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

Supreme Court briefFeb 12, 2021

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TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

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

STATEMENT ..............................................................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................6

Petitioners’ Theory Is Inconsistent

With This Court’s NLRA Jurisprudence ..............................................................8

Petitioners’ Theory Is Inconsistent

With This Court’s Takings Jurisprudence ............................................................ 16

Petitioners’ Proposed Rule Would

Invalidate

Many

Longstanding

Regulations That Allow for Access to

Commercial Property, and the Efforts

of Petitioners’ Amici to Control the

Damage Only Highlight the Rule’s

Deficiencies ................................................ 19

CONCLUSION .......................................................... 28

TABLE OF AUTHORITIES

Page(s)

Cases

Agric. Labor Rels. Bd. v. Superior Ct.,

546 P.2d 687 (Cal. 1976) ............................ 2, 15, 16

Edward J. DeBartolo Corp. v. Fla. Gulf

Coast Bldg. & Constr. Trades

Council, 485 U.S. 568 (1988) ............................... 14

Henry Moreno, 3 A.L.R.B. No. 40 (1977) .................... 1

Hudgens v. NLRB, 424 U.S. 507 (1976) ................... 15

Lechmere, Inc. v. NLRB, 502 U.S. 527

(1992) .................................................................... 10

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982) .................. 18, 27

Lucile Salter Packard Children’s Hosp.

v. NLRB, 97 F.3d 583 (D.C. Cir.

1996) ..................................................................... 10

Machinists v. Street, 367 U.S. 740

(1961) .................................................................... 14

Martin v. City of Struthers, 319 U.S.

141 (1943) ............................................................. 11

McCulloch v. Sociedad Nacional de

Marineros de Honduras, 372 U.S. 10

(1963) .................................................................... 14

NLRB v. Babcock & Wilcox Co., 351

U.S. 105 (1956) ............................................... 10, 11

NLRB v. Cath. Bishop of Chi.,440

Chicago, U.S.

440 U.S.

490 (1979) ............................................................. 14

iii

NLRB v. Lake Superior Lumber Corp.,

167 F.2d 147 (6th Cir. 1948) ................................ 10

NLRB v. S & H Grossinger’s Inc., 372

F.2d 26 (2d Cir. 1967) .......................................... 10

NLRB v. Stowe Spinning Co., 336 U.S.

226 (1949) ............................................................. 10

Nollan v. Cal. Coastal Comm'n, 483

U.S. 825 (1987) ............................................... 17, 24

Pandol & Sons v. Agric. Labor Rels. Bd.

of Cal., 429 U.S. 802 (1976) ................................. 16

Penn Cent. Transp. Co. v. New York

City, 438 U.S. 104 (1978) ....................................... 7

Peyton Packing, 49 N.L.R.B. 828 (1943) ..................... 9

PruneYard Shopping Ctr. v. Robins, 447

U.S. 74 (1980) ............................................. 4, 16, 17

Republic Aviation v. NLRB, 324 U.S.

793 (1945) ............................................................... 9

Sears, Roebuck & Co. v. San Diego Cnty.

Dist. Council of Carpenters, 436 U.S.

180 (1978) ............................................................. 11

Stanley v. Georgia, 394 U.S. 557 (1969) ................... 11

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Plan. Agency, 535 U.S.

302 (2002) ............................................................. 20

Statutes

29 U.S.C. § 157 ............................................................ 8

29 U.S.C. § 158 ............................................................ 8

30 U.S.C. § 813 .......................................................... 23

Cal. Code Regs. tit. 8, § 20900 .................................... 2

Other Authorities

30 C.F.R. § 40.1 ......................................................... 23

43 Fed. Reg. 29508 (July 7, 1978) ............................. 23

Restatement (First) of Torts (1934) .............. 5, 8, 9, 20

Einer Elhauge, Contrived Threats

Versus Uncontrived Warnings: A

General Solution to the Puzzles of

Contractual Duress,

Unconstitutional Conditions, and

Blackmail, 83 U. Chi. L. Rev. 503

(2016) .................................................................... 23

Michael H. Gottesman, Wither Goest

Labor Law: Law and Econonics

Economicsin

the Workplace, 100 Yale L.J. 2767

(1991) .................................................................... 22

INTEREST OF AMICUS CURIAE

The Service Employees International Union

(SEIU) submits this brief amicus curiae with the parties’ consent. 1 SEIU is an international labor

organization representing 2 million workers belonging to more than 150 local union affiliates. SEIU and

its affiliates often seek access to employer property for

purposes of organizing new workers and representing

existing workers under access rules whose constitutionality would be called into doubt if Petitioners’

interpretation of the Takings Clause were accepted.

STATEMENT

Shortly after California passed the Agricultural

Labor Relations Act (ALRA), which for the first time

extended to farmworkers the right to form unions and

the right to engage in collective bargaining to better

their working conditions, the California Agricultural

Labor Relations Board (ALRB) held hearings to determine whether and to what extent California’s

farmworkers would be in a position to learn about

these rights and the advantages of exercising them.

See Henry Moreno, 3 A.L.R.B. No. 40, at 4 (1977). The

ALRB found that California’s farmworkers, nearly all

of whom are seasonal workers who move from employer to employer as different crops become ready to

harvest—and many of whom do not speak English and

are illiterate even in their native tongues—were, as a

1 No counsel for a party authored this amicus brief in whole

or in part and no person other than SEIU has made any monetary contributions intended to fund the preparation or

submission of this brief. Both parties consented to the filing of

this brief.

practical matter, inaccessible to union organizers interested in communicating with them about the

advantages of self-organization. See Agric. Labor Rels.

Bd. v. Superior Ct., 546 P.2d 687, 702 (Cal. 1976).

Even among those farmworkers who did not live on

the land of their employers, many lived in transient

dwellings such as motels. Id.

To balance the interest in informing farmworkers

about the advantages of self-organization with the

property interests that agricultural employers have in

their open fields, the ALRB promulgated the regulation at issue here. Cal. Code Regs. tit. 8, § 20900. The

regulation allows union organizers a restricted right

of access to those parts of the fields owned by agricultural employers where the employers themselves

allow their employees to congregate before and after

work and for lunch. Id. § 20900(e). The access right

may be exercised for no more than four 30-day periods

per year, and for no more than three one-hour periods

per day (one hour before work, one after, and one during lunch). Id. §§ 20900(e)(1), 20900(e)(3). Organizers

may use the access right only to speak to employees

about the advantages of exercising their statutory

rights, and may not engage in disruptive behavior. Id.

§ 20900(e)(4)(C). The regulation thus limits access “in

purpose, in time and place.” Agric. Labor Rels. Bd.,

546 P.2d at 692.

SUMMARY OF ARGUMENT

Petitioners ask this Court to adopt a “simple” rule

that would classify as a “per se taking” any regulation

requiring landowners to provide periodic access to

their property to third parties whom the owner otherwise could have excluded. They say that all such

regulatory access requirements—even if sharply restricted in area, in time, and in purpose—require the

government to pay compensation to the landowner for

the taking of what Petitioners define as an “easement

in gross.”

Petitioners’ proposed rule should be rejected for

three reasons.

First. The proposed rule is inconsistent with decades of precedents under the National Labor

Relations Act, including precedents of this Court. The

National Labor Relations Board, from the inception of

the NLRA, has held (i) that the property right that an

employer would otherwise possess to exclude off-duty

employees from its premises must yield to the employees’ statutory right to communicate with their fellow

employees; and (ii) that this same employer property

right must yield, albeit in a much narrower range of

circumstances, to employees’ right to hear about the

advantages of unionization on employer property from

nonemployee organizers.

If Petitioners’ theory as to what constitutes a Fifth

Amendment “taking” were applied to the NLRA access rules just described, those rules—which have

been enforced with this Court’s approval from the

1940s forward—would be unconstitutional, as they

would effectuate “per se” takings. Though Petitioners

do not acknowledge this reality, perhaps out of a

recognition that to do so would reveal how radical

their takings theory truly is, their “simple” proposed

rule cannot be reconciled with this Court’s NLRA access jurisprudence.

Second. Petitioners’ proposed rule is inconsistent

with this Court’s takings jurisprudence.

While Petitioners’ position is that any state law

that would authorize a person to periodically enter the

land of another to take some action effectuates a “per

se” taking, this Court, in PruneYard Shopping Center

v. Robins, 447 U.S. 74 (1980), unanimously upheld a

law that did precisely that. The law required shopping

center owners to allow onto their property individuals

who were not there for the owner-authorized purposes

of shopping, dining, strolling, or working but instead

were there, over the owner’s objection, to engage in

speech and petitioning activities directed to those who

were on the property at the owner’s invitation. In upholding that law, the Court applied its regulatory

takings jurisprudence and did not treat the right of

access for speech and petitioning that the law created

as a “per se” taking.

Third. If taken at face value, Petitioners’ proposed

rule would imperil numerous common types of access

regulations previously considered uncontroversial,

thereby seriously weakening the ability of government at all levels to function effectively to advance the

public interest.

We say “if taken at face value,” because even the

Petitioners’ most prominent amici—the United States

and the Chamber of Commerce—recoil at the implications of Petitioners’ rule in its proposed form. These

amici urge the Court to recognize a pair of amorphous

exceptions to Petitioners’ proposed rule—a “police

power” exception and a “constitutional conditions” exception—that presumably would function as

affirmative defenses.

These exceptions are so indeterminate and so

poorly explained by amici that it is (a) unclear why the

ALRB regulation at issue here would not be saved

from invalidation by the proposed exceptions, and (b)

equally unclear why the sorts of longstanding and

popular health-and-safety regulations that amici wish

to preserve would be saved by them.

Moreover, it is unclear as to how amici’s proposed

exceptions would apply to other types of regulation.

As one example, consider a law providing that private

schools must allow deaf students to bring a sign-language interpreter into classrooms with them if they

are willing to pay the cost of the interpreter’s time. It

is impossible to say whether this law would be saved

by amici’s proposed exceptions.

This Court has stressed that regulations falling

into the “per se” takings category are relatively rare.

But even when the first Restatement of Torts was

published in 1934, regulations providing governmental representatives and private parties with periodic

access to others’ property were so ubiquitous that the

authors devoted Section 211, captioned “Entry Pursuant to Legislative Authority or Duty,” to that topic,

and observed in the commentary that “[w]hether the

actor is a public official or a private person is immaterial to the existence of the privilege.” Restatement

(First) of Torts § 211 & cmt. d (1934).

While regulations of this kind, if they go too far in

restricting a property owner’s right to exclude, are

subject to invalidation under the regulatory takings

doctrine, they are not categorically unconstitutional.

ARGUMENT

Petitioners ask this Court to adopt a rule that

would classify as a “per se taking” any “law” or governmental “course of conduct” requiring landowners

to provide periodic access to their property to third

parties whom the owner otherwise could have excluded. Pet’rs’ Br. 1. Petitioners’ proposed “per se”

classification would apply even where the access is

sharply restricted in area, in time, and in purpose: in

area, only to that portion of the property where the

owner, for its commercial advantage, already allows

other third parties to congregate; in time, only to those

hours in the day when those other third parties are

expected to be congregating on the premises; and in

purpose, only to allow the access recipient to meet and

talk with those other third parties pursuant to the exercise of a statutory right—here, the right accorded to

farmworkers to learn about the advantages of self-organization from a union.

According to Petitioners, all periodic-access regulations—no matter how restricted in area, time, and

purpose—“function as if the government had taken an

easement.” Pet’rs’ Br. 1. From that premise, Petitioners ask the Court to adopt the following categorical

rule: “whenever the government expresses the intent—either by force of law or through a course of

conduct—to appropriate a time-limited easement, it

effects a per se taking.” Id. Petitioners treat the

breadth and sweep of their proposed rule as a virtue,

touting it as a “simple,” “bright-line,” and “easy to apply” standard for determining when a law or

regulation providing for time-limited access to property is unconstitutional if no compensation is paid to

the property owner. Pet’rs’ Br. at 16, 29, 33, 35.

Petitioners say that “[b]y that standard, Petitioners Cedar Point Nursery and Fowler Packing

Company should win.” Pet’rs’ Br. 1. At the same time,

however, Petitioners make no claim that they should

win under the multi-factor test applicable to regulatory takings. That test requires courts to consider the

character of the government action, the impact of the

action on the property owner’s parcel, and the impact

on the owner’s investment-backed expectations. Penn

Cent. Transp. Co. v. New York City, 438 U.S. 104, 124

(1978).

As we will show, Petitioners’ proposed categorical

rule is inconsistent with decades of precedents under

the National Labor Relations Act, including NLRA

precedents of this Court. The proposed rule is inconsistent as well with this Court’s takings

jurisprudence. And, if taken at face value, the proposed rule would not only require jettisoning

established precedents, it would imperil numerous

common types of access regulations previously considered uncontroversial, thereby seriously weakening

the ability of government at all levels to function effectively to advance the public interest.

Even the Petitioners’ most prominent amici—the

United States and the Chamber of Commerce—recoil

at the implications of Petitioners’ proposed rule if

taken at face value. Recognizing that application of

the proposed rule in that form would lead to invalidation of common, longstanding, and widely accepted

health-and-safety regulations, they devote considerable space to urging the Court to recognize a pair of

amorphous exceptions to Petitioners’ proposed rule.

These exceptions may mitigate some of the proposed

rule’s pernicious effects, but they also deprive it of the

simplicity and predictability that Petitioners trumpet

as its signal virtue. Worse, they raise the specter that

the “rule” will simply become a vehicle through which

unelected judges pick and choose access regulations

for “per se” invalidation based on policy preferences,

not on neutral property-law principles or in accordance with the time-tested factors used in this Court’s

regulatory takings jurisprudence.

Petitioners’ Theory Is Inconsistent With

This Court’s NLRA Jurisprudence

1. Section 7 of the National Labor Relations Act

guarantees to “[e]mployees” “the right to self-organization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their

own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other

mutual aid or protection.” 29 U.S.C. § 157. Section 8

of the Act protects those employee rights against employer “interfer[ence], restrain[t], or coerc[ion].” Id.

§ 158.

The NLRA’s text makes no reference to property

rights, whether in employer premises or otherwise.

Under common-law property principles, employees

are invitees of their employer but become trespassers

both when they enter or remain on employer premises

outside the periods authorized by the employer and

when they engage in activities on employer property

beyond the scope of those permitted by their employer.

See Restatement (First) of Torts § 170 (1934) (“A consent given by a possessor of land to the actor’s

presence thereon during a specified period of time

does not create a privilege to enter or remain on the

land at any other time.”); id. § 168 (“A conditional or

restricted consent to enter land creates a privilege to

do so only in so far as the condition or restriction is

complied with.”).

2. Notwithstanding these common-law property

principles, the National Labor Relations Board, with

this Court’s approval, has held from the inception of

the NLRA that § 8 bars employers from adopting or

enforcing rules that prohibit employees from entering

employer property before their shift begins or remaining on the property after their shift ends for the

purpose of soliciting other employees to join a union.

The leading early case on this point is Peyton Packing,

49 N.L.R.B. 828 (1943), enforced sub nom. NLRB v.

Peyton Packing Co., 142 F.2d 1009 (5th Cir. 1944). In

Peyton Packing, the Board held that because “[t]ime

outside working hours, whether before or after work,

or during luncheon or rest periods, is an employee’s

time to use as he wishes without unreasonable restraint, although the employee is on company

property,” it is “not within the province of an employer

to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours,

although on company property.” Id. at 843. “Such a

rule must be presumed to be an unreasonable impediment to self-organization.” Id.

In Republic Aviation v. NLRB, 324 U.S. 793, 804

(1945), this Court approved the Peyton Packing rule,

finding it to be grounded in a proper interpretation of

§ 7 of the NLRA. On that basis, the Court upheld an

NLRB decision finding that an employer who prohibited its employees from distributing union literature

in its worksite parking lot before or after their assigned shifts had interfered with the employees’ § 7

rights. Id. at 804-05. In so holding, the Court firmly

established that § 7 vested off-duty employees with a

new right of access to their employer’s premises that

they lacked under common-law property principles.

In a distinct but equally venerable line of cases, the

NLRB has held, also with the approval of this Court,

that, under circumstances much more limited than

those applicable to employees, employers sometimes

must provide access to employer property to nonemployee union organizers who wish to communicate

with employees. See NLRB v. Babcock & Wilcox Co.,

351 U.S. 105, 111, 113 (1956).

First, an employer must provide access to union organizers when the employer has granted access to

similarly situated third parties. NLRB v. Stowe Spinning Co., 336 U.S. 226, 233 (1949); Lucile Salter

Packard Children’s Hosp. v. NLRB, 97 F.3d 583, 587

(D.C. Cir. 1996). Second—and more directly pertinent

to the instant case—if the location of a worksite and

the living arrangements of the employees place the

employees “beyond the reach of reasonable union efforts to communicate with them, the employer must

allow the union to approach his employees on his

property.” Babcock, 351 U.S. at 113. Classic locations

that meet this test are lumber camps and mountain

resorts. See Lechmere, Inc. v. NLRB, 502 U.S. 527,

539-40 (1992) (citing NLRB v. Lake Superior Lumber

Corp., 167 F.2d 147 (6th Cir. 1948) (lumber camp),

and NLRB v. S & H Grossinger’s Inc., 372 F.2d 26 (2d

Cir. 1967) (resort)).

Nonemployees’ access is limited to these particular

circumstances because nonemployees are not themselves directly protected by § 7; their claim to access

is one step removed, resting on the principle that the

employees’ § 7 “right of self-organization depends in

some measure on the ability of employees to learn the

advantages of self-organization from others.” Babcock, 351 U.S. at 113. Put another way, the right that

a nonemployee organizer has under the NLRA to

speak to employees on an employer’s property “is a derivative of the right of that employer’s employees to

exercise their organization rights effectively.” Sears,

Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180, 206 n.42 (1978). Cf. Stanley v.

Georgia, 394 U.S. 557, 564 (1969) (even speech communicated by speakers who are not covered by the

First Amendment enjoys some protection, as “[i]t is

now well established that the Constitution protects

the right to receive information and ideas”) (citing

Martin v. City of Struthers, 319 U.S. 141, 143 (1943)).

3. If Petitioners’ theory as to what constitutes a

Fifth Amendment “taking” were applied to the NLRA

access rules just described, those rules, which have

been enforced with this Court’s approval for decades,

would be unconstitutional, as they would effectuate

“per se” takings without providing the employer with

compensation. Though Petitioners do not acknowledge this reality, perhaps out of a recognition that to

do so would reveal how radical their takings theory

truly is, a review of the elements of their theory makes

it abundantly clear that the theory is incompatible

with NLRA access rules developed by the NLRB and

approved by this Court.

The Petitioners’ takings theory begins with the

premise that the access right created by the California

ALRB regulation is a type of “easement in gross.”

Pet’rs’ Br. 20. In support of that premise, Petitioners

cite to Judge Ikuta’s dissent below—indeed, only to

that dissent. Id. 20-21. The dissent’s full definition of

an “easement in gross” is: “[t]he right to enter onto the

land of another to take some action,” App. E-23—a

definition that the dissent says the ALRB regulation

satisfies by giving union organizers “the right to enter

onto employers’ private property to ‘meet and talk

with employees and solicit their support,’” id. (cleaned

up). Building on that premise, the Petitioners’ takings

theory concludes by asserting that any regulation that

confers an easement in gross over a landowner’s property constitutes a “per se taking” of that property.

Pet’rs’ Br. 23.

The NLRA access rules meet Petitioners’ definition

of an “easement in gross” in the same way that the

ALRB’s access regulation does. Each of the NLRA

rules confers on persons who otherwise would be trespassers (off-duty employees and nonemployee

organizers) “the right to enter onto the land of another

to take some action.” Indeed, the “some” action that

the ALRB regulation authorizes union organizers to

take—“meeting and talking with employees and soliciting their support”—is the same action that the

NLRA access rules authorize off-shift employees and

nonemployee union organizers to take. If Petitioners’

theory were correct, then the numerous decisions of

this Court and the lower federal courts sustaining

NLRB decisions granting access to off-duty employees

and nonemployee organizers over a span of decades all

would be wrong.

It is no answer for Petitioners to say that the access right guaranteed by the ALRB regulation is

available to nonemployee organizers in a broader

range of circumstances than is the NLRA access right.

For even assuming that proposition to be true, 2 Petitioners fail to explain why the NLRA access right

available to nonemployee organizers does not create

an “easement in gross” in the circumstances in which

the NLRA right attaches, such as when the worksite

is a remote lumber camp. Nor do Petitioners even

acknowledge the existence of the NLRA access right

recognized by this Court in its Republic Aviation holding—a right available for organizing purposes to offduty employees who, but for the existence of that

right, would also be trespassers. See supra at 8-9.

4. It is not just the outcomes of NLRA access cases

that are inconsistent with Petitioners’ theory. This

Court’s entire methodological approach toward resolving those cases is inconsistent with the theory that a

government grant to a third party of “the right to enter onto the land of another to take some action”

constitutes a “per se” taking of that land.

To begin with, in none of this Court’s cases in the

NLRA access area—including in cases reversing

2 In point of fact, Petitioners overstate the difference. They

suggest, for example, that seasonal or transient farm employees

who reside during a harvesting season in offsite employer-paid

hotels are necessarily accessible under the NLRA standard. See

Pet’rs’ Br. 11. But they fail to recognize (i) that the hotels themselves are private property from which the hotel owner can

exclude union organizers without regard to whether any or all of

the employees staying there would welcome union visits, and (ii)

that a hotel owner whose source of payment is the employer, not

the farmworkers, has incentives that are not apt to align with a

decision to provide access to union organizers.

NLRB decisions granting access—has the Court suggested that the NLRB even came close to effectuating

an unconstitutional “taking” of employer property,

much less a “per se” taking.

Nor has the Court invoked the doctrine of constitutional avoidance in this area, even though in

reviewing NLRB decisions in many other areas, the

Court has “repeatedly” invoked that doctrine to avoid

clashes with constitutional provisions. NLRB v. Cath.

Bishop of Chicago, 440 U.S. 490, 499-500 (1979) (interpreting the NLRA to avoid potential infringements

on religious-institution autonomy protected by the

First Amendment’s religion clauses; and noting that

the Court had previously construed the NLRA to avoid

potential infringements of nonunion employees’ freedom of association, see Machinists v. Street, 367 U.S.

740 (1961), as well as potential violations of separation of powers involving the authority of the Executive

over relations with foreign nations, see McCulloch v.

Sociedad Nacional de Marineros de Honduras, 372

U.S. 10 (1963)). See also Edward J. DeBartolo Corp.

v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485

U.S. 568, 575 (1988) (construing NLRA to avoid potential infringement on labor organization free speech

rights).

Instead of viewing the question of NLRA access

rights through a Fifth Amendment lens, the Court

long has held that the question is one of ordinary statutory construction, with the NLRB having the chief

responsibility for balancing the interest in safeguarding employees’ § 7 rights (both direct and derivative)

against the interest in protecting employer property

rights.

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

after rejecting the proposition that the First Amendment required owners of shopping malls to provide

greater access to their property than that required by

the NLRA, the Court set out in the clearest possible

terms that the question of access was one of statutory

construction, not of constitutional law:

[T]he rights and liabilities of the parties in this

case are dependent exclusively upon the National

Labor Relations Act. Under the Act the task of the

Board, subject to review by the courts, is to resolve

conflicts between § 7 rights and private property

rights, and to seek a proper accommodation between the two….

The 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. In each generic situation, the primary

responsibility

for

making

this

accommodation must rest with the Board in the

first instance.

Id. at 522-23 (emphasis added; internal quotation

marks and citations omitted). The Court then remanded the case to the NLRB for consideration

“under the statutory criteria of the National Labor Relations Act alone.” Id. at 523 (emphasis added).

It was only five months after Hudgens was decided

that the California Supreme Court’s decision in Agricultural Labor Relations Board v. Superior Court, 546

P.2d 687 (Cal. 1976), came to this Court pursuant to

what was then the Court’s mandatory appellate jurisdiction. In that case, the California Supreme Court

rejected a takings challenge to the very same ALRB

regulation that is at issue here after acknowledging

that the regulation would likely allow nonemployee

organizers access in some circumstances where the

NLRA’s rules would not. Id. at 699. This Court, consistent with its view expressed in Hudgens that linedrawing decisions concerning matters of union access

to employer property present quintessential questions

of statutory construction and not substantial questions of constitutional law, dismissed the appeal for

want of a substantial federal question. See Pandol &

Sons v. Agric. Labor Rels. Bd. of Cal., 429 U.S. 802

(1976).

Petitioners’ Theory Is Inconsistent With

This Court’s Takings Jurisprudence

It is not only NLRA precedents that are in conflict

with Petitioners’ theory. This Court’s Takings Clause

precedents likewise are in conflict with that theory.

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

(1980), is the most relevant precedent in this regard.

The central question in PruneYard was whether

state constitutional provisions that permitted individuals to enter and remain on the grounds of a privatelyowned shopping center, over the owner’s objection, for

the purpose of engaging in peaceful speech and petitioning activity during business hours violated the

federal constitution’s Takings Clause. The Court

unanimously answered that question in the negative.

Id. at 84.

The Court recognized that “one of the essential

sticks in the bundle of property rights is the right to

exclude others,” but it held that the provisions’ impact

on that stick did not effectuate a per se taking of the

shopping center’s property and instead triggered, and

survived, regulatory-takings scrutiny under the

multi-factor test described supra at 7. Id. at 82-84.

PruneYard is flatly inconsistent with Petitioners’

theory that when the government grants itself or a

private party “the right to enter onto the land of another to take some action,” the government effectuates

a “per se” taking through the appropriation of an

“easement in gross.” For what the state constitutional

provisions granted third-party speakers in PruneYard

was precisely “the right to enter onto the land of another to take some action,” namely, action in the form

of speech and petitioning directed to and communicated in the presence of those already invited onto the

property by its owner (there, circulation of a petition

protesting a U.N. resolution).

The fact that the shopping center owner in PruneYard allowed on the property those members of the

public who were there for other purposes, including

shopping, dining, strolling, or working for one of the

mall’s stores, does not detract from the reality that the

state constitutional provisions challenged in that case

required the owner to allow, over his objection, additional persons to enter onto the property for

additional purposes, including soliciting others on the

property to sign petitions. On Petitioners’ definition,

that is an “easement in gross” and is no different, in

property-law terms, from the access here.

Furthermore, in Nollan v. California Coastal Commission, 483 U.S. 825, 832 n.1 (1987), this Court

explained that the provisions challenged in PruneYard did not trigger per se analysis because, inter

alia, (i) they did not grant “permanent access” to the

petition circulators and other beneficiaries of the access grant but only access during business hours when

other third parties were already on the property; and

(ii) they did not grant a “classic right-of-way easement” but only access to the shopping center’s general

grounds rather than some dedicated strip of land or

delineated pathway that the access holder could record on a map and claim a specific right to possess. The

same is true of the ALRB regulations challenged here.

Nothing in them requires the employer/landowner to

dedicate any particular portion of its land to union organizing; the employer can choose from time to time

where its employees may congregate and eat lunch

and thereby determine for itself where the organizer

access is to occur.

It should come as no surprise, then, that when this

Court held in Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982), that the permanent

installation of cable boxes on the roofs of apartment

owners were “per se” takings, it distinguished both its

PruneYard decision and its NLRA access decisions on

the same ground: namely, that access rights accorded

to those who wish to enter another’s property to communicate with third parties already invited on the

property during the times of day those third parties

are present are not akin to permanent physical occupations or permanent invasions that qualify as per se

takings. Id. at 434 & n.11.

For this reason, the United States could not be

more wrong in stating that the ALRB’s access regulation is indistinguishable from the complete physical

occupation of the owner’s property that was effectuated in Loretto. U.S. Br. 21. Despite the clear

difference between this case and Loretto, the United

States insists that the ALRB regulation, like the installation of the cable box, “does not simply take a

single strand from the bundle of property rights: it

chops through the bundle, taking a slice of every

strand” and thereby puts the property owner in the

position where he “loses the power to exclude third

parties from possession and use of that space.” U.S.

Br. 21 (emphasis added; brackets and internal quotation marks omitted). As in PruneYard, and unlike in

Loretto, there is no “that space” that the ALRB regulation ever causes to be permanently occupied, since

an agricultural employer can choose from time to time

where it allows its employees to congregate, and organizers are allowed in any one given area only for a

maximum of one hour at a time.

Petitioners’ Proposed Rule Would Invalidate Many Longstanding Regulations

That Allow for Access to Commercial

Property, and the Efforts of Petitioners’

Amici to Control the Damage Only Highlight the Rule’s Deficiencies

1. In its amicus brief in support of Petitioners, the

United States candidly recognizes that the ALRB regulation is far from unique “given the wide range of

federal statutes and regulations that also require access to private property in certain circumstances.”

U.S. Br. 1. Another of Petitioners’ prominent amici,

the Chamber of Commerce, likewise acknowledges the

existence of “the many longstanding health and safety

inspection regimes enforced by the federal government and the States.” Chamber Br. 5. Laws and

regulations authorizing limited entries onto land are

indeed so common and of such long standing that,

even at the time of the publication of the first Restatement of Torts in 1934, the authors devoted Section

211, captioned “Entry Pursuant to Legislative Authority or Duty,” to that topic, and observed in the

commentary that “[w]hether the actor is a public official or a private person is immaterial to the existence

of the privilege.” Restatement (First) of Torts § 211 &

cmt. d (1934). 3

While the United States and the Chamber of Commerce try to reassure the Court in various ways that

a reversal of the decision below need not imperil every

statute and regulation composing this “wide range” of

“longstanding” statutes and regulations, it is telling

that neither amicus denies that Petitioners’ proposed

“simple” rule would in fact reach those statutes and

regulations and deem them “per se” takings. Nor could

amici deny that point. Petitioners’ “simple” rule, as we

have stressed, is that it constitutes a “per se” taking

for the government to adopt a regulation that manifests an intent to grant a private party or the

government’s own agents “the right to enter onto the

land of another to take some action.” See supra at 6-7.

Every onsite inspection statute and other access regulation does precisely that.

This Court has stressed that “per se” takings are

“relatively rare.” Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Plan. Agency, 535 U.S. 302, 324 (2002).

And the very fact that Petitioners’ amici acknowledge

that there is a wide range of longstanding statutes

and regulations that confer “the right to enter onto the

3 The Restatement does not comment on the constitutionality

of such access regulations; we cite it to establish the ubiquity of

such regulations even before the New Deal era.

land of another to take some action” is reason enough

to turn away from Petitioners’ proposal to analyze

such regulations under the Court’s “per se” takings jurisprudence rather than under the Court’s regulatory

takings jurisprudence.

But the United States and the Chamber of Commerce nevertheless press for “per se” treatment while

also urging that the kinds of statutes, regulations, and

inspection regimes that they would like to see preserved can survive a ruling in Petitioners’ favor, so

long as the Court adopts their proposed exceptions to

Petitioners’ proposed rule—exceptions that presumably would operate as affirmative defenses to a prima

facie case of a “per se” taking.

Thus, the United States contends that a government could defend against a per se taking claim

brought under Petitioners’ proposed rule by showing

that the property to which the access regulation applied was “held subject to certain core exercises of the

police power.” U.S. Br. 29. And the Chamber, along

with the United States, contends that a government

could also defend by showing that a challenged regulation is a reasonable condition on the right of the

regulated business to engage in a given type of commercial activity. Chamber Br. 19-21; U.S. Br. 31. The

Chamber develops this point by suggesting that the

courts could apply the “unconstitutional conditions”

doctrine to determine when a government regulation

requiring a company to grant property-access rights is

permissible as “a germane condition on market participation” or is, instead, impermissible because nongermane. Chamber Br. 19, 22.

2. It would be an understatement to call these exceptions amorphous and indeterminate.

a. As to the United States’ proposed “certain

core exercises of the police power” defense, the italicized words make it impossible to predict which

regulations would qualify for the proposed defense

and which would not.

More specifically, the United States fails to explain

why California’s Agricultural Labor Relations Act and

the ALRB’s implementing regulations are not themselves core exercises of the police power. Working

conditions in agricultural fields are strenuous and

hazardous, often involving long days in the hot sun,

contact with pesticides, and exposure to other dangers. It is a classic exercise of police power for a State,

such as California, to determine that an effective way

to address those conditions is not just to enact minimum safety standards but also to encourage collective

bargaining that empowers workers to play a role in

determining the appropriate trade-offs between and

among wages, safe working conditions, and other

terms of employment. See generally Michael H.

Gottesman, Wither Goest Labor Law: Law and Economics in the Workplace, 100 Yale L.J. 2767, 2795

(1991) (observing that traditional “[g]overnment [occupational health] regulation takes control of the

workplace away from both employer and employees,

imposing rigid terms that may not correspond to either’s desire,” whereas, under “collective bargaining

… [e]mployees participate with employers in shaping

rules that are tailored to their workplace and that reflect the interests of both”).

It is likewise an exercise of the police power to authorize private parties to accompany government

officials on worksite safety inspections over the objection of the employer. Indeed, Congress has done just

that in the Federal Mine Health and Safety Act of

1977, which allows union and nonunion employee representatives to have such access to mine owners’

property during periodic inspections. See 30 U.S.C.

§ 813(f); 30 C.F.R. § 40.1; 43 Fed. Reg. 29508 (July 7,

1978) (preamble to 30 C.F.R. § 40.1).

If only direct, top-down government-imposed regulations of workplace conditions count as qualifying

exercises of the “police power” under the United

States’ definition of that term, but regulations like the

ALRB’s—aimed at empowering employees by ensuring that they have the information necessary to

address those conditions themselves—do not count,

the definition is indeterminate and conclusory. It is

not at all useful in separating access regulations eligible for the proposed “police power” defense to

Petitioners’ proposed per se takings rule from those

that are ineligible.

b. As to the proposal that application of the “unconstitutional conditions” doctrine can save from

invalidation inspection or other access regulations

deemed desirable, that proposal is plagued by at least

as much indeterminacy as the proposed “certain core

exercises of the police power” defense. Courts struggle

to “find useful guidance from the general unconstitutional-conditions doctrine because it has been deemed

conclusory, incoherent, and infamously inadequate.”

Einer Elhauge, Contrived Threats Versus Uncontrived

Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and

Blackmail, 83 U. Chi. L. Rev. 503 (2016) (quotation

marks omitted).

The proposal for applying the unconstitutional

conditions doctrine here is especially problematic.

That is because amici invoke cases like Nollan, supra,

where the question is whether a property owner who

is seeking a governmental permit to expand or improve the owner’s real property itself can reasonably be

compelled as a condition of receiving that permission

to accept some concession that will mitigate the impact of that real-property improvement. Nollan, 483

U.S. at 836.

Where the government is attempting through an

onsite inspection regime to accomplish a public purpose that the legislature considers important

regardless of what land-use plans the regulated businesses might have in mind, it makes no sense to ask

whether imposing the access requirement on the pertinent businesses is an unconstitutional condition. It

makes sense only to evaluate the constitutionality of

the access requirement directly and on its own terms.

Otherwise, it would appear that even the publicsafety inspection regimes that amici are most focused

on preserving from invalidation could not be implemented on an across-the-board basis but could only be

phased in sporadically and at a fortuitous pace dictated by when particular businesses happened to be

seeking building permits or other forms of favorable

governmental action.

If the Chamber of Commerce’s proposed “constitutional conditions” defense is not so mechanical as to be

available only when the government could tie it to

some new-construction or other land-use permit application but instead asks more generally whether a

particular access regulation is “a germane condition

on market participation,” Chamber Br. 22, then it is

difficult to see why it would be unavailable here.

Large agricultural businesses like Petitioners are

highly regulated to prevent, among other things, overproduction, overuse of pesticides, and harmful

environmental practices. They also employ large numbers of employees under strenuous and hazardous

conditions.

The

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The Chamber

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state like California cannot determine that, just as it

is a germane condition on participation in the food and

drug market that each business agree to periodic onon

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facilities, Chamber Br. 20, it is also a germane condicondi

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3. Indeterminate rules are problematic in any context. But given that what is at stake in this area of the

law is the constitutionality of regulations adopted by

the politically accountable branches of government,

the indeterminacy of amici’s approach is especially

troubling. It poses a serious risk that “per se” takings

litigation will devolve into a vehicle through which unelected judges can pick and choose access laws for “per

se” invalidation based on unconstrained policy preferences, rather than on application of the time-tested

regulatory-takings framework that this Court has employed in cases like PruneYard.

We have already noted that amici themselves suggest that only laws authorizing inspections to protect

public health, but not laws targeted at protecting employees, merit rescue by way of affirmative defense

from Petitioners’ proposed per se rule. 4 But there are

other types of laws that Plaintiffs’ proposed per se rule

would appear to invalidate and that amici’s proposed

defenses might not rescue.

Consider a law providing that private schools must

allow deaf students to bring a sign-language interpreter into classrooms with them if they are willing to

pay the cost of the interpreter’s time. This would, on

Petitioners’ definition, confer an easement in gross on

the interpreter and amount to a per se taking of a private school’s property. Would the proposed “police

power” defense rescue the law? Would the proposed

“constitutional conditions” defense do so? It is impossible to say.

In contrast, recognition that this type of regulation

is governed, not by this Court’s “per se” takings cases

but by PruneYard and the regulatory-takings line of

authorities of which PruneYard is a part, provides a

surer way of addressing such a regulation. In the signlanguage interpreter example—as was true in PruneYard and as is true here—the access is restricted in

area, in time, and in purpose: in area, only to those

4 Protecting public health and protecting employees are often

two sides of the same coin. Upton Sinclair’s 1906 classic “The

Jungle,” a book that exposed the workings of the meat-packing

industry and that aroused the public sentiment that generated

the first federal food inspection laws, was primarily focused on

the poor working conditions in meat-packing plants and treated

the impact on food safety as a secondary effect of those poor working conditions. Sinclair’s main objective was to help meatpacking workers, not improve the quality of meat. “‘I aimed for

the public’s heart,’ Sinclair later wrote, ‘and by accident hit it in

the stomach.’” I Aimed for the Public’s Heart and … Hit It in the

Stomach, Chicago Tribune (May 21, 2006), https://www.chicagotribune.com/news/ct-xpm-2006-05-21-0605210414-story.html.

portions of the property where the owner, for its commercial advantage, already allows use by the people

with whom the access recipient is supposed to communicate; in time, only to those hours in the day when

those same people are allowed to be on the premises;

and in purpose, only to allow the access recipient to

communicate with the relevant people in furtherance

of a legitimate statutory purpose.

4. There are, to be sure, areas of the law where

courts have no choice but to develop and apply difficult and somewhat indeterminate tests. But it makes

no sense whatsoever to introduce such tests into the

area of per se takings jurisprudence. That is because

this Court has stated time and again, not only that per

se takings are rare, but (i) that courts should characterize governmental actions as “per se” takings only

when they meet objective criteria unlikely to be in serious dispute, see Loretto, 458 U.S. at 437; and (ii) that

when courts are presented with a governmental action that defies easy classification, the appropriate

test to apply is the multi-factor regulatory takings test

of Penn Central.

By proposing that the Court tack on various amorphous defenses to Petitioners’ proposed rule,

Petitioners’ amici would destroy the primary virtue

that Petitioners claim for their “simple” and “brightline” rule and render it dissonant with this Court’s per

se takings jurisprudence.

Instead of pushing a new category of “per se” takings onto the stage only to mar the category’s debut

with an embarrassment of caveats and qualifiers, this

Court should adhere to its existing jurisprudence and

classify the ALRB regulation as a regulation triggering application only of the regulatory-takings

doctrine.

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CONCLUSION

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.