Daily Journal: High court should take opportunity to restore the right to exclude

A fundamental aspect of private property is that the owner can choose whom to let onto the property and whom to exclude as a trespasser. Next Monday, the U.S. Supreme Court will hear a case concerning the intersection of this right with a longstanding California agricultural labor regulation.

In 1975, the California Legislature enacted the Agricultural Labor Relations Act to govern labor relations between agricultural employers and employees (farm laborers are excluded from the National Labor Relations Act). Soon thereafter, the Agricultural Labor Relations Board issued the Access Regulation. Loosely modeled on federal precedents, the Access Regulation gives agricultural labor unions the right to enter employer property to attempt to organize employees. Although subject to notice and other procedures, the right granted unions under the Access Regulation is capacious, allowing unions access to employers’ premises for three hours a day and up to 120 days each year.

Cedar Point Nursery and Fowler Packing Company are two California agricultural firms who object to the Access Regulation’s violation of their right to exclude trespassers from their property. In 2016, shortly after contentious union efforts to utilize the Access Regulation, Cedar Point and Fowler filed suit in federal court in Fresno to invalidate the Access Regulation as a violation of the constitutional prohibition on the taking of private property for public use without payment of just compensation. They argued that the Access Regulation impinges upon the right to exclude in a manner analogous to an easement, and that such a substantial infringement on that right is a per se taking, regardless of its economic or other impacts.

The board countered that no taking had occurred. Neither Cedar Point nor Fowler had alleged any significant economic loss because of unions taking access. Such a loss must be shown to establish a taking unless, the board argued, one has been subjected to a permanent physical invasion. Because the Access Regulation does not authorize union reps’ permanent presence on employer property, the board concluded that no taking had occurred.

The district court agreed with the board, and a divided panel of the 9th U.S. Circuit Court of Appeals affirmed. Writing for the majority, Judge Richard Paez explained that the only instances in which the Supreme Court has upheld a takings claim regardless of a regulation’s economic impact have been in cases where the property owner was forced to submit to the permanent physical occupation of his property, or where he was required to grant a general right-of-way easement to the public. Because the Access Regulation did neither, it could not, according to the 9th Circuit majority, qualify as a per se taking.

After their petition for rehearing en banc was denied, Cedar Point and Fowler sought review successfully in the Supreme Court. The question presented to the high court is whether a per se taking of the right to exclude can occur when the loss of the right is not continuous — that is, when it is not all day and every day. Notably, the board’s principal brief in the Supreme Court backtracks somewhat from the position of the 9th Circuit panel majority. Whereas the latter concluded that nothing short of 24/7 public access merits per se treatment, the state concedes that at least some less burdensome servitudes, such as “daylight hours only” easements, would be categorical takings. Hence, the central question of the case now is: How much less before it’s no longer a per se taking?

Cedar Point and Fowler argue that, given the critical importance of the right to exclude, any impingement on that right greater than transient and irregular occupation, akin to random trespasses, is a taking. The state and its amici counter that such a rule is unacceptable because it would render many important health and safety inspection and public accommodation regimes unconstitutional. That critique doesn’t hold water.

To begin with, the growers’ rule applies only if the right to exclude is being impinged. All property rights are, however, subject to certain basic background principles; laws that merely enforce these background limitations do not take anything from property owners. One such background principle is the so-called “police” power, that is, the authority of the government, consistent with the Fourth Amendment and other limitations, to inspect private property to ensure compliance with the law. Hence, because a property owner has no right to exclude government officials from conducting lawful searches, reasonable health and safety inspections of private property cannot result in a taking.

Further, the growers’ rule presupposes that the government is impinging the right to exclude from private property, not the right to use private property. Thus, laws that govern how one must treat persons whom one has freely invited onto one’s property — such as public accommodation statutes like Title II or the Americans with Disabilities Act, or labor laws like the Occupational Safety and Health Act — are use restrictions and thus by definition cannot violate the right to exclude.

Finally, the growers’ rule acknowledges that some limitations on the right to exclude are so insignificant that they amount to nothing more than trespasses. Although such impingements may be illegal, they are actionable (if at all) as a matter of tort law, not as a matter of unconstitutional takings. Thus, the government official who wanders into your backyard because he made a wrong turn has not taken private property in violation of the Constitution.

But none of these exceptions can save the Access Regulation. It has nothing to do with assuring growers’ compliance with health and safety rules, but rather is simply a gift of access to a non-governmental party seeking to expand its own membership. It is not a regulation of employees or other persons whom the employers have freely invited onto their property. And it authorizes much more than transient and irregular access. The Access Regulation is therefore a per se taking.

This op-ed was originally published by Daily Journal on March 15, 2021.