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Blog > Issues > Property Rights > California’s friends miss the mark in Cedar Point Nursery v. Hassid

California’s friends miss the mark in Cedar Point Nursery v. Hassid

March 19, 2021 I By WENCONG FA

On March 22, the Supreme Court will hear argument in Cedar Point Nursery v. Hassid, Pacific Legal Foundation’s latest case before the Supreme Court.

As my colleague Joshua Thompson will argue before the Court, the case involves an important question of property law: Does the government have to pay the property owner when it takes an easement on the property for the benefit of union organizers? The answer, we think, is yes.

I previously posted on the important friend-of-the-court briefs that were submitted in support of our clients Cedar Point Nursery and Fowler Packing Company: two agricultural businesses that produce mandarin oranges, grapes, and strawberry plants.

There were also several briefs submitted in support of the Agricultural Labor Relations Board, which is defending the regulation that allows union organizers to invade the private property of agricultural employers for three hours per day, 120 days per year. Here’s a rundown of the arguments made by the friend-of-the-court briefs on the other side and a brief rejoinder:

First, several amici—such as the Service Employees International Union, National Employment Law Project, United Food and Commercial Workers Western State Council, a number of states led by Virginia, and local governments—hypothesize a parade of horribles that would arise if the access regulation were invalidated.

For instance, those amici claim that a ruling in favor of the property owners in this case would call health inspections and antidiscrimination laws into questions. They are wrong. Health inspections are properly treated as searches under the Fourth Amendment, and property owners take title to their land subject to the right for government to conduct reasonable searches.

By contrast, no one would argue that union solicitation is akin to a reasonable search, and the fact that organizers are allowed onto the property for three hours per day and 120 days per year further belies that claim.

Second, the AFL-CIO and United Farm Workers argue that the access regulation is necessary for union organizers to communicate with employees. Not so.

As both petitioners and the California Farm Bureau have pointed out, there are several other ways for unions to advertise union membership to agricultural employees, including radio networks, social media, or visits to off-site homes and hotels where the workers live.

Third, California Rural Legal Assistance, Inc. claims that the agricultural growers have not suffered any injury. That is false. The regulation eviscerates the growers’ right to exclude. And as events at Cedar Point Nursery demonstrate, union invasions threaten to disrupt production and distress workers.

Fourth, a group of senators accuse Petitioners of a calculated strategy to lose by not pressing a claim under the ad-hoc multi-factor balancing test applicable to regulatory takings. That is incorrect. We have always argued that the multi-factor test is inapplicable in cases, like this one, where the government appropriates a property interest. Under that multi-factor test, property owners could lose millions of value on their property, and not receive a penny in compensation.

Finally, several amicus briefs make arguments that are wrong on the merits.

A group of law professors contend that Petitioners’ arguments inappropriately conflate state property law with constitutional takings law. But Petitioners have never asked the court to discern the scope of the right to exclude in any particular state.

On the contrary, the right to exclude is universally recognized under American law, and no state’s law of property would countenance so substantial an impingement on that right as an “easement” would impose.

The Constitutional Accountability Center argues that the regulation “does not effect an actual physical expropriation of property, nor does it effect the functional equivalent thereof by allowing a permanent physical occupation of private property or by rendering such property valueless.” Actually, the regulation does function as though it appropriates a property interest—an access easement—for the benefit of the property owner.

The International Lawyers Assisting Workers Network argues that the property law of other countries would allow the access regulation to remain in effect. That may or may not be so. But American property law recognizes the right to exclude as fundamental, and should thus invalidate the regulation.

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