Amicus Curiae Brief — Cedar Point Nursery, et al., Petitioners v. Victoria Hassid, et al.

Supreme Court briefJan 5, 2021

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No. 20-107

IN THE

Supreme Court of the United States

————

CEDAR POINT NURSERY AND

FOWLER PACKING COMPANY, INC.,

Petitioners,

VICTORIA HASSID IN HER OFFICIAL CAPACITY AS CHAIR OF

THE AGRICULTURAL LABOR RELATIONS BOARD, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONERS

————

CYNTHIA FLEMING CRAWFORD

Counsel of Record

MICHAEL PEPSON

AMERICANS FOR PROSPERITY

FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

January 5, 2021

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................ 1

Argument ..................................................................... 3

I. The Fifth Amendment Provides Only Two Lawful

Means by Which a Person may be Deprived of

Property by the State. ............................................3

A. Appropriation of Property Without Due Process

or Just Compensation Violates the Fifth

Amendment. ........................................................ 4

B. A Taking is Limited to the Property Right

Compensated—and No More. .............................8

II. The Holding in Kelo Needs Guardrails to Clarify

that a Benefit to a Defined Class of Private

Parties is Not a Public Use. ................................. 11

A. Public Use—What is it? .................................... 13

B. Without Strict Adherence to Both Elements,

the Takings Clause Becomes a Nullity, Allowing

Government to Take Property for Private Use

Without Compensation. .................................... 18

III.Pruneyard Undermines Constitutional Rights

and Should be Reconsidered. ............................... 19

Conclusion ................................................................. 26

TABLE OF AUTHORITIES

Page(s)

Cases

Andrus v. Allard,

444 U.S. 51 (1979) .................................................. 8

Armstrong v. United States,

364 U.S. 40 (1960) ................................................ 21

Balestra v. Button,

54 Cal. App. 2d 192 (1942)..................................... 6

Batchelder v. Allied Stores Int’l, Inc.,

445 N.E.2d 590 (Mass. 1983) ............................... 23

Berman v. Parker,

348 U.S. 26 (1954) .......................................... 15, 16

Chicago, B. & Q.R. Co. v. City of Chicago,

166 U.S. 226 (1897) ................................................ 6

Cole v. La Grange,

113 U.S. 1 (1885) .................................................. 19

Com. v. Tate,

432 A.2d 1382 (Penn. 1981) ................................. 24

Craig v. Masterpiece Cakeshop, Inc.,

370 P.3d 272 (Colo. App. 2015), rev’d

Masterpiece Cakeshop, Ltd. v. Colorado

Civil Rights Comm’n, 138 S. Ct. 1719

(2018) .................................................................... 20

iii

Domen v. Vimeo, Inc.,

433 F. Supp. 3d 592 (S.D.N.Y. 2020) ................... 20

Holden v. Hardy,

169 U.S. 366 (1898) ................................................ 4

Judlo, Inc. v. Vons Companies,

259 Cal. Rptr. 624 (Cal. Ct. App. 1989) .............. 23

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ........................................ 20, 21

Kelo v. City of New London, Conn.,

545 U.S. 469 (2005) ...................................... passim

L.A. Terminal Land Co. v. Muir,

136 Cal. 36 (1902) .................................................. 6

Loretto v. Teleprompter Manhattan CATV

Corp.,

458 U.S. 419 (1982) .................................... 9, 10, 26

Manhattan Cmty. Access Corp. v. Halleck,

139 S. Ct. 1921 (2019) .......................................... 10

Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974) .............................................. 20

Murr v. Wisconsin,

137 S. Ct. 1933 (2017) .......................................... 25

Nat'l Inst. of Family & Life Advocates v.

Becerra.,

138 S. Ct. 2361, 2378 (2018) ................................ 20

Phillips v. Wash. Legal Found.,

524 U.S. 156 (1998) ................................................ 5

Pruneyard Shopping Center v. Robins,

447 U.S. 74 (1980) ........................................ passim

United States Forest Serv. v. Cowpasture

River Pres. Ass'n,

140 S. Ct. 1837 (2020) ........................................ 7, 9

United States v. Causby,

328 U.S. 256 (1946) ................................................ 8

United States v. Dickinson,

331 U.S. 745 (1947) ................................................ 8

United States v. James Daniel Good Real

Prop.,

510 U.S. 43 (1993) ............................................ 5, 11

Wilkinson v. Leland,

27 U.S. 627 (1829) ................................................ 12

Woodland v. Michigan Citizens Lobby,

378 N.W.2d 337 (Mich. 1985) .............................. 23

Constitutions

U.S. Const. Amend. I ............................... 19, 20, 21, 22

U.S. Const. Amend. V........................................ passim

Rules

Supreme Court Rule 37.3............................................ 1

Other Authorities

Kelo: The Sweeping Backlash Against One

of the Supreme Court’s Most-Despised

Decisions, Institute for Justice (June

2010), https://ij.org/wpcontent/uploads/2015/08/kelo5year_annwhite_paper.pdf ................................................... 15

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONERS

Pursuant to Supreme Court Rule 37.3, Americans

for Prosperity Foundation (“AFPF”) respectfully

submits this amicus curiae brief in support of

Petitioners on its own behalf.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society.

AFPF works toward these goals, in part, by defending

the individual rights and economic freedoms that are

essential to ensuring that all members of society have

an equal opportunity to thrive. As part of this mission,

it appears as an amicus curiae before state and federal

courts.

SUMMARY OF ARGUMENT

The Fifth Amendment provides only two means by

which the government may deprive a person of

property: either by due process of law or for public use

with just compensation. Neither method authorizes

the government to simply transfer private property

from one private person to another private person

through legislation. The California Agricultural Labor

Relations Board (“the Board”) cultivated a new

method: promulgate a regulation that creates an

All parties have consented to the filing of this brief after

receiving timely notice. Amicus states that no counsel for a party

authored this brief in whole or in part and that no person other

than amicus or its counsel made any monetary contributions to

fund the preparation or submission of this brief.

easement of limited scope, burdening a defined group

of people with no takings analysis or individualized

opportunity to be heard; then deny that any

appropriation took place, leaving no recourse to the

landowner who is deprived of the right to exclude

private persons from private land.2

The regulation in question also creates a property

right for the beneficiary of the regulation, union

organizers: the right to access the Growers’ property

for nearly a third of the days in a year. This right of

access is not available to the general public. Thus the

regulation acts not just as an appropriation but as a

transfer of rights from one limited set of private

parties, the Growers, to another limited set of private

parties, the unions. The Constitution provides no

authority for the government to simply take property

from one person and give it to another. Even the most

acute example of using eminent domain to convey real

property from one private party to another private

party, Kelo v. City of New London, Conn., 545 U.S. 469

(2005), acknowledged that the Fifth Amendment

governed; and the government there exercised its

powers of eminent domain by first formulating a

public benefit to excuse the taking.

But the government cannot simply declare that

one person’s property now belongs to someone else.

The Court of Appeals’ error in presuming that a grant of

physical access to the property of Cedar Point Nursery and

Fowler Packing Company (”Growers”) is a form of regulatory

taking rather than an easement—a discrete property right of

longstanding—as well as the contours of “permanence” in

defining the scope of an easement, have been well briefed by

Petitioners and other amici. Those arguments will not be

reiterated here.

This statement, standing alone, is uncontroversial.

But small accretions in the power of the state to strip

or transfer property rights, such as Pruneyard

Shopping Center v. Robins , 447 U.S. 74 (1980), and

Kelo, have allowed the state to skirt constitutional

limitations to the benefit of preferred private parties

at the expense of other private parties by simply

denying that constitutional limitations apply to the

type of transfer employed.

This case demonstrates the consequences of

loosening takings constraints through case law: the

physical invasion of land by a private party based on

policy considerations but no actual takings analysis.

“When faced with a clash of constitutional principle”

with case law at odds with “the text, history, and

structure of our founding document,” this Court

“should not hesitate to resolve the tension in favor of

the Constitution’s original meaning.” Kelo, 545 U.S. at

523 (Thomas, J., dissenting). The Court should revisit

Pruneyard and Kelo to clarify the constitutional limits

on the government’s power to take private property

and transfer it to someone else and reverse the Ninth

Circuit in this case to protect Petitioners against

uncompensated taking of their property rights.

ARGUMENT

I. The Fifth Amendment Provides Only Two

Lawful Means by Which a Person may be

Deprived of Property by the State.

The Fifth Amendment provides two methods by

which a person may be deprived of property: either by

due process of law; or for public use with just

compensation. U.S. Const. Amend. V.

The California statute grants an easement to

physically access real property, thus depriving the

Growers of a traditional interest in their real

property—the right to exclude. Notwithstanding the

physical invasion of land, the law purports to

regulate, not appropriate, and thus the legislature

identified no public use that could justify a taking and

provided no compensation for the property taken.

But the alternative to a taking for public use would

require due process of law before the government

could take the property. It must be one or the other—

there is no constitutional alternative. Here, neither

due process nor compensation was provided, making

the deprivation of property rights inconsistent with

the Fifth Amendment.

A. Appropriation of Property Without Due

Process or Just Compensation Violates

the Fifth Amendment.

The Fifth Amendment requires due process of law

for the government to deprive a person of property.

U.S. Const. Amend. V. Although the type and extent

of process is not set forth in the Constitution, this

Court has said that “it is certain that these words

imply a conformity with natural and inherent

principles of justice, and forbid that one man’s

property, or right to property, shall be taken for the

benefit of another, or for the benefit of the state,

without compensation, and that no one shall be

condemned in his person or property without an

opportunity of being heard in his own defense.”

Holden v. Hardy, 169 U.S. 366, 390–91 (1898). As a

general rule, due process requires that “individuals

must receive notice and an opportunity to be heard

before the Government deprives them of property.”

United States v. James Daniel Good Real Prop., 510

U.S. 43, 48 (1993). “The purpose of this requirement

is not only to ensure abstract fair play to the

individual. Its purpose, more particularly, is to protect

his use and possession of property from arbitrary

encroachment—to minimize substantively unfair or

mistaken deprivations of property . . . .” Id. at 53.

Due process requirements apply when the

government asserts control over real property,

including rights of ownership such as “the right of

sale, the right of occupancy, the right to unrestricted

use and enjoyment” as well as “the right to evict

occupants, to modify the property, to condition

occupancy, to receive rents”; in short “all rights

pertaining to the use, possession, and enjoyment of

the property.” James Daniel Good Real Prop., 510

U.S. at 52, 54. Due process also applies when the

government has only a limited interest in the property

such as “in preventing the sale, destruction, or

continued unlawful use of the real property.” Id. at 62.

Even a limited interest in levying upon a deficient

taxpayer’s property—an interest that could be

satisfied through a monetary payment without

invading the land itself—requires notice and an

opportunity for a hearing. Id. at 61 (citations omitted).

Thus, even property rights that represent only a

single strand in the bundle of rights, such as the right

to exclude, cannot be appropriated without due

process.3

3 “Because the Constitution protects rather than creates property

interests, the existence of a property interest is determined by

reference to ‘existing rules or understandings that stem from an

independent source such as state law.’” Phillips v. Wash. Legal

Nevertheless, “the Board determined that

adopting a universally applicable rule for access—as

opposed to case-by-case adjudications” would best

serve the legislative purpose, App. A-7, thus expressly

eschewing notice and an opportunity to be heard in

favor of other policy goals. This approach does not

satisfy the Fifth Amendment because the due process

clause “is a restraint on the legislative as well as on

the executive and judicial powers of the government,

and cannot be so construed as to leave [the legislature]

free to make any process ‘due process of law,’ by its

mere will.” Den ex dem. Murray v. Hoboken Land &

Imp. Co., 59 U.S. 272, 276 (1855). Cf. Chicago, B. &

Q.R. Co. v. City of Chicago, 166 U.S. 226, 236–7

(1897).

Shortly after enactment, a state court challenge to

the regulation alleged that it violated due process;

that case failed. See App. A-9 citing Agric. Labor

Relations Bd. v. Superior Court (Pandol & Sons), 546

P.2d 687, 693–99 (Cal. 1976). In this case due process

as a potential vehicle for depriving Petitioners of their

property was not asserted—leaving as the only

potential vehicle for satisfying the Fifth Amendment

a taking for public use.

Like the requirements of due process, the two

elements of Fifth Amendment taking “serve to protect

‘the security of Property,’ which Alexander Hamilton

described to the Philadelphia Convention as one of the

‘great obj[ects] of Gov[ernment],’ . . . “by providing

safeguards against excessive, unpredictable, or unfair

Found., 524 U.S. 156, 164 (1998). Easements are property under

California state law. See, e.g., L.A. Terminal Land Co. v. Muir,

136 Cal. 36, 48 (1902); Balestra v. Button, 54 Cal. App. 2d 192,

197 (1942).

use of the government’s eminent domain power—

particularly against those owners who, for whatever

reasons, may be unable to protect themselves in the

political process against the majority’s will.” Kelo, 545

U.S. at 496 (O’Connor, J. dissenting) (citing 1 Records

of the Federal Convention of 1787, p. 302 (M. Farrand

ed.1911)).

It does not suffice, therefore, that the Board

considered granting unions access to the Grower’s

property as an effective means of furthering

organizational rights, nor that the Board considered

the grant to be merely an “accommodation,” nor that

“[t]he access regulation was intended to ‘provide

clarity and predictability to all parties.’” App. A-6–7.

The Fifth Amendment was designed as a shield

against uncompensated application of exactly this

type of political process.4

Nor does it matter that the Board placed

restrictions on the easement, because any easement,

by definition, is restricted in some way, granting “only

nonpossessory rights of use limited to the purposes

specified in the easement agreement.” United States

Forest Serv. v. Cowpasture River Pres. Ass'n, 140 S.

Ct. 1837, 1844 (2020). But cf. App. A-29 (Leavy, J.,

dissenting) (noting “the Access Regulation allowing

ongoing access to Growers’ private properties,

multiple times a day for 120 days a year (four 30-day

See also App. E-16 (Ikuta, J., dissenting from denial of

rehearing en banc) (“Although property rights are defined by

state law, there are limits on a state’s ability to alter traditional

understandings of property through legislation.”).

periods per year)”).5 As this Court has recognized,

temporal restrictions or effects on an easement do not

prevent the easement from being compensable

property. See, e.g., United States v. Dickinson, 331

U.S. 745, 751 (1947) (recognizing taking for an

“easement for intermittent flooding of land above the

new permanent level”); United States v. Causby, 328

U.S. 256, 268 (1946) (recognizing compensable taking

in overflight easement and holding that issue of

permanent or temporary went to valuation of required

compensation). The Board’s weighing of policy

preferences to conclude that the limited easement was

of higher value than the rights of the property owners

is just the type of conclusion that the Fifth

Amendment was designed to both accommodate and

limit.

B. A Taking is Limited to the Property Right

Compensated—and No More.

The Ninth Circuit committed a fundamental

logical fallacy when it inverted this Court’s

observation that a permanent physical invasion chops

through the bundle of property rights “taking a slice

of every strand,”6 to mean that unless every strand

5 Cf. App. E-11 (Ikuta, J., dissenting from denial of rehearing en

banc) (“According to Cedar Point, . . . [t]he union organizers

disrupted work by moving through the trim sheds with

bullhorns, distracting and intimidating the workers.”).

6 “The historical rule that a permanent physical occupation of

another’s property is a taking has more than tradition to

commend it. Such an appropriation is perhaps the most serious

form of invasion of an owner’s property interests. To borrow a

metaphor, cf. Andrus v. Allard, 444 U.S. 51, 65–66 (1979), the

government does not simply take a single ‘strand’ from the

‘bundle’ of property rights: it chops through the bundle, taking a

has been sliced, then there has been no permanent

physical invasion.7 That backwards proposition does

not apply where, for example, a right-of-way8 does not

preclude the landowner from traversing the same

land but still works a physical invasion as recognized

in the myriad of cases that support the proposition

that “even if the Government physically invades only

an easement in property, it must nonetheless pay

compensation,” id. at 433 (collecting cases). The Ninth

Circuit’s logical fallacy does not apply here either. As

Judge Ikuta, joined by six other Ninth Circuit Judges

explained, dissenting from the Circuit’s decision

against hearing this case en banc, “[o]nce again, the

Ninth Circuit endorses the taking of property without

just compensation.” App. E-10 (Ikuta, J., dissenting

from denial of rehearing en banc).

The ease with which an easement for a limited

particular purpose can be granted, compensated as a

taking, and then constrained to the terms on which it

was granted, is demonstrated by railroad easements.

For example, in Moffitt v. United States, the

property was a 1.57-mile segment of railroad right-ofway. 147 Fed.Cl. 505, 508 (2020). The right-of-way

was established in 1857 through condemnation

slice of every strand.” Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 435 (1982).

7 At its most basic level, a physical invasion is concrete action

that takes place in the material world—which is not dependent

on whether a legal doctrine applies to it. It would make no sense,

for example, to claim that the person reading this brief does not

exist because there is no legal doctrine that explains the reader’s

existence.

8 A right-of-way is a type of easement. Cowpasture River Pres.

Ass’n, 140 S. Ct. at 1844.

proceedings for use in operating a rail line. Id. at 508–

09. When the railway sought to discontinue rail

service and instead use the land for a recreational

trail, the question was whether the original easement

was broad enough to encompass that newly proposed

use. Id. at 510. If not, “then a Fifth Amendment

‘taking’ of the land burdened by the easement occurs.”

Id. In Moffit there were two takings involved, each of

which implicated a separate compensable act: the first

taking in which an easement was imposed for use as

a railway; and a second taking that would have

converted the original railway easement into an

easement for use of the land as a recreational trail.9

Both easements applied to the same land; but each

represented a discrete compensable taking. Id. at 518.

In addition to usage restrictions, a taking may be

limited to only certain rights relative to real property,

including intangible rights. For example, in Hodel v.

Irving, the right to pass property to one’s heirs was

recognized as a constitutionally protected property

right. 481 U.S. 704, 716 (1987). See also Manhattan

Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1938

(2019) (J. Sotomayor dissenting) (“no one believes that

a right must be tangible to qualify as a property

interest.” (citing Armstrong v. United States, 364 U.S.

40, 48–49 (1960) (treating destruction of valid liens as

a taking); Adams Express Co. v. Ohio State Auditor,

166 U.S. 185, 219 (1897) (treating “privileges,

9 The process of “railbanking” would provide a mechanism for

staying abandonment of the railway easement, thus extending

the temporal limits on the easement and essentially making the

limited easement permanent. Id. at 510 (“When the trail

agreement is reached, the Fifth Amendment taking becomes

permanent since the abandonment procedures are effectively

blocked.”).

corporate franchises, contracts or obligations” as

taxable property)). It is thus not necessary that every

strand in the bundle be sliced before a compensable

taking occurs. In fact, it is the opposite—the

compensable taking is limited to only the scope of the

right that is taken.

“[T]he Supreme Court has repeatedly, and

consistently, recognized that the appropriation of an

easement that allows for entry onto private property

constitutes a taking of property.” App. E-22 (Ikuta, J.,

dissenting from denial of rehearing en banc). That is

exactly what happened here—a per se taking of real

property. Therefore, Petitioner should, at the least, be

compensated for that taking.

II. The Holding in Kelo Needs Guardrails to

Clarify that a Benefit to a Defined Class of

Private Parties is Not a Public Use.

More broadly, this Court should address an

ongoing source of confusion in takings jurisprudence

that casts a long shadow and is implicated, whether

silently or expressly, whenever private property is

taken for use by another private party. Kelo, which

allowed real property to be taken from private persons

and transferred to another private party for

redevelopment, 545 U.S. at 477, 490, represents the

outer edge of takings jurisprudence and merits

clarification or narrowing because the power to

disregard one person’s property rights in preference of

another person jeopardizes both freedom and security.

Protection of private property is among the highest

duties of the government, in part, because

“[i]ndividual freedom finds tangible expression in

property rights.” James Daniel Good Real Prop., 510

U.S. at 61. “The fundamental maxims of a free

government seem to require, that the rights of

personal liberty and private property should be held

sacred.” Wilkinson v. Leland, 27 U.S. 627, 657 (1829).

Thus, appropriation of private property imperils

freedom, requiring strict application of legal

constraints.

The constraints provided by the Fifth Amendment

protect

against

legislative

action,

because

“government can scarcely be deemed to be free, where

the rights of property are left solely dependent upon

the will of a legislative body, without any restraint.”

Id. It is simply not enough to declare a policy

beneficial to the people to bypass property rights. “At

least no court of justice in this country would be

warranted in assuming, that the power to violate and

disregard them; a power so repugnant to the common

principles of justice and civil liberty lurked under any

general grant of legislative authority, or ought to be

implied from any general expressions of the will of the

people.” Id. Hence the requirement to pay for property

before appropriating it for public use is as much a

matter of freedom as justice.

But more to the point, from time immemorial, the

exercise of state power to take private property and

transfer it to another private party with no identified

public use has been repugnant to our legal system.

Indeed, from before the founding and for over two

hundred years thereafter, the Court rebuffed such a

proposal. Id. at 658 (“We know of no case, in which a

legislative act to transfer the property of A. to B.

without his consent, has ever been held a

constitutional exercise of legislative power in any

state in the union.”).

The contours of this doctrine were relaxed in Kelo,

but not without vigorous dissent and a narrow

concurrence in which Justice Kennedy reiterated that

““transfers intended to confer benefits on particular,

favored private entities, and with only incidental or

pretextual public benefits, are forbidden by the Public

Use Clause.” 545 U.S. at 490 (Kennedy, J. concurring).

In Justice Kennedy’s view, “[a] court applying

rational-basis review under the Public Use Clause

should strike down a taking that, by a clear showing,

is intended to favor a particular private party, with

only incidental or pretextual public benefits, just as a

court applying rational-basis review under the Equal

Protection Clause must strike down a government

classification that is clearly intended to injure a

particular class of private parties, with only incidental

or pretextual public justifications.” Id. at 491.

As this case shows, Justice Kennedy’s words must

be heeded lest the appropriation of private property

from one limited class of persons in favor of another

limited class of persons becomes the norm. Even

under the lenient requirements of Kelo, this case must

fail because no public use was identified at all. Indeed,

the public does not even have access to the easement.

The Court should make clear that the Fifth

Amendment requires identification of a public use

that must—in fact, as well as in theory—benefit the

public and not a limited class of private actors.

A. Public Use—What is it?

Dissenting in Kelo, Justice Thomas wrote that:

“the Public Use Clause, originally understood, is a

meaningful limit on the government’s eminent

domain power. Our cases have strayed from the

Clause’s original meaning, and I would reconsider

them.” 545 U.S at 506. Likewise, Justice O’Connor,

also in dissent, noted that: “The public use

requirement . . . imposes a more basic limitation,

circumscribing the very scope of the eminent domain

power: Government may compel an individual to

forfeit her property for the public’s use, but not for the

benefit of another private person. This requirement

promotes fairness as well as security.” Id. at 497.

(emphasis

original)

(citing

Tahoe–Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 535 U.S. 302, 336, (2002) (“The concepts of

‘fairness and justice’ ... underlie the Takings

Clause”)). If the concept of public use is to retain any

meaning, what characteristics must that use entail?

Justice O’Connor identified three “categories of

takings that comply with the public use requirement .

. . Two [that] are relatively straightforward and

uncontroversial.” 545 U.S. at 497. The first is the

transfer of private property to public ownership, such

as taking land for a military installation. Id. at 497–

98 (citing Old Dominion Land Co. v. United States,

269 U.S. 55 (1925)). The second is the transfer of

private property to private parties who use the land

for a public purpose. Examples would include common

carriers like railways or utilities. Id. (citing National

Railroad Passenger Corporation v. Boston & Maine

Corp., 503 U.S. 407 (1992); Mt. Vernon–Woodberry

Cotton Duck Co. v. Alabama Interstate Power Co., 240

U.S. 30 (1916)). Neither of these straightforward

categories applies here.

The third category of taking, which was at issue in

Kelo and would be at issue here had a takings analysis

been performed, is the transfer of private property to

another private party—not for public use—but for

private use in a manner that purportedly may serve a

public purpose. See id. at 498. This is a question that

has long tested the Court, in part, because the

analysis implicates deference to legislative bodies and

matters of traditional State concern.10

For example, in Berman v. Parker, the issue was

an Act of Congress that sought to eliminate blighted

areas of Washington, D.C., by acquiring the property

and leasing or selling the property for redevelopment

pursuant to a comprehensive development plan in

order to improve public health and safety. Berman v.

Parker, 348 U.S. 26, 28–29 (1954). The Court held that

the agency could take title to all real property involved

in the redevelopment project even if some of that

property was not blighted. Id. at 34–35. The Court

also accepted that some redevelopment would be

performed by private parties, finding that “once the

public purpose has been established,” the “public end

may be as well or better served through an agency of

private enterprise than through a department of

government—or so the Congress might conclude,”

thus disposing of Mr. Berman’s argument that the

Fifth Amendment forbids “taking from one

businessman for the benefit of another businessman.”

Id. at 33–34. Notably, the scope of the project included

real estate slated for indisputably public uses, such as

10 AFPF respectfully believes that Kelo was wrongly decided and

should be overturned. Within five years of its aftermath, fortythree states pursued legislative reforms, many of which

strengthened protections against eminent-domain abuse, and

numerous state courts stepped into the breach. See Five Years

After Kelo: The Sweeping Backlash Against One of the Supreme

Court’s Most-Despised Decisions, Institute for Justice (June

2010), https://ij.org/wp-content/uploads/2015/08/kelo5year_annwhite_paper.pdf.

schools, parks, and roads, in addition to development

to be performed by and for private enterprise—

including original property owners—as agents to

fulfill Congress’s plan. Id. at 34–35. Contrary to Kelo

and to this case, the holding in Berman did not turn

on converting the specific property of a limited class of

property owners into property in favor of a different

limited class of private parties, but rather, began with

a plan for the public benefit that employed private-toprivate transfer as one of the means to accomplish

that public benefit.

Nevertheless, Berman has sown confusion

regarding the scope of government authority to define

as a public purpose the transfer of property from one

private person to another private person for the

benefit of the recipient. For example, in Hawaii

Housing Authority v. Midkiff, condemnation

proceedings that were used to transfer land from large

landholders to individual lessees was held to be within

the State’s police power and therefor consistent with

the Fifth Amendment. Simultaneously the Court

maintained that “the Court’s cases have repeatedly

stated that “one person's property may not be taken

for the benefit of another private person without a

justifying public purpose, even though compensation

be paid.” 467 U.S. 229, 240–41 (1984) (collecting

cases). This view was expanded in Kelo to encompass

economic development plans with conjectural public

benefits, such as increased tax revenue or new jobs,

that could only be realized as the secondary effects of

direct private benefits. That is, the supposed public

benefits could only be generated if the private

recipients of the land were first successful in their own

ventures so there would taxes owed and jobs to fill.

Kelo, thus, would appear to stand for the proposition

that the government may transfer property from one

private person to another private person for the direct

benefit of the recipient if, in turn, the recipient might

be expected to generate some benefit back to the state.

This, as Justice Thomas stated in dissent, “constru[es]

the Public Use Clause to be a virtual nullity, without

the slightest nod to its original meaning.” Kelo, 545

U.S. at 506.

And as Justice Thomas explained more recently in

Horne v. Department of Agriculture: “The Takings

Clause prohibits the government from taking private

property except ‘for public use,’ even when it offers

‘just compensation.’” 576 U.S. 351, 370 (2015)

(Thomas, J., concurring) (quoting U.S. Const. Amend.

5). This traditional limitation on the government’s

takings powers should “impose[] a meaningful

constraint on the power of the state—‘the government

may take property only if it actually uses or gives the

public a legal right to use the property.’”11 Id.

(Thomas, J., concurring) (quoting Kelo, 545 U.S. at

521 (Thomas, J., dissenting)).

But, for all that, at the very least, these cases

required compensation to the owners, and did not, as

was done in this case, simply take the property and

give it to someone else gratis. The Court, therefore,

should take this opportunity to place clear guardrails

on Kelo and limit the government’s power to take

property to cases in which a defined public use of the

property precedes the private transfer—and in all

Here, it is far from clear whether the California Access

Regulation meets this test, as it does not grant the public any

right of access—only union organizers (and no one else, such as

right-to-work advocates, who might have contrary views).

cases requires compensation to be paid when the

taking is made.12

B. Without Strict Adherence to Both

Elements, the Takings Clause Becomes a

Nullity, Allowing Government to Take

Property for Private Use Without

Compensation.

This case illustrates why “it is ‘imperative that the

Court maintain absolute fidelity to’ the [Takings]

Clause’s express limit on the power of the government

over the individual, no less than with every other

liberty expressly enumerated in the Fifth Amendment

or the Bill of Rights more generally.” Kelo, 545 U.S. at

507 (Thomas, J. dissenting) (quoting Shepard v.

United States, 544 U.S. 13, 28 (2005) (cleaned up).

Such fidelity requires application of both elements of

the Takings Clause by requiring a “public use” and

“just compensation.” Otherwise, “the Takings Clause

would either be meaningless or empty.” Id. at 507.

Indeed, this is what has happened here, with the

predictable result that the Fifth Amendment was not

even consulted before the Grower’s real property

rights were transferred to other private persons.

Completely eluding the Fifth Amendment goes even

12 It is far from clear that the Access Regulation itself, which

subsidizes a favored category of speech at the expense of private

property owners’ rights, is a constitutional exercise of

government power at all, irrespective of the amount of

compensation awarded. Cf. Horne, 576 U.S. at 371 (“To the

extent that the Committee is not taking the raisins ‘for public

use,’ having the Court of Appeals calculate ‘just compensation’ in

this case would be a fruitless exercise.”).

further than Justice Thomas’s warning that failure to

strictly adhere to the public use requirement would

flip the design of the Takings Clause: “Alternatively,

the Clause could distinguish those takings that

require compensation from those that do not.” Id. This

latter interpretation, which was silently applied here

without any apparent recognition that it was

happening “would permit private property to be taken

or appropriated for private use without any

compensation whatever.” Cole v. La Grange, 113 U.S.

1, 8 (1885) (interpreting same language in the

Missouri Public Use Clause). “In other words, the

Clause would require the government to compensate

for takings done ‘for public use,’ leaving it free to take

property for purely private uses without the payment

of compensation.” Kelo, 545 U.S. at 507 (Thomas, J.

dissenting).

So it has come to pass in this case.

III. Pruneyard

Undermines

Constitutional

Rights and Should be Reconsidered.

As with Kelo, the fact-specific holding in

Pruneyard has been stretched beyond its scope and

sown mischief. Amicus believes that Pruneyard was

wrong when decided, and subsequent decisions

illustrate that it cannot be reconciled with this Court’s

First or Fifth Amendment jurisprudence. This Court

should, at the least, reaffirm here that Pruneyard is

limited to public areas of shopping centers, if not

outright abandon this anachronistic decision and

prevent its continued confusion of both First and Fifth

Amendment rights.

Courts, including this Court, have worked hard to

make sense of Pruneyard’s takings analysis—both as

an upfront takings issue and as a backdoor for

compelled speech in commercial settings.13 This job

has been complicated by the Court’s express

recognition in Pruneyard that “there has literally been

a ‘taking’” of “the right to exclude others.” PruneYard

13 Indeed, the shadow of Pruneyard as a First Amendment case

may be longer than as a takings case as support for the

proposition that government can compel private entities to host

the speech of other private parties in commercial settings.

Pruneyard, 447 U.S. at 85 (“Appellants finally contend that a

private property owner has a First Amendment right not to be

forced by the State to use his property as a forum for the speech

of others.”); Domen v. Vimeo, Inc., 433 F. Supp. 3d 592, 607

(S.D.N.Y. 2020) (discussing Pruneyard: “Plaintiffs seek to have

this Court plow new ground and hold that Pruneyard extends

beyond California real property owners to website owners like

Vimeo.”). See also Craig v. Masterpiece Cakeshop, Inc., 370 P.3d

272, 288, (Colo. App. 2015), rev’d Masterpiece Cakeshop, Ltd. v.

Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018). But the

issue in Pruneyard was whether California could “promote more

expansive rights of free speech and petition than conferred by the

Federal Constitution.” Id. at 85. The Federal Constitution, of

course, only protects against governmental infringement of

speech rights; and thus “more expansive rights” in the context of

a state constitution, consistent with the Federal Constitution,

would further constrain state infringement of speech but could

have no analogous effect on private persons vis-à-vis each other.

Indeed, under the guise of ”more expansive” rights, government

mandates that private parties host or facilitate the speech of

others may violate the First Amendment. E.g., Nat'l Inst. of

Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2378 (2018)

(petitioners likely to succeed on the merits of their claim that

state mandate that clinics disseminate a government-drafted

notice violates the First Amendment); Miami Herald Publishing

Co. v. Tornillo, 418 U.S. 241 (1974) (holding unconstitutional

Florida statute placing affirmative duty upon newspapers to

publish replies of political candidates whom they had criticized).

Shopping Center, 447 U.S. at 82. That finding should

have been the end of the issue, leading to a clean and

easy-to-follow progression into the compensation

phase of a takings analysis.

Instead, having recognized the literal taking, the

Court held that there was no “unconstitutional

infringement of . . . property rights under the Takings

Clause,” introducing a variety of factors that relate to

either: the extent of the taking/valuation; or, the

State’s authority to act in the first place. PruneYard

Shopping Center, 447 U.S. at 83 (emphasis added).

But as the Court explained in Kaiser Aetna v. United

States, whether the government has authority to act

and whether the action “amounted to a ‘taking,’ . . . is

an entirely separate question.” Kaiser Aetna v. United

States, 444 U.S. 164, 174 (1979).

In support of this unexplained dichotomy, the

Court relied on two cases in which a compensable

taking was found: Armstrong v. United States, 364

U.S. 40, 48–49 (1960) (“We hold that there was a

taking of these liens for which just compensation is

due under the Fifth Amendment”); and Kaiser Aetna

444 U.S. 164, 179–80 (“In this case, we hold that the

‘right to exclude,’ so universally held to be a

fundamental element of the property right, falls

within this category of interests that the Government

cannot take without compensation.”).

Because the legal authority supported a

compensable taking, but the Court held otherwise,

there must have been something unique in the facts

that would compel that conclusion. Two candidates

were noted: first that the shopping center was “open

to the public at large”, and second that their activities

were limited to “free expression and petition.”

PruneYard Shopping Center, 447 U.S. at 83. Whether

one or both of these facts were dispositive, the Court

did not say.14 Thus, Pruneyard represented a break

from traditional takings analysis with little to no

explanation.

It is possible, however, to discern from Pruneyard

four characteristics relevant to the takings analysis.

The first two: whether there was a physical invasion

and, if so, whether such invasion was permanent, go

to whether there was a taking in the first place. The

third, application of the Penn Central impaired-value

analysis goes to the valuation of the taking. And the

fourth, whether the owner made the property open to

the public goes to both the existence of a taking and

informs the valuation analysis. As could be expected,

each of these characteristics has been adopted by

some courts for some purposes. But no consistent

framework has emerged.

Indeed, Pruneyard’s legacy is messy, fluctuating

among non-dispositive Pruneyard elements and

deeming them dispositive; relying on Pruneyard for

the non-controversial proposition that government

can regulate—which was not in dispute in that case or

here; and for the perverse proposition that if the

government has authority to regulate, then whatever

it takes in furtherance of that authority is not a

compensable

taking.

Obviously,

this

latter

interpretation flips the Fifth Amendment on its head

14 As noted, supra n. 13, the emphasis in Pruneyard on the use of

the property for speech purposes has nurtured the spurious

principle that government can compel the use of private property

to host unwanted speech without running afoul of the First

Amendment.

and renders questions regarding “public use” and

“just compensation” a nullity.15

Attempts to apply Pruneyard in otherwise

straightforward cases of physical invasion have fared

poorly—in large part because no one seems to know

which direction to look for guidance. For example,

some courts have relied on Pruneyard for the

proposition that permanent physical invasions

require compensation, but temporary invasions do

not. E.g., Judlo, Inc. v. Vons Companies, 259 Cal.

Rptr. 624, 627 (Cal. Ct. App. 1989) (holding that

compelled placement of a newsrack on private

property in the shopping center that is open to the

public would be a compensable taking because the

rack was permanent). Note that in Judlo, whether the

placement of the rack would unreasonably impair the

value or use of the property was not considered.

Other cases relying on Pruneyard have found

economic impairment the dispositive factor—with no

reference to physical intrusion, permanence, or public

access. E.g., Batchelder v. Allied Stores Int’l, Inc., 445

N.E.2d 590, 592 (Mass. 1983). And still others have

focused on openness to the general public, without

consideration of permanence or the Penn Central

impairment factors. E.g., Woodland v. Michigan

Citizens Lobby, 378 N.W.2d 337, 364 (Mich. 1985)

(“the voluntary opening of the mall property to use by

the general public diminishes, although it does not

15 Pruneyard, likewise, flipped the First Amendment on its head.

Though the First Amendment issue is not before the Court in this

case, to the extent that Pruneyard survives the Court’s review

here, the Court should reconcile the First Amendment holding

from Pruneyard with the Court’s other First Amendment

decisions at the earliest opportunity.

extinguish, the owner's right to exclude.”). Few cases

ever reach the point of considering compensation.

The arc of these cases shows that the takings

analysis in Pruneyard has largely devolved into

whether the state has authority to regulate—which is

completely beside the point. Even with authority to

regulate, the government has a Fifth Amendment

obligation to compensate. And the fact that the

government may have authority to regulate merely

informs the first Fifth Amendment element: public

use, not the second element: just compensation. Thus,

when courts rely on Pruneyard for the proposition

that “a state may provide through its constitution a

basis for the rights and liberties of its citizens

independent from that provided by the Federal

Constitution, and that the rights so guaranteed may

be more expansive than their federal counterparts,”

Com. v. Tate, 432 A.2d 1382, 1387 (Penn. 1981), that

assertion is neither here nor there when it comes to

takings analysis. Indeed, such an interpretation

bypasses the Fifth Amendment altogether by asking

only whether the state may act, and not what its

duties under the Fifth Amendment are when it does

act.

The struggle to discern the holding of Pruneyard is

aptly demonstrated by this case. Here, the Ninth

Circuit noted that Pruneyard applied the Penn

Central regulatory taking test despite having already

acknowledged a taking. App. A-19. Thus, it would

appear that in the Ninth Circuit, Pruneyard stands

for application of Penn Central to deny a taking has

been made even when a physical invasion has been

acknowledged.16

But like the Ninth Circuit’s logical fallacy above,

once a physical invasion has been demonstrated, the

invasion cannot be waved away by muttering Penn

Central.17 Moreover, to the extent that any portion of

the Penn Central analysis applies after a physical

invasion has been proven, the question of whether the

“restriction would unreasonably impair the value or

use of the property” App. A-19, should go to valuation

not to whether the physical world can be fictionalized

to eliminate facts that do not comport with the

preferred legal theory.

In addition, the Ninth Circuit concluded that the

factual finding from Pruneyard that would appear to

be most relevant to physical invasion of private

property: the owner’s decision to make the property

open to the public, “[w]hile [it] was a consideration for

the Court, it was not a dispositive one—and critically,

it only factored into the Court’s analysis under the

standards set forth in Penn Central.”18 App. A-19. If

that is so, and the public-access element of Pruneyard

is only relevant to the question of valuation, then

Pruneyard is left with no discernable holding

App. A-7–9 (Paez, J., concurring in denial of rehearing en

banc) (conflating taking of an easement with valuation thereof).

16 Cf.

17 Penn Central itself may be untethered from the Constitution

as originally understood. “The Court . . . has never purported to

ground . . . [its regulatory takings] precedents in the Constitution

as it was originally understood.” Murr v. Wisconsin, 137 S. Ct.

1933, 1957 (2017) (Thomas, J., dissenting).

18 “PruneYard did not involve a state law that gave third parties

access to otherwise private property[.] App. E-29 (Ikuta, J.,

dissenting from denial of rehearing en banc).

regarding when appropriation of the right to exclude

transfigures

from

taking

that

requires

compensation under the Fifth Amendment into no

“unconstitutional infringement” that does not require

such compensation.

Application of the physical invasion test would go

a long way toward resolving the disorder created by

Pruneyard to clarify that physical invasions are

controlled by Loretto and not by Penn Central. And the

relevance of Penn Central, if any, to cases of physical

invasion, is only to the second element of the Fifth

Amendment: valuation of the property taken.

CONCLUSION

The Court should rule in favor of the Petitioners,

reverse the decision below, and remand for further

proceedings.

Respectfully submitted,