Date: May 14, 2021
Magazine:
May/June 2021

By James Burling

The United States Supreme Court is about to decide a case that was planted in the fertile soil of California’s agricultural politics, but which has its roots going back to the first stirrings of colonial resistance against the British empire. What’s more, the results in Cedar Point Nursery v. Hassid will reverberate across the nation if the Court agrees that landowners need not suffer from state-sponsored trespass.

In 1975, California adopted the Agricultural Labor Relations Act, which extended rights of organized labor to agricultural operations. Shortly thereafter, the state adopted regulations that gave 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 for an hour at a time, three times a day, for 120 days each year. While most farms have not been subject to this level of intrusion, the key point is that they can be, and 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. A video recently captured by Cedar Point employees makes plain the union organizers can come onto property noisily and en masse. If the tactic was to intimidate, it worked.

Government-sanctioned intrusions onto private property have never been acceptable in the United States. Indeed, such trespasses by the British sowed the seeds for the Revolution. With the “Writs of Assistance,” British officers and their servants could enter private property at will and without justification, looking for violations of customs laws.

In a famed 1861 oration against the Writs of Assistance, James Otis, a Massachusetts lawyer and political activist who has been described as “the Founding Father of the Fourth Amendment,” argued in a packed courtroom against the writs: “Now one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege.”

While Otis lost the case, it stirred the colonists to action. A young John Adams was in the courtroom and later wrote, “then and there the child independence was born.” In time we had our Revolution and later our Constitution and the Bill of Rights—the latter of which contained two provisions protecting private property. The 4th Amendment protects against unlawful searches and seizures, and the 5th Amendment says that private property cannot be taken for public use without the payment of just compensation.

When Cedar Point Nursery was besieged by union organizers, they asked Pacific Legal Foundation for help. It was plain to us that the state had given the organizers an access easement, taken it from the landowners without paying for it. 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 a sympathetic legislature to erode the rights of farmers for political gain.

While the idea of union access might have had some appeal generations ago when farmworkers were isolated from the general community, that is no longer the case. Most workers live nearby and can be contacted by the organizers outside their place of work. But, of course, the sense of intimidation cannot be so easily replicated, which is why the authority to go onto private property can be so appealing.

But that authority is given by taking the rights of property owners. And for years, the Supreme Court has held that when the government sanctions the physical invasion of private property, there has been an unconstitutional taking. In one famous case from 1982, Loretto v. Teleprompter Manhattan CATV Corp., Justice Thurgood Marshall wrote for the Court that even allowing a cable television company to put a few coaxial cables and junction boxes on a privately owned apartment building was an unconstitutional taking. Repeatedly, the Court has referred to Loretto in order to describe takings that cannot be tolerated. In 1987, in Nollan v. California Coastal Commission, the commission demanded that homeowners allow the public to walk across private beachfront property. Because this was an uncompensated physical invasion, it too constituted an unconstitutional taking.

In Cedar Point Nursery, the details may be different, but the principle is the same: It is unconstitutional to force landowners to allow uninvited outsiders to trespass. Dozens of friend-of-the-court briefs have been filed on both sides of the case, including by Western Growers, proving that the stakes are high. The case was argued on March 22 of this year; we expect a decision will come down by June.

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