Legal Docket – The limits of a taking

MARY REICHARD, HOST: It’s Monday, March 29th, 2021 and we’re here for another week of The World and Everything in It along with you. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket. And before we get into our oral argument today, two decisions to report from last week.

In neither of these did Justice Amy Coney Barrett participate—she hadn’t yet been seated—so an eight-justice court and the first ruling was a 5-to-3 decision involving police use of force. 

It centered around the Fourth Amendment, which protects you from unreasonable search and seizure. In this case, the issue was seizure and how the law defines it.

Chief Justice John Roberts and Justice Brett Kavanaugh joined with the court’s three liberals in favor of a woman shot by police. Roxanne Torres was sitting in her car when officers in plain clothes approached her. She said she was worried they were carjackers, so she drove away. Police opened fire. They shot 13 rounds—two hit her in the back—but she was able to keep driving.

Torres would end up suing police for using excessive force, but she lost in lower courts for two reasons because police have qualified immunity and no court agreed police had actually seized her because she got away.

REICHARD: So the question for the high court was what does “seizure” mean? Is it contact that results in actual, physical control of a person? Or contact that is intended to restrain? 

The majority justices said intent to seize is key here. When an officer shoots someone, the court says that’s a seizure even when the person shot is able temporarily to avoid capture.

The decision sends the case back to the lower court now to sort out under this newly clarified definition.

In dissent, Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito. One line of dissent sums up their view of the ruling:  “Neither the Constitution nor common sense can sustain it.”

EICHER: Now for the second ruling, this one unanimous—8-0. It says consumers have the right to sue Ford Motor Company in their home states, even if the company didn’t make or sell the car in question in that state.

In this case, Ford owners injured in accidents in Montana and Minnesota sued the company. Ford argued that just because people drive its cars in those states doesn’t give courts in those states jurisdiction over Ford.

But the Supreme Court disagreed, resoundingly, and that sets a uniform policy for the federal courts.

REICHARD: And now for our oral argument today. 

This case pits property owners against union organizers. It’s a dispute that goes back to the year 2015. That’s when United Farm Workers arrived at the Cedar Point Nursery in northern California. They brought bullhorns, which they used to make the case for workers to join a labor union.

This is what it sounded like.


The union claimed a right to do this under the state’s administrative rule, called Access Regulation. It aimed to support the right to unionize workers in the ag industry. 

Mike Fahner owns Cedar Point Nursery.

FAHNER: If this were to happen in any other industry in any other state the people would be expecting to be arrested and taken away in handcuffs. This Right to Access is a law that exists only in the state of California and only in the ag industry.

Cedar Point Nursery and another ag business argue this regulation violates the constitution in two ways. For one, they say it amounts to an illegal seizure of private property. That’s against the Fourth Amendment. 

For another, it’s a “taking” under the Fifth Amendment. So, the government should pay the company for commandeering company property for the benefit of a third party.

EICHER: But the union is asking that the justices consider the purpose of the Access Regulation when the state approved it 50 years ago. 

Farm workers are not typical employees. They move from harvest to harvest. And as a result, they are not typically in a building or congregating in a parking lot. 

A Supreme Court ruling from 1956 specifically says if other reasonable methods to reach workers are not available, then reaching them on site is ok.

Defending the regulation in support of the union, California’s Solicitor General Michael Mongan. He argued the regulation is constitutional because regulators drew it narrowly.

MONGAN: The only question before the Court is whether that regulation is a per-se taking. And the answer is no.

REICHARD: Let’s take a moment here. “Per-se”—a Latin term—and you know lawyers love their Latin. It means “by itself” or in or of itself. So the law understands a “per-se taking” as referring to two kinds of regulation: a regulation that by itself removes all the financial benefit to using a space—that’s one kind. The other is a regulation that by itself permits a permanent, continuous physical occupation of a space.

The regulation here doesn’t do any of that. It has time limits. 

Union organizers may only be on the worksite for up to three hours a day, and not all in a row. They can be there up to one-third of a year, up to 30 days at a time, and no more than 4 times a year. 

But the ag businesses say that’s disruptive, and still a taking, no matter how you limit it.

The union says with these limitations, it can’t be a taking that deserves compensation under the plain terms of the law.

Turning back to California’s lawyer Michael Mongan, making the argument in favor of the regulation, you’ll hear him here arguing that this regulation is not a per-se taking under any analysis.

Listen to this exchange with Chief Justice John Roberts, which I’ve edited for flow.

MONGAN: Petitioners can’t credibly claim that the Board’s regulation destroys all their rights to any part of their property or that it’s the functional equivalent of the government taking over their farm.

ROBERTS: What do you do if there’s more than one union that wants access? I mean, it’s not — it’s not at all unusual for unions to be competing for representation. So does each union get its own 120 days?

MONGAN: Yes, Your Honor, I think that’s right as a theoretical matter.

Theoretical matter, distinguishing it from practical matters. As a practical matter, he argued, the court should find nothing excessive about the regulation.

But Justice Stephen Breyer could see problems in parsing analysis that way. Let’s listen, and when you hear Justice Breyer say “petitioners,” understand that he means the ag businesses.

BREYER: I think the Petitioners are saying that whether this regulation is excessive or not is beside the point. This is the kind of taking that is, no matter what, requires compensation under the Fifth Amendment.

We have previously defined or sort of said that that kind of interest has to be a taking that is continuous and indefinite, like taking even an inch of somebody’s apartment house to put up a CATV system or taking an easement for the beach.  The virtue of their approach is that it’s pretty clear, I think, because, otherwise,  you get into the mess of saying, well, what  about a year? Here, it’s four percent of all the year’s hours and 10 percent or 12 percent of all the daylight hours and — and — but it is not government coming in, it’s a private person coming in. That’s what they say. 

So what are the rules that distinguish an easement from not? I thought an easement, for example, ran with the land so that if it’s no longer agricultural land but, rather, is a — a steel mill, you can’t transfer the easement. It doesn’t exist anymore. Nobody can go on the property. There may be other characteristics.  What are they, in your opinion, that distinguishes this case from a classical easement?

MONGAN: Well, Your Honor, I think that this is not a classical easement.

Not a classical easement, because this is not about a certain piece of land. Instead, it’s about a regulatory scheme to permit access to workers, wherever they happen to be.

Lawyer for the ag businesses pointed out that unions aren’t under the same conditions they were 50 years ago. Today, they can communicate with workers in myriad ways: social media, as one obvious example. 

And why should one group receive special favor to arrive unwanted on private property?

Justice Amy Coney Barrett grappled with where to draw the line. Listen to this exchange with the ag-business lawyer, Joshua Thompson.

BARRETT: When does something become a physical taking such that the per-se rule is triggered. So let me ask you this: What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per-se rule?

THOMPSON: Yes, it is, Justice Barrett …

Some justices worried that a win for the ag businesses might implicate public health and safety inspections.  

Justice Neil Gorsuch cast that scenario to Thompson:

GORSUCH: Counsel, I think I’d like you to have a little more opportunity to respond to the charge that this would be revolutionary and the end of all regulatory regimes and that the government would never be  able to walk on anyone’s property again to — to  do a search or — or to conduct tests or ensure  the safety of licensed operations there, whether it’s a power plant or otherwise. Would you address that concern, please?

THOMPSON: Yes, I’d be happy to, Justice Gorsuch.

Thompson was happy to explain that in his view safety inspections don’t remove a property right. It’s truly about public health, not union organizing. A big difference. 

Part of the problem here is the way that ruling from the 1950s is worded: it says unions can come onto ag property if other “reasonable ways” to contact employees don’t exist. This formulation favors the ag businesses, because other ways do exist.

But that word “reasonable” is murky enough to open the way for government overreach.

One oddity in this case is that of the two arguments available, the ag businesses pursued the dicier argument: that what happened is in and of itself a taking—a per-se taking

That involves a huge intrusion, taking away 100 percent of the owner’s use with permanent occupation of property. 

But, as I’ve explained, that isn’t what actually happened.

Perhaps the ag businesses hope a more conservative court is willing to expand private property rights? Hard to say. 

If the ag businesses prevail, it’ll be a matter of how much money the government needs to pay for “taking” the property for union use. It won’t be a ruling to keep unwanted people off private property altogether.

If California wins, it’s foreseeable that the state would give favored status to certain groups at the expense of individual rights.

Either way, clarity is needed because the circuit courts are of different minds on the question.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this Nov. 2, 2020, file photo the Supreme Court is seen at sundown in Washington.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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