Amicus Curiae Brief — Kevin Brott, et al., Petitioners v. United States

No. 17-712

In The

Supreme Court of the United States

____________________

KEVIN BROTT, et al.,

v.

UNITED STATES,

____________________

Petitioners,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

____________________

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION, REASON FOUNDATION, AND

AMERICAN CIVIL RIGHTS UNION IN

SUPPORT OF PETITIONERS

____________________

JAMES S. BURLING*

*Counsel of Record

ETHAN W. BLEVINS

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: jsb@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation, Reason

Foundation, and American Civil Rights Union

i

QUESTION PRESENTED

Can the federal government take private property

and deny the owner the ability to vindicate his

constitutional right to be justly compensated in an

Article III court with trial by jury?

ii

Table of Contents

Table of Authorities ................................................... iv

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF REASONS

FOR GRANTING THE PETITION ..................... 2

REASONS FOR GRANTING THE PETITION ......... 4

I.

The issues at stake in this litigation affect the

procedural rights and the property rights of

thousands of property owners across

the country ........................................................... 4

II. This Court has yet to Grapple Directly with the

Vital and Unresolved Question of Whether

“Suits at Common Law” Extends to Inverse

Condemnation Claims Against the Federal

Government .......................................................... 7

III. This Court Should Determine Whether the

Widespread Practice of Resolving Federal

Takings Claims Outside the Presence of a Jury

Comports with the Right to a Jury “Preserved”

by the Seventh Amendment .............................. 11

A.

The American Colonies Prior to

Independence Consistently Relied on Juries

in Condemnation Proceedings .................... 12

B.

English Practice Confirms a Robust Jury

Right in Condemnation Proceedings .......... 13

C.

Actions for Unlawful Takings Also Qualified

for Juries in English Practice ..................... 16

iii

D.

This Court Has Never Fully Addressed How

the Historical Right to a Jury in Takings

Cases Bears on the Modern Practice of

Adjudicating Takings Claims Without

a Jury ........................................................... 17

CONCLUSION.......................................................... 19

iv

Table of Authorities

Cases

Atlas Roofing Co., Inc. v. Occupational Safety and

Health Review Comm’n,

430 U.S. 442 (1977) ................................... 10, 14, 17

Bauman v. Ross, 167 U.S. 548 (1897) ...................... 19

Brandt v. United States, 134 S. Ct. 1257 (2014)........ 1

Brott v. United States,

858 F.3d 425 (6th Cir. 2017) ............................... 6, 8

City of Monterey v. Del Monte Dunes.

526 U.S. 687 (1999). ...................................... 7, 8, 11

First English Evangelical Lutheran Church of

Glendale v. Los Angeles Cty.,

482 U.S. 304 (1987) ............................................... 16

Horne v. Dep’t of Agric., 135 S. Ct. 2419 (2015)......... 1

Hurley v. Kincaid, 285 U.S. 95 (1932)...................... 10

Kohl v. United States, 91 U.S. 367 (1875) ................ 10

Koontz v. St. Johns River Mgmt. Dist.,

133 S. Ct. 2586 (2013) ............................................. 1

Lehman v. Nakshian, 453 U.S. 156 (1981) ................ 8

Patton v. United States, 281 U.S. 276 (1930)........... 10

Pernell v. Southall Realty, 416 U.S. 363 (1974) ...... 10

Preseault v. I.C.C., 494 U.S. 1 (1990) ......................... 5

United States v. 811.92 Acres of Land,

404 F.2d 303 (6th Cir. 1968) ................................. 18

United States v. Reynolds.

397 U.S. 14 (1970) ........................................... 18, 19

v

Williams v. Florida, 399 U.S. 78 (1970)................... 11

Federal Statutes

16 U.S.C. §§ 1241-51 ................................................... 5

28 U.S.C. § 1491 .......................................................... 5

Judiciary Act of 1789, Ch. 20, § 9, 1 Stat. 73 ........... 11

Rules

Fed. R. of Civ. P. 71.1(h) ........................................... 18

Sup. Ct. R. 37.2(a) ....................................................... 1

Sup. Ct. R. 37.6 ........................................................... 1

Other Authorities

1 Holdsworth, William, A History of English Law

(3d ed. 1922) .......................................................... 14

1 Orgel, Lewis, Valuation Under the Law of

Eminent Domain (2d ed. 1953) ............................. 14

1 Reid, John P., Constitutional History of the

American Revolution: The Authority of Rights

(1986) ..................................................................... 13

5 Moore, J., Federal Practice (2d ed. 1969) .............. 19

8 The Writings of Thomas Jefferson (Memorial

Edition, Andrew A. Lipscomb, ed. 1903) ................ 9

Attorney-General v. De Keyser’s Royal Hotel, Ltd.

[1920] A.C. 508 (H.L.)

(appeal taken from Eng.) ...................................... 15

Cripps on Compulsory Acquisition of Land

(Harold Parrish ed., 11th ed. 1962) ...................... 14

Davies, Keith, The Jury in Eminent Domain,

SF 54 ALI-ABA 145 (2001) ............................. 16, 17

vi

Davies, Keith, The Law of Compulsory Purchase and

Compensation (4th ed. 1984) ................................ 14

Grant, Eric, A Revolutionary View of the Seventh

Amendment and the Just Compensation Clause,

91 N.W. U. L. Rev. 144 (1996) .............. 9, 11, 12, 13

Hamburger, Philip, Is Administrative Law

Unlawful? (2014) ..................................... 3, 9, 12, 13

Kanner, Gideon, Shattering the Myth of Eminent

Domain, The Connecticut Law Tribune (March 31,

2003) available at http://www.ctlawtribune.com/id

=900005383472/Shattering-the-Myth-of-EminentDomain. ................................................................. 17

McNulty, William D., The Power of “Compulsory

Purchase” Under the Law of England, 21 Yale L. J.

639 (1912) .............................................................. 16

Rossiter, Clinton, Seedtime of the Republic: The

Origin of the American Tradition of Political

Liberty (1953) ........................................................ 12

Scott, Austin, Holmes vs. Walton: The New Jersey

Precedent, 4 Am. Historical Rev. 456 (1899) .... 3, 20

The Declaration of Independence (U.S. 1776) ......... 12

U.S. Court of Federal Claims, Statistical Report for

the Fiscal Year October 1, 2015-September 30,

2016, available at http://www.uscfc.uscourts.gov/

sites/default/files/Statistical%20Report%20for%20

FY2016.pdf. ............................................................. 6

U.S. Dept. of the Interior, Bureau of Land

Management, Public Land Statistics,

2010, http://www.blm.gov/

public_land_statistics/pls10/pls10.pdf .................... 5

vii

Wayne D. Moore, Written and Unwritten

Constitutional Law in the Founding Period: The

Early New Jersey Cases,

7 Const. Comment. 341 (1990)................................ 3

Wolfram, Charles W., The Constitutional History of

the Seventh Amendment,

57 Minn. L. Rev. 639 (1973) .................................. 12

1

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF), Reason Foundation, and the

American Civil Rights Union respectfully file this

amicus curiae brief in support of Appellants Kevin

Brott, et al. 1

Founded in 1973, PLF is the nation’s most

experienced public interest legal organization

defending Americans’ property rights. PLF attorneys

have often participated as lead counsel or amicus

curiae in takings cases at all levels of the federal court

system. See, e.g., Horne v. Dep’t of Agric., 135 S. Ct.

2419 (2015); Brandt v. United States, 134 S. Ct. 1257

(2014); Koontz v. St. Johns River Mgmt. Dist., 133 S.

Ct. 2586 (2013). PLF’s familiarity with takings law

will assist the Court in considering this petition.

Reason Foundation is a nonpartisan public policy

think tank, founded in 1978. Reason’s mission is to

advance a free society by developing and promoting

libertarian principles and policies—including free

markets, individual liberty, and the rule of law.

Reason advances its mission by publishing Reason

magazine, online commentary, and policy research

reports. To further Reason’s commitment to “Free

Pursuant to this Court’s Rule 37.2(a), all parties have consented

to the filing of this brief. Counsel of record for all parties received

notice at least 10 days prior to the due date of the Amici Curiae’s

intention to file this brief.

Pursuant to Rule 37.6, Amici Curiae affirm that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

Amici Curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

1

2

Minds and Free Markets,” Reason files briefs on

significant constitutional issues.

American Civil Rights Union (ACRU) is a 501(c)(3)

legal policy organization dedicated to educating the

public on constitutional government and supporting

litigation that will advance and restore principles

enshrined in the U.S. Constitution. The policy board

of the ACRU includes such constitutional conservative

leaders as former United States Attorney General

Edwin Meese III, former Assistant Attorney General

Charles J. Cooper, former Assistant Attorney General

William Bradford Reynolds, and former Ambassador

J. Kenneth Blackwell. The ACRU is participating

as amicus here

to

advance

an

originalist

understanding of the Fifth and Seventh Amendments

to the U.S. Constitution.

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION

Kevin Brott petitions this Court to reverse the

Sixth Circuit decision below and affirm his right to

have a jury assess just compensation in a federal

inverse condemnation action. His case raises an issue

of national importance. Untold numbers of property

owners like him will face future legal disputes with

the federal government in eminent domain or inverse

condemnation proceedings. The question of whether

they can call upon the venerable right to a jury is one

of lasting national significance.

Kevin Brott’s plea joins a rich history. Indeed, the

birth of judicial review in the American colonies

involved the right to a jury in a property case

regarding the wartime seizure of commercial goods.

3

After the battle of Monmouth in 1778, the British

occupied much of New Jersey. See Philip Hamburger,

Is Administrative Law Unlawful? 152 (2014); Austin

Scott, Holmes vs. Walton: The New Jersey Precedent,

4 Am. Historical Rev. 456, 456 (1899). With Tory

sympathies and revolutionary fervor churning at a

frenzied pitch, the state faced looming crisis.

Hamburger, supra at 152.

One of these crises was trade with the enemy. See

Scott, supra at 461. To deal with this vexing problem,

New Jersey authorized the seizure of goods crossing

British lines. Scott, supra at 461. Because of the dire

circumstances, New Jersey limited seizure disputes to

summary proceedings with a six-man jury, instead of

the usual 12. Hamburger, supra at 152. Soon after, the

privateer and vigilante Elisha Walton seized a

massive stock of silk and other goods owned by John

Holmes and Solomon Ketcham. Scott, supra at 457.

Holmes challenged the constitutionality of the sixman jury under the New Jersey Constitution. Id. at

457-58. In this first recorded instance of judicial

review in American history, the New Jersey Supreme

Court agreed with Holmes. Id. at 468; see also Wayne

D. Moore, Written and Unwritten Constitutional Law

in the Founding Period: The Early New Jersey Cases,

7 Const. Comment. 341, 341 (1990). Despite the

desperate circumstances and the gravity of the

allegations, the Court held that only a twelve-man

jury could satisfy the right to a civil jury trial.

Hamburger, supra at 152; Scott, supra at 463.

This seminal case inaugurated a tradition of

judicial review that has shaped our nation. Senator

Gouverneur Morris said of the case: “Such power in

judges is dangerous; but unless it somewhere exists,

4

the time employed in framing a bill of rights and form

of government was merely thrown away.” Scott, supra

at 464.

Over two centuries later, however, the right to a

jury trial does not enjoy the same degree of

veneration. Administrative agencies and legislative

courts often adjudicate civil cases without juries. See

Hamburger, supra at 242-48.

Such is the case with Kevin Brott. Like John

Holmes, Kevin Brott wants to litigate his wrongful

takings claim in front of a jury. But the right to a jury

trial in 2017 has traveled far from the right that

inaugurated judicial review in 1780. That right,

preserved by the Seventh Amendment, involved a

strong tradition of juries in takings cases, including

inverse condemnation. This Court should grant this

petition to address the unresolved role of the Seventh

Amendment in federal takings disputes.

REASONS FOR GRANTING THE PETITION

I.

The issues at stake in this litigation affect

the procedural rights and the property

rights of thousands of property owners

across the country

This petition raises issues of national importance.

The Sixth Circuit’s holding curtails fundamental

rights enshrined in the Takings Clause and the

Seventh Amendment. And the scope of such a holding

is vast—most landowners nationwide impacted by

federal regulation and condemnation of land must

seek to enforce their Fifth Amendment rights outside

the shelter of Article III courts and in the absence of a

jury. This widespread administrative practice hinges

5

on pressing and unresolved questions of law that this

Court should address.

The Court of Federal Claims enjoys exclusive

jurisdiction over condemnation proceedings and

takings claims where more than $10,000 is at stake.

See 28 U.S.C. § 1491. This means that thousands of

property owners impacted by federal regulation of

land cannot seek redress in the federal court system.

This reality has special force in the context of the

rails-to-trails program at issue here. The Trail Act

promises an untold number of takings cases for many

years to come. See 16 U.S.C. §§ 1241-51. At the zenith

of railroad development, 272,000 miles of track

existed. Preseault v. I.C.C., 494 U.S. 1, 5 (1990). Huge

swaths of these corridors have been and continue to be

relinquished to government entities for trail

conversion. Id. Between 1781 and 2010, the United

States conveyed approximately 816 million acres of

public lands into private ownership (individuals,

railroads, etc.). 2 Thus, throngs of property owners

adjacent to railway corridors may yet come seeking

redress for uncompensated takings. Whether the

Seventh Amendment has any bearing on these future

takings claims is a clear question of law of great

importance for thousands of property owners across

the United States.

And rails-to-trails cases only make up a fraction of

the overall federal eminent domain proceedings or

federal regulations that raise takings issues that may

find their way into the Court of Federal Claims.

2 U.S. Dept. of the Interior, Bureau of Land Management, Public

Land Statistics, 2010, Table 1-2, http://www.blm.gov/

public_land_statistics/pls10/pls10.pdf.

6

Federal regulations that could give rise to takings

claims or condemnation proceedings are diverse and

abundant. Of the 1,501 cases pending in the Court of

Federal Claims in 2016, 235 were takings cases. U.S.

Court of Federal Claims, Statistical Report for the

Fiscal Year October 1, 2015-September 30, 2016. 3 And

of the 634 claims filed that year, 57 involved takings.

Id. Many of these cases involve multiple property

owners, like Kevin Brott and his twenty-two fellow

petitioners. Brott v. United States, 858 F.3d 425 (6th

Cir. 2017). Thus, hundreds of cases bearing on a

fundamental constitutional right are adjudicated and

disposed of without a jury.

The fundamental right to a jury trial protects the

underlying right at issue, such as the right to just

compensation. Government agencies and appraisers

have developed a reputation for lowballing

compensation. In fact, former law professor Gideon

Kanner maintains a “lowball watch” that compiles

reports of abuse. Gideon Kanner, Lowball Watch,

Gideon’s Trumpet. 4 Many of the examples that

Professor Kanner cites demonstrate that juries often

award much higher compensation than government

offers. See id. For instance, in 2016, a San Diego

hospital began a condemnation proceeding and

deposited $4.7 million, but—after trial—the jury

awarded $16.8 million. Id. A few months earlier, a

Pennsylvania jury awarded $1.25 million compared to

the condemnor’s offer of $60,000. Id. Juries can thus

serve as a vital check on self-interested government

actors when assessing compensation.

3 Available at http://www.uscfc.uscourts.gov/sites/

default/files/Statistical%20Report%20for%20FY2016.pdf.

4 http://gideonstrumpet.info/category/lowball-watch/.

7

Given the scope of the many property owners

affected by the legal question in this case and the

fundamental rights at stake, this petition merits

review.

II.

This Court has yet to Grapple Directly

with the Vital and Unresolved Question of

Whether “Suits at Common Law” Extends

to Inverse Condemnation Claims Against

the Federal Government

This Court has never directly resolved the role of

the Seventh Amendment in inverse condemnation

cases. That silence has a broad impact on the many

property owners who must pursue their constitutional

claims in the Court of Federal Claims without a jury.

This Court should grant Brott’s petition and fill this

jurisprudential gap.

This Court last addressed the right to a jury trial

in the takings context in City of Monterey v. Del Monte

Dunes. 526 U.S. 687 (1999). There, the Court held that

a Section 1983 action against the City of Monterey for

an alleged taking was an action at law that fit within

the “Suits at common law” to which the Seventh

Amendment applies. Id. at 710-11. The Court made

clear, however, that it was not addressing whether

Seventh Amendment rights apply to takings actions

brought outside the Section 1983 context. Id. at 721.

That issue, left open in Del Monte Dunes, remains

open today. As a result, an uncertain question of law

persists regarding the constitutionality of a

widespread federal practice affecting the fundamental

rights of property owners across the country.

In arguing that the jury question here has indeed

been resolved by this Court, the Sixth Circuit and the

8

government relied on inapposite and non-binding

dictum. See Brott v. United States, 858 F.3d at 436;

Response Brief for the United States, 2016 WL

4582611 *56. Ironically, that dictum comes from Del

Monte Dunes itself, where the Court made an

unrelated statement about the right to a jury in

proceedings against the federal government: “Most of

our regulatory takings decisions have reviewed suits

against the United States. . . . It is settled law that

the Seventh Amendment does not apply in these

contexts.” Del Monte Dunes, 526 U.S. at 719.

(Citations omitted.) This non-binding statement,

however, does not put the issue to rest. After all, the

takings claim in Del Monte Dunes was not against the

United States. Id. Moreover, Del Monte Dunes

expressly said that it was not deciding whether the

Seventh Amendment applied to inverse condemnation

claims outside the Section 1983 context. Id. at 721.

In turn, the dictum from Del Monte Dunes relied

on precedent from a far-flung context involving

statutory rather than constitutional claims: Lehman

v. Nakshian, 453 U.S. 156, 158 (1981). See Del Monte

Dunes, 526 U.S. at 719. In Lehman, a federal

employee sued the Navy under the Age

Discrimination Act. Lehman, 453 U.S. at 158. This

Court said the employee lacked a right to a jury trial

because “[i]t has long been settled that the Seventh

Amendment right to trial by jury does not apply in

actions against the Federal Government.” Id. at 160.

This limit on the Seventh Amendment, the Court said,

derived from sovereign immunity. Id. Lehman,

however, did not deal with the Fifth Amendment or

constitutional claims of any kind.

9

Principled reasons exist for treating constitutional

and statutory claims differently when it comes to the

reach of the Seventh Amendment. The government

here claims that Congress can dispense with a jury

because of sovereign immunity. 5 But when a

constitutional right is at stake—such as Kevin Brott’s

right to just compensation—Congress is not the source

of the right being litigated. Thus, it would flout

constitutional supremacy if Congress could exercise

the same degree of control over claims rooted in a law

that is supreme to congressional authority. Courts

should be wary not to “elevate[] sovereign rights over

constitutional rights.” Hamburger, supra at 247.

Moreover, if Lehman’s sweeping statement

embraced constitutional cases, it would conflict with

historical evidence that the founding generation

expected to have juries in cases against the

government. For instance, the Stamp Act—the poster

child of parliamentary oppression—enraged colonists

by removing juries from disputes with the Crown. See

Eric Grant, A Revolutionary View of the Seventh

Amendment and the Just Compensation Clause, 91

N.W. U. L. Rev. 144, 151 (1996); infra Part III.

Thomas Jefferson, in a 1789 letter to Thomas Paine,

emphasized the need to place government litigants

before a jury: “I consider [trial by jury] as the only

anchor ever yet imagined by man, by which a

government can be held to the principles of its

constitution.” Letter from Thomas Jefferson to

Thomas Paine (July 11, 1789), quoted in 8 The

Writings of Thomas Jefferson 408 (Memorial Edition,

Andrew A. Lipscomb, ed. 1903). Whatever Lehman

5 The petitioners address the issue of sovereign immunity at

greater length.

10

might say about adjudicating statutory rights, this

Court has not addressed whether Congress can

remove this anchor where constitutional rights—such

as Kevin Brott’s right to just compensation—are the

subject of the litigation.

Indeed, this Court’s broad interpretations of “Suits

at common law” seem contrary to the dictum in Del

Monte Dunes. Under this Court’s precedent, the

phrase refers to “cases tried prior to the adoption of

the Seventh Amendment in courts of law in which jury

trial was customary as distinguished from courts of

equity or admiralty in which jury trial was not.” Atlas

Roofing Co., Inc. v. Occupational Safety and Health

Review Comm’n, 430 U.S. 442, 449 (1977). The

Seventh Amendment, while preserving the traditional

jury right, also extends to “actions unheard of at

common law, provided that the action involves rights

and remedies of the sort traditionally enforced in an

action at law, rather than an action in equity or

admiralty.” Pernell v. Southall Realty, 416 U.S. 363,

375 (1974). This includes all actions “for the recovery

and possession of specific real or personal property.”

Id. at 370. And it certainly embraces eminent domain,

which “always was a right at common law.” Kohl v.

United States, 91 U.S. 367, 376 (1875). This Court has

similarly concluded that inverse condemnation claims

are actions at law. See Hurley v. Kincaid, 285 U.S. 95,

104 (1932).

This broad understanding of “Suits at common

law” finds support in the Judiciary Act of 1789. This

Court has long considered that early act to be “a

contemporaneous exposition of the highest authority”

in construing the Constitution. Patton v. United

States, 281 U.S. 276, 301 (1930) (abrogated on other

11

grounds by Williams v. Florida, 399 U.S. 78 (1970));

see also Grant, supra at 168-73. When defining the

role of the jury in federal courts, the Act distinguishes

between common law suits on the one hand, and

equity and admiralty on the other. It says: “And the

trial of issues in fact, in the district courts, in all

causes except civil causes of admiralty and maritime

jurisdiction, shall be by jury.” Judiciary Act of 1789,

Ch. 20, § 9, 1 Stat. 73. See also § 12. The Seventh

Amendment extends to any action at law with the

exceptions of equity and admiralty. The breadth of

this Court’s Seventh Amendment jurisprudence thus

conflicts with the dictum in Del Monte Dunes—a

conflict worthy of resolution.

Despite the Del Monte Dunes dictum, this Court

has yet to issue a binding, on-point decision regarding

the role of the Seventh Amendment in regulatory

takings against the federal government. This petition

presents an excellent vehicle for addressing that

question.

III.

This Court Should Determine Whether the

Widespread Practice of Resolving Federal

Takings Claims Outside the Presence of a

Jury Comports with the Right to a Jury

“Preserved” by the Seventh Amendment

Our legal history sheds much light on the question

presented by this case. Condemnation practices in

England and the colonies show that the right to a jury

trial—the right memorialized in the Bill of Rights—

applied in the takings context. This Court should

grant the petition to determine how these early

practices inform the modern practice of adjudicating

federal takings issues in juryless proceedings.

12

A.

The American Colonies Prior to

Independence Consistently Relied on

Juries in Condemnation Proceedings

The jury trial has a long history, dating back before

the thirteenth century. Hamburger, supra at 148.

Those roots nourished a firm commitment to the right

to a jury among Americans on the brink of

independence. Indeed, John Adams called the jury

“the heart and lungs” of liberty. See J. Adams, Letter

from the Earl of Clarendon to William Pym (Jan. 20,

1766), quoted in Clinton Rossiter, Seedtime of the

Republic: The Origin of the American Tradition of

Political Liberty 389 (1953). The Crown’s refusal to

permit trial by jury stands among the grievances

listed in the Declaration of Independence. The

Declaration of Independence ¶ 3 (U.S. 1776).

The right to a jury trial dominated among the

concerns of the early supporters of a Bill of Rights. See

Charles W. Wolfram, The Constitutional History of the

Seventh Amendment, 57 Minn. L. Rev. 639, 745

(1973). Parliamentary attempts to erode this right

through laws such as the Stamp Act of 1765

contributed to apprehension regarding the future of

the jury. See Grant, supra at 150-53. The Stamp Act

established that vice-admiralty courts—courts with

no jury—would adjudicate all disputes regarding

customs duties imposed by the Act. Id. at 152-53.

Indeed, though taxation without representation stood

out as the primary grievance against the Stamp Act,

this deprivation of the right to a jury trial fomented

equal revolutionary ardor. Id. As a newspaper at the

time put it, “If we are Englishmen . . . Is not our

property . . . to be thrown into a prerogative court? a

court of admiralty? and there to be adjudged, forfeited

13

and condemned without a jury?” Hamburger, supra at

151. The founding generation held this jury right in

veneration: “No civil provision was more highly

cherished in the European and American dominions

of George III than jury trial.” 1 John P. Reid,

Constitutional History of the American Revolution:

The Authority of Rights 4 (1986). And they guarded it

jealously.

On the eve of the American Revolution, most of the

colonies offered rights to a jury in various

condemnation proceedings. Condemnation during

that era usually made way for the construction of mills

or highways. See Grant, supra at 178. Thus, colonies’

approaches to mill and highway takings reflect the

general practices of the time. In mill and highway acts

across the colonies, the jury trial was a familiar

fixture. See id. at 179-87. Ten of the thirteen colonies

had highway statutes with condemnation provisions

that provided a jury. See id. at 179-84. The other three

colonies’ highway statutes contained no provision for

just compensation at all. See id. at 182-83. Seven of

the thirteen colonies had mill acts. See id. at 184-87.

Each one provided a right to a jury for aggrieved

property owners. See id. Thus, each colony that had

specific acts requiring compensation offered a jury to

assess that compensation. None of the colonies erected

condemnation proceedings for highways or mills that

did not offer property owners the right to a jury.

B.

English Practice Confirms a Robust Jury

Right in Condemnation Proceedings

British legal history prior to American

independence, on which our founders relied, had an

abiding commitment to the jury. Juries regularly

assessed compensation for takings. This Court should

14

address how this history bears on the rights

“preserved” by the Seventh Amendment. See Atlas

Roofing Co., Inc. v. Occupational Safety and Health

Review Comm’n, 430 U.S. 442, 458 (1977) (looking to

historical practices in England to determine the

meaning of the Seventh Amendment).

First introduced by the Norman kings in the

eleventh century, jury practices in England have long

involved the valuation of real property. For example,

William the Conqueror commissioned a massive

survey—the Domesday Book—which assessed the

value of lands all across England. 1 William

Holdsworth, A History of English Law 312-13 (3d ed.

1922). The survey relied entirely on jury verdicts. Id.

Henry II, in 1188, used juries to assess property

values for the Saladin Tithe—a 10% property levy to

fund a crusade to oust invaders from Jerusalem. Id.

London’s redevelopment acts in the seventeenth

century also used juries to assess increases in land

value due to public works. Keith Davies, The Law of

Compulsory Purchase and Compensation 265 (4th ed.

1984). For much of its history, the jury played a vital

role in assessing the value of land.

Juries also determined property values in English

eminent domain cases. See 1 Lewis Orgel, Valuation

Under the Law of Eminent Domain 268 (2d ed. 1953);

Cripps on Compulsory Acquisition of Land 484

(Harold Parrish ed., 11th ed. 1962). While 20th

century changes in the law have abrogated this

tradition, such changes do not bear on the Seventh

Amendment’s meaning at the time of ratification. See

Orgel, supra at 268; Cripps on Compulsory

Acquisition of Land at 484.

15

The House of Lords laid out the history of jury

assessments in takings cases in a 1920 military

occupation case. See generally Attorney-General v. De

Keyser’s Royal Hotel, Ltd. [1920] A.C. 508 (H.L.)

(appeal taken from Eng.). In De Keyser’s Royal Hotel,

the House of Lords considered whether the Crown

must compensate a hotel for temporary occupation by

the military during wartime. Id. at 508-09. Swinfen

Eady, who drafted the lead opinion, detailed English

history regarding takings compensation, including the

role of juries. Speaking of a 1708 statute, he wrote: “It

is somewhat significant that in the first statute of all

dealing with the acquisition of land, . . . we have a

reference to the usual methods that had been taken to

prevent extortionate demands, and the usual methods

are said to be a valuation by jury.” Id. at 527. De

Keyser’s Royal Hotel establishes not only that the

right to a jury in condemnation cases existed in 1708,

but that such a practice had been “the usual method”

prior to that time.

This pattern reasserted itself in 1757, when

Parliament feared that takings during the Seven

Years’ War might lead to “extravagant claims.” Id.

Parliament thus provided “a statutory provision for

vesting the lands taken in trustees till the price may

be paid as fixed by assessment by jury.” Id. This

unflagging history shows that the jury trial right

“preserved” by the Seventh Amendment embraced the

right to a jury in condemnation proceedings. This

Court should grant Kevin Brott’s petition to address

the vital question as to whether the preservation of

that storied right applies to Kevin Brott’s inverse

condemnation claim.

16

C. Actions for Unlawful Takings Also

Qualified for Juries in English Practice

Inverse condemnation claims operate like eminent

domain proceedings for constitutional purposes. See

First English Evangelical Lutheran Church of

Glendale v. Los Angeles Cty., 482 U.S. 304, 316 (1987).

Thus, the historical right to a jury in eminent domain

proceedings applies equally to the inverse

condemnation context. Moreover, English common

law also establishes a clear history of jury practices in

claims similar to inverse condemnation. This Court

should grant review to address how this tradition

informs the modern practice of trying federal inverse

condemnation claims without a jury.

Inverse condemnation claims resemble English

common law actions that relied on juries. As a general

matter, prior to 1791, a plaintiff who suffered a

wrongful taking of land could pursue an ejectment

action. Keith Davies, The Jury in Eminent Domain,

SF 54 ALI-ABA 145, 155 (2001). Ejectment and

similar trespass torts all went before juries. Id. at 15556. Juries also tried wrongful takings by the Crown.

The plaintiff suffering such a wrong would file a

“petition of right,” an action that always enjoyed trial

by jury well before 1791. Id. at 157-58.

Inverse condemnation claims also resemble

English actions against “promoters.” In English

eminent domain practice, the condemnors were often

private “promoters”—individuals or companies

authorized by Parliament to take property for roads

other public works. See William D. McNulty, The

Power of “Compulsory Purchase” Under the Law of

England, 21 Yale L. J. 639, 645 (1912). If the

promoters failed to pay adequate compensation, the

17

landowner could sue them in tort for a trespass action,

much like inverse condemnation. See Davies, supra at

155-56; Gideon Kanner, Shattering the Myth of

Eminent Domain, The Connecticut Law Tribune

(March 31, 2003). 6 These claims went before juries.

Davies, supra at 155-56; Kanner, supra. The Seventh

Amendment promised that similar actions—like

Kevin Brott’s takings claim—should enjoy this same

right, preserved in the same form as it had long

existed by 1791.

D.

This Court Has Never Fully Addressed

How the Historical Right to a Jury in

Takings Cases Bears on the Modern

Practice of Adjudicating Takings Claims

Without a Jury

This Court has never decided how this history

informs the practice of trying takings claims without

a jury. Erroneous dicta, however, may give the false

impression that this question has been resolved. This

Court should take up this issue directly so that offhand statements in past decisions do not dictate the

fate of a fundamental right.

This Court has only addressed the question

presented in this petition in dicta. This dictum

appeared, for example, in Atlas Roofing Company:

“Condemnation was a suit at commonlaw but

constitutionally could be tried without a jury.” 430

U.S. at 458. But Atlas Roofing was not a

condemnation case—it addressed whether OSHA

could conduct enforcement proceedings outside the

presence of a jury. Id. at 444. It merely cited

Available at http://www.ctlawtribune.com/id=900005383472

/Shattering-the-Myth-of-Eminent-Domain.

6

18

condemnation cases as a supposed example of a

deviation from civil jury practices.

Atlas Roofing, in turn, relied on other dicta.

Specifically, it cited United States v. Reynolds. 397

U.S. 14, 14 (1970). In Reynolds, plaintiffs argued that

78 acres of a 250-acre condemnation were not part of

the original scope of the government’s project, so

increased property values due to the improvements

planned for the condemned property should be

included in compensation. Reynolds, 397 U.S. at 14.

The Court held that the question of the original scope

of the project should not have been presented to the

jury. Id. at 20. In an off-hand remark, the Court also

said: “[I]t has long been settled that there is no

constitutional right to a jury in eminent domain

proceedings.” Id.

That statement, however, is neither binding nor

correct. Although the Court mentioned the Seventh

Amendment, Reynolds is not a Seventh Amendment

case. The parties in Reynolds did not raise any

Seventh Amendment issue in the briefing. Instead,

the parties focused only on the proper scope of Federal

Rule of Civil Procedure 71.1(h), which allows a jury to

assess compensation. See generally Brief for the

Respondent, United States v. Reynolds, 397 U.S. 14

(1970) (No. 88) 1969 WL 119877; Brief for the

Petitioner, United States v. Reynolds, 397 U.S. 14

(1970) (No. 88) 1969 WL 119876. Nor did the court of

appeals address the Seventh Amendment in the

proceedings below. See generally United States v.

811.92 Acres of Land, 404 F.2d 303 (6th Cir. 1968).

Indeed, Reynolds did not even present an alternative

argument that if Rule 71.1(h) did not allow the jury to

consider the scope of the project, the Seventh

19

Amendment still demanded it. See generally Brief for

the Respondent 1969 WL 119877. The Court, in fact,

expressly recognized that the parties had not raised a

Seventh Amendment issue: “There is no claim that

the issue is of constitutional dimension.” 397 U.S. at

18. Thus, the Court’s statement that juries do not

belong in condemnation proceedings is not binding

because—as the Court admitted and the case history

demonstrates—the Seventh Amendment was never at

issue. This dictum should not remain as this Court’s

only word on a key constitutional question.

Allowing Reynolds to stand as this Court’s position

on such an important issue is also problematic

because Reynolds relied on an inaccurate secondary

source. Reynolds quoted from Moore’s Federal

Practice, which concluded that eminent domain

practices in England and the colonies prior to 1791 did

not include juries. Id.; 5 J. Moore, Federal Practice 239

(2d ed. 1969). Moore cites nothing to clothe this naked

proposition, and the numerous sources cited in Part

III of this brief refute it. Reynolds also cites to

Bauman v. Ross, a takings case that considered

whether the same jury should review damages and

off-setting benefits. See generally Bauman v. Ross, 167

U.S. 548 (1897). It did not, however, address the

broader Seventh Amendment at issue here. This

Court should take the opportunity to directly address

this question; otherwise dicta based on an inaccurate

view of history may continue to control the scope of the

fundamental right to a jury trial.

CONCLUSION

Much has changed since a court first introduced

judicial review by upholding John Holmes’s right to a

20

jury trial in 1780. As Gouverneur Morris said, that

power is dangerous but essential, and “unless it

somewhere exists, the time employed in framing a bill

of rights and form of government was merely thrown

away.” Scott, supra at 464. That Bill of Rights

promises that the right to a jury trial does not change,

but “shall be preserved.” English common law and

condemnation statutes and colonial practice before

1791 all testify with the same voice: the usual method

of determining just compensation for a taking

occurred through a jury. The Seventh Amendment

preserves that practice for Kevin Brott and any others

seeking just compensation. The time has come for this

Court to address the growing divide between modern

administrative practices and the robust right that

inaugurated our tradition of judicial review. The

petition should be granted.

DATED: December, 2017.

Respectfully submitted,

JAMES S. BURLING*

*Counsel of Record

ETHAN W. BLEVINS

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: jsb@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation, Reason

Foundation, and American Civil Rights Union