Monday, November 16, 2020

Takings and Time

 by Michael C. Dorf

On Friday the Supreme Court granted certiorari in Cedar Point Nursery v. Hasid, a case that pits labor rights against property rights. Given the Court's current personnel, the odds seem pretty clearly stacked in favor of the latter. Here, I'll briefly describe the case but mostly set aside the ideological stakes. Instead, I'll focus on a mathematical issue that the case presents and that arises in other contexts as well.

A longstanding regulation in California grants union organizers access to workers at agricultural workers on private property. The rule allows such access for up to three hours per day for up to thirty days at a time for up to four thirty-day periods per year. Union organizers used the rule to gain access to privately owned strawberry fields and orchards growing grapes and citrus fruit. The owners of these properties complained that the access was disruptive and, more importantly for present purposes, unconstitutional. They claimed that the state, by empowering the labor organizers to gain access to their property, had affected an unreasonable seizure in violation of the Fourth Amendment and/or a taking without just compensation in violation of the Fifth Amendment. The property owners lost in the Ninth Circuit and then successfully sought review in the SCOTUS with respect to the takings claim.

Property owners challenging so-called regulatory takings can succeed either by showing that the regulation destroys all economically viable use of the property or that it "goes too far." Neither of those tests is satisfied here, but the plaintiff property owners do not claim that the California regulation works a regulatory taking at all. Relying instead on a line of cases typified by Loretto v. Teleprompter Manhattan CATV Corp., they contend that the California regulation is a taking because it is "permanent physical occupation of [the] owner's property."

Loretto involved a NYC ordinance requiring apartment building owner to grant access to cable companies to install cables and cable equipment on their property. Because the placement of the cables and equipment made the (small) portions of the buildings thus occupied entirely unavailable to their owners for other uses, the Court deemed the ordinance a taking, for which just compensation was required.

The Ninth Circuit thought that the Loretto "permanent physical occupation" line of cases was inapplicable, treating the California regulation as more analogous to a permissible restriction on property rights in PruneYard Shopping Center v. Robins. There, the California Supreme Court determined that the California Constitution granted the public a right to free speech in a privately owned shopping center. The owner of the shopping center argued that by granting strangers a right to speak on its property, California had (among other things) taken its property. The SCOTUS disagreed in its PruneYard decision. In Cedar Point Nursery, the Ninth Circuit said that just as there was no taking in PruneYard when California granted speakers the right to make their points on the private property of a shopping center, so there is no taking when California grants different speakers (labor organizers) the right to make their points on the private fields and orchards.

The property owners argued unsuccessfully in the Ninth Circuit that PruneYard was not analogous because shopping center owners invite the public onto their property, whereas growers do not. They renewed that argument in their cert petition, citing more recent cases that describe PruneYard as a relatively narrow case that only applies to publicly accessible places like shopping malls.

For present purposes, I'll assume that petitioners are correct that PruneYard is inapplicable. Even so, to prevail, they'll have to show that a right of access that applies for a maximum of 360 hours (3 hours per day for 120 days per year) out of 8,760 hours in a year--i.e., for a maximum of only 4% of the time each year--counts as "permanent" within the meaning of Loretto. Does it?

That is partly a semantic question. For the petitioners, we can note that we sometimes use the word "permanent" to mean never-ending even if not continuous. "Permanent" in this sense means something like "in perpetuity." For example, if a sports franchise grants a retired athlete a pair of "permanent season tickets" for the athlete and his heirs, that entitles the athlete and his heirs to tickets to two seats for games into the indefinite future, even though it does not entitle the athlete to occupy the seats when no games are being played. It would be consistent with the grant of permanent season tickets to the team's games to require the athlete to purchase tickets if he wanted to attend a concert or some other event at the stadium, or to bar him from the stadium when no events are occurring and it is thus closed to the public.

Moreover, we can see how the law could sensibly deem a rule barring permanent occupations to be violated by a nearly continuous occupation. If in Loretto, the cable company removed its equipment for an hour each year, that would hardly render the case appreciably different. Likewise, a continuous but time-limited occupation of real property should fall within the Loretto category if the time limit is sufficiently long. Suppose that the cable company planned to keep its equipment on each building for only fifty years. Surely that would deprive the property owner of something with substantial value. If the actual deprivation in Loretto counts as a taking, it is hard to see why a long-lasting but technically not permanent one oughtn't to as well.

In a sense, the issue I am surfacing here is a temporal version of a spatial puzzle for regulatory takings. A regulation that deprives the property owner of all economically viable use of the property is a taking, but if the property owner is left with some residual use, then we are thrown back on Holmes's unhelpful statement in the Pennsylvania Coal case of "[t]he general rule . . .  that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Apart from the emptiness of that "test," there is the further problem of a kind of cliff effect. It is very difficult for a property-owning plaintiff to prove that a regulation that falls short of destroying all economically viable use goes too far, but once the regulation crosses the threshold from very restrictive to completely restrictive, a per se rule kicks in.

Is that how things work along the temporal dimension as well? Do we have a regime in which only permanent occupations fall within Loretto, while everything else is relegated to the Holmesian too-far test? One might think not, given that cases like First English Evangelical Lutheran Church v. County of Los Angeles recognize the possibility that a temporary property deprivation can constitute a compensable regulatory taking. But First English does not resolve Cedar Point because in First English the temporary taking was of all the land's use.

As readers may have by now surmised, I find takings doctrine more than a bit puzzling--perhaps because I am a legal realist about property. The Takings Clause seems to assume that there is some pre-regulatory Lockean natural baseline against which regulations can be judged takings or not. Yet that's false. Property rights are a legal construct. If the state forbids you to frack for natural gas on your land because the chemicals you inject into the ground pose a health or safety risk, we could say that the state has taken some of your property, but only if we think that property rights come with a right to frack. In the Lucas case, the Court would have allowed restrictions on land use that corresponded to prior restrictions in the law of property or nuisance, but that way of thinking, it seems to me, reifies the common law, treating old sorts of restrictions as somehow more legitimate than newer ones based on such considerations as environmental science.

All that said, I recognize that the Constitution does contain a Takings Clause. Were I writing on a blank slate, I'd be tempted to say that where regulation rationally serves the broad public interest, it does not amount to a taking. I would treat true appropriations as takings and, to prevent governments from circumventing the obligation to pay just compensation for true appropriations, I would treat regulations that can only be reasonably understood as disguised appropriations as takings as well.

Perhaps the best that can be said for the regime we have is that it approximates the regime I have just described, but only if the per se categories (regulations that destroy all economically viable use and permanent physical invasions) are kept narrow. Applying such a stringent requirement, the plaintiffs in Cedar Point should lose, because the access given to labor organizers does not come close to a permanent physical invasion. However, they will probably win, because this Lockean Court hates organized labor almost as much as it loves property rights.

7 comments:

  1. 1. But reifying the common law is good! (Legitimacy is important and people generally accept first in time as establishing a legit baseline.)
    2. Same result if the law conflicts with your priors? Eg, No takings concern if Law grants anti-abortion activists 360 hours per year access to abortion clinic for public interest of ensuring women are given information about alternatives to abortion and preventing coercive abortions?

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  2. I'm confused by the first comment -- not sure what #1 has to do with the situation exactly.

    As to two, that is less than an hour a day. The Supreme Court already upheld informed consent laws that included materials against abortion as well as for it & having in person access would very well probably be upheld. Having a diverse collection of views provided is particularly deemed important in some cases for teens. It would not be a "taking" in my view. To the degree it was problematic, I would be more concerned with First Amendment concerns or overly obtrusive burdens on abortion liberty per se.

    Unions are a basic aspect of employment at this point and at least since the 1930s were seen as an important part of a smooth running interstate commerce system. This includes access to union reps and so forth. Looking at things from a common law, precedent based system, it is not really a hard case on that level.

    I can understand if a particular regulation of this type was seen as somehow overly obtrusive in some sense but a Takings Clause argument to me is a tad much. Don't get me wrong. I can understand the logic of it all. If you are myopic enough, it might even seem a bit obvious!

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  3. This case is strange in that, as you point out, there is not a true appropriation of the land and the property owners still retain the ability to make substantial profits through the land. That, to me, renders this case pointless. Because the property owners still retain an ownership interest over the land and can still make a ton of money off it, the state can just concede a taking, pay the property owners fair market value for the regulatory use and temporary occupation of the land, and then increase their property taxes on the back end to make up for what it paid them.

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  4. I would like to comment on a 'notion' level about the situation of the workers and the interplay of labor law. ( I apologize for the lengthy comment, and its 'tangent' aspect)
    Decades ago these farm workers were 'employed' in an at will, take it or leave it context. Further, the farmer provided some 'housing' on site. The hours worked were long; 10, 12, or more hours per day and no days off, sometimes for weeks on end. The workers were de facto isolated from contact by others unless the farmer gave it the ok. So, there was essentially no family contact, nor friends, not anyone. These workers were paid by the quantity or weight of what they 'picked'. There was no overtime, no enforceable breaks, no minimum time to eat- they were outside the FLSA.
    The physical size of some of these farms is large, measured in miles. If the worker is a mile from the public road, the housing is two miles from the road; all this before cell phones, and no land line in the housing- the workers are cut off for what could be weeks at a stretch.
    So, access to union representatives was granted. If not, then access and protection of legal rights was denied. (perhaps this is more of an exception to trespass)
    The anti-labor farmers do not benefit if workers have benefit of labor law protections, e.g. minimum wage, mandatory breaks, overtime, a day off without losing the job, etc., and most of all 'unionization'.
    This in my view is a collateral attack. But these farmers do not have the right to isolate a worker such that an 'incarcerated' like existence is created. So, asserting a property right- a taking- sounds at first blush like it may attach; the analysis side steps the bigger issue of the human rights of these workers.
    Yes, the review of the takings law (tests cited above) does not seem to meet the 'taking' in the sense that I would hope the 'originalists' on the Court would read it; here it is to allow someone to talk to someone else.

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  6. This article notes that property rights are a legal construct, and hence the state defines what property rights owners do and do not have. The Ninth Circuit discussed the point that the growers are claiming the right to exclude people they deem trespassers. But the Penal Code addressing trespassing in great detail (section 602) specifically exempts from its reach "persons engaged in lawful labor union activities which are permitted to be carried out on the property by the [ALRA] or by the federal National Labor Relations Act." 602(o). It seems to me that the access organizers have under the ALRA cannot be a taking, when the property owners don't enjoy the "right" that they claim has been taken from them, any more than a land owner can claim a fracking ban is a taking. The ALRA has affirmatively granted organizers that right (for the last 45 years), and the Penal Code expressly recognizes that right, denying growers the right to exclude labor organizers as permitted by the ag labor statute. (This issue wasn't discussed in the Ninth Circuit's decision, which was an appeal from grant of a motion to dismiss.)

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  7. Isn't the impact of this case significantly limited by the nature of the claim as a takings?

    As a takings case, doesn't this just mean that if it is considered a takings that the State would need to pay the owners of the land a FMV for the taking?

    In this case, even if considered a takings because 4% was considered permanent, wouldn't this just mean paying a one time fee for a permanent easement equal to 4% of the value of the land?

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