A 6-3 ruling Wednesday from the U.S. Supreme Court could have implications for Colorado’s efforts to unionize farmworkers.

The Court ruled in Cedar Point Nursery v. Hassid that a California regulation that required agricultural employers to allow union reps on their property to unionize farmworkers is unconstitutional and a violation of the Fifth and Fourteenth amendments, specifically calling the regulation a “taking.”

Writing for the majority, Chief Justice John Roberts said, “California’s access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties (here union organizers) the owners’ right to exclude. The right to exclude is ‘a fundamental element of the property right.'”

The regulation stems from a 1975 California law tied to United Farm Workers and organizer Cesar Chavez. The law was challenged in 1976, with the California Supreme Court ruling in favor of the farmworkers’ union. At that time, the U.S. Supreme Court declined to take up the case. 

The more recent challenge started in 2015 with the strawberry grower Cedar Point Nursery in northern California, which according to NPR lost in a complaint against the union and decided to try again with the U.S. Supreme Court, given its conservative majority.

In a statement, the National Federation of Independent Business said the Constitution “requires that small business owners get compensated when union organizers have access to a business owner’s property and we’re glad to see the Supreme Court protect this important right and not allow the government to interfere with their daily business operations.”

In the recently-concluded Colorado General Assembly session, Democratic lawmakers passed Senate Bill 87 (no Republicans voted for it), a bill that critics have said follows California’s path.

Among its many provisions, SB 87 strikes down the exemption for agricultural employers and employees from the Colorado “Labor Peace Act” and authorizes agricultural employees to organize and join labor unions; engage in protected, concerted activity; and engage in collective bargaining. 

The California regulation in Cedar Point Nursery said that agricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year. While that’s not in SB 87, the Colorado Department of Labor and Employment would conduct rulemaking that would set guidelines on how union organizers contact farmworkers.

That level of specificity is what made California’s regulation problematic, according to SB 87 co-sponsor State Sen. Dominick Moreno of Commerce City. He told Colorado Politics that the bill sponsors were aware that the court case was in process, and made sure to work with organizations like Colorado Farm Bureau on language granting reasonable access.

The California regulation was slightly different from what Colorado’s proposed law would do, he said, which granted access for a certain period of time. SB 87  sponsors went in a different direction, with language that said farmworkers had to have access to key service providers – including union organizers – without specifying a minimum amount of time.

In the bill, key service providers are defined as health care providers, a community health worker, education provider, attorney or other legal advocate, a government official, a member of the clergy and “any other service provider to which an agricultural worker may need access,” which would include union organizers.

That access is also limited to visitors to farmworker housing, Moreno said. “The Court’s decision is informative for the rulemaking that CDLE will do in the future and likely will have an impact on that rulemaking.”

The bill’s language around access says an employer shall not interfere with a worker’s “reasonable access to visitors” at the employer-provided housing during any time when the employee is taking a break or otherwise not working. It also directs CDLE to come up with rules for “additional times” when an employer may not interfere with an employee’s reasonable access to those service providers, which could include on-the-job time, especially if the employee is working in excess of 40 hours per week. Those rules must be in place, according to the bill, by Oct. 31 and in effect by Jan. 1, 2022.

Moreno said he believes the statute is broad enough to avoid running afoul of the Supreme Court decision. “The California regulation was incredibly specific, and that opened the door to this argument of an illegal taking. This is private property, which the Court takes very seriously and something we wanted to avoid in the development of SB 87.”

Gov. Jared Polis has not yet signed the legislation; he has until July 8 to do so. 

But the Court’s decision is already giving opponents of SB 87 something to hope for.

State Sen. Jerry Sonnenberg, R-Sterling, was among the bill’s most vocal critics, calling it the most devastating legislation to agriculture since he’s been politically active. Sonnenberg told Colorado Politics he hopes the Court’s decision will be an incentive for Polis to dismiss SB 87. “The governor’s only move forward is to veto the bill,” Sonnenberg said Wednesday.

While Colorado Farm Bureau eventually moved from opposition to neutral on SB 87, the ruling was praised as good news for Colorado ranchers, farmers and property owners by Chad Vorthmann, CFB’s executive vice president. The national American Farm Bureau Federation filed a friend-of-the-court brief, siding with Cedar Point, on the case.

“The ruling underscores the importance that property rights are a fundamental right and have been since the founding of this country,” Vorthmann said in a statement to Colorado Politics. “Colorado Farm Bureau has maintained for years that takings can come in many forms and property rights should be protected. The Supreme Court’s further clarification that the taking of those property rights can come in many forms is a strong message that farmers and ranchers have a say over who can have access to their farms.

“The bottom line is that this ruling is good news for every citizen to know that their rights are being protected and upheld by the highest court. We are still reviewing how this impacts SB 21-87, but the ruling should serve as a key reminder to state and local governments that the ability to control access to property is a right granted to all citizens by the 5th amendment to the Constitution.”

The five members signing onto the Roberts opinion were the Court’s conservatives: Justices Samuel Alito, Colorado’s Neil Gorsuch, Clarence Thomas, Brett Kavanaugh and Amy Comey Barrett. The three liberal members – Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer – signed onto a dissent authored by Breyer. 

In his dissent, Breyer wrote that the regulation “does not ‘appropriate’ anything; it regulates the employers’ right to exclude others. At the same time, our prior cases make clear that the regulation before us allows only a temporary invasion of a landowner’s property and that this kind of temporary invasion amounts to a taking only if it goes ‘too far,'” and in his opinion it did not.

The US Supreme Court June 23, 2021 decision in Cedar Point Nursery v Hassid, which could have implications for Colorado’s farmworker bill, Senate Bill 87.