High court reviews rule giving union organizers access to farms

A California regulation that gives labor organizers limited access to the private property of agricultural businesses came under federal scrutiny Monday, when the U.S. Supreme Court considered whether the regulation violates property rights under the Constitution.

The regulation was established by the state Agricultural Labor Relations Board in the 1970s -- a state and industry-specific version of the National Labor Relations Board that is tasked with administering collective bargaining rights of farmworkers. The rule gives a limited number of organizers access to farm property during nonwork hours for three hours a day, for as many as 120 days a year. Cedar Point Nursery, et al., v. Victoria Hassid, et al., 20-107.

Under the Fifth Amendment, property owners have to be compensated when their property is taken for public use. The U.S. Supreme Court has historically used specific definitions of what qualifies as "takings" of private property under the Fifth Amendment, and the question before the high court on Monday was whether the California agricultural regulation fit within one of these definitions -- and therefore triggered the compensation requirement.

For labor organizers, the current regulation is important because it ensures their access to a group of workers who they say have been historically hard to reach.

But for the two California growers that filed the high court petition, the regulation has taken away their right to control who enters their property. In a brief submitted to the high court before oral argument, these growers said they believed the Fifth Amendment should automatically apply whenever a government regulation allows a third party to access private property.

This narrow and categorical approach -- which is contrary to the high court's current practice -- would restore growers' rights to exclude trespassers from their property, they said.

On Monday, several justices questioned whether this new approach for determining what qualifies as a "taking" under the Fifth Amendment could potentially block government agents from entering private properties for inspections, searches and tests.

"I'd like you to have a little more opportunity to respond to the charge that this would be revolutionary and the end of all regulatory regimes -- that the government would never be able to walk on anyone's property again to do a search or conduct tests or safety of licensed operations there," Justice Neil Gorsuch asked the growers' counsel, Joshua P. Thompson of the Pacific Legal Foundation.

Thompson distinguished between inspections and "takings" of the kind he said were allowed by California's agricultural regulation. "When the government exercises the power to search, as it does with administrative search inspections and other searches, it is not taking away a property right from you because that's nothing that you possess," he said.

But Justice Brett Kavanaugh said he wasn't convinced the growers needed to change the court's long-standing approach at all to credibly challenge California's agricultural regulation.

The regulation was established to give labor organizers access to a historically hard-to-access group of workers, but now organizers have new ways of communicating with those workers that don't require them to enter farm properties, Kavanaugh said. "Just to be clear, I'm saying you would prevail" under that theory," the justice said. He added he didn't believe the growers actually wanted to prevail under that particular theory, however.

Later, while questioning California Department of Justice Solicitor General Michael J. Mongan, who represents the respondents to the petition, Kavanaugh reiterated the growers "seem to want a much broader rule."

Mongan agreed. "Petitioners urge the court to embrace a sweeping new per se takings theory," he wrote in court filings. "That theory is contrary to this court's precedent. ... It would convert the constitutional takings analysis into a complex and indeterminate inquiry into state law on nonpossessory interests. And it would imperil an array of state and federal policies authorizing limited access to private property for a variety of purposes, including health and safety inspections, social welfare visits, utility repairs, and hunting and fishing."