Cedar Point Nursery v. Hassid (20-107)

argument 20-107

Cedar Point Nursery v. Hassid

Supreme Court of the United States 1h 8m 8 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central Fifth Amendment issue raised in Cedar Point Nursery v. Hassid?

John G. Roberts 0:00

We will hear argument this morning in case twenty one oh seven Cedar Point Nursery versus Hasid. Mr. Thompson?

Thompson 0:09

Thank you, Mr. Chief Justice, and may it please the court. An access easement that takes the right to enter, occupy and use another's private property affects a per se physical taking under the fifth amendment. Any time limitations placed on access go towards the just compensation due, not whether a taking has occurred. The access regulation at issue in this case authorizes an easement on the property of petitioners for the benefit of union organizers. Under the terms of the access regulation, organizers may occupy the business's property for three hours each day, one hundred twenty days each year. This court should hold that the taking of this easement violates the Fifth Amendment because it effects a physical taking without compensation, and the court should so hold for two reasons.

Thompson 0:55

First, the appropriation of a real property interest triggers a categorical duty to compensate. The access regulation authorizes the taking of a real property interest in the form of a continual right to occupy and use petitioners' property. And second, at a more fundamental level, the access regulation denies petitioners the right to exclude union organizers from their property. Such an infringement on the most fundamental property right merits per se treatment. The Ninth Circuit, however, took a different tact. It demoted the right to exclude to just another stick in the bundle and would give per se treatment only to those rare easements that authorize twenty four seven occupation. Not even the board supports that extreme rule.

Thompson 1:38

But the board offers no basis. Much less a principled one, on which to distinguish access easements that merit per se treatment from those that don't. If the government wants to take and access easement over private property, it has to pay for it. Failure to pay just compensation violates the takings clause. I welcome the court's question.

John G. Roberts 1:57

Uh council on page six of the uh Chamber of Commerce's brief, it says that Requiring a sacrifice of the right to exclude third parties during the conduct of reasonable government inspections that benefit property owners will likely satisfy the doctrine of unconstitutional conditions. I I wonder if you agree with that.

Thompson 2:20

Uh ju uh Mr Chief Justice, we would we would say that reasonable government inspections are a background principle of property law that do not affect your property right or your right to exclude. I do think the government can exact uh uh a constitutional condition on on some some relinquishment of the right to exclude, but routine government inspections and administrative searches are justified as a government power that they've had at common law.

John G. Roberts 2:48

So it has nothing to do with whether it benefits the property owners?

Thompson 2:53

Not under our formulation, uh, Mr Chief Justice, under a as as I read this court's cases, uh Th since the government had the authority at common law to undertake reasonable searches. the property owner does not have the right to exclude the government when it undertakes that power. Certainly the Fourth Amendment uh presents a a constitutional limit on the extent to which the government can search, but it does not affect one's property right when the government undertakes uh that power.

John G. Roberts 3:23

Well why doesn't benefiting uh peaceful labor or promoting peaceful labor relations uh uh fall under the same category as uh uh safety inspections? In other words, it benefits the public interest uh to have uh limited access along those lines.

Thompson 3:41

Uh uh Mr Chief Justice, because there was no right at common law to allow third party union organizers onto one's property, that is a right that when the government takes it has to pay compensation. Were there were there

John G. Roberts 3:53

a lot of were there a lot of union organizers at common law?

Thompson 3:58

Certainly not, Your Honor, and I also don't think this could be justified as a constitutional condition because the right to enter into agriculture, the right to sell strawberry plants, for example, is not a is not a government benefit that the uh that the board can hold for ransom in exchange for our our fundamental property rights.