Orange County Register: The Supreme Court must protect the property rights of California farmers

March 23, 2021 | By JAMES BURLING

If you own private property, can you keep other people away if you don’t want them there? The answer is, “yes, of course.” With the exception of the police, health and safety inspectors, and other government-sanctioned visits – all pursuant to strict limitations baked into the law – landowners have every right to keep uninvited guests out.

But not if your property is in California, where state officials think it’s a great idea to grant union organizers free access to private agricultural property – whether the owner likes it or not. The good news is that a case currently before the U.S. Supreme Court challenges that state-granted access by illustrating how it violates the constitutional rights of property owners.

Here’s the background: In 1975, California adopted the Agricultural Labor Relations Act, which extended labor unions’ rights to organize agricultural workers. Shortly thereafter, the state adopted regulations granting union organizers the right to go onto private agricultural land “for the purpose of meeting and talking with employees and soliciting their support.” This access can last up to three hours a day, for 120 days each year. Farm owners have no legal means to stop the invasions.

Moreover, these incursions are not necessarily quiet affairs where a few organizers set up a table or pass out leaflets – instead, they seek to be as disruptive and intimidating as possible. Employees of Cedar Point Nursery captured video of a mob of union organizers loudly invading their workspace in 2015, illustrating the tactics in action.

But can the government simply decree that members of the public — whether it’s union organizers, environmental activists, pro or anti-abortion protestors, or nosy members of the media — are welcome to walk across anybody’s private property? Even if the trespass is supposed to achieve some public benefit, the answer is “no.”

Why? Because the U.S. Constitution explicitly forbids government-sanctioned intrusions onto private property. Specifically, the Fourth Amendment protects against unlawful searches and seizures, and the Fifth Amendment says that private property cannot be taken for public use without paying just compensation.

By allowing union organizers to access Cedar Point’s property, the state gave the organizers an access easement, taken from the landowners without compensation. Unlike a limited health and safety inspection by government employees designed to protect workers from serious harm, this was a blatant example of one interest group convincing sympathetic policymakers to erode the rights of farmers for political gain.

The union access rule is also completely unnecessary. There was a time when farmworkers were isolated from the general community, but that is no longer the case. Most workers live nearby, and organizers can readily reach them outside their workplace.

And for years, the Supreme Court has held that government sanctioning the physical invasion of private property is an unconstitutional taking. In 1982, Justice Thurgood Marshal wrote that even allowing a cable television company to install coaxial cables and junction boxes on a private apartment building was an unconstitutional taking. In the case of Cedar Point Nursery, the principle is the same: It is unconstitutional to force landowners to allow uninvited outsiders to trespass.

On Monday, the court heard oral argument in the case. It went well for the landowners. California tried to argue throughout its half-hour that the case could only be resolved after an overly complex trial of all the relevant facts and circumstances and that no taking would be found after that process. The justices mostly weren’t buying it and seemed more sympathetic to the landowners’ straightforward argument that the physical invasion by union organizers violated property rights. A decision is expected by the end of June.

Because what often starts in California often doesn’t stay in California, the results in Cedar Pont Nursery v. Hassid will reverberate across the nation if the Supreme Court agrees that landowners need not suffer from state-sponsored trespass. This is a case to watch closely in the months to come.

This op-ed was originally published by the Orange County Register on March 23, 2021.