High Court May Shift Rights To Land Owners In Union Row

By Andrew McIntyre
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Law360 (March 18, 2021, 6:22 PM EDT) -- Labor unions in California have long relied on a state law that allows limited organization on private agricultural land, but experts say an upcoming U.S. Supreme Court case could shift the needle to land owners in disputes over property access.

At issue in Cedar Point Nursery et al. v. Hassid et al., for which the high court is scheduled to hear oral arguments on Monday, is whether labor organizers organizing on a strawberry farm in northern California constitutes an unconstitutional taking under the Fifth Amendment. Experts say there's a real chance the court will rule in favor of the plaintiff, given that conservative justices often side with land owners.

"You've got right now a Supreme Court that could run a long way with this case in terms of locking in the takings jurisprudence in favor of property owners," said Benjamin Reznik, a partner at Jeffer Mangels Butler & Mitchell LLP and chair of the firm's government, land use, environment and energy group. "You've got a conservative majority that could take this case and lay down some serious laws."

"It could have a very significant impact in the land-use area," he added. "Or, if the court comes back with a very narrow decision that's … limited to this issue, having to deal with the labor access issue, it wouldn't have as big of an impact."

At issue is a California law that permits organizers to be present on private agricultural properties for three hours a day, 120 days a year. The law doesn't require organizers to compensate the property owner, and the owner is arguing that constitutes a physical taking in violation of the Fifth Amendment. The 14th Amendment, by extension, applies the Fifth Amendment to states.

The plaintiff is seeking a declaration that union organizers using the land constitutes an unconstitutional taking and is seeking an injunction.

Cedar Point Nursery is based in Oregon and operates the farm in question, which is in Dorris, California, near the Oregon-California border

"If the government can evade its duty to pay compensation just by placing time limits on easements it has taken, I think it would eviscerate … a property owner's Fifth Amendment rights under the takings clause," Pacific Legal Foundation's Wencong Fa, counsel to the plaintiffs, told Law360. "This is a very significant case for property rights."

A trial and appellate court thus far have sided with the defendants, who argue the California law is crucial to providing agricultural workers access to union representation.

Counsel for the defendants, who are represented by the California Department of Justice, did not comment on the matter, but instead sent Law360 a comment from the California Agricultural Labor Relations Board. ALRB Chair Victoria Hassid is a defendant in the case.

"The regulation at issue ensures that farmworkers learn about important labor rights, including their right to organize," Hassid said in the statement sent to Law360. "The pandemic has underscored the harsh conditions that many farmworkers labor under and their need for greater access to labor rights and protections, not less."

"Farmworkers were long excluded from numerous worker protections, and this regulation is a critical tool to address that historical inequality while still respecting employers' property rights," Hassid added.

The dispute dates to 2015, when United Farm Workers members came onto the property en masse within the boundaries of the three-hour-a-day easement to encourage workers to unionize.

In February 2016, the property owner sued the Agricultural Labor Relations Board in U.S. district court, and in late June of that year, the court sided against the property owner.

The Ninth Circuit then issued a 3-2 decision in favor of the defendant on May 8, 2019, and the petitioners filed their writ of certiorari on July 29, 2020. The U.S. Supreme Court granted that petition Nov. 13.

The property owner in the trial court case had argued that organizers using the land also violated the Fourth Amendment, but later dropped that claim in its en banc and U.S. Supreme Court petitions.

Experts say the case could widely reshape the government's ability to regulate access to private land.

"It would certainly move the needle in terms of where the court is going to go in the future in these types of cases," said Patrick Perry, a partner at Allen Matkins Leck Gamble Mallory & Natsis LLP. "So far, the trial court and court of appeals have said, 'No, this is not a permanent physical occupation because it's not continuous. Therefore, it's not an unconstitutional taking.'"

While the justices will consider the specifics of the easement in determining whether it constitutes an illegal taking, they may also consider the intertwining question of how easily unions would be able to reach the workers if they weren't permitted to come onto the land.

"Now, folks are much more accessible. They don't often live on the property. There are many ways of being reached," said Bryan Wenter, a shareholder at Miller Starr Regalia. "I would have to be optimistic that this case has the chance to result in a favorable outcome for property rights."

"Depending on the nature of the decision, it could have sweeping importance. If that's … a taking, it could produce a bright line," he added.

The plaintiffs are represented by Joshua Paul Thompson and Wencong Fa of the Pacific Legal Foundation.

The defendants are represented by Joshua Patashnik of the California Department of Justice.

Various parties filed amici curiae and/or amici briefs, with counsel from numerous law firms.

Sens. Sheldon Whitehouse, D-R.I., Jeff Merkley, D-Ore., Alex Padilla, D-Calif., Richard Blumenthal, D-Conn., and Cory Booker, D-N.J., are represented by Glenn Rothner of Rothner Segall & Greenstone.

The United Food and Commercial Workers Western States Council and Teamsters Joint Council 7 are represented by Henry Willis of Schwartz Steinsapir Dohrmann & Sommers LLP.

The American Farm Bureau Federation is represented by Paul Beard of FisherBroyles LLP.

The Western Growers Association, Grower-Shipper Association of Santa Barbara and San Luis Obispo Counties, California Fresh Fruit Association, and Ventura County Agricultural Association are represented by Michael Berger of Manatt Phelps & Phillips LLP.

The Service Employees International Union is represented by Leon Dayan of Bredhoff & Kaiser PLLC.

The Chamber of Commerce of the United States of America is represented by Steffen Johnson of Wilson Sonsini Goodrich & Rosati PC.

The National Association of Counties, National League of Cities, International City/County Management Association, U.S. Conference of Mayors, International Municipal Lawyers Association and Government Finance Officers Association are represented by Matthew Littleton of Donahue Goldberg Weaver & Littleton.

Legal Historians is represented by Katharine Mapes of Spiegel & McDiarmid LLP.

The United Farm Workers of America is represented by Mario Martinez of Martinez Aguilasocho & Lynch APLC.

The Buckeye Institute is represented by Thomas McCarthy of Consovoy McCarthy PLLC.

The Southeastern Legal Foundation is represented by Robert Thomas of Damon Key Leong Kupchak Hastert.

The case is Cedar Point Nursery et al. v. Hassid et al., docket number 20-107, in the United States Supreme Court.

--Editing by Philip Shea and Kelly Duncan.

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