(Reuters) – Two California fruit farms are urging the U.S. Supreme Court to toss out a longstanding state regulation granting union organizers access to private farmland, in a case with potentially broad implications for employers’ private property rights.
The justices on Monday will hear virtual oral arguments over whether California’s 1975 rule, which allows organizers access to farms before and after workers’ shifts, amounts to an unconstitutional “taking” of private property as Cedar Point Nursery and Fowler Packing Co have argued.
The farms, represented by the conservative Pacific Legal Foundation, are appealing a 9th U.S. Circuit Court of Appeals decision that said the rule by California’s Agricultural Labor Relations Board (ALRB) is valid because it does not allow for a “permanent physical invasion” of private property.
The farms are backed by several conservative and business groups including the U.S. Chamber of Commerce and the Cato Institute, as well as 11 Republican-led states.
In a January amicus brief, the Chamber warned the Supreme Court that upholding the 9th Circuit decision could allow the government to give “a free pass-key” to companies’ private property to election canvassers, charitable solicitors, social workers and even sales representatives.
But more than a dozen worker advocacy groups in a brief filed last month backing the state said striking down California’s rule would not only harm farm laborers but could open the door to barring access to worksites by the government and third-party safety and health inspectors.
The Trump administration had backed the farms, but the U.S. Department of Justice changed positions in a letter to the court last month. DOJ said it now believed that because the rule only permits temporary access to farms, it does not necessarily authorize an unconstitutional taking.
Lawyers at the Pacific Legal Foundation did not immediately respond to a request for comment. Neither did the California Attorney General’s office, which is defending the regulation.
California’s Agricultural Labor Relations Act generally prohibits unions from accessing employers’ private property.
But the ALRB’s rule says that alternative means unions can use to reach workers are impractical with respect to farm laborers and allows unions to access private farms for one hour before or after workers’ shifts, after they notify the ALRB in writing that they intend to visit a worksite.
After losing separate proceedings before the ALRB involving unions accessing their property, Cedar Point and Fowler in 2015 sued the board in Fresno federal court. They claimed that as applied to them, the board’s access rule was unconstitutional because it permitted a taking of their private property without compensation.
U.S. District Judge Lawrence O’Neill that year granted the board’s motion to dismiss the case, saying the rule did not authorize a permanent taking of private property.
The farms appealed, arguing that the rule required them to permanently surrender their right to exclude trespassers. But the 9th Circuit in 2019 agreed with O’Neill that the intrusion itself had to be permanent in order for a regulation to permit an unconstitutional taking.
The farms in a December brief said that whether an intrusion is temporary or permanent only matters for determining the compensation owed to a private property owner.
“The right to exclude is too important to be left at the mercy of government officials who will inevitably seek as much public access as possible without paying for it,” the farms’ lawyers wrote.
The case is Cedar Point Nursery v. Hassid, U.S. Supreme Court, No. 20-107.
