Court could limit inspections, OK ‘unwanted persons’

 

Bill Knight column for 4-5, 6 or 7, 2021

 From the pandemic and climate change to racial profiling and democracy, most of us are tired of the “This is the End of [      ] as We Know It” news.

However, the U.S. Supreme Court last week heard arguments in “Cedar Point Nursery v. Hassid,” a case that could not just further impede unions but make routine government work difficult.

The case – which consolidates that Dorris, Calif., company with a second employer, Fowler Packing of Fresno – centers on a decades-old California regulation giving union organizers temporary access to an agricultural employer’s property to talk to workers.

The regulation limits union access to no more than four 30-day periods in a year and restricts organizers to meeting with workers one hour before work, one hour during lunch and one hour after work.

The two fruit producers say that’s an uncompensated “taking” of their property, forbidden under the Fifth Amendment’s “takings” clause, which says,  “… nor shall private property be taken for public use without just compensation.”

California argues that it’s not taking property. unlike situations where government seizes private property for other uses (“eminent domain”). California’s regulation grants unions a narrow license to meet with workers — without interfering with the business.

But the employers also declare that the regulation prevents them from excluding people they don’t like, arguing that the “right to exclude unwanted persons [is] so universally held to be a fundamental element of the property right that it cannot be infringed without compensation,” citing a 1979 case.

Farmworker advocates say the regulation only lets union reps speak with farmhands for 4% percent of a whole year. Organizers must first register their intention to visit growers’ land with California regulators, and as the AFL-CIO noted in court filings supporting the regulation, growers can challenge visits and if organizers violate the terms of access, companies can get a cease-and-desist order.

California produces about 14% of the nation’s agricultural output, but farm work remains arduous, dangerous and dependent on powerless workers – half of whom are undocumented, according to the United Farm Workers union. So organizing is important.

Beyond unionization, though, if Justices agree, it would not only upend U.S. property rights, but inspections and enforcement of many regulations would fall into disarray. A decision could also threaten laws about government responsibilities, and even let public places like stores and restaurants discriminate against customers.

Justices Sotomayor and Breyer warned that such a decision could threaten any government “intrusion” on private property, such as inspecting mines and nuclear power plants, restaurants and building sites, nursing homes and children’s protection.

The implications are huge, according to Victoria Hassid, chair of the California Agricultural Labor Relations Board.

“The petitioners are really putting forward an incredibly extreme theory that would imperil a whole host of regulatory schemes at the local, state and federal level that go beyond labor,” she said, “– public-health statutes, food and drug statutes, child welfare statutes, environmental statutes, tenants’ rights, consumer protection.”

The Court did seem skeptical of a blanket ruling that access to property requires compensation to property owners. A few – even conservative Justice Kavanaugh – seemed stunned at the scope of the claim.

Oddly, Chief Justice Roberts in an opinion written in June 2017, seemed to appreciate fairness.

“Governments can infringe private property interests for public use not only through appropriations, but through regulations as well,” he wrote. “If compensation were required for one but not the other, ‘the natural tendency of human nature’ would be to extend regulations ‘until at last private property disappears,’ [according to ‘Pennsylvania Coal Co. v. Mahon’ (1922)].  … This rule strikes a balance between property owners’ rights and the government’s authority to advance the common good.”

Further, it’s unclear how a ruling that the regulation is unconstitutional could be applied. Arguably, employers could win the right to demand compensation but not prohibit access.

The conservative-majority Court might rule that the regulation violates the Constitution and let property owners and governments at all levels litigate discrimination, banning “unwanted people,” appropriate compensation, etc.

The Trump administration had supported the companies’ lawsuit, but President Biden’s Solicitor General said that the federal government no longer backs employers’ claim. Elizabeth Prelogar wrote, “It is therefore the position of the United States, in line with this Court’s cases, that the California regulation – like the authorization of temporary entry by government officials for law enforcement, inspection and similar purposes – does not constitute a per se taking,”

Represented by the Right-wing Pacific Legal Foundation, the growers have the support of the Farm Bureau and the U.S. Chamber of Commerce.

For everyday observers watching the outcome: As it’s said, “You’re not paranoid if someone really is after you.”