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A Taking, or Not A Taking, that is the Question

A Taking, or Not A Taking, that is the Question

by Paul Engel



  • Can a state grant a private organization access to your private property?
  • Understanding the Fifth Amendment’s taking vs deprivation.
  • What happens when lawyers don’t understand the Constitution?

A case recently argued before the Supreme Court asks the question: What is a taking under the Fifth Amendment to the Constitution? This is not simply a case of eminent domain, but the power of the state to take control of private property. And since this case comes out of California, you shouldn’t be surprised that it’s a tangled mess that brought it to the Supreme Court. But the opinion in this case will impact more than just California residents, since it could be used as justification for both state and federal governments to deprive you of your property rights and give them to a favored voting block.

To understand the issues of this case, we need to recognize two facts. First, that while a person is free to exercise their rights, that does not include the authority to infringe on the rights of another. Second, property is not simply land or goods, it is anything you own and have control over.

The exclusive right of possessing, enjoying and disposing of a thing; ownership.

PropertyWebsters 1828 Dictionary

The question posed to the court was when a state grants an easement, “A right of use over the property of another”, is that a taking under the Fifth Amendment?

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.

Cedar Point Nursery & Fowler Packing Company v. Victoria Hassid – Petition for Write of Certiorari

The law in question is California Code of Regulations, Title 8, § 20900(e):

Accordingly the Board will consider the rights of employees under Labor Code Section 1152 to include the right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support,

Cedar Point Nursery & Fowler Packing Company v. Victoria Hassid – Petition for Write of Certiorari

Not surprisingly, the Ninth Circuit Court of Appeals states that the granting of this easement is not a taking since it does not allow full-time access for the union officials. This position is patently ridiculous. I would like to ask the justices who concurred with this opinion how they would react if I were to take their car three times a day, 120 days of the year, without their permission. Would that not be considered theft? Then how can the State of California grant an easement without the owner’s permission and not consider that the taking of their property? This case is not a Fifth Amendment taking, but not for the reason the Ninth Circuit stated.

Takings Clause

The reason this case is not a Fifth Amendment Takings Clause issue is because the property wasn’t taken for public use.

…nor shall private property be taken for public use, without just compensation.

U.S. Constitution, Amendment V

This California regulation does not take property for the use of the public.

Open for general entertainment; as a public house.

Open to common use; as a public road.

PublicWebsters 1828 Dictionary

What California has done is worse than eminent domain. They are not taking property for public use, they have stolen the property of agricultural businesses for private use. They have granted private organizations, in this case unions, access to private property without the owner’s permission. By any just legal system, the business owners should be able to charge union organizers who come on their property against their will with trespassing like anyone else.

But if this law isn’t a violation of the Takings Clause, does that mean it’s Constitutional? Not even close. Sadly, for all of the lawyers who were involved in this case, they could’t see this regulation is an obvious violation of the Fifth Amendment.

Property Rights

Just before the Takings Clause in the Fifth Amendment is its Due Process Clause.

nor be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

What California is doing is not taking property for public use. They are clearly depriving the business owners the exclusive right of enjoying and disposing of their property, and they are doing so without due process:

An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.

Due Process – The Free Legal Dictionary

Since this is being done by a state, it not only violates the Fifth Amendment to the Constitution, but violates the Fourteenth as well.

nor shall any State deprive any person of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment XIV


What saddens me is that the plaintiffs, as well as all of the agricultural businesses in California, may be denied justice, not because their cause is not just, but because their lawyers need a remedial reading class. It seems law schools are educating their students into imbecility, and the American people are paying the price. Even if there was a justifiable case of this law being a taking under the Fifth Amendment, it would not compensate the businesses for the damage done to them.

If this were a taking, what would be just compensation? Would the owner be paid the market price of the land that these union organizers are occupying? Would it be prorated based on the amount of time the union occupied it? What about the lost time of its employees, who the business owner is paying for, that is being disrupted by the union? How would someone go about calculating that? And if this were a taking, it would not be the union who would have to pay the business owners, but the people of California through their taxes. Meaning the people of California, including these business owners who are having their property stolen, would be paying for the right of private organizations to disrupt the businesses of others. And not just for past infringements, but future ones as well. If that isn’t a twisted view of a public taking, I don’t know what is.

This would not be the first time courts have used governments’ taking power to steal private property from one person to give it to a private group. The Supreme Court did exactly the same thing in 2004 with the Kelo v. City of New London case. In that case they found that the City of New London could use eminent domain to take property from Susette Kelo for a fraction of its fair market value, in order to give it to the New London Development Corporation, a private nonprofit company which planned to sell the land to Pfizer, Inc. Since the court has previously shown itself more than wiling to play a twisted Robin Hood, stealing from one to give to another simply because they are more favored by government, I am not sure what this court will do.

On the other hand, if the court would consider this not a takings case, but a deprivation of property, not only would the plaintiffs be on firmer legal ground, but the remedies available to the court would be more just.

Since the case is against the the Chair of the Agricultural Labor Relations Board, there is no way for the court to grant compensation from the unions for the damages they have done; that will have to be paid by the taxpayers of the State of California. However, since Victoria Hassid, as the Chair of the Agricultural Labor Relations Board, has violated the rights of the agricultural business owners of California under color of law, she could not only face civil, but criminal charges.

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both;

18 USC §242

Rather than simply have the people of California pay for the damages done under this odious and tyrannical regulation, I would like to see those who created and enforced it punished personally for their dereliction of duty and violation of their oaths of office. Until elected officials and bureaucrats are held personally accountable for their actions, there is no incentive for them to obey the laws and exercise only the just powers of the consent of the governed.

Sadly, as much as I would like to see the agricultural businesses of California freed from this regulation, this case does not give the court a judicially cognizable reason to do so. I hope that one day, not only the bureaucrats in California, but the people who allow them to keep working, are made to pay for the damage they have done to their citizens.