Confirming yet again that the shopping mall is the focus of California culture, the California Supreme Court in Ralphs Grocery Co. v. United Food and Commerical Workers Union Local 8, No. S185544 (Dec. 27, 2012), held that a privately-owned walkway fronting a warehouse-type grocery store is a venue for the airing of grievances, even though it is not a "public forum" for speech under the California Constitution's free speech provision. Thus, a labor union's members have no constitutional rights to picket there. However, the court also held that the Moscone Act -- a state statute prohibiting courts from issuing injunctions in labor disputes except in limited circumstances -- protected union members' (and no one else's) rights to picket on this private property.
In other words, the grocery store owner has a right to exclude others from this property, but that right is trumped by the Moscone Act.
If this all sounds like familiar territory, it is. In PruneYard Shopping Center v. Robins,
447 U.S. 74 (1980), the California Supreme Court changed its interpretation of the California Constitution’s speech clause, and expressly overruled an earlier decision holding it did not protect speech on shopping center property. The mall owner appealed to the U.S. Supreme Court, arguing that the change in the law and the resultant opening up of private property to public access was a physical invasion taking. In other words, a "judicial taking," a subject we discussed in this article. The Court ultimately rejected that claim, concluding the mall owner "failed to demonstrate that the 'right to exclude others' is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a 'taking.'" Id. at 84.
Curiously, in Ralphs Grocery, neither the majority, concurring, nor dissenting opinions mentioned one word about "takings." Indeed, the only mention of Pruneyard is their own opinion, with not even a shepardized cite to the U.S. Supreme Court's subsequent opinion. We suppose this tells you what the California Supreme Court thinks of takings arguments. The justices limited their federal constitutional analysis to whether the content discrimination (allowing union members' speech, but not other's) violates the First Amendment. The court's failure to address the Fifth Amendment issue wasn't for lack of not being briefed on the topic: Mike Berger filed an amicus brief that focused on the takings issues.
So now comes the fun part: how does a grocery store owner (either this one or another) raise the takings claim, now that the California Supreme Court has ruled both that an owner has a right to exclude, but that the statute mandates public access to the store owner's private property? Under Rooker-Feldman, it can't go running to the federal district courts to challenge the California Supreme Court directly. Moreover, under Williamson County must it ripen its claim in the California state courts (seems it already has)?
Thus, it looks like the only available avenue to directly challenge the ruling is a cert petition to the U.S. Supreme Court. As Justice Chin noted in dissent, "[t]oday's opinion places California on a collision course with the federal courts." Dissent at 3. He predicts so based on free speech issues (discriminating between labor speech and other forms of protest), but his warning is equally applicable to the property issue. The other alternative may be a challenge to the Moscone Act itself as a taking (now that the California court has definitively ruled that it trumps an owner's right to exclude others). If the challenge takes that form, we don't see a reason why such a claim for compensation could not be brought in California state courts even if the U.S. Supreme Court denied cert.
The Ralphs case has been described as a "hands-down win for organized labor." But the question remains whether the people of California will view it the same way if they end up picking up the tab for a taking.
Brief of Amicus Curiae in Suport of Plaintiff Ralphs Grocery Company, Ralphs Grocery Co. v. United Food and...
