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

No. 20-107

IN THE

___________

CEDAR POINT NURSERY

and FOWLER PACKING COMPANY, INC.,

PETITIONERS,

V.

VICTORIA HASSID, in her official capacity as,

Chair of the Agricultural Labor Relations Board; et al.,

RESPONDENTS.

___________

On Writ of Certiorari to the

U.S. Court of Appeals for the Ninth Circuit

__________

BRIEF OF THE LIBERTY JUSTICE CENTER AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

__________

January 7, 2021

Jeffrey M. Schwab

Counsel of Record

Daniel Suhr

Reilly Stephens

LIBERTY JUSTICE CENTER

208 LaSalle St., Ste. 1690

Chicago, IL 60604

(312) 637-2280

jschwab@libertyjusticecenter.org

i

QUESTION PRESENTED

The question presented is whether the uncompensated appropriation of an easement that is limited in

time effects a per se physical taking under the Fifth

Amendment?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ................................................ i

INTEREST OF THE AMICUS CURIAE....................... 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ................................................................ 2

ARGUMENT ........................................................................ 3

Property rights cannot be subordinated to the right to

organize when unions have reasonable

alternative means of communication. .................... 3

CONCLUSION .................................................................. 13

iii

TABLE OF AUTHORITIES

Cases

Amalgamated Food Empolyees Union v. Logan Valley

Plaza, 391 U.S. 308 (1968) ................................... 5, 6

Cent. Hardware Co. v. NLRB, 407 U.S. 539 (1972) 4, 7

Cooper v. California, 386 U.S. 58 (1967) .................... 9

Horne v. Dep’t of Agric., 576 U.S. 351 (2015)............ 10

Hudgens v. NLRB, 424 U.S. 507 (1976) ...................... 8

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) 4, 10, 11

Lloyd Corp. v. Tanner 407 U.S. 551 (1972) ............ 3, 7

Loretto v. Teleprompter Manhattan Catv Corp., 458

U.S. 419 (1982) ....................................................... 10

Marsh v. Alabama, 326 U.S. 501 (1946). .................... 5

NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956).

.............................................................................. 3, 5

NLRB v. Town & Country Elec., 516 U.S. 85 (1995) . 2,

12

Nollan v. Cal. Coastal Com, 483 U.S. 825 (1987) ..... 10

PruneYard Shopping Center v. Robins, 447 U.S. 74

(1980) ........................................................................ 9

Sears v. San Diego County District Council of

Carpenters, 436 U.S. 180 (1978). ............................. 9

The Civil Rights Cases, 109 U.S. 3 (1883) .................. 6

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)

.................................................................................. 4

1

INTEREST OF THE AMICUS CURIAE1

The Liberty Justice Center is a national, nonprofit,

nonpartisan, public-interest litigation center that

seeks to protect economic liberty, private property

rights, free speech, and other fundamental rights. The

Liberty Justice Center pursues its goals through strategic, precedent-setting litigation to revitalize constitutional restraints on government power and protections for individual rights. See, e.g., Janus v. AFSCME, 138 S. Ct. 2448 (2018).

The Liberty Justice Center is headquartered in

Chicago, Illinois, and is interested in this case because

the protection of private property rights is a core value

vital to a free society. To that end, the Liberty Justice

Center represents property owners in a variety of

cases around the country. See, e.g. Leibundguth Storage & Van Serv., Inc. v. Vill. of Downers Grove, 939

F.3d 859, 860 (7th Cir. 2019); Mendez v. Chicago, Cook

County Illinois Chancery Court No. 16 CH 15489;

United States v. Ford, Southern District Of New York

No. 7:19-cv-09600-KMK.

1 Rule 37 statement: All parties received timely no-

tice of intent to file this brief. Petitioners filed a blanket consent, and the Respondent consented to the filing of this brief. No counsel for any party authored any

part of this brief, and no person or entity other than

amicus funded its preparation or submission.

2

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This is not the first case in which this Court has

faced a conflict between the rights of private property

owners and the desire of unions to organize. Even in

the context of labor relations, this Court has consistently recognized that private property owners retain

the fundamental right to exclude. See Pet. at 26; see,

e.g., NLRB v. Town & Country Elec., 516 U.S. 85, 97

(1995). The Fifth Amendment provides that private

property rights may not be wantonly abridged by any

state just because the abridgment serves some public

policy interest. Simply because California believes the

right of employees to associate with a union is important does not confer an open-ended warrant to advance that interest by forcing an easement of Petitioners’ property without compensation.

This Court has repeatedly held that unions have no

right to usurp others’ private property unless they can

show that the infringement is necessary, in the most

literal sense, such that no other reasonable avenues by

which to contact employees are available. The Court

has primarily addressed this question in the context of

federal law, whereas this case involves a state regulation of labor relations. But the respect for private property rights embodied in those cases was not specific to

the Wagner Act, but rather grounded in the fundamental protection for property rights the Constitution requires all statutes and regulations to respect.

This Court should reverse the decision below, and

in doing so reiterate that employees’ First Amendment

rights of association are important, but their importance does not allow state governments to freely

abridge others’ Fifth Amendment rights to exclude,

3

which is essential to traditional understandings of private property, for mere convenience.

ARGUMENT

Property rights cannot be subordinated to the

right to organize when unions have reasonable

alternative means of communication.

In assessing rights of third parties to access private

property for their own, even legitimate, ends, this

Court’s cases repeatedly emphasize that “the Fifth and

Fourteenth Amendment rights of private property

owners, as well as the First Amendment rights of all

citizens, must be respected and protected.” Lloyd Corp.

v. Tanner, 407 U.S. 551, 570 (1972). In the labor context, where the rights of employers are circumscribed

by the legal rights of employees to organize, this Court

holds that since “[o]rganization rights are granted to

workers by the same authority, the National Government, that preserves property rights”, any “[a]ccommodation between the two must be obtained with as

little destruction of one as is consistent with the

maintenance of the other.” NLRB v. Babcock & Wilcox

Co., 351 U.S. 105, 112 (1956).

But this does not mean than the right to organize

stands on equal footing with the rights of private property owners to exclude interlopers. Rather, this Court

holds that labor rights may only overcome private

property rights where “the inaccessibility of employees

makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual

channels.” Id. In other words, the protection of labor

rights “do[es] not authorize trespasses by nonemployee

4

organizers” except where there is in practice no other

reasonable way for organizers to contact employees.

Lechmere, Inc. v. NLRB, 502 U.S. 527, 537 (1992). And

by “reasonable,” this Court did not mean “most convenient.” Rather, it has explained that its “reference to

‘reasonable’ attempts was nothing more than a commonsense recognition that unions need not engage in

extraordinary feats to communicate with inaccessible

employees — not an endorsement of the view (which

[the Court] expressly rejected) that the Act protects

‘reasonable’ trespasses.” Id.

The Court’s cases addressing this issue primarily

arise in the context of applications of the National Labor Relations Act to employers and employees covered

by that statute, unlike the employers and employees

in this case. But this Court has not grounded its accommodation of private property rights in some text or

legislative history of the NLRA, nor claimed that this

is required as a matter of sensible federal labor policy.

See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 217

n.21 (1994) (“while this [property] right is not superseded by the NLRA, nothing in the NLRA expressly

protects it”). Instead, it has based its requirement that

labor rights accommodate private property rights in

the fundamental guarantees of our founding documents, since it would “constitute an unwarranted infringement of long-settled rights of private property

protected by the Fifth and Fourteenth Amendments”

to subordinate basic rights to property in the name of

labor peace. Cent. Hardware Co. v. NLRB, 407 U.S.

539, 547 (1972).

The cornerstone of this Court’s teaching on the

matter remains Babcock, which consolidated several

cases with the same basic fact common to each: “the

5

employer refused to permit distribution of union literature by nonemployee union organizers on companyowned parking lots.” 351 U.S. at 106. In other words,

essentially the same facts as this case, except in a different industry. The Court found that “an employer

may validly post his property against nonemployee

distribution of union literature if reasonable efforts by

the union through other available channels of communication will enable it to reach the employees with its

message and if the employer's notice or order does not

discriminate against the union by allowing other distribution.” Id. at 112. If neither condition — other

channels of communication being cut off, or the employer discriminatorily allowing others the same sort

of access to his property — is satisfied, Babcock holds

that “the employer may not be compelled to allow distribution even under such reasonable regulations” as

a government may come up with. Id.

This Court briefly flirted with another standard,

but only for a few years. In Amalgamated Food Empolyees Union v. Logan Valley Plaza, this Court dealt with

Pennsylvania’s application of standard principles

against trespass to union picketing in a shopping center. 391 U.S. 308, 315 (1968). The Court analogized the

shopping center, a retail space generally available to

the public, to its earlier decision in Marsh v. Alabama,

326 U.S. 501 (1946).

Marsh addressed the right of Jehovah’s Witnesses

to distribute religious literature on a ‘public’ sidewalk

on a ‘public’ street in a “so-called town” wholly owned

and run by the Gulf Shipbuilding Corporation. Id. at

502–3. This was a “company town” scenario, in which

a private company was assuming the form and carrying out the functions of a municipal corporation —

6

owning all housing, streets, stores, providing services

like basic utilities and trash pickup — to the point

where “there is nothing to distinguish them from any

other town and shopping center except the fact that

the title to the property belongs to a private corporation.” Id. This presented a conundrum for First

Amendment law, which generally requires state action. See The Civil Rights Cases, 109 U.S. 3 (1883). The

Court in Marsh held that, in the context of a “company

town,” the private company had in practice become

The State, and should be required to respect the rights

of private third parties to speak in the public spaces it

controlled.

Logan Valley extended Marsh to the (then relatively new and exotic) context of a large public shopping mall, finding that it saw “no reason why access to

a business district in a company town for the purpose

of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district

should be limited simply because the property surrounding the ‘business district’ is not under the same

ownership.” 391 U.S. at 319. “Ownership does not always mean absolute dominion,” the Court explained.

Id. at 325. “The more an owner, for his advantage,

opens up his property for use by the public in general,

the more do his rights become circumscribed by the

statutory and constitutional rights of those who use

it.” Id. Therefore, the mall was “the functional equivalent of a ‘business block,’” a la Marsh, and “for First

Amendment purposes must be treated in substantially

the same manner.” Id. Following this logic, the Court

found that unions had a First Amendment right to

7

carry out their activities on private property that overrode owners’ right to exclude.2 Thankfully, this decision did not stand for very long.

The Court first reassessed Logan Valley’s right of

union access in a context distinct from labor activity —

handbilling against the Vietnam War. Like Logan Valley, the property owner in Lloyd Corp. v. Tanner operated a retail space in which third parties wished to

spread their message. 407 U.S. 551, 552–53 (1972).

The Court rejected analogies to Logan Valley, however, and commented that dicta in Logan Valley suggesting that “whenever a privately owned business

district serves the public generally its sidewalks and

streets become the functional equivalents of similar

public facilities” would be an “an incorrect interpretation of the Court’s decision in Marsh.” Id. at 562. It

therefore more or less limited Logan Valley to its facts,

but declined to overrule it. See id. at 563.

That same year, the Court likewise refused to apply

Logan Valley to a union organizing campaign. In Central Hardware Co. v. NLRB, as in Bobstock, nonemployee union organizers solicited employees in a private parking lot. 407 U.S. at 540–41. The Court rejected the idea that Logan Valley meant that any property “open to the public” was fair-game for union organizing, since “[t]o accept it would cut Logan Valley

entirely away from its roots in Marsh. It would also

constitute an unwarranted infringement of long-settled rights of private property protected by the Fifth

and Fourteenth Amendments.” Id. at 547. Union organizers had no general right to enter onto private

2 In the context of a space generally open to the pub-

lic, which is not the case of Petitioners here.

8

property, even retail property that might be generally

open to private patrons, for the purposes of soliciting

membership. To suggest so was to ask for an unwarranted infringement of the property rights protected

by the Fifth Amendment. Instead, the Court applied

Babcock, holding that the property owner’s right to exclude, even from public spaces, must be respected, emphasizing that “the principle of accommodation announced in Babcock is limited to labor organization

campaigns, and the ‘yielding’ of property rights it may

require is both temporary and minimal.” Id. at 545.

Just a few years later, the Court finally put Logan

Valley out of its misery. In Hudgens v. NLRB, striking

unionized warehouse workers picketed a retail location of their employer inside a private mall. 424 U.S.

507, 509 (1976). Employees of the shopping center (rather than their employer) demanded they leave, since

they were on the shopping center’s property. The

Court held that Logan Valley did not grant the picketers a right to trespass in the shopping center, finding

that “the rationale of Logan Valley did not survive the

Court’s decision in the Lloyd case” since “the ultimate

holding in Lloyd amounted to a total rejection of the

holding in Logan Valley.” Id. at 518. As in Central

Hardware, the Court explained that Babcock’s language allowing for some accommodation of union activity in derogation of property rights did not mean

they were equally important; rather under federal law

“[t]he locus of that accommodation, however, may fall

at differing points along the spectrum depending on

the nature and strength of the respective § 7 rights and

private property rights asserted in any given context.”

Id. at 522.

9

Two years later, in Sears v. San Diego County District Council of Carpenters, the Court elaborated that

“the burden imposed on the union is a heavy one” and

therefore “the balance struck by the [NLRB] and the

courts under the Babcock accommodation principle

has rarely been in favor of trespassory organizational

activity.” 436 U.S. 180, 205 (1978). The employer’s

property right to exclude “remains the general rule.”

Id. “To gain access, the union has the burden of showing that no other reasonable means of communicating

its organizational message to the employees exists or

that the employer’s access rules discriminate against

union solicitation.” Id.

Next in this saga of interrelated precedents came a

non-labor case, PruneYard Shopping Center v. Robins,

447 U.S. 74 (1980). Like Lloyd, PruneYard dealt with

conventional First Amendment activity at a private

shopping mall — soliciting petition signatures regarding a U.N. resolution. Unlike Lloyd, the state high

court had held that the state constitution’s cognate of

the federal free speech clause required that state law

property rules be subordinated to the speech at issue.

The Court distinguished Llyod on this basis, holding

that it did not “limit the authority of the State to exercise its police power or its sovereign right to adopt in

its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”

Id. at 81 (citing Cooper v. California, 386 U.S. 58, 62

(1967)). It was not the role of federal law “to define

‘property’ in the first instance.” Id. at 84. Therefore,

California’s limit on the right to exclude was acceptable.

PruneYard was foundational to the Ninth Circuit’s

decision below. And as Petitioners frankly

10

acknowledge, PruneYard represents “the low-water

mark for the right to exclude.” Pet. at 27. However, in

the four decades since the decision in PruneYard, this

Court has repeatedly cabined or distinguished its application. This Court has said several times that

PruneYard is limited to the context of a property

owner who voluntarily opens his land as a public

space. See id. (quoting Loretto v. Teleprompter Manhattan Catv Corp., 458 U.S. 419, 434 (1982) (“the

owner had not exhibited an interest in excluding all

persons from his property”)); Nollan v. Cal. Coastal

Com, 483 U.S. 825, 832 n.1 (1987) (PruneYard did not

apply “since there the owner had already opened his

property to the general public, and in addition permanent access was not required”); Horne v. Dep’t of Agric.,

576 U.S. 351, 364 (2015) (PruneYard applied to “an already publicly accessible shopping center”).

This Court righted the ship in Lechmere, Inc. v.

NLRB, 502 U.S. 527 (1992), which Petitioners rightly

explain “recognized the fundamental nature of the

right to exclude as it arises in labor relations.” Pet. at

26. As in this case, Lechmere addressed a labor organizing campaign — but unlike this case of private property not open to the public, Lechmere involved union

access to a public retail parking lot. 502 U.S. at 530.

The Court said definitively that Babcock applied, and

that Babcock’s allowance for union access in unusual

circumstances was very narrow. Id. at 534.

The Court explained that while Babcock allowed

for an exception when employees could be reached no

other way, “[t]here is no hint in Hudgens and Central

Hardware, however, that our invocation of Babcock’s

language of ‘accommodation’ was intended to repudiate or modify Babcock’s holding that an employer need

11

not accommodate nonemployee organizers unless the

employees are otherwise inaccessible.” Id. The Court

continued: “Indeed, in Central Hardware we expressly

noted that nonemployee organizers cannot claim even

a limited right of access to a nonconsenting employer's

property until ‘after the requisite need for access to the

employer's property has been shown.’” Id. (quoting 407

U.S. at 545). Therefore, “in practice, nonemployee organizational trespassing had generally been prohibited except where unique obstacles prevented nontrespassory methods of communication with the employees.” Id. at 535 (internal quotation marks omitted). “So

long as nonemployee union organizers have reasonable access to employees outside an employer’s property, the requisite accommodation has taken place. It

is only where such access is infeasible that it becomes

necessary and proper to take the accommodation inquiry to a second level, balancing the employees’ and

employers’ rights.” Id. at 538.

The Court provided examples of the few times

when Babcock’s test could be met: an isolated mining

camping or a remote mountain resort hotel. Id. at 539.

But as long as employees can participate in “the ordinary flow of information that characterizes our society,” Babcock’s exception will not apply. Id. at 540. Today, with instant access to the Internet from the palm

of your hand, and micro- and geo-targeting of marketing through social media, it is hard to imagine any circumstance where Babcock’s test, as explained in

Lechmere, could ever be met. Union organizers have

numerous alternative tools to find, target, and reach

workers without the need to strip employers of their

property rights.

12

A few years later, the Court summarized Lechmere

and Babcock together in a single sentence with an

opening phrase that makes clear the point: “And, of

course, an employer may as a rule limit the access of

nonemployee union organizers to company property.”

NLRB v. Town & Country Elec., 516 U.S. 85, 97 (1995).

Yet, the Ninth Circuit decided to ignore this Court’s

precedent in Lechmere and follow PruneYard instead.

This was a fundamental mistake that revives a longembalmed case and makes a mess of this Court’s otherwise consistent takings doctrine.

Not only has this Court declined to apply PruneYard outside the context of the public portion of a

shopping center, as explained above it has repeated affirmed the right to exclude, even in a public shopping

center, in the context of labor organizing, holding that

Babcock applies to determine the balance between the

rights of unions to organize and the property rights of

employers to exclude — and repeatedly emphasized

that the balance tilts towards property owners outside

of extraordinary circumstances.

If anything, the Petitioners’ right to exclude here is

stronger than in those other cases where the Court has

already recognized a right to exclude. This is not an

open-air shopping district, a public shopping mall, or

even a public retail parking lot. PruneYard’s allowance

for a state subordinating private property rights in the

context of a public space for core First Amendment activity should not apply to a private property owner who

operates a private space. Lechmere, decided 12 years

after PruneYard, makes the point clear — that case

limited union invasion of private property rights even

in the case of a parking lot. 502 U.S. at 530. Moreover,

the Babcock exception is not even arguably applicable

13

here: Petitioners’ employees live in hotels off-site, see

Pet. App. G-9 ¶¶ 26–27, Pet. App. G-11 ¶ 36, and can

therefore be readily communicated to without violating Petitioners’ right to exclude. There is simply no

justification for the State of California to override the

employers’ Fifth Amendment rights under current

precedent.

CONCLUSION

Since Babcock was first decided in 1956, this

Court’s jurisprudence on the right to exclude versus

the right to organize has consistently, though not completely, prioritized the common-law rights of private

property owners over the statutory rights of labor organizers. When state action is present, as it is here,

that common-law right to exclude is a constitutional

right to prevent a taking. The Ninth Circuit’s use of

PruneYard is contrary to this Court’s later development of the doctrine, especially in Lechmere, and this

error should be corrected.

Respectfully submitted,

January 7, 2021

Jeffrey M. Schwab

Counsel of Record

Daniel Suhr

Reilly Stephens

LIBERTY JUSTICE CENTER

208 LaSalle St., Ste. 1690

Chicago, IL 60604

(312) 637-2280

jschwab@libertyjusticecenter.org