Amicus Curiae Brief — Bridge Aina Le'a, LLC, Petitioner v. Hawaii Land Use Commission

No. 20-54

In The

Supreme Court of the United States

♦

BRIDGE AINA LE ‘A, LLC,

Petitioner,

v.

STATE OF HAWAII LAND USE COMMISSION,

Respondent.

♦

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

♦

BRIEF OF AMICI CURIAE

OWNERS’ COUNSEL OF AMERICA,

NATIONAL ASSOCIATION OF

REVERSIONARY PROPERTY OWNERS,

NFIB SMALL BUSINESS LEGAL CENTER,

REASON FOUNDATION, AND

PROFESSOR SHELLEY ROSS SAXER

IN SUPPORT OF PETITIONER

♦

MARK F. (THOR) HEARNE, II

ROBERT H. THOMAS

Counsel of Record

DAMON KEY LEONG

STEPHEN S. DAVIS

KUPCHAK HASTERT

TRUE NORTH LAW LLC

1600 Pauahi Tower

112 S. Hanley Road

1003 Bishop Street

Suite 200

Honolulu, HI 96813

St. Louis, MO 63105

(314) 296-4000

(808) 531-8031

thor@truenorthlawgroup.com rht@hawaiilawyer.com

Counsel for Amici Curiae

QUESTION PRESENTED

After an eight-day trial, the jury returned a

verdict that the landowner, Bridge Aina Le‘a,

established a regulatory taking by the Hawaii Land

Use Commission when the commission re-zoned the

landowner’s property – a barren, rocky lava field – as

agricultural land.

In light of this Court’s clear direction in Penn

Central Transp. Co. v. City of New York, 438 U.S. 104

(1978), that cases like this are to be determined ad

hoc, on their individual facts, and this Court’s holding

in City of Monterey v. Del Monte Dunes, 526 U.S. 687

(1999), that a jury decide the application of Penn

Central, do appellate courts need to stay their hands

(as mandated by the 7th Amendment’s Reexamination Clause) when – as here – reviewing jury

findings of fact-based takings issues, particularly

when the trial judge confirmed those findings?

ii

TABLE OF CONTENTS

QUESTION PRESENTED................................

i

TABLE OF CONTENTS ...................................

ii

TABLE OF AUTHORITIES ..............................

iii

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

1

SUMMARY OF ARGUMENT ...........................

3

ARGUMENT ......................................................

6

I.

This Court should grant the petition for

certiorari to safeguard the landowner’s

fundamental right to a jury’s

determination of the effect of the

government’s taking. .................................

6

This Court should grant the petition for

certiorari to reaffirm the Seventh

Amendment guarantee of right to trial

by jury. .......................................................

16

CONCLUSION ..................................................

19

II.

iii

TABLE OF AUTHORITIES

Page

CASES

Alimanestianu v. United States,

888 F.3d 1374, cert denied, 139 S.Ct. 1164

(2019) ......................................................................5

Arkansas Game & Fish Comm’n v. United States,

568 U.S. 23 (2012) ..................................................3

Baron de Bode’s Case,

8 Q.B. Rep. 208 (1845) ........................................15

Barron ex rel. Tiernan v. Mayor of Baltimore,

7 Peters 243 (1833) ..............................................18

Bayard v. Singleton,

1 N.C. 5, 1787 WL 6 (1787) ...................................6

Bridge Aina Le‘a, LLC v. Hawaii Land Use

Comm’n

950 F.3d 610 (9th Cir. 2020)................................16

City of Monterey v. Del Monte Dunes

526 U.S. 687 (1999) ...................................... passim

Colony Cove Prop., LLC v. City of Carson,

888 F.3d 445 (9th Cir. 2018), cert. denied, 139

S.Ct. 917 (2019) ......................................................4

Cranston Police Retirees Action Comm. v.

City of Cranston,

208 A.3d 557 (R.I. 2019) ........................................5

iv

TABLE OF AUTHORITIES--Continued

Page

Custis v. Loether,

415 U.S. 189 (1974) ..............................................12

Damsky v. Zavatt,

289 F.2d 46 (2nd Cir. 1971) .............................9, 16

First English Evangelical Lutheran Church v.

County of Los Angeles,

482 U.S. 304 (1987) ..............................................18

Galloway v. United States,

319 U.S. 372 (1943) ..............................................11

Himsel v. Himsel,

122 N.E.3d 935 (Ind. Ct. App. 2019) .....................5

Horne v. Department of Agriculture,

135 S.Ct. 2419 (2015) ...........................................13

Jacob v. City of New York,

315 U.S. 752 (1942) ................................................7

Jacobs v. United States,

290 U.S. 13 (1933) ................................................18

Katzin v. United States,

908 F.3d 1350 (Fed. Cir. 2018) ..............................5

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) ................................................4

v

TABLE OF AUTHORITIES--Continued

Page

Love Terminal Partners v. United States,

126 Fed. Cl. 389 (2016), rev’d, 889 F.3d 1331

(Fed.Cir. 2018) .......................................................4

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ........................................3, 18

Nat’l Ass’n of Reversionary Property Owners v.

Surface Transp. Bd.,

158 F.3d 135 (D.C. Cir. 1998) ................................2

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ................................................3

Parsons v. Bedford, Breedlove & Robeson,

28 U.S. 433 (1830) ................................................12

Penn Cent. Transp. Co. v. New York City,

438 U.S. 104 (1978) ...................................... i, 3, 19

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) ................................................3

Preseault v. Interstate Commerce Comm’n,

494 U.S. 1 (1990) ....................................................1

Pumpelly v. Green Bay Co.,

80 U.S. 166 (1872) ................................................18

vi

TABLE OF AUTHORITIES--Continued

Page

Solem v. Helm,

463 U.S. 277 (1893) ..............................................11

St. Bernard Parish Gov’t v. United States,

121 Fed. Cl. 687 (2015), rev’d, 887 F.3d 1354

(Fed. Cir. 2018), cert. denied, 139 S.Ct. 796

(2019) ......................................................................4

United States v. Booker,

543 U.S. 220 (2005) ................................................7

Yee v. City of Escondido,

503 U.S. 519 (1992) ..............................................19

CONSTITUTIONS, STATUTES, AND RULES

U.S. Const. Amend. V ........................................ passim

U.S. Const. Amend. VII ..................................... passim

Supreme Court Rule 37 ...............................................1

OTHER AUTHORITIES

Amar, Akhil Reed, Reinventing Juries: Ten

Suggested Reforms. 28 U.C. Davis L. Rev. 1169

(1995) ...................................................................10

Blackstone, William, Commentaries on the Laws of

England, Book III (1768) .................................8, 19

vii

TABLE OF AUTHORITIES--Continued

Page

Butler, II, George, E., Compensable Liberty: A

Historical and Political Model of the Seventh

Amendment Public Law Jury, 1 Journal of

Law, Ethics & Public Policy 595 (1985) .........9, 16

Eady M.R., Swinfen, DeKeyser’s Royal Hotel Ltd. v.

the King (1919) ....................................................16

Ely, James W., The Guardian of Every Other

Right: A Constitutional History of Property

Rights (3rd ed. 2007) .............................................1

Gideon Kanner & Michael M. Berger, The Nasty,

Brutish, and Short Life of Agins v. City of

Tiburon, 50 Urban Lawyer 1 (2019) ....................4

Hamilton, Federalist No. 83 .................................9, 16

Levy, Leonard W., Origins of the Bill of Rights

(1999) ................................................................8, 15

Madison, James, Writings 1772-1836 (The Library

of America 1999) ..................................................10

McKechnie, W., Magna Carta, A Commentary on

the Great Charter of King John

(2nd ed. 1914) ......................................................13

viii

TABLE OF AUTHORITIES--Continued

Page

Rose-Ackerman, Susan, Against Ad Hockery: A

Comment on Michelman, 88 Colum. L. Rev.

1697 (1988) ............................................................3

Su, Wanling, What Is Just Compensation? 105 Va.

L. Rev. 1483 (2019) .........................................6, 10

Thomas, Robert H., Restatement (SCOTUS) of

Property: What Happened to Use in Murr v.

Wisconsin?, 87 UMKC L. Rev. 891 (2019) ...........5

Wheaton, James K., The History of the Magna

Carta (2012) ........................................................14

INTEREST OF AMICI CURIAE1

Owners’ Counsel of America (OCA) is an

international not-for-profit organization of lawyers

dedicated to the principle that the right to own and

use property is “the guardian of every other right” and

the basis of a free society. James W. Ely, The

Guardian of Every Other Right: A Constitutional

History of Property Rights (3rd ed. 2007). OCA was

specifically founded to level the playing field in

situations where private landowners find themselves

pitted against powerful governmental entities with

eminent domain powers and unlimited resources. To

that end, OCA works for property owners across the

nation to protect and advance the rights of private

property.

National Association of Reversionary

Property Owners (NARPO) is a Washington State

not-for-profit educational foundation whose purpose is

to educate property owners concerning the defense of

their property rights. NARPO has assisted tens of

thousands of property owners nation-wide and has

been involved in litigation protecting the individual’s

constitutional right to due process and just

compensation as guaranteed under the Fifth

Amendment.

See, e.g., Preseault v. Interstate

Commerce Comm’n, 494 U.S. 1 (1990) (amicus curiae);

1

In accordance with this Court’s Rule 37.2(a), all counsel of

record for the parties received timely notice of the intention to

file this brief. Petitioners and Respondent have consented to this

brief. No counsel for any party authored any part of this brief,

and no person or entity other than amici curiae made a monetary

contribution intended to fund its preparation or submission.

2

Nat’l Ass’n of Reversionary Property Owners v.

Surface Transp. Bd., 158 F.3d 135 (D.C. Cir. 1998).

NFIB Small Business Legal Center (NFIB

SBLC) is a not-for-profit, public interest law firm

providing legal resources as the voice for small

businesses in the nation’s courts. The National

Federation of Independent Business is the nation’s

leading small business association, representing

members in Washington, DC, and all 50 state capitols.

Founded as a nonprofit, nonpartisan organization,

NFIB’s mission is to promote and protect the right of

its members to own, operate, and grow their

businesses. To fulfill its role as the voice for small

business, the NFIB SBLC frequently files amicus

briefs in cases that will impact small businesses.

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 Minds and Free Markets,”

Reason files briefs on significant constitutional issues.

Professor Shelley Ross Saxer is the Laure

Sudreau Chair in Law at Pepperdine University

Caruso School of Law, where she has taught courses

in real property, land use, community property,

remedies, environmental law, and water law. She has

also authored numerous scholarly articles and books

on property and takings law. See, e.g., Shelley Ross

Saxer, David L. Callies & Robert H. Freilich, Land

3

Use (American Casebook Series) (7th ed.); Shelley

Ross Saxer, Colleen Medill, Grant Nelson, and Dale

Whitman, Contemporary Property (West Academic

5th ed. 2019).

SUMMARY OF ARGUMENT

For nearly a century, this Court has held out the

promise that if a regulation goes “too far,” it will be a

taking. Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 415 (1922). But “[t]akings law should be

predictable *** so that private individuals confidently

can commit resources to capital projects.” Susan

Rose-Ackerman, Against Ad Hockery: A Comment on

Michelman, 88 Colum. L. Rev. 1697, 1700 (1988). In

the intervening time, this Court has also recognized

that there are a “nearly infinite variety of ways in

which government actions or regulations can affect

property interests[.]” Arkansas Game & Fish Comm’n

v. United States, 568 U.S. 23, 31 (2012). And despite

much doctrinal confusion, this Court has repeatedly

emphasized one thing: there are few bright lines or

categorical rules.

Most takings claims are analyzed by avoiding

“any ‘set formula’ for determining how far is too far,

instead preferring to ‘engag[e] in *** essentially ad

hoc, factual inquiries” under the “storied but cryptic”

three-factor test in the “polestar” decision of Penn

Cent. Transp. Co. v. New York City, 438 U.S. 104

(1978). See Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 1015 (1992) (quoting Penn Central, 438

U.S. at 124); Palazzolo v. Rhode Island, 533 U.S. 606,

633 (2001) (O’Connor, J., concurring) (Penn Central as

“polestar”); Lingle v. Chevron U.S.A. Inc., 544 U.S.

4

528, 537 (2005) (the three factors are “storied but

cryptic”).

The emphasis on ad hoc factual inquiries means

that most takings cases should be resolved on the

facts, by the trier of fact. But the case at bar is the

latest in a growing list of examples of an appellate

court tossing aside a Penn Central verdict rendered by

a trier of fact in favor of a categorical rule (invariably

a categorical rule of “no liability” in which the “judicial

thumb [is] firmly on the governmental side of the

balance.” Gideon Kanner & Michael M. Berger, The

Nasty, Brutish, and Short Life of Agins v. City of

Tiburon, 50 Urban Lawyer 1, 34 n.34 (2019)).2

Thus, although apparently designed to throw

resolution of takings issues to trial courts and juries

— where they belong — Penn Central has instead

ironically become a tool that gives appellate courts an

2

See, e.g., Colony Cove Prop., LLC v. City of Carson, 888 F.3d 445

(9th Cir. 2018) (reversing district court’s Penn Central verdict in

favor of the property owner), cert. denied, 139 S.Ct. 917 (2019);

St. Bernard Parish Gov’t v. United States, 121 Fed. Cl. 687, 746

(2015) (Under Penn Central, “[w]eighing all the evidence in this

case, the court has determined that Plaintiffs established that

flooding on Plaintiffs’ properties that effected a temporary taking

under the Fifth Amendment to the United States Constitution.”),

rev’d, 887 F.3d 1354, 1366 & n.13 (Fed. Cir. 2018) (benefits from

the regulation must be considered), cert. denied, 139 S.Ct. 796

(2019); Love Terminal Partners v. United States, 126 Fed. Cl.

389, 428-29 (2016) (owners proved they possessed a reasonable,

investment-backed expectation), rev’d, 889 F.3d 1331, 1345 (Fed.

Cir. 2018) (“The reasonable, investment-backed expectation

analysis is de-signed to account for property owners’ expectation

that the regulatory regime in existence at the time of their

acquisition will remain in place, and that new, more restrictive

legislation or regulations will not be adopted.”), cert. denied, 139

S.Ct. 2744 (2019).

5

infinite arsenal of reasons to second-guess a trial

court’s view of the evidence. As a consequence,

takings litigation often devolves into a pleadings

game, not the fact-intensive inquiry the Court

apparently contemplated in Penn Central. This

incentivizes both sides to put the cart before the horse.

Instead of focusing on the question at hand (what

evidence supports a taking, and if there’s been a

taking, what compensation must be provided?), the

key battle in many takings cases is whose narrative

governs: the owner searches for a discrete property

interest that has been rendered categorically useless

so she can convince the court to treat it as a per se

taking under one of the carve-outs, while government

counsel advocates for a much broader view of the

owner’s expectations at stake (also known as the

property interest) in order to water-down the

economic impact of the regulation.3

Here, the

Petitioner covered both bases, and the jury found both

3

See, e.g., Katzin v. United States, 908 F.3d 1350, 1362 (Fed. Cir.

2018) (federal government asserting ownership of plaintiff’s

property was not a physical taking). See also Alimanestianu v.

United States, 888 F.3d 1374, 1382-83 (Fed. Cir. 2018) (rejecting

plaintiffs’ efforts to characterize the regulation as effecting a

physical invasion of property), cert. denied, 139 S.Ct. 1164 (2019);

Himsel v. Himsel, 122 N.E.3d 935, 947-48 (Ind. Ct. App. 2019)

(same); Cranston Police Retirees Action Comm. v. City of

Cranston, 208 A.3d 557, 582 (R.I. 2019) (same). See Robert H.

Thomas, Restatement (SCOTUS) of Property: What Happened to

Use in Murr v. Wisconsin?, 87 UMKC L. Rev. 891, 898 (2019)

(highlighting competing litigation strategies of pushing a case to

either “Lucas-land” or “Penn Central-ville,” because “[a]nswering

that question one way or the other would, most likely, resolve the

dispute on the merits”).

6

a Lucas and a Penn Central taking. But even then,

the Ninth Circuit would not hear of it.

ARGUMENT

I.

This Court should grant the petition for

certiorari to safeguard the landowner’s

fundamental right to a jury’s determination

of the effect of the government’s taking.

An owner’s constitutional right to trial by jury

when the government takes his property was a clearly

established principle of American law before 1791.

Bayard v. Singleton, 1 N.C. 5, 1787 WL 6 (1787),

demonstrates the point. North Carolina confiscated

property owned by British sympathizers, including

Samuel Cornell, “the richest man in North Carolina.”

Cornell deeded thousands of acres of land to his

daughter, Elizabeth Cornell Bayard. Id. at *8. North

Carolina confiscated Elizabeth Bayard’s land and sold

it to Spyers Singleton. In 1787, Elizabeth Bayard

sued to recover title to her family homestead.

Elizabeth Bayard argued North Carolina confiscated

her property in violation of North Carolina’s

constitution guaranteeing a right to jury trial.

Elizabeth Bayard prevailed, and the North Carolina

Supreme Court declared the legislative act

authorizing the confiscation of property without a jury

trial to be unconstitutional.

The “Founders implicitly understood” that the

right to a jury’s determination of the facts in taking

cases safeguarded individuals’ property rights against

government intrusion, and a review of juries’

decisions has justified the Founders’ action. Wanling

Su, What Is Just Compensation? 105 Va. L. Rev. 1483,

7

1530-35 (2019). In fact, a recent study has shown that

juries are more accurate than other methods of

judging compensation in taking cases, such as

government-appointed commissioners. See id. at

1535.

Since King John met the barons on the fields of

Runnymede in 1215, the right to trial by jury has been

accepted as a fundamental premise of AngloAmerican jurisprudence. This Court observed:

The right of jury trial in civil cases at

common law is a basic and fundamental

feature of our system of federal

jurisprudence which is protected by the

Seventh Amendment.

A right so

fundamental and sacred to the citizen,

whether guaranteed by the Constitution or

provided by statute, should be jealously

guarded by the courts.

Jacob v. City of New York,

315 U.S. 752, 752-53 (1942).4

The Founders were very familiar with a

sovereign’s desire to deny civil jury trials. King

George attempted to circumvent American colonists’

right to jury trial by assigning disputes over the

Stamp Act tax to admiralty courts that sat without a

jury.

John Adams voiced the American reaction:

“But the most grievous innovation of all, is

4

See also United States v. Booker, 543 U.S. 220, 239 (2005) (“the

right to a jury trial had been enshrined since the Magna Carta”).

8

the alarming extension of the power of the

courts of admiralty. In these courts, one

judge presides alone! No juries have any

concern there! The law and the fact are both

to be decided by the same single judge.” ***

Colonists vehemently denounced admiralty

courts because they worked without juries.

*** [T]he colonists praised [Blackstone’s]

remarks [in his Commentaries] to the effect

that trial by jury was the “sacred palladium”

of English liberties ***.”

Leonard W. Levy, Origins of the

Bill of Rights (1999), p. 226.

Blackstone explained the philosophy animating

the colonists’ desire to preserve the right to a jury trial

in civil disputes.

The impartial administration of justice,

which secures both our persons and our

properties, is the great end of civil society.

But if that be entirely entrusted to the

magistracy, a select body of men, and those

generally selected by the prince, or such as

enjoy the highest offices of the state, their

decisions, in spite of their own natural

integrity,

will

have

frequently

an

involuntary bias toward those of their own

rank and dignity; it is not to be expected

from human nature, that the few should

always be attentive to the interests of the

many.

William Blackstone, Commentaries on the

Laws of England, Book III, p. 379.5

5

Emphasis in original.

9

High on the list of the Crown’s offenses against

American colonists, the Declaration of Independence

included “depriving us, in many cases, of the benefit

of trial by jury.” One commentator summarized why

the Founders so highly valued the right to trial by jury

and were so offended by the King’s effort to deprive

them of this right.

The basic argument is that civil jury trials

were prized by the populace chiefly for their

public law implications, that is for their

utility in preventing possible oppression in

tax suits, condemnation proceedings, and

other administrative actions and, if

necessary, in obtaining redress for

consummated

governmental

wrongs

through collateral suits for damages against

officials.6

In Federalist No. 83, Hamilton wrote,

The friends and adversaries of the [United

States Constitution], if they agree in

nothing else, concur at least in the value

they set upon the trial by jury; or if there is

any difference between them it consists of

this: the former regard is as a valuable

safeguard to liberty; the latter represent it

as the very palladium of free government.

6

George E. Butler, II, Compensable Liberty: A Historical And

Political Model of the Seventh Amendment Public Law Jury, 1

Notre Dame J. of Law, Ethics & Public Policy 595, 635, n.44

(1985) (citing, among other authorities, Damsky v. Zavatt, 289

F.2d 46, 49-50 (2nd Cir. 1971) (Friendly, J.), and Hamilton,

Federalist No. 83).

10

*** I cannot readily discern the inseparable

connection between the existence of liberty

and the trial by jury in civil cases.7

Madison, likewise, noted and explained that trial

by jury in civil litigation secured individual rights,

stating, “In suits at common law, between man and

man, the trial by jury, as one of the best securities to

the right of the people, ought to be preserved.” James

Madison, Writings 1772-1836 (The Library of America

1999), p. 444.

For these reasons the Founders included the

Seventh Amendment in the Bill of Rights. See

Wanling Su, What Is Just Compensation? 105 Va. L.

Rev. at 1529, n.245 (citing Akhil Reed Amar,

Reinventing Juries: Ten Suggested Reforms, 28 U.C.

Davis L. Rev. 1169, 1169 (1995) (“No idea was more

central to our Bill of Rights *** than the idea of the

jury.”).

Alexis de Tocqueville observed, in Democracy in

America, that “[t]he institution of the jury *** when

once it is introduced into civil proceedings, it defies

the aggressions of time and man. *** The civil jury

did in reality at that time [of the Tudors] save the

liberties of England.” Tocqueville continued and

noted the political importance of the right to trial by

jury in civil litigation.

The jury, and more especially the civil jury,

serves to communicate the spirit of the

judges to the minds of all citizens; and this

spirit, with the habits that attend it, is the

7

C. Rossiter ed., p. 499.

11

soundest preparation for free institutions.

*** It is especially by means of the jury in

civil cases that the American magistrates

imbue the lower classes of society with the

spirit of their profession. Thus, the jury,

which is the most energetic means of

making the people rule, is also the most

efficacious means of teaching it how to rule

well.

Id. at Vol. I, Ch. XVI.

This Court has repeatedly affirmed the

fundamental importance of the right to trial by jury.

In Galloway v. United States, 319 U.S. 372, 398-99

(1943), Justice Black summarized the history

animating adoption of the Seventh Amendment.8

[T]he first Congress adopted the Bill of

Rights containing the Sixth and Seventh

Amendments, intended to save trial in both

criminal and common law cases from

legislative or judicial abridgment ***.***

[Patrick] Henry, speaking in the Virginia

Constitutional Convention, had expressed

the general conviction of the people of the

Thirteen States when he said, “Trial by jury

is the best appendage of freedom ***. We

are told that we are to part with that trial

by jury with which our ancestors secured

8

Justice Black’s statement was in an opinion dissenting on other

grounds. See also Solem v. Helm, 463 U.S. 277, 286 (1893)

(explaining the fundamental nature of the right to trial by jury

and tracing the origin of this right to Magna Carta).

12

their lives and property ***. I hope we shall

never be induced, by such arguments, to

part with that excellent mode of trial. No

appeal can now be made as to fact in

common law suits. The unanimous verdict

of impartial men cannot be reversed.” The

first Congress, therefore provided for trial of

common law cases by a jury, even when such

trials were in the Supreme Court itself.

This Court’s Seventh Amendment jurisprudence

holds the “right of trial by jury” is guaranteed as it

existed under English common law in 1791 when the

Seventh Amendment was adopted. See Custis v.

Loether, 415 U.S. 189, 193 (1974) (“[T]he thrust of the

[Seventh] Amendment was to preserve the right to

jury trial as it existed in 1791.”). The Seventh

Amendment guarantees “the right of trial by jury” for

all suits involving legal rights – as opposed to

proceedings in admiralty or equity. See Parsons v.

Bedford, Breedlove & Robeson, 28 U.S. 433, 446 (1830)

(“By [suits at] ‘common law,’ [the Framers] meant ***

suits in which legal rights were to be ascertained and

determined, in contradistinction to those where

equitable rights alone were regarded, and equitable

remedies were administered; or where, as in

admiralty, a mixture of public law and of maritime

law and equity was often found in the same suit.”).9

An owner’s action to be justly compensated for

land the government took is historically a “suit at

common law” in which the owner has the right to trial

by jury.

This Court explained, “The Seventh

9

Emphasis in original.

13

Amendment thus applies not only to common-law

causes of action but also to statutory causes of action

‘analogous to common-law causes of action ordinarily

decided in English law courts in the late 18th century,

as opposed to those customarily heard by courts of

equity or admiralty.’” Del Monte Dunes, 526 U.S. at

708-09 (citations omitted).

Chief Justice Roberts recalled that the Fifth

Amendment right of compensation arises from Magna

Carta:

[The Fifth Amendment] protects “private

property” without any distinction between

different types. The principle reflected in

the Clause goes back at least 800 years to

Magna Carta ***. Clause 28 of that charter

forbade any “constable or other bailiff” from

taking “corn or other provisions from any

one without immediately tendering money

therefor ***.” The colonists brought the

principles of Magna Carta with them to the

New World, including that charter’s

protection against uncompensated takings

of personal property.

Horne v. Department of Agriculture,

135 S.Ct. 2419, 2426 (2015).10

In England, before 1791, actions by landowners

seeking compensation for property taken by the King

were tried to a jury. Magna Carta, Sections 39 and

10

Quoting Magna Carta, Cl. 28 (1215), in W. McKechnie, Magna

Carta, A Commentary on the Great Charter of King John (2nd ed.

1914), p. 329.

14

52, guaranteed the right to a jury when the King took

property.

No free man shall be taken or imprisoned or

disseized or exiled or in any way destroyed,

nor will we go upon him nor send upon him,

except by the lawful judgment of his peers

or by the law of the land ***. If anyone has

been dispossessed or removed by us, without

the legal judgment of his peers, from his

lands, castles, franchises, or from his right,

we will immediately restore them to him;

and if a dispute arise over this, then let it be

decided by the five-and-twenty barons of

whom mention is made below in the clause

for securing the peace.

Magna Carta11

In De Keyser’s Royal Hotel Ltd. v. the King, ch. 2,

p. 222 (1919), Swinfen Eady M.R. described English

law between 1708 and 1798:

It appears then to be fully recognized [that

by 1708] the land of a subject could not be

taken against his will, except under the

provisions of an Act of Parliament.

Accordingly, in 1708, was passed the first of

a series of Acts to enable particular lands to

be taken compulsorily *** provision is made

for the appointment of Commissioners to

survey the lands to be purchased, and in

11

James K. Wheaton, The History of the Magna Carta (2012).

15

default of agreement with the owners, the

true value is to be ascertained by a jury.12

The Seventh Amendment guarantee of a right to

jury trial is especially applicable to actions an

individual brings against the government.

The Founders were very familiar with a

sovereign’s desire to avoid jury trials. King George

attempted to circumvent American colonists’ right to

jury trial by assigning disputes over the Stamp Act

tax to admiralty courts that sat without a jury.

The Declaration of Independence included

“depriving us, in many cases, of the benefit of trial by

jury” in its list of Britain’s offenses against the

American colonies.

The basic argument is that civil jury trials

were prized by the populace chiefly for their

public law implications, that is for their

utility in preventing possible oppression in

tax suits, condemnation proceedings, and

other administrative actions and, if

necessary, in obtaining redress for

12

Citing Statute 7 Anne c. 26 (emphasis added). See Baron de

Bode’s Case, 8 Q.B. Rep. 208 (1845), and Levy, Origins of the Bill

of Rights, p. 211 (“Under an ordinance of 1164 known as the

Constitutions of Clarendon, the sheriff, acting at the instigation

of the bishop, could swear twelve men of the countryside to give

a verdict – that is, to speak the truth on issues involving property

rights ***. No one could be evicted or disposed of his land

without the prior approval of a jury verdict. A verdict in his favor

restored him to possession of the land. Thus trial by jury

emerged as the legal remedy for a person who had faced

dispossession.”).

16

consummated

governmental

wrongs

through collateral suits for damages against

officials.13

The Founders well understood that the right to a

jury’s determination of the facts in taking cases

safeguarded individuals’ property rights against

government intrusion. This Court should grant

Bridge Aina Le‘a’s petition for certiorari in order to

protect its fundamental right to have a jury determine

the effect of the government’s taking.

II.

This Court should grant the petition for

certiorari

to

reaffirm

the

Seventh

Amendment guarantee of right to trial by

jury.

After eight days of weighing evidence, the Ninth

Circuit believed the jury was wrong in the jury’s

factual determination that the Hawaii Land Use

Commission’s agricultural zoning deprived the

landowner of economically viable use of the land even

though the state’s own studies showed “the soils were

rated poorly and were not adequate for grazing.”14

13

George E. Butler, II, Compensable Liberty: A Historical and

Political Model of the Seventh Amendment Public Law Jury, 1

Journal of Law, Ethics & Public Policy 595, 635, n.44 (1985)

(emphasis added) (citing Damsky v. Zavatt, 289 F.2d 46, 49-50

(2nd Cir. 1971) (Friendly, J.), and Federalist, No. 83 (Hamilton)).

14 Bridge Aina Le'a, LLC v. State Land Use Comm'n, 950 F.3d

610, 630 (9th Cir. 2020).

17

The Seventh Amendment guarantees:

In suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and

no fact tried by a jury, shall be otherwise

reexamined in any court of the United States,

than according to the rules of the common

law.15

In Del Monte Dunes, 526 U.S. at 687, this Court

last addressed the right to a jury trial in the takings

context. This 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.

In Del Monte Dunes this Court held an inverse

condemnation action was subject to the Seventh

Amendment’s guarantee of right to trial by jury. See

526 U.S. at 712-13, 720-21, 708-09 (“The Seventh

Amendment thus applies not only to common-law

causes of action but also to statutory causes of action

‘analogous to common-law causes of action ordinarily

decided in English law courts in the late 18th century,

as opposed to those customarily heard by courts of

equity or admiralty.’”).

This Court, in Del Monte Dunes, explained that

landowners have a right to a jury when the state fails

to provide just compensation because such actions to

recover just compensation are founded in tort law:

15

Emphasis added.

18

Although the government acts lawfully

when, pursuant to proper authorization, it

takes

property

and

provides

just

compensation, the government's action is

lawful solely because it assumes a duty,

imposed by the Constitution, to provide just

compensation.

When the government

repudiates this duty, either by denying just

compensation in fact or by refusing to

provide

procedures

through

which

compensation may be sought, it violates the

Constitution. In those circumstances the

government’s actions are not only

unconstitutional but unlawful and tortious

as well.

526 U.S. at 717.16

And specifically, with regard to regulatory taking

actions, this Court explained that “determinations of

liability in regulatory takings cases [are] ‘essentially

ad hoc, factual inquiries’ requiring ‘complex factual

assessments of the purposes and economic effects of

government actions.” Del Monte Dunes, 526 U.S. at

720 (quoting Lucas at 1015, Penn Central, 438 U.S. at

16

Citing First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304, 315 (1987), and Jacobs v. United

States, 290 U.S. 13, 16 (1933) (citations omitted). See also Del

Monte Dunes, 536 U.S. at 715-16 (“when the government has

taken property without providing an adequate means for

obtaining redress, suits to recover just compensation have been

framed as common-law tort actions”) (citing Pumpelly v. Green

Bay Co., 80 U.S. 166 (1872); Barron ex rel. Tiernan v. Mayor of

Baltimore, 7 Peters 243 (1833); William Blackstone,

Commentaries on the Laws of England, Book III, chs. 12-13

(1768)).

19

124, and Yee v. City of Escondido, 503 U.S. 519, 523

(1992) (citations omitted). Thus, this Court clarified,

“we hold that the issue whether a landowner has been

deprived of all economically viable use of his property

is a predominantly factual question,” and “in actions

at law otherwise within the purview of the Seventh

Amendment, this question is for the jury.” Del Monte

Dunes, 526 U.S. at 720-21.

The jury in this case performed an ad hoc factual

inquiry and concluded that the landowner had

established a regulatory taking under both Lucas and

Penn Central. The Ninth Circuit should have stayed

its hand as mandated by the Seventh Amendment.

CONCLUSION

The Ninth Circuit tossed aside a Penn Central

verdict rendered by a jury weighing eight days of

complex evidence, including assessing credibility of

the testimony about the value of the property, to

determine the facts of the government’s taking. The

trial judge confirmed the jury’s determination. This

Court should grant the petition for certiorari to

safeguard the landowner’s fundamental right to a

jury’s determination of the effect of the government’s

taking and to reaffirm the Seventh Amendment

guarantee of right to trial by jury.

20

Respectfully submitted,

MARK F. (THOR) HEARNE, II

Counsel of Record

STEPHEN S. DAVIS

TRUE NORTH LAW LLC

112 S. Hanley Road

Suite 200

St. Louis, MO 63105

(314) 296-4000

thor@truenorthlawgroup.com

ROBERT H. THOMAS

DAMON KEY LEONG

KUPCHAK HASTERT

1600 Pauahi Tower

1003 Bishop Street

Honolulu, HI 96813

(808) 531-8031

rht@hawaiilawyer.com

Counsel for Amici Curiae

AUGUST 21, 2020.