Do you have a Constitutional right to kick people off of your property?

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California law requires agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The state contends that the regulation is necessary in the specific context of farming: farmworkers tend to be inaccessible to union organizers through other channels, and farm properties lack parking lots or public areas that other workers typically use for gathering. From California’s brief:

[Farmworkers] are highly migratory, moving to follow the harvest every few weeks or months; they often live in temporary housing, sometimes on their employer’s property; they frequently lack access to modern telecommunications technology; many speak only indigenous languages; and many are illiterate even in their native language. The Board’s regulation authorizes a limited number of organizers to access the property of agricultural employers, for brief periods, during non-work hours, solely for the purpose of discussing organizing with employees, and only after notifying the Board and the employer.

Cedar Point Nursery and Fowler Packing Company sued to have the law invalidated, and their argument is based on land use. They say that the law allowing union organizers to meet with workers on their property is an easement that amounts to a per se “taking” — something that would require compensation under the Fifth Amendment.

The after-hours union meetings don’t disrupt the employers’ businesses, and the state of California isn’t actually taking the property — so to make a Fifth-Amendment argument, the plaintiffs needed to frame their loss as interference with a guarantee that is Constitutionally protected. They chose the “right to exclude unwanted persons.” In other words, the California unionizing regulation deprives the owners of their inherent property right to kick people off their land.

A panel of the Ninth Circuit sided with California, as did the district court. The panel said that because the regulation did not amount to a physical taking because it did not “allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.” The panel also ruled that the statute wasn’t a regulatory taking because the only property right affected was the right to exclude — and that’s simply not enough.

Now, SCOTUS will decide whether the Fifth Amendment protects a right to exclude on par with other inherent property rights. If the justices side with the landowners and agree that the regulation amounts to a taking, it would mean the regulation cannot continue to operate without California paying compensation for its “taking” of the land. That’s novel in itself, but there’s far more drama to be had outside the arena of farming and unionizing.

The fruit-producer plaintiffs argue that the right to exclude should take its rightful place among the most sacred of protected interests: fundamental rights.

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