Prediction in SCOTUS's "union trespass" case [Video]

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Watch the video: https://youtu.be/0RoA__x92s0

I'm predicting that the US Supreme Court is going to overrule the 9th Circuit in a case involving union representatives getting access to private property. The case is Cedar Point Nursery v. Hassid [Briefs].

The California Agricultural Labor Relations Board has a rule that says that agricultural growers in California are required to allow union representatives to come onto their property for as long as three hours a day and as many as 120 days a year. The three hours are an hour before work, an hour after work, and an hour during lunch.

The question in this case is whether this results in a "taking" under the 5th amendment, so that the government is required to compensate the growers for that taking. The cert petition phases the issue this way: "Whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment."

There's no question about whether this rule is valid. There's no question about whether it's a smart rule or an unwise rule. It's a question of whether this is a taking that requires compensation.

Both parties agree that what the government has done is taken easement.

What the Board is saying is Well, it's not all the time. It's not continuous. It's intermittent. It's only 120 days. It's only three hours a day And there are limitations on what these union reps can do while they are on the property.

And the growers are saying Well, yeah, but that doesn't really make any difference. If you take an easement, that is per se a “taking” under the 5th amendment, and the fact that it's intermittent and that there are restrictions on what the union reps can do — that goes to the amount of compensation. It doesn't go to the question of whether it's a taking in the first place.

And I'm predicting that the Supreme Court will come down on the side of the growers and say yes, this is a taking. The distinction between all-the-time and part-time really doesn't make any difference.

I say that not because I think the Supreme Court has some bias in favor of management or some ax to grind against unions. It's that this new Supreme Court has shown that it's willing to put much more vitality into the Bill of Rights. And this is a case where I think that's exactly what they're going to do.

The case will be argued probably later in the spring and we’ll get a decision by Summer.