Here's the recorded arguments.
- California will try and push the Court to seeing this as an “anti-union” lawsuit: this is not that big of an intrusion, we've been doing it for 50 years under both Cal and federal law, and a ruling for the property owners will upset this apple cart and prevent unions from organizing.
- The property owners will try and push the Court to seeing the case as one upholding the “keep out” nature of private property. There are other means of contacting the workers, so why need to do it on this private property? Convenience? [Disclosure: my law firm, Pacific Legal Foundation, represents the property owners.]
- Is this case different from Kaiser and Nollan in that California’s invitation to access the nursery property is not to the general public and only to union organizers?
- Is this case different from PruneYard in that the owner did not invite the public on its land for its commercial benefit?
- Is this case different from Loretto in that the trespass is not “permanent” because unlike the cable box in Loretto, the union organizers come and then after a while leave? A good argument can be made that in Loretto, the cable box qualified as a “fixture” under property law. What role does that doctrine play in this? Does the access California grants to union organizers have a property law analogue?
- Is what is important in the “permanent physical occupation” takings theory the “permanence” of the invasion or the permanence of the loss of the owner’s right to tell anyone and everyone to “keep out?” (I happen to think the latter – otherwise, you get stuck in “fixture” territory, where you don’t want to be.)
- Look for a lot of hypotheticals from the Justices about whether a ruling in favor of the plaintiff will mean that the census worker can’t come to your house, or the zoning inspector can’t come take a look to look for violations.
- I think that they will all agree that this is a physical invasion, but that the line-drawing will take place trying to find the “limiting principle” – what invasions are allowed, either under background principles of California’s property law, or as Justice Thurgood Marshall noted, as a fundamental principle of property law that no state may abrogate without compensation.