(Posted June 23, 2021) I don’t normally cover proceedings at SCOTUS, but let’s take a metaphorical short stroll across the Potomac to note today’s decision in Cedar Point Nursery v. Hassid. It’s an inverse-condemnation case from California. (Side note: If you instead crave analysis of the sexy news item of the day, the cussin’ cheerleader case, check SCOTUSblog instead.)

State law there allows unions to enter certain agricultural property on a limited basis to talk with farmworkers. They’re allowed onsite for three hours per day – one hour before the work shift, one hour at lunchtime, and one hour after work – on up to 120 days per year.

The owners of two such properties sued, claiming that the regulation effected a taking of their private property without just compensation. They claimed that this was a form of physical invasion, and thus a categorical taking that requires such compensation.

A district court and the Ninth Circuit upheld the regulation, finding the regulation’s imposition to be more modest – a temporary entry that should be evaluated under the totality-of-circumstances test from Penn Central Transp. v. New York City. The landowners obtained cert, and today, the Supreme Court reverses.

The chief justice pens the opinion of the Court. He and five other justices conclude that the California regulation indeed constitutes a physical invasion. He cites the ordinary right of a landowner to exclude others from his property, and notes that this regulation forces such landowners to admit persons onto their land against the owners’ will.

Justice Breyer, writing for Justices Sotomayor and Kagan, dissents. The dissenters would find this to be a more modest imposition, as the union organizers don’t have unfettered and unlimited access. They conclude that Penn Central analysis is the better way to approach this issue, and because the landowners didn’t even attempt to establish a compensable taking under that approach, the challenge to the regulation should fail.

The majority and dissent are both well-written, and I commend them to you. I regard the chief as one of the three best writers on the Court – Kagan and Gorsuch are the others – and because much of my living turns on reading judicial opinions, good writing matters to me. As for the merits, I tend to agree with the majority. The dissent relies in part on a prior case where the Court upheld a requirement that a shopping center allow First Amendment activity on its private property. The majority notes that that space was open to the public; not closed like private agricultural property.

As you know, I don’t focus on SCOTUS often, so what follows is my general sense, and is not the result of a comprehensive survey. After the public outcry over the Court’s 2005 decision in Kelo v. New London – a resentment that I shared, as I thought the Kelo decision was ill-advised – I believe that the Supreme Court has turned in the general direction of landowners in eminent-domain appeals. There are outliers, such as Murr v. Wisconsin – a narrow and fractured technical loss for the landowner – and Stop the Beach Renourishment v. Florida DEP in 2010. But look at the decisions that have gone the landowners’ way: Arkansas Game & Fish v. US (2012), Koontz v. St John’s River WMD (2013), Horne v. Dep’t of Agriculture (2015), Weyerhaeuser v. Fish & Wildlife (2018), Knick v. Township of Scott (2019), and now this. The Court’s recent jurisprudence has tended to favor private property rights.

In contrast, the Supreme Court of Virginia’s recent decisions in this field have overwhelmingly favored the condemnor. Of the SCV’s last ten published rulings in condemnation cases, landowners have lost nine times. By what’s supposed to be coincidence, but surely isn’t, Justice McCullough has authored each of the most recent five in that series. And the landowner’s only win in all that time, stretching back to late 2017, is the 4-3 decision in Helmick Family Farm two years ago, giving the landowner a partial victory.

The two appellate courts thus appear to be facing opposite directions when they receive eminent-domain appeals. This is one of those areas of the law where your rights – and your chances on appeal – likely differ depending on whether you’re in state or federal court.