On March 22, my PLF colleague Senior Attorney Joshua Thompson will make arguments before the Supreme Court on behalf of the plaintiffs in the case of Cedar Point Nursery v. Hassid, one of the most important cases involving property rights in recent memory.
The owners of Cedar Point Nursery, an agricultural grower in Dorris, California, are challenging a state access regulation that allows union organizers to come onto their property unannounced for three hours per day, and 120 days per year. The regulation is a holdover from a different era. In the decades before the regulation was enacted, workers sometimes lived on their employers’ property with little to no access to the outside world. Today the Cedar Point employees, like nearly all farmworkers now, live in houses and hotels off site, and have access to alternative means of communication from the union, such as radio, TV, and social media.
PLF is fighting for the property rights of the growers, and to ensure that the fundamental right to exclude applies to the growers as it does to all Americans.
In addition to the arguments Joshua will be presenting before the Court, a number of amicus briefs filed in favor of our clients will also make important arguments on the significance of strong property rights. These “amicus briefs” (an abbreviation of the Latin “amicus curiae,” or “friend of the court”) are important in helping the Court understand the importance of the issues in the case.
A wide range of organizations and governments have filed friend-of-the-court briefs that urge the Court to rule in favor of PLF’s clients. Those 15 briefs cover a wide range of important issues in Cedar Point.
First, a number of briefs reinforce PLF’s primary argument that the access regulation should be viewed as a per se taking rather than a regulatory taking. Here’s the difference: When the government takes an interest in property, its action is generally considered a per se taking that triggers a categorical duty to compensate. Time limits on the taking go toward the amount of compensation, not to whether compensation is due.
Consider it this way: If the government takes your house for public use, everyone would agree that the government must pay you for its value. But what if the government takes your house only for summer months? California and the lower courts viewed that as a regulatory taking, which triggers a multi-factor balancing test famously hostile to property owners. PLF disagrees. We argue that government must compensate the property owner for a taking of property, regardless of whether that taking is limited in time or not.
Second, several briefs discuss the fundamental nature of the right to exclude. That right is perhaps the most basic attribute of private property, which loses its character if the owner did not have the right to exclude unwanted third parties.
Third, the access regulation impinges on a property owner’s right to exclude far more than laws allowing government inspectors to access certain commercial facilities.
Fourth, multiple briefs argue that the taking in this case should be invalidated because it fails to comply with the “public use” requirement. The Fifth Amendment does not allow the government to take property any time it wishes; any taking of property must be for public use.
Fifth, union organizers have many other ways of soliciting workers to join the union.
The friend-of-the-court briefs underscore the significance of this case for protecting private property rights. These briefs will be helpful to the Court as it considers the important issues in the case, and as it issues its decision later this summer.