SLLC Files Supreme Court Amicus Brief in Significant Takings Case

In a Supreme Court amicus brief in Cedar Point Nursery v. Hassid the State and Local Legal Center (SLLC) argues that temporary entry onto private property by government officials isn’t a “taking.”

The U.S. Constitution’s Fifth Amendment allows the government to “take” private property as long as it pays “just compensation.” In this case, a number of agriculture employers argue California regulations “take” their property by allowing union organizers access to agricultural employees on the grower’s property. The access period may be during four 30-day periods each year for up to three hours each day. The union organizers must provide notice to the employers.

The Ninth Circuit ruled against the employers stating “[t]he Growers base their Fifth Amendment argument entirely on the theory that the access regulation constitutes a permanent physical invasion of their property and therefore is a per se taking.” The Ninth Circuit found no permanent physical invasion in this case. A dissenting judge opined that the regulation causes a physical taking because it prevents growers from excluding people from their property regardless of the duration of the invasion.

Before the Supreme Court the agriculture growers argue that a “permanent albeit time-limited easement effects a physical taking.”  

In a brief filed on behalf of neither party, the SLLC amicus brief argues that no taking occurs when government employees and officials temporarily enter private property to exercise their police powers to protect people and property. The brief points out “[f]rom restaurant inspections to guardian ad litem home visitations, limited purpose physical intrusions by governments are an ubiquitous feature of American life.” The brief argues that precedent and practical considerations foreclose the agriculture growers proposed “revolution in takings jurisprudence whereby governments must pay whenever they enter onto private land.”

Matthew Littleton and David T. Goldberg, Donahue, Goldberg, Weaver & Littleton, wrote the SLLC amicus brief on behalf of the following organizations:  National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, and Government Finance Officers Association.