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The Supreme Court of the United States will hear oral arguments Monday in Cedar Point Nursery v. Hassid, a case about the union rights of farmworkers. It could impact the future of anti-discrimination law and much more.

The plaintiffs in the case are two California fruit producers who are suing over a 1975 state regulation that allows union organizers to have temporary access to an agricultural employers property during non-work hours. The laws rationale is to support workers right to unionize by allowing workers access to their workplace premises for after-hours meetings.

California law requires agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The state contends that the regulation is necessary in the specific context of farming: farmworkers tend to be inaccessible to union organizers through other channels, and farm properties lack parking lots or public areas that other workers typically use for gathering. From Californias brief:

[Farmworkers] are highly migratory, moving to follow the harvest every few weeks or months; they often live in temporary housing, sometimes on their employers property; they frequently lack access to modern telecommunications technology; many speak only indigenous languages; and many are illiterate even in their native language. The Boards regulation authorizes a limited number of organizers to access the property of agricultural employers, for brief periods, during non-work hours, solely for the purpose of discussing organizing with employees, and only after notifying the Board and the employer.

Cedar Point Nursery and Fowler Packing Company sued to have the law invalidated, and their argument is based on land use. They say that the law allowing union organizers to meet with workers on their property is an easement that amounts to a per se taking something that would require compensation under the Fifth Amendment.

The after-hours union meetings dont disrupt the employers businesses, and the state of California isnt actually taking the property so to make a Fifth-Amendment argument, the plaintiffs needed to frame their loss as interference with a guarantee that is constitutionally protected. They chose the right to exclude unwanted persons. In other words, the California unionizing regulation deprives the owners of their inherent property right to kick people off their land.

A panel of the Ninth Circuit sided with California, as did the district court. The panel said that because the regulation didnot amount to a physical taking because it did notallow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.The panel also ruled that the statute wasnt a regulatory taking because the only property right affected was the right to exclude and thats simply not enough.

Now, SCOTUS will decide whether the Fifth Amendment protects a right to exclude on par with other inherent property rights. If the justices side with the landowners and agree that the regulation amounts to a taking, it would mean the regulation cannot continue to operate without California paying compensation for its taking of the land. Thats novel in itself, but theres far more drama to be had outside the arena of farming and unionizing.

The fruit-producer plaintiffs argue that the right to exclude should take its rightful place among the most sacred of protected interests: fundamental rights.

When a right is fundamental, any law abridging that right triggers the highest level of constitutional scrutiny. Accordingly, a state regulation that interferes with a fundamental right must be narrowly tailored to achieve a compelling state interest in order to pass constitutional muster. In short, state regulations fail almost always fail this test, because the right being protected has been deemed basically untouchable. (Other fundamental rights include the right to marry, the right to privacy, freedom of religion, and freedom of assembly.)

In an email to Law&Crime,Pacific Legal Foundation attorney Wen Fa, who represents the petitioner fruit sellers in the litigation, explained his clients position in the case:

The Constitution prohibits government from requiring you to allow unwanted strangers into your property. The California regulation here is unconstitutional because it forces property owners to allow unwanted union activists onto their property, and violates the property owners fundamental right to exclude trespassers.

However, Aaron Tang, a constitutional law professor and former clerk to Justice Sonia Sotomayor, warned in a Washington Post piece Thursday that as devastating as a ruling for the plaintiffs would be in the context of unions, its real danger lies outside far outside the context of employment law.

Tang writes:

The disputethreatenshavoc just as great outside the union context. Considerstate lawsthat permit child protection inspectors to make unannounced home visits. Now suppose a homeowner suspected of abuse or neglect wants to keep the inspector out. Under the challengers logic, such individuals would have a Fifth Amendment right to do so unless the government paid the suspected abuser to access the property. The same problem would ensnarenursing home visitsandfood safety inspections.

Indeed, we have seen anti-discrimination ordinances challenged on the grounds that they interfere with First Amendment rights; a ruling that the right to exclude is fundamental would mean an entirely separate basis for bringing legal challenges, rooted in property law (a legal landscape far less politically-charged than religious freedom). The cases potential for broad impact is underscored by the more than 30 amicus briefs submitted to the Court by interested yet uninvolved parties.

As for the justices, their position in the case poses some intriguing questions. The Court decided a landmark union case in 2018; it ruled that an employee who is not a member of a union could not be forced to pay union fees for the collective bargaining done on his behalf. In that case, conservative justice Samuel Alitopenned a decision joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch. JusticesSotomayor, Elena Kagan, Ruth Bader Ginsburg, and Stephen Breyer dissented.

A conservative majority might similarly side against the pro-union ordinance in the Cedar Point litigation. However, if decided on Fifth Amendment grounds, such a decision threatens to create just the kind of chaos the conservative justices usually endeavor to avoid.

Oral arguments in the case are scheduled for at 10:00 a.m. on Monday, March 22, 2021.

[Photo by Samuel Corum/Getty Images]

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SCOTUS to Decide Whether There Is a Fundamental Right to Kick People Off Your Property - Law & Crime

Next Monday, the Supreme Court will hear oral argument in a labor rights case that could make it harder for the government to regulate businesses in a wide range of areas beyond workers rights.

The case,Cedar Point Nursey v. Hassid, centers on a 45-year-oldCalifornia regulationthat gives union organizers limited access to agricultural workplaces to talk to farmworkers during non-work hours. The 1975lawthat authorized this regulation was the product of adecade-long campaignin California for collective bargaining rights for agricultural workers, who are excluded from federal labor protections due to a Jim Crow era political compromise.

Thanks in part to this regulation, agricultural workers who are disproportionately people of color and immigrants have successfully bargained for substantial improvements in workplace safety, job protections, and benefits since 1975. But now, Cedar Point Nursery and another agriculture business argue that state-sanctioned labor organizing violates the Takings Clause of the Fifth Amendment, amounting to an unconstitutional government seizure of private property without compensation. And if the Court rules in their favor, it will not only damage the labor rights of California agricultural workers but also represent a broader doctrinal shift to limit the governments capacity to protect the public welfare.

In its interpretation of the Takings Clause, the Supreme Court distinguishes between per se takings and regulatory takings.Per se takingsoccur when the government permanently occupies private land or deprives the property owner of all economically beneficial use of the land, entitling the landowner to compensation.On the other hand, regulatory takings such as the legislatively sanctioned placement ofcable boxeson private property occur when the government limits property rights without totally depriving the landowner of the lands value; compensation is generally not awarded.

In the current case, the companiesarguethat the Court should reclassify per se takings to include regulations that allow for temporary entrances onto private property such as for meat and workplace safety inspections and rule the California labor law unconstitutional. Fordecades, the conservative legal movement has sought to invalidate government regulations on similar grounds, with limited success.

With a new 63 conservative majority, the Supreme Court made the unusual decision to hear the case, even though the businesses suffer no clear negative economic impact from the regulation.

The companies argument hearkens back to an era of constitutional interpretation when the Supreme Court routinely struck down economic regulations, such as minimum wage and child labor laws. It is referred to as the Lochnerera after a 1905casein which the Court invalidated a New York State law that imposed limits on bakers working hours, ruling that it violated liberty of contract, which the Court stashed in the Due Process Clause of the 14th Amendment.

The Supreme Courtabandonedthis doctrine in the late 1930s, but the increasingly conservative majority on todays Court has begun relying on different parts of the Constitution to achieve similar ends. If the Court reinterprets the Takings Clause inCedar Point Nursery, it will represent a star in an emergingconstellationof deregulatory doctrines that could hamstring even the most basic and longstanding government functions.

An additional star in this constellation involves the ConstitutionsCommerce Clause, which allows Congress to to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. During theLochnerera, the Supreme Court had alimited viewof Congresss power to regulate interstate commerce. Starting in the late 1930s, however, the Court changed its tune, going so far as to hold that Congress could regulate the activity of afarmergrowing wheat for his own use because such activity, in the aggregate, would have a substantial effect on interstate commerce.

Recently, the Supreme Court has curtailed this power, ruling that Congresss interstate commerce authorities do not apply to the problems ofguns in schools,violence against women, andindividuals lacking health insurance coverage notwithstanding the facts that there is a $2.7 billionschool safety industry, thecostsof intimate partner abuse exceed $5.8 billion a year, and healthcare accounts fornearly 18 percentof American gross domestic product.

Similarly, a majority of current justices havesignaledinterestinrevivingthe nondelegation doctrine, which prohibits legislatures from delegating their powers to other bodies. The Supreme Court has not struck down an act of Congress on these grounds since 1935, when itinvalidatedparts of the New Deal, ruling that Congress had unconstitutionally delegated legislative power to the executive branch. If the Court moves in this direction again, it couldunderminethe ability of government agencies to protect consumers, workers, public health, and the environment.

Finally, the judiciary has begun, as Justice Kagannoted, weaponizing the First Amendment against democracy in recent years, striking downrestrictionson corporate election expenditures and finding that public sector works have aconstitutional rightto refuse to pay union dues, even though unions remain obligated to represent them. These developments are harbingers of a larger assault on regulatory efforts to check corporate power, with courts invalidating regulatory requirements such aspostersinforming workers of their rights andmandated disclosuresabout food as unconstitutional compelled speech.

The early 20th century also provides insight into some of the legal and political strategies that might emerge or gain traction if we find ourselves in a newLochnerera. When the Supreme Court posed an obstacle to democratically accountable government during this period, one strategy was to amend the Constitution:overrulinga Supreme Court decision, the 16th Amendment granted Congress authority to levy an income tax without apportioning it among the states on the basis of population. Less successful was a push toamendthe Constitution to overturn the Supreme Courtsrulingsstriking downchild labor laws.

The Supreme Court as an institution also became a target, most notably in President Franklin Roosevelts 1937 plan to expand the size of the Court. While his plan received strongoppositionand ultimately died, the Court abruptly changed course doctrinally after the proposal was announced. Many scholarssuggestthat the court-packing proposal was a factor in the Courts philosophical shift.

A third, and perhaps most enduring, strategy was the development by scholars and activists of newmethods of legal interpretation ones that advocated judicial deference to the political branches of government on social and economic policy, ultimately forming the foundation for a post-Lochnerjurisprudence.

As the Supreme Court considersCedar Point Nurseryand creates similar obstacles to democratic governance today, history suggests that the Court will face popular headwinds. Ultimately, the democratically responsive branches of government have to remain able to meet societal needs. Indeed, that is what the American peopleexpectanddemand.

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The Supreme Court Case that Could Hamstring the Government's Ability to Regulate Businesses - brennancenter.org

Two weeks ago, while the House of Representatives was finalizing its 700-page legislation authorizing the Treasury to borrow and spend $1.9 trillion in the next six months, and the Senate was attempting to confirm more of President Joseph R. Bidens cabinet nominees, Biden secretly ordered the Pentagon to bomb militias in Syria.

The United States is not at war with Syria. It is not at war with the militias that were bombed, and it didnt seek or have the permission of the Syrian government to enter its air space and engage in deadly military activities. Biden later claimed that the bombing was conducted as a lesson to Iran, another country with which the U.S. is not war.

His campaign promises to the contrary notwithstanding, Biden has followed in the footsteps of his immediate predecessors. They bombed civilians in an aspirin factory in Kosovo (Clinton), bombed civilians in Iraq (G.W. Bush), bombed military targets and government buildings in Libya and bombed a cafe in the Yemen desert targeting an American who was having tea (Obama), bombed the same location as Biden in Syria, and bombed a convoy of trucks in Iraq targeting an Iranian general who was on his way to lunch with an Iraqi counterpart (Trump).

All of these bombings and targeted killings violated the U.S. Constitution, the U.N. Charter which is a treaty largely written by the U.S., and to which the U.S. is a signatory and international law.

What is going on with American presidents and war?

The Constitution specifically separates the power to make war from the power to wage war. The delegates to the Constitutional Convention in 1787 spent more time debating this than any other topic beside the makeup of Congress. In the end, they were adamant and unanimous that only Congress can declare war and only the president can wage war.

Congress cannot tell the president how to deploy the military, and the president cannot use the military against foreign targets without a congressional declaration of war.

James Madison the scrivener at the Convention famously offered that if a president could declare war and wage war, or even use the military to target any foreign entity he wished, then he would be a king, not a president. He argued that war exacerbates the presidents strongest passions and most dangerous weaknesses. And when he drafted the Bill of Rights, Madison had the presidency in mind when he wrote in the Fifth Amendment that the government may not take life, liberty or property without due process of law.

Taken together, the exclusive constitutional delegation of war-making to Congress and the Due Process Clause absolutely restrain the legal ability of the president to use violence in another country without a declaration of war from Congress; and in the case of violence against an American, without a conviction by a jury and all the constitutional protections attendant upon that. And, against civilians never.

When President George W. Bush decided to invade Afghanistan in retaliation for what he argued was providing haven and resources for those who planned, paid for and carried out the attacks on 9/11, he first went to Congress. Congress did not declare war on Afghanistan. Instead, it enacted a resolution called the Authorization to Use Military Force of 2001. That authorized Bush and his successors to use the military to target the perpetrators of 9/11 wherever and whenever they found them.

Unlike traditional declarations of war, the AUMF of 2001 did not have an endpoint, and that is its fatal flaw. Presidents Barack Obama, Donald Trump and Biden disingenuously cited it as their legal authority to bomb Middle Eastern targets that had no conceivable relationship to the perpetrators of 9/11.

When Bush sought to invade Iraq to locate and destroy what he claimed were weapons of mass destruction, Congress enacted another AUMF in 2002. It, too, has no endpoint.

Last week, a bipartisan group of senators offered legislation to repeal both AUMFs and Biden has indicated that he will sign the repeal. That is a good start toward taming the executive appetite for military violence, but it is not enough.

Under international law and the natural law, the U.S. may only use force defensively. That means it may attack the military of a foreign country or group that has attacked the U.S. or an ally, and it may attack the military of a foreign country or group that is imminently about to attack the U.S. or an ally. Those are the only instances in which the president may deploy U.S. forces for violent purposes without a congressional declaration of war.

Congress must do more than just repeal the two AUMFs if it believes that the Constitution means what it says. Congress needs to repeal the War Powers Resolution of 1973 which purports to permit presidents, upon notification to Congress, to wage 90-day offensive wars, in violation of the Constitution and international law.

Congress needs to prohibit absolutely the unauthorized presidential expenditure of money and deployment of armed personnel on any nondefensive violent actions. I say personnel rather than military because modern presidents have often used the CIA to fight wars and argued that because those wars did not involve the military, no congressional approval or notification was needed.

Congress should criminalize such presidential violence and the expenditures of resources to support it, as it is a crime to kill without lawful authority. And Congress should call nondefensive killings by the government or anyone by their legal name: Murder.

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Napolitano: The power to make war - Daily Herald

The view outside the Nevada Legislature on Sunday, Aug. 2, 2020.

Assemblywoman Lisa Krasner, R-Reno, joined by public defenders across the state, called on lawmakers to pass legislation designed to make sure juveniles younger than 18 dont waive their Fifth Amendment rights without first talking to a parent, guardian or an attorney.Kendra Bertschy of the Washoe County Public Defenders Office said more than 40 percent of juveniles waive those rights without understanding the consequences. AB251 would require police with a juvenile in custody get them in contact with a parent, guardian or attorney before asking any questions.But Chuck Callaway, representing the sheriffs and police, said if officers cant question juveniles, officers will just arrest everyone. The Nevada DAs Association also came out against AB251 as did several juvenile officers.Bertschy responded saying she was disappointed that law enforcement thinks their only option is arresting everyone.Krasner said the bill would also seal a juveniles arrest record at age 18 to give them a clean slate as they become adults under the law. She said a series of misdemeanors on juveniles records can impact their ability to get a job, go to college and other things.Serious crimes in a juvenile record, including sex offenses, would not be sealed.Alex Ortiz of Clark Countys financial office said he has no problem with the policy in the legislation but is concerned about its potential cost. He said the county would have to open, staff and run another juvenile housing unit at a cost of $2 million a year.The committee took no action on the bill with Krasner saying she would work with stakeholders to resolve some of their issues while still trying to protect juvenile suspects from themselves when taken into custody.

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Bill would protect juveniles' Fifth Amendment rights | Serving Carson City for over 150 years - Nevada Appeal

In civil disputes including bankruptcy litigation it is not uncommon for questions to arise about a clients potential exposure to criminal liability, whether the client is a party or a witness. Civil litigators must therefore understand the role of the Fifth Amendment privilege against self-incrimination in the civil context.

Lets say our client is a target or witness in a civil investigation or embroiled in litigation with business partners who have alleged criminal wrongdoing or made threats to contact law enforcement. At some point, the client may need to provide testimony, submit a sworn declaration, or participate in an interview. How do you mitigate the risk that the client will say something self-incriminating, and what are the effects of a client taking the Fifth in a civil lawsuit?

This article which is based on research that we conducted for a client discusses four questions relating to the intersection of the Fifth Amendment and civil litigation. In later articles, we will discuss the risk assessment process civil practitioners should undertake when a client is faced with allegations of criminal wrongdoing.

In the criminal context, no adverse inference is permitted from a witnesss refusal to testify based on the Fifth Amendment. In federal civil litigation, however, an adverse inference may be drawn when independent evidence exists of the fact to which the party refuses to answer meaning that an adverse inference can be drawn when silence is countered by independent evidence of the fact being questioned, but that same inference cannot be drawn when, for example, silence is the answer to an allegation contained in a complaint. Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (internal citations omitted).

Once a witness in a civil suit has invoked his or her Fifth Amendment privilege against self-incrimination, the trier of fact is entitled to draw an adverse inference from the witnesss refusal to testify. Chaffee v. Keller Rohrback LLP, 200 Wash.App. 66, 83-84 (2017) (citing King v. Olympic Pipeline Co., 104 Wash.App. 338, 355-56 (2000) and Ikeda v. Curtis, 43 Wash.2d 449, 261 P.2d 684 (1953)).

In a civil proceeding such an [adverse] inference is permissible, where appropriate, not as a sanction or remedy for any unfairness created by exercise of the privilege but simply because the inference is relevant and outside the scope of the privilege. Diaz v. Washington State Migrant Council, 156 Wash.App. 59, 85-86 (2011). Fifth Amendment invocations by corporate employees or principals may also result in an adverse inference drawn against the corporation. Id. (collecting cases). Moreover, invocation of the Fifth Amendment privilege may supply an avenue for investigation by prosecutors. Chaffee, 200 Wash.App. at 84.

In Olympic Pipeline, decided in 2000, the court noted that Washington courts have not addressed whether the trial court has discretion to limit the adverse inference that follows from invocation of the privilege. 104 Wash.App. at 356. The Olympic Pipeline court declined to resolve this question (which appears to remain open) but observed that ER 403 permits the court to exclude relevant evidence where unduly prejudicial, and that controlling precedent does not [a]s a logical matter prohibit the usual analysis under the rules of evidence. Id.

Although Olympic Pipeline suggests that a trial court might have discretion to exclude under ER 403 evidence that a witness took the Fifth, Washington does not appear to have adopted the federal independent evidence requirement, meaning the risk of an adverse inference may be greater in Washington state court.

Oregon prohibits an adverse inference from the invocation of the Fifth Amendment privilege, even in civil cases. Under Oregon Rule of Evidence 513 (O.R.S. 40.290(1)), [n]o inference may be drawn from a claim of privilege.

In John Deere Co. v. Epstein, 307 Or. 348 (1989), the Oregon Supreme Court considered whether Rule of Evidence 513 permits an adverse inference in a civil proceeding based on a witnesss invocation of the Fifth Amendment right against self-incrimination. The Courts analysis in John Deere turned on whether invoking this right qualifies as a claim of privilege under Rule 513.

The Court found that an adverse inference is barred, even in civil cases, because claim of privilege includes federal constitutional privileges not just privileges under state authority or listed in the Oregon code. Thus, although such an adverse inference is allowed under the U.S. Constitution, it is inconsistent with Rule 513.

John Deere is over 30 years old but has only been cited in a handful of subsequent cases, none of which appears to address the adverse inference question as applied to civil cases. It has not been reversed or limited, and the current language of Rule 513 is materially identical to the language in effect in 1989 ([n]o inference may be drawn from a claim of privilege). John Deere thus appears to be good law.

As illustrated by the differences between federal court and the state courts of Washington and Oregon, the rule regarding an adverse inference in civil cases varies by jurisdiction. In the case that prompted this research, our client was deposed by a receiver in Washington, but the subject of the clients deposition was also at issue in a civil suit by the Washington Division of Financial Regulation, an SEC investigation, and a federal criminal investigation in Oregon. Because it is hard to predict where a client may be sued, it is safest to assume an adverse inference may be allowed.

Can a witness testify as to certain transactions or events but assert the Fifth as to others? Answering this question is difficult and highly fact-dependent.

When a party testifies voluntarily, and therefore controls the extent of disclosure, [t]he privilege is waived for the matters to which the witness testifies. OSRecovery, Inc. v. One Groupe Int'l, Inc., 262 F.Supp.2d 302, 30708 (S.D.N.Y. 2003) (quoting Brown v. United States, 356 U.S. 148, 15455 (1958)).

Thus, the privilege has already been waived if a party testifies to certain transactions and then refuses to testify further because the disclosure of a fact waives the privilege as to its details. In re Enron Corp. Securities, Derivative & ERISA Litig., 762 F.Supp.2d 942, 961 (S.D. Tx. 2010) (citing cases); State v. Huizenga, 198 Wash.App. 1031 (2017) (unpublished). The breadth of such a waiver is determined by the scope of relevant cross-examination. Brown, 356 U.S. at 154-55; see also McGautha v. California, 402 U.S. 183, 215 (1971) ([a] defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination).

As suggested above, this standard is inherently vague, and it is difficult to predict in advance where a court might draw the line. It is generally safest to assume the court will construe any waiver broadly.

It is settled that a waiver of the Fifth Amendment privilege is limited to the particular proceeding in which the waiver occurs. U.S. v. Licavoli, 604 F.2d 613, 623 (9th Cir. 1979) (emphasis added) (citations omitted) (voluntary testimony before grand jury does not waive privilege at trial); see also U.S. v. TrejoZambrano, 582 F.2d 460, 464 (9th Cir. 1978) ([a] waiver of the Fifth Amendment privilege at one stage of a proceeding is not a waiver for other stages); 8 J. Wigmore, Evidence 2276, at 470-72 (a witnesss voluntary testimony [in a] preliminary and separate proceeding, e.g. in bankruptcy, is not a waiver for the main trial, and [n]or is his testimony at a first trial a waiver for a later trial).

For these purposes, the term proceeding is defined narrowly. Even if they arise from the same events, a civil action and criminal case would certainly be separate proceedings. The Washington Supreme Court has also held that a witnesss waiver in testifying at an inquest did not extend to a subsequent wrongful death lawsuit, which the Court described as [an] unrelated legal proceeding[ ]. Stone v. State, 85 Wash.2d 342, 344 (1975). Indeed, in Mitchell v. U.S., 526 U.S. 314, 325 (1999), the Supreme Court held that a guilty plea and statements made during a plea colloquy did not function as waiver at sentencing.

To be clear, however, this does not mean that a witness can invoke the Fifth Amendment to bar the admission of self-incriminating sworn statements made during an earlier proceeding. The witnesss waiver of the privilege is limited to a single proceeding, but the government can introduce in a criminal trial a transcript of the defendants prior testimony in a civil deposition in which he had waived the privilege. See, e.g., KST Data, Inc. v. DXC Technology Co., 344 F.Supp.3d 1132, 1134-35 (C.D. Cal. 2018) (citing Licavoli, 604 F.2d at 623).

Conclusion

The issues addressed in this brief article are just some of those to consider when advising a client on whether to assert the Fifth Amendment privilege in the civil context.

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Taking the Fifth in a Civil Context - Lexology