United States Supreme Court
594 U.S. __ (2021). Click for full text
In 1975, California enacted the Agricultural Labor Relations Act (“ALRA”), which, among other things, created the Agricultural Labor Relations Board (“the Board”). The Board enacted a regulation allowing union organizers access to agricultural employees at employer worksites under specific circumstances. Cedar Point Nursery operates a nursery that raises strawberry plants, and employs approximately 100 full-time workers and more than 400 seasonal workers at that location. In October of 2015, organizers from a workers union entered the nursery without prior written notice as required by the regulation. Cedar Point filed a charge against the union with the Board, alleging that the union had violated the access regulation by failing to provide the required written notice before taking access. Cedar Point then sued the Board in federal district court alleging that the access regulation, as applied to them, amounted to a taking without compensation, in violation of the Fifth Amendment, and an illegal seizure, in violation of the Fourth Amendment. The district court dismissed the claims, and Cedar Point appealed. The 9th Circuit Court of Appeals concluded that the access regulation does not violate either provision.
In a 6-3 decision, the United States Supreme Court held that the California regulation granting labor organizations a “right to take access” to an agricultural employer’s property to solicit support for unionization constitutes a per se physical taking under the Fifth Amendment. Chief Justice Roberts authored the majority opinion.
The federal Takings Clause of the U.S. Constitution prohibits the government from taking private property for public use “without just compensation.” There are two types of takings: physical appropriations of land and imposition of regulations that restrict the landowner’s ability to use the land. Physical takings, no matter how small or temporary, require compensation. Similarly, use restrictions may also amount to a taking requiring compensation if they go “too far,” and are evaluated using a flexible test developed in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), which balances factors such as the “economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action.”
The California regulation granting labor organizations a “right to take access” to an agricultural employer’s property is a physical taking. The regulation does not restrict the growers’ use of their own property, but instead appropriates the owners’ right to exclude third parties from their land, “one of the most treasured rights” of property ownership. By granting access to third-party union organizers, even for a limited time, the regulation confers a right to physically invade the growers’ property and thus constitutes a physical taking.
Justice Kavanaugh wrote a concurring opinion arriving at the same conclusion using a different precedent. Justice Breyer wrote a dissenting opinion joined by Justices Sotomayor and Kagan. The dissent argues that the regulation does not physically appropriate growers’ property; rather, it temporarily regulates their right to exclude others and as such should be subject to the Penn Central rule for regulatory takings.