court to review a lower court ruling that said the national beef checkoff is unconstitutional.

The effort to file the "Friend of the Court" brief was the idea of Texas Farm Bureau Organization Director Joe Maley and TFB Associate Director of Commodity and Regulatory Activities Jon Johnson, with input from TFB State Director Dan Dierschke.

"Although the odds of getting it to the Supreme Court were good, we didn't want to leave any stone unturned," Maley said. "There was no movement…there was no one taking leadership in getting a Friend of the Court Brief filed."

Maley and Johnson discussed the issue with the Texas and Southwestern Cattle Raisers Association (TSCRA) and the Texas Cattle Feeders Association (TCFA). The three groups decided to take a leadership role, and the law firm of Jackson Walker was hired to write the brief.

According to Maley, the three organizations then agreed to broaden support for the brief. The result is some 50 organizations have signed on.

"For us, we're interested in the other commodities as well as beef," Maley said. "Beef is the big one right now, and what ultimately happens will affect the others. Texas Farm Bureau has a good, broad base for getting into it."

Included in that group are TFB, TSCRA, TCFA, Independent Cattle-men's Association, Texas Pork Producers Association, Texas Association of Dairymen, American Farm Bureau Federation, nine state Farm Bureau and numerous state beef organizations.

"At this time the purpose of the brief is to get the Supreme Court to take the issue, hear the case," Maley said. "I think all indications are they will take this case. And I'm very comfortable with our brief. Once the court takes the case, then at some point I assume we'll write a brief on the merits of the case."

In July 2003, a three-judge panel from the Eighth Circuit Court of Appeals upheld an appeal of District Judge Charles Kornmann's 2003 ruling that the beef checkoff is unconstitutional. Kornmann agreed with the plantiffs—Livestock Marketing Association, the activist group Western Organization of Resource Councils and several individuals—that the checkoff violates the constitutional rights of cattle ranchers by infringing on their First Amendment right to free speech.

A similar case is pending on appeal in the Ninth Circuit, where the checkoff was found constitutional. That case used the transcript of the trial in the Eighth Circuit.

Nebraska Cattlemen Inc. and the U.S. Justice Department filed petitions on Feb. 13 asking the U.S. Supreme Court to review Judge Kornmann's ruling.

Maley said pro-checkoff arguments—if the case reaches the Supreme Court—will focus on government speech versus freedom of speech.

"The government is pretty darn free to say what it wants to citizens," he explained. "What our argument boils down to is this checkoff has the blessings of government. It's quasi-government in that the Agriculture Secretary appoints board members, etc…so this is government speech. The government gets to determine the content of its own speech and is not subject to First Amendment scrutiny."

Maley said a ruling by the Supreme Court in favor of checkoffs is important to farmers and ranchers.

"Our leadership and our membership have consistently supported the self-help aspect of checkoff programs," he said. "Who is more interested in promoting a product than the people who make a living producing the product?"

A decision on whether or not the court will hear the case is expected this spring. If the Supreme Court decides to hear the case, it likely will be heard in the court's next session, which begins in October.