By Lisa Soronen
In Cedar Point Nursery v. Hassid, the Supreme Court held 6-3 that a California regulation allowing union organizers access to agriculture employers’ property to solicit support for unionization up to three hours a day, 120 days a year is a per se physical taking under the Fifth and Fourteenth Amendments.
The Fifth Amendment Taking Clause, applicable to the states through the Fourteenth Amendment, states: “[N]or shall private property be taken for public use, without just compensation.” In this case agriculture employers argued California’s union access regulation “effected an unconstitutional per se physical taking . . . by appropriating without compensation an easement for union organizers to enter their property.” The Supreme Court agreed.
According to Chief Justice John Roberts, writing for the majority, “[w]hen the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation.”
But when the government “instead imposes regulations that restrict an owner’s ability to use his own property” the restrictions don’t require “just compensation” unless they go “too far.”
The court held the access regulation “appropriates a right to invade the growers’ property” and therefore constitutes a per se physical taking rather than a regulatory taking. “Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.”
The court noted “[t]he right to exclude is ‘one of the most treasured’ rights of property ownership.” “Given the central importance to property ownership of the right to exclude, it comes as little surprise that the court has long treated government-authorized physical invasions as takings requiring just compensation.”
State and local government officials routinely go onto private property temporarily to do police work and conduct inspections, among many other reasons. The State and Local Legal Center (SLLC) filed an amicus brief in this case on behalf of neither party arguing temporary entry onto private property by government officials isn’t a per se physical taking. The Court stated that “government searches that are consistent with the Fourth Amendment and state law cannot be said to take any property right from landowners” and “government health and safety inspection regimes will generally not constitute takings.”
Justices Stephen Breyer, joined by Sonia Sotomayor and Elise Kagan, dissented. According to Breyer: In the majority’s view “virtually every government-authorized invasion is an ‘appropriation.’ But this regulation does not ‘appropriate’ anything; it regulates the employers’ right to exclude others. At the same time, our prior cases make clear that the regulation before us allows only a temporary invasion of a landowner’s property and that this kind of temporary invasion amounts to a taking only if it goes ‘too far.’ In my view, the majority’s conclusion threatens to make many ordinary forms of regulation unusually complex or impractical. And though the majority attempts to create exceptions to narrow its rule the law’s need for feasibility suggests that the majority’s framework is wrong.”
Matthew Littleton and David T. Goldberg, Donahue, Goldberg, Weaver & Littleton, wrote the SLLC amicus brief on behalf of the following organizations: National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, and Government Finance Officers Association.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.