Frequently asked questions about Cedar Point Nursery v. Hassid

What’s at issue in this case? 

• The right to exclude trespassers is a fundamental part of property rights. California’s unconstitutional access rule allows a favored third party, in this case unions, to invade a business’s property for three hours a day, 120 days a year.  

What’s the law in question in the case? 

• Cedar Point challenges an access regulation which was promulgated by the California Agricultural Labor Relations Board. It was adopted immediately after the passage of the 1975 Agricultural Labor Relations Act.   

• The Access Regulation allows union organizers to enter the “premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support . . .” Cal. Code Regs. tit. 8, § 20900(e). 
• The question presented to the U.S. Supreme Court is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment, thus triggering a constitutional right to just compensation. 

How did the litigation arise? 

• In the early morning hours in fall 2015, Cedar Point Nursery’s employees were tending to the strawberry plants that would soon ship to producers throughout the country. They were shocked when a crowd burst through the doors and made their way through the building, barking through bullhorns that the workers needed to join the UFW. Employees captured video footage of the invasion. UFW organizers also sought access to  Fowler Packing. 
• The businesses filed their lawsuit, challenging the constitutionality of the Access Regulation in February 2016. 

What’s a “taking,” and how is it relevant in this case? 

• The Fifth Amendment of the U.S. Constitution requires compensation when private property is taken for public use. This can include taking an easement to build a road, taking someone’s raisins, taking a property owner’s money, or even an element of property, like the right to exclude strangers for specific purposes or periods of time. 
• California has claimed that the union access rule is not a taking if it only lets unions onto the property for a limited time: in this case, three hours per day for 120 days per year. 
• This easement is still a taking of your property by the government, even if it’s time limited. 
• The reason is because a fundamental part of property is the right to exclude others from it. A right to property means you can use and enjoy your property however you like, so long as it doesn’t violate a law or hurt other people. An essential part of this is the right to prevent other people from using your property without your permission. 

How can unions get in contact with workers without trespassing? 

• In the decades before this access rule, some remote businesses housed workers on-site, who had little access to the outside world. This situation is nearly non-existent today. And at Cedar Point Nursery and Fowler Packing, no workers live on-site. Most have cell phones and access to social media. Nearly all workers speak English and Spanish.  The UFW even runs a multi-channel, multi-state radio network. 

Will this case end fire inspections and health inspections for restaurants? 

• The claim that this case threatens health and workplace inspections is a red herring. Governmental health and safety exceptions are governed largely by Fourth Amendment law. Those searches and inspections are generally limited to specific governmental health and safety purposes. Even still, most administrative and regulatory inspections must be “reasonable” under the Fourth Amendment, which may require a warrant or warrant analog. 
• None of the exceptions that allow governmental access, search, and inspection are implicated here. No governmental official is authorized to come on the property by the Access Regulation. It is private union organizers who are there for their own union purposes, not health and safety. 

• Moreover, union organizers are authorized three hours a day, 120 days a year, year after year. No health inspection granted such profound access would be permissible under existing law. 

Is this just a state issue? Why should the federal government get involved? 

• States can’t violate property rights guaranteed by the United States Constitution. It’s the job of the Supreme Court to enforce those constitutional rights when they are violated by states. 
• The United States government filed an amicus brief in this case because it seeks to ensure constitutional rights are respected by the states and to explain that federal searches and inspections would not be affected by a ruling which holds the Access Regulation unconstitutional under the Takings Clause.  

Has the Supreme Court decided any similar cases? 

• This case can be decided through a straightforward application of Supreme Court precedent. The Supreme Court has repeatedly held that when the government takes an easement across private property, it has a categorical duty to compensate the property owner. Because the Access Regulation essentially takes an easement for third-party union organizers, the government’s obligation to compensate is categorical. 

When will the case be argued in the Supreme Court, and when will its decision be issued? 

• The argument will be held telephonically on March 22. The argument will be livestreamed.

What is the most likely result in the Supreme Court? 

• We expect the Supreme Court to reverse the Ninth Circuit’s decision and hold that the Access Regulation effects a physical, per se taking under the Fifth Amendment.  

Does this case pit property rights against workers’ rights? 

• No. Even if the Access Regulation is declared unconstitutional, every agricultural worker will be available to be contacted by union organizers. 
• Workers should be free to work at their profession without unwanted interlopers invading their workplace to proselytize a message they don’t want to hear.  

Does this happen anywhere else? 

• California is unique in allowing this particular violation of property rights. Agricultural unions in every other state have found ways to organize workers without invading private property. 

Will this impact businesses other than farms? 

• The legal theory advocated by California has potential wide-ranging implications: it permits the government to give favored third parties access to private property. 
• Imagine if Mississippi required Planned Parenthood clinics to give access to their lobby to pro-life activists or required Catholic schools to give access to pro-choice advocates. States would be allowed to do this under the legal theory advanced by the other side, as long as the access was not 24/7. 
• The U.S. Supreme Court needs to make it clear that the Constitution doesn’t allow other states to follow California’s lead. 

If you win, what happens? 

• We’re asking the Court to rule that the appropriation of an easement permitting access to private property for three hours each day for 120 days per year is a per se physical taking. After that, California can either get rid of the rule or compensate property owners across California for the taking.