Now Hear This: In California, Statutes Can Trump the Constitution

Technically, this is not a taking case because the parties evidently did not raise that issue. Except that it really is. Sub silentio, as it were. To gain an understanding of the background, read Pruneyard Shopping Center v. Robbins, 447 U.S. 74 (1980) holding that California shopping mall owners must admit into their malls people who do not wish to shop, but only to collect signatures on petitions that have nothing to do with malls. The court held that the state constitutional freedom of expression provision that under state law extended to quasi-public forums like large malls trumped the owner’s property rights. So it was a case of conflicting state constitutional provisions.

Now, along comes Ralphs Grocery Co. v. United Food & Commercial Workers Union, Cal. Supr. Ct. Docket No. S185544, filed December 27, 2012, slip opinion at p. 2, which reads just like a labor law case, except it also illustrates that the California Supreme Court does not appear to have much regard for private property rights. Said the Court:

“We agree with the Court of Appeal that the supermarket‘s privately owned entrance area is not a public forum under the California Constitution‘s liberty of speech provision. For this reason, a union‘s picketing activities in such a location do not have state constitutional protection. Those picketing activities do have statutory protection, however, under the Moscone Act.” Emphasis added.

In other words, the owner’s [constitutional] right to exclude must yield to the union’s statutory right to enter his land, even where the land in question provides access and is not freely open to the general public.

So the union won because the court held that — constitution, shmonstitution — a labor relations statute (the Moscone Act) trumps the owner’s constitutional right to exclude, and allows union pickets and them alone  to enter the area in question and do their thing. So unlike Robbins, this was not a clash of two constitutional provisions, but a conflict between the constitution and a statute.

So slice it any way you want, but what the court thus de facto held was that a statute (the Moscone Act) can, and in this case did, override a constitutional right – i.e., the business owner’s right to exclude strangers from the part of his private property that is used only for the limited purpose of access and is not open to the general public. See Kaiser Aetna v. United States, 444 U.S. 164 (1979).

Just how the court managed the feat of making the owner’s constitutional right yield to the union’s statutory one  we are not sure. Maybe it’s because we went to a small, urban night law school that (at least in the olden days) did not instill in us the highly refined modes of legal reasoning employed by our betters these days.

Oh, we almost forgot. Wasn’t there a taking problem lurking in this factual scenario? There sure was. After all, this was was a variant of the Pruneyard case, and absent a constitutional basis for the union’s position, it was present in the case. But the California Supreme Court never mentioned the subject. That was no oversight, because though the parties did not go into that, the taking concerns were brought to the court’s attention in an amicus brief of the California Retail Association et al. which urged reconsideration of the Pruneyard case. But as we know, an amicus must take the case as the parties have made it, and may not embark on a “juridical expedition” of its own, as the court once put it.

So California remains in the miniscule minority that follows the Robbins rule, and has now expanded it. And here you wonder why the exodus of businesses out of California continues unabated.


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