New Cert Petition:
Does A Physical Invasion Taking Require 24/7 Occupation? Posted: 28 Jul 2020 04:57 PM PDT Here's the cert petition
that we've been waiting to drop in a case we've
been following. Last we
checked in, the Ninth Circuit (with concurral) had denied en banc review,
over a dissental. In Cedar Point Nursery v. Shiroma,
923 F.3d 524 (May 8, 2019), a 2-1 panel of the Ninth Circuit affirmed the
dismissal of a complaint for failure to plausibly state a takings claim under
Twombly/Iqbal.
At issue was a regulation adopted by California's Agricultural Labor
Relations Board which requires agricultural employees to open their land to
labor union organizers. The regulation is framed as protecting the rights of
ag employees to "access by union organizers to the premises of an
agricultural employer for the purpose of meeting and talking with employees
and soliciting their support." The panel majority viewed the complaint as alleging a Loretto
physical invasion taking, and held the plaintiffs did not plausibly state a
claim because they could not allege the invasion was permanent.
The majority instead relied on PruneYard Shopping Center v. Robins,
447 U.S. 74 (1980), in which the Supreme Court concluded that the California
Supreme Court had not effected a taking when it held that the California
Constitution required shopping centers to be forums for public speech. The property owners sought en banc review, asking all of the
active judges on the Ninth Circuit to take a look. No deal, review denied.
But not without comments. Two judges concurred in the denial: the panel got
it right. A whole lot more judges (eight, including some -- but not all --
recent appointees) dissented from the denial en banc, and
pointed out "[t]his decision not only contradicts Supreme Court
precedent but also causes a circuit split." Dissental at 10. (That split
is with the Federal Circuit, by the way, perhaps the most important federal
circuit when it comes to takings cases.) The issue? How "permanent" does a physical invasion
have to be to qualify as a Loretto taking (or, more accurately
here, how well does a complaint need to plead facts to show that the invasion
qualified as a Loretto taking)? The panel majority and the concurral
pointed out that union organizers aren't allowed on the property all the
time. The panel dissent and the dissental pointed out that it shouldn't
matter that the occupation by union organizers was not literally 24/7, merely
that the property right allegedly taken was, you know, taken (government
takes easements all the time and pays for that privilege). To us, this fetish of the amount of time that an occupation is
permitted or anticipated should not be the controlling question. After all,
nothing is truly "permanent" is it? The cables and box on Ms.
Loretto's building could be removed, and the Arkansas flood waters receded.
What the courts should be focusing on is whether the owner lost the right to
exclude, no matter how long or short the resulting invasion lasted. Indeed,
even if not a single union organizer ever enters the nursery property, it has
the right to do so, and the owner doesn't have the right to keep them out. Here's the Question Presented: California law forces agricultural businesses to allow labor
organizers onto their property three times a day for 120 days each year. The
regulation provides no mechanism for compensation. A divided panel below held
that, although the regulation takes an uncompensated easement, it does not
effect a per se physical taking of private property because it
does not allow “24 hours a day, 365 days a year” occupation. As an
eight-judge dissent from denial of rehearing en banc noted, the panel
“decision not only contradicts Supreme Court precedent but also causes a
conflict split.” 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. Will we follow along? For sure, so
stay tuned. Petition for a Writ of Certiorari, Cedar Point Nursery v. Hassid,
No. ___ (July 29, 2020) This posting includes an
audio/video/photo media file: Download Now
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