(March 20) YAKIMA, Wash. — Nobody’s arguing that — since its inception 66 years ago — the Washington Apple Commission hasn’t helped propel the U.S. market share of the state’s producers from 15% to about 70%.

But in the wake of the 2001 U.S. Supreme Court decision that found the mandatory assessments charged by the Mushroom Council to mushroom producers for generic advertising violates the First Amendment, there are those who argue that apple producers shouldn’t have to pay similar fees.

And on March 20, the commission was awaiting a federal judge’s decision in a lawsuit the commission filed a year and a half ago in order to preserve its right to collect 25 cents a box from growers to pay for promotion of Washington apples.

Early indications were that U.S. District Court Judge Edward Shea might rule against the commission.

Shea had ruled March 14 to put into escrow assessments to the commission from a small group of apple growers involved in the case. Only those intervening growers — Washington Fruit & Produce and Borton & Sons, both of Yakima; Cowiche-based Evans Fruit Co. Inc.; and a collection of organic growers — were to have their assessments escrowed after each had filed a $10,000 surety bond. The organic growers based their case on allegations the commission did not spend a representative amount on organic promotions.

Representatives of those growers declined to comment or could not be reached.
Shea’s March 14 ruling came in a pretrial motion for preliminary injunction.

“Obviously, this is a disappointing ruling for the Washington apple industry,” Welcome Sauer, president of the commission, said after the March 14 escrow decision. “This case involves a highly complicated constitutional matter that was brought upon our industry by two U.S. Supreme Court decisions regarding commodity commissions.”

As a result, commodity commissions nationwide are involved in similar court cases, Sauer said, adding, “Today’s decision is just one early milestone in what will likely be a lengthy legal process for the apple commission.”

The next step came March 18, when the court heard oral arguments from both sides for summary judgment to decide the case based on existing facts and precedent.

Afterwards, Shea said he was inclined to rule against the commission because it appeared that its primary purpose was advertising and marketing. However, he said that the commission’s argument that it conducts activities that are clearly constitutional and not speech-related was giving him pause.

“We could find out his decision as early as Friday (March 21) or as late as a couple weeks from Friday,” Sauer said March 20. “The judge has a two-week commitment in California, so if he doesn’t rule by Friday, we don’t know when he will rule. This leaves us hoping the judge finds in favor of us taking the case to trial.”

If that happens, the trial would be scheduled for May 5. But if the judge rules against the commission, it will appeal the case to the 9th Circuit Court of Appeals in San Francisco, a lawyer for the commission said.

In an unusual bid, the apple commission initially launched the suit over the mandatory assessments itself on behalf of two north-central Washington growers in August 2001, about two months after the U.S. Supreme Court ruled against the Mushroom Council. Those two growers, picked by the commission, were Jack Nickell of Pateros, Wash., and Ron Myers of Monitor, Wash.

Since then, the case moved to federal court, and a group of seven organic apple growers and Washington Fruit & Produce, Borton & Sons and Evans Fruit Co. were allowed to intervene.
“I don’t think (the commission’s launching the lawsuit itself) was a gamble at all,” Sauer said. “Even before we filed the suit, lawyers were already gathering clients for a suit against us. We did not want to be in the position of the Beef Council or the Dairy Council or the Pork Council, who have been in two, three and four suits each. We wanted to deal with this in one case, in one court. We don’t look back.”