Monthly Archives: August 2021

At the end of its recent term, the U.S. Supreme Court handeddown a new decision on the law of takings. The case, CedarPoint Nursery v. Hassid, was a labor relations disputedisguised as a takings case, but its resolution has importantimplications for the terms on which New York developers can getaccess to adjoining property in aid of their construction projects.In Cedar Point Nursery, a divided Court ruled, by a 6-3vote, that a state regulation authorizing very limited temporaryentry by union organizers onto private agricultural propertyamounted to a physical "taking" of property that violatedthe Fifth and Fourteenth Amendments to the Constitution.1 Thedecision expands the concept of what is a physical taking andraises questions about the further expansions of takings law thatmay follow.

The last clause of the Fifth Amendment to the U.S. Constitution,part of the Bill of Rights adopted in 1791, provides: "norshall private property be taken for public use, without justcompensation." Although originally applicable only to thefederal government, the Fourteenth Amendment, adopted after theCivil War, makes the principle equally applicable to the states andtheir political subdivisions.2

The most obvious example of a taking is when the government or a private party authorized by law to do so (such as autility) exercises the power of eminent domain to acquireactual ownership of private property, or at least a permanentinterest in property. In that situation, a public purpose and justcompensation are required by the Constitution.3 Other situations are notso obvious and have spawned a large body of court decisionsaddressing countless permutations.

Supreme Court precedent distinguishes between"physical" takings and "regulatory" takings.Physical takings are unconstitutional per se (i.e., automatically)in the absence of a public purpose and compensation. By contrast,an owner's claim that it has been subjected to a regulatorytaking in effect, a claim that although there has been nophysical invasion of its property, a law, regulation or othergovernmental action has intruded so far into its property rights asto amount to a taking must be analyzed and evaluated on afact-specific, case-by-case basis.

What rises to the level of a physical taking, however, isn'talways clear either, and the concept has expanded over the years.In 1946, the Supreme Court held that repeated low-altitudeoverflights by military aircraft approaching and leaving a nearbyairport, the effect of which was to destroy the owners' abilityto operate their chicken farm, constituted a taking.4 In 1979,the Court held that the government's claim of a navigationalservitude over private property, the effect of which was to allowthe public to access the property on a continuous basis,effectuated a taking.5 And in 1982, the Court held that even ade minimis permanent physical occupation of property is a taking;more specifically, the Court struck down as unconstitutional a NewYork statute requiring owners of apartment buildings to allow cableTV companies to attach their cables to the owners'buildings.6 Which brings us to the Cedar PointNursery case.

A regulation under California's Agricultural Labor RelationsAct gave labor organizations a limited right of access to privateagricultural property. Access was allowed in no more than four30-day periods in any one calendar year, and only during threehours during any one day one hour before work, one hourduring the lunch break and one hour after work. Access was limitedto two organizers per work crew, plus one additional organizer forevery 15 workers over 30 workers in a crew. The property owner wasentitled to prior notice. Disruptive conduct was prohibited, butthe union organizers were otherwise free to meet with employees todiscuss labor or union issues.

Cedar Point Nursery is a large California strawberry grower. Itclaims that, one morning in 2015, United Farm Workers organizersentered its property and disturbed its operations, causing someworkers to join a protest and others to leave the worksite. Alongwith a second grower, it sued in federal court, arguing thatCalifornia's regulation effected an unconstitutional physicaltaking of its property. The trial court dismissed the lawsuit, anda divided U.S. Court of Appeals for the Ninth Circuit affirmed thatdecision. The Supreme Court agreed to hear the case.

The Court reversed the Ninth Circuit's decision and ruled infavor of the nursery. Perhaps not surprisingly, given thecase's origin in a dispute about union activity, the Courtsplit along partisan lines, with the six Republican-appointedjustices forming the majority and the three Democrat-appointedjustices dissenting.

Chief Justice John Roberts wrote for the majority that "theaccess regulation appropriates a right to invade the growers'property and therefore constitutes a per se physical taking."The opinion emphasized that the short duration of time during whichthe regulation allowed entry onto property was irrelevant, and thelength of the appropriation "bears only on the amount ofcompensation." The opinion affirmed that physical invasionsare takings even if they are intermittent instead of permanent,citing United States v. Causby, the 1946 decision in whichthe Court held that occasional low-altitude military overflightshad effected a taking (although in Causby the overflightshad destroyed the owners' business).

To reconcile this absolutist definition of a taking withcommonly recognized circumstances in which limited entry ontoprivate property has long been allowed, the majority opinionarticulated a series of exceptions to this per se rule. First,"isolated physical invasions, not undertaken pursuant to agranted right of access, are properly assessed as individual tortsrather than appropriations of a property right." Second,access that is "consistent with longstanding backgroundrestrictions on property rights," including "traditionalcommon law privileges to access private property," is anotherexception. And third, "the government may require propertyowners to cede a right of access as a condition of receivingcertain benefits, without causing a taking."

The dissenting opinion was written by Justice Stephen Breyer. Itargued that the California regulation did not effect a per setaking because it did not appropriate anything, but only regulatedemployers' right to exclude others from their property.

The Cedar Point Nursery majority and dissentersdisagreed about how to distinguish between the appropriation ofproperty and regulation of the right to exclude. Because the Courtheld that the California regulation allowing limited access byunion organizers to agricultural properties was in fact anappropriation, the decision raises questions about how much furtherthe Court might go and how far property rights advocateswill push the Supreme Court and lower courts in expandingthe concept of a taking.

To begin with, any law or regulation requiring that unionrepresentatives be given access to a workplace or job site is now to say the least constitutionally suspect.

In future cases, moreover, courts are likely to be asked toclarify the exception to the per se rule that Cedar PointNursery recognized for access that is "consistent withlongstanding background restrictions on property rights." Theopinion provided no further definition of this exception beyond areference to "traditional common law privileges." Priorcase law from around the country has recognized multiple situationsin which entry onto another's land without the owner'spermission is allowable, including, for example, to bypass animpassible section of a public road, to retrieve personal property,to abate a private or public nuisance, to stop a crime or to make alawful arrest.7Are all of these examples still good law after Cedar PointNursery?

Even if these cases remain good law, is only court-made lawstill valid? One possible implication of the absolutistinterpretation of a taking in Cedar Point Nursery is that,while court-made exceptions to the per se rule remain valid, stateand local governments are powerless to enact statutes thatrecognize limited rights of entry in defined circumstances.

In 1980, for example, a unanimous Supreme Court agreed thatCalifornia's Supreme Court could properly interpret its stateconstitution as protecting the right of peaceful protestors to setup a card table in a shopping mall's central courtyard,distribute pamphlets and collect signatures over the objection ofthe mall's owner, which maintained a blanket policy againstexpressive activity on its premises.8 In reaching this result,the Court's opinion, written by Justice (later Chief Justice)William Rehnquist, explained that, while "property does not'lose its private character merely because the public isgenerally invited to use it for designated purposes,'"that principle "does not ... limit the authority of the Stateto exercise its police power or its sovereign right to adopt in itsown Constitution individual liberties more expansive than thoseconferred by the Federal Constitution."9 In response to the mallowner's contention that "a right to exclude othersunderlies the Fifth Amendment guarantee against the taking ofproperty without just compensation," the Supreme Court'sopinion explained that "it is well established that 'notevery destruction or injury to property by governmental action hasbeen held to be a "taking" in the constitutionalsense,'" and "the determination whether a state lawunlawfully infringes a landowner's property in violation of theTakings Clause requires an examination" of multiplefactors.10

The only way to reconcile this case-by-case approach with theper se rule of Cedar Point Nursery is to rely on the factthat the shopping mall was open to the public, although not for thepurpose that the visitors in that case sought to use it, while inCedar Point Nursery the owners did not open their land tothe general public. But the Court specifically said in the shoppingmall case (and in prior cases) that private property does not"lose its private character" even if it is open to thegeneral public a point that is inconsistent with adistinction based on private property's status as open to thegeneral public.

Closer to home, New York has a statute, Section 881 of the RealProperty Actions and Proceedings Law, that empowers courts to grantlicenses allowing property owners to gain temporary access toneighboring property for the purpose of effectuating repairs orimprovements to their own property "upon such terms as justicerequires." The statute often has been used by developers andtheir contractors to compel recalcitrant neighbors to allow them toenter onto adjoining property to perform surveys and installprotective measures. The statute does not require compensation,although it is not unusual for courts, in the exercise of theirdiscretion, to require the payment of a fee if the entry is formore than a de minimis length of time for example, if thepurpose of the entry is to install and maintain temporaryprotective scaffolding. Is this statute unconstitutional due to itsfailure to expressly require the payment of "justcompensation" in accordance with the Fifth Amendment? Orperhaps due to its creation of a right of access in the service ofa private purpose rather than a public one? It seems inevitablethat these issues and others of a similar nature will be litigated in a future case. The risk of the issue beingraised should motivate developers to avoid litigation if possibleand to be prepared, if necessary, to augment the usual protectionsprovided in access agreements (such as indemnification andinsurance) with some amount of compensation for the temporaryintrusion onto a neighbor's property.

Footnotes

1 CedarPoint Nursery v. Hassid, 594 U.S. ___ (No. 20-107, June 23,2021).

2Chicago, Burlington & Quincy Railroad Co. v. City ofChicago, 166 U.S. 226 (1897).

3Id.

4United States v. Causby, 328 U.S. 256 (1946).

5Kaiser Aetna v. United States, 444 U.S. 164(1979).

6Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419(1982).

7See, generally, Restatement(Second) of Torts 195-211.

8PruneYard Shopping Center v. Robins,447 U.S. 74 (1980). Members of the Court issued multiple separateopinions explaining their reasoning, but all of the justices agreedwith the result.

9 Theinternal quotation in PruneYard is from the Court'sprior opinion in Lloyd Corp. v. Tanner, 407 U.S. 551(1972), where the Court upheld the right of a shopping mall ownerto prohibit public expression on its premises.

10 Theinternal quotation in this excerpt from PruneYard is fromArmstrong v. United States, 364 U.S. 40(1960).

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

See the article here:
The Supreme Court Further Expands The Definition Of A Physical - Mondaq News Alerts

At the end of its recent term, the U.S. Supreme Court handed down a new decision on the law of takings. The case, Cedar Point Nursery v. Hassid, was a labor relations dispute disguised as a takings case, but its resolution has important implications for the terms on which New York developers can get access to adjoining property in aid of their construction projects. In Cedar Point Nursery, a divided Court ruled, by a 6-3 vote, that a state regulation authorizing very limited temporary entry by union organizers onto private agricultural property amounted to a physical taking of property that violated the Fifth and Fourteenth Amendments to the Constitution.[1] The decision expands the concept of what is a physical taking and raises questions about the further expansions of takings law that may follow.

The last clause of the Fifth Amendment to the U.S. Constitution, part of the Bill of Rights adopted in 1791, provides: nor shall private property be taken for public use, without just compensation. Although originally applicable only to the federal government, the Fourteenth Amendment, adopted after the Civil War, makes the principle equally applicable to the states and their political subdivisions.[2]

The most obvious example of a taking is when the government or a private party authorized by law to do so (such as a utility) exercises the power of eminent domain to acquire actual ownership of private property, or at least a permanent interest in property. In that situation, a public purpose and just compensation are required by the Constitution.[3] Other situations are not so obvious and have spawned a large body of court decisions addressing countless permutations.

Supreme Court precedent distinguishes between physical takings and regulatory takings. Physical takings are unconstitutional per se (i.e., automatically) in the absence of a public purpose and compensation. By contrast, an owners claim that it has been subjected to a regulatory taking in effect, a claim that although there has been no physical invasion of its property, a law, regulation or other governmental action has intruded so far into its property rights as to amount to a taking must be analyzed and evaluated on a fact-specific, case-by-case basis.

What rises to the level of a physical taking, however, isnt always clear either, and the concept has expanded over the years. In 1946, the Supreme Court held that repeated low-altitude overflights by military aircraft approaching and leaving a nearby airport, the effect of which was to destroy the owners ability to operate their chicken farm, constituted a taking.[4] In 1979, the Court held that the governments claim of a navigational servitude over private property, the effect of which was to allow the public to access the property on a continuous basis, effectuated a taking.[5] And in 1982, the Court held that even a de minimis permanent physical occupation of property is a taking; more specifically, the Court struck down as unconstitutional a New York statute requiring owners of apartment buildings to allow cable TV companies to attach their cables to the owners buildings.[6] Which brings us to the Cedar Point Nursery case.

A regulation under Californias Agricultural Labor Relations Act gave labor organizations a limited right of access to private agricultural property. Access was allowed in no more than four 30-day periods in any one calendar year, and only during three hours during any one day one hour before work, one hour during the lunch break and one hour after work. Access was limited to two organizers per work crew, plus one additional organizer for every 15 workers over 30 workers in a crew. The property owner was entitled to prior notice. Disruptive conduct was prohibited, but the union organizers were otherwise free to meet with employees to discuss labor or union issues.

Cedar Point Nursery is a large California strawberry grower. It claims that, one morning in 2015, United Farm Workers organizers entered its property and disturbed its operations, causing some workers to join a protest and others to leave the worksite. Along with a second grower, it sued in federal court, arguing that Californias regulation effected an unconstitutional physical taking of its property. The trial court dismissed the lawsuit, and a divided U.S. Court of Appeals for the Ninth Circuit affirmed that decision. The Supreme Court agreed to hear the case.

The Court reversed the Ninth Circuits decision and ruled in favor of the nursery. Perhaps not surprisingly, given the cases origin in a dispute about union activity, the Court split along partisan lines, with the six Republican-appointed justices forming the majority and the three Democrat-appointed justices dissenting.

Chief Justice John Roberts wrote for the majority that the access regulation appropriates a right to invade the growers property and therefore constitutes a per se physical taking. The opinion emphasized that the short duration of time during which the regulation allowed entry onto property was irrelevant, and the length of the appropriation bears only on the amount of compensation. The opinion affirmed that physical invasions are takings even if they are intermittent instead of permanent, citing United States v. Causby, the 1946 decision in which the Court held that occasional low-altitude military overflights had effected a taking (although in Causby the overflights had destroyed the owners business).

To reconcile this absolutist definition of a taking with commonly recognized circumstances in which limited entry onto private property has long been allowed, the majority opinion articulated a series of exceptions to this per se rule. First, isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. Second, access that is consistent with longstanding background restrictions on property rights, including traditional common law privileges to access private property, is another exception. And third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking.

The dissenting opinion was written by Justice Stephen Breyer. It argued that the California regulation did not effect a per se taking because it did not appropriate anything, but only regulated employers right to exclude others from their property.

The Cedar Point Nursery majority and dissenters disagreed about how to distinguish between the appropriation of property and regulation of the right to exclude. Because the Court held that the California regulation allowing limited access by union organizers to agricultural properties was in fact an appropriation, the decision raises questions about how much further the Court might go and how far property rights advocates will push the Supreme Court and lower courts in expanding the concept of a taking.

To begin with, any law or regulation requiring that union representatives be given access to a workplace or job site is now to say the least constitutionally suspect.

In future cases, moreover, courts are likely to be asked to clarify the exception to the per se rule that Cedar Point Nursery recognized for access that is consistent with longstanding background restrictions on property rights. The opinion provided no further definition of this exception beyond a reference to traditional common law privileges. Prior case law from around the country has recognized multiple situations in which entry onto anothers land without the owners permission is allowable, including, for example, to bypass an impassible section of a public road, to retrieve personal property, to abate a private or public nuisance, to stop a crime or to make a lawful arrest.[7] Are all of these examples still good law after Cedar Point Nursery?

Even if these cases remain good law, is only court-made law still valid? One possible implication of the absolutist interpretation of a taking in Cedar Point Nursery is that, while court-made exceptions to the per se rule remain valid, state and local governments are powerless to enact statutes that recognize limited rights of entry in defined circumstances.

In 1980, for example, a unanimous Supreme Court agreed that Californias Supreme Court could properly interpret its state constitution as protecting the right of peaceful protestors to set up a card table in a shopping malls central courtyard, distribute pamphlets and collect signatures over the objection of the malls owner, which maintained a blanket policy against expressive activity on its premises.[8] In reaching this result, the Courts opinion, written by Justice (later Chief Justice) William Rehnquist, explained that, while property does not lose its private character merely because the public is generally invited to use it for designated purposes, that principle does not limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.[9] In response to the mall owners contention that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation, the Supreme Courts opinion explained that it is well established that not every destruction or injury to property by governmental action has been held to be a taking in the constitutional sense, and the determination whether a state law unlawfully infringes a landowners property in violation of the Takings Clause requires an examination of multiple factors.[10]

The only way to reconcile this case-by-case approach with the per se rule of Cedar Point Nursery is to rely on the fact that the shopping mall was open to the public, although not for the purpose that the visitors in that case sought to use it, while in Cedar Point Nursery the owners did not open their land to the general public. But the Court specifically said in the shopping mall case (and in prior cases) that private property does not lose its private character even if it is open to the general public a point that is inconsistent with a distinction based on private propertys status as open to the general public.

Closer to home, New York has a statute, Section 881 of the Real Property Actions and Proceedings Law, that empowers courts to grant licenses allowing property owners to gain temporary access to neighboring property for the purpose of effectuating repairs or improvements to their own property upon such terms as justice requires. The statute often has been used by developers and their contractors to compel recalcitrant neighbors to allow them to enter onto adjoining property to perform surveys and install protective measures. The statute does not require compensation, although it is not unusual for courts, in the exercise of their discretion, to require the payment of a fee if the entry is for more than a de minimis length of time for example, if the purpose of the entry is to install and maintain temporary protective scaffolding. Is this statute unconstitutional due to its failure to expressly require the payment of just compensation in accordance with the Fifth Amendment? Or perhaps due to its creation of a right of access in the service of a private purpose rather than a public one? It seems inevitable that these issues and others of a similar nature will be litigated in a future case. The risk of the issue being raised should motivate developers to avoid litigation if possible and to be prepared, if necessary, to augment the usual protections provided in access agreements (such as indemnification and insurance) with some amount of compensation for the temporary intrusion onto a neighbors property.

[1] Cedar Point Nursery v. Hassid, 594 U.S. ___ (No. 20-107, June 23, 2021).

[2] Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).

[3] Id.

[4] United States v. Causby, 328 U.S. 256 (1946).

[5] Kaiser Aetna v. United States, 444 U.S. 164 (1979).

[6] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

[7] See, generally, Restatement (Second) of Torts 195-211.

[8] PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). Members of the Court issued multiple separate opinions explaining their reasoning, but all of the justices agreed with the result.

[9] The internal quotation in PruneYard is from the Courts prior opinion in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), where the Court upheld the right of a shopping mall owner to prohibit public expression on its premises.

[10] The internal quotation in this excerpt from PruneYard is from Armstrong v. United States, 364 U.S. 40 (1960).

The author gratefully acknowledges the valuable contributions to this alert of Aaron Jacobs, a member of the Columbia Law School Class of 2022 and a 2021 Kramer Levin summer associate.

[View source.]

Continued here:
The Supreme Court Further Expands the Definition of a Physical Taking of Property That Violates Fifth Amendment Protections - JD Supra

Judge expected to rule Wednesday whether to charge Mensah in on-duty shooting

Former Wauwatosa police Officer Joseph Mensah shot, killed Jay Anderson in 2016

Updated: 8:48 AM CDT Jul 28, 2021

A judge is expected to rule Wednesday on whether to charge former Wauwatosa police Officer Joseph Mensah in one of his three on-duty shooting deaths. Dash camera video from 2016 shows Mensah shooting and killing Jay Anderson, who was asleep in his car in Madison Park.Milwaukee County's district attorney decided not to charge Mensah, but Anderson's family asked a judge to independently file criminal charges against Mensah.Mensah invoked his Fifth Amendment right and did not testify during the hearing in May.Wauwatosa's now-retired police chief did testify in the ongoing case. Mensah now works as a Waukesha County sheriff's deputy.He also shot and killed Antonio Gonzalez and Alvin Cole while on duty.

A judge is expected to rule Wednesday on whether to charge former Wauwatosa police Officer Joseph Mensah in one of his three on-duty shooting deaths.

Dash camera video from 2016 shows Mensah shooting and killing Jay Anderson, who was asleep in his car in Madison Park.

Milwaukee County's district attorney decided not to charge Mensah, but Anderson's family asked a judge to independently file criminal charges against Mensah.

Mensah invoked his Fifth Amendment right and did not testify during the hearing in May.

Wauwatosa's now-retired police chief did testify in the ongoing case.

Mensah now works as a Waukesha County sheriff's deputy.

He also shot and killed Antonio Gonzalez and Alvin Cole while on duty.

Read more here:
Judge expected to rule Wednesday whether to charge Mensah in on-duty shooting - WISN Milwaukee

At an unnerving press conference last week, a reporter asked Rep. Marjorie Taylor Greene (R-Ga.) whether she's has been vaccinated against the coronavirus. The right-wing congresswoman replied, "You see, with HIPAA rights, we don't have to reveal our medical records, and that also involves our vaccine records."

The Republican's tone suggested she saw herself as an expert in matters related to the Health Insurance Portability and Accountability Act (HIPAA), and she was eager to lecture the reporter about the subject.

The problem, of course, was that Greene had no idea what she was talking about.

A week earlier, North Carolina Lt. Gov. Mark Robinson (R) said door-to-door vaccination information outreach might be "illegal" under HIPAA. That didn't make sense, either.

Alas, the Republicans aren't alone. Dallas Cowboys quarterback Dak Prescott spoke at a press conference of his own last week and was also asked about whether he's received a COVID-19 vaccine. "I don't necessarily think that's exactly important," the athlete said, adding, "I think that's HIPAA."

No, it's really not.

In case this isn't obvious, let's take a moment to shine a light on reality. HIPAA, which has been federal law for the last 25 years, relates to health privacy, but as the New York Times explained late last week:

The law applies only to companies and professionals in the health care field, although some people may incorrectly imply otherwise, as Ms. Greene did in suggesting that the measure offered Fifth Amendment-like protection against revealing personal health information.... [N]othing in the law prohibits asking about someone's health, be it vaccination status or proof that such information is accurate.

If someone called your personal physician asking for details from your medical records, HIPAA would prevent him or her from sharing that information without your approval.

But the law does not create a blanket prohibition on someone being asked about their health. In the case of Marjorie Taylor Greene, HIPAA doesn't create a "right" that makes a reporter's question improper.

Journalists can ask people about whether they've been vaccinated. So can employers. So can store owners make inquiries of customers.

Those who insist that HIPAA shields them from questions they're embarrassed to answer are mistaken.

Go here to read the rest:
Vaccine opponents appear increasingly confused about HIPAA - MSNBC