Opposition Brief — Monterey v. Del Monte Dunes at Monterey, Ltd.

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FEB 27 195

No. 97-1235 4

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In The

Supreme Court of the United States

October Term, 1997

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CITY OF MONTEREY,

Petitioner,

DEL MONTE DUNES AT MONTEREY, LTD. AND

MONTEREY-DEL MONTE DUNES CORPORATION,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

S

BRIEF IN OPPOSITION

.

Freperik A. JACOBSEN

Counsel of Record

P.O. Box 6190

San Mateo, CA 34403

520 South El Camino Real

Suite 630

San Mateo, CA 94402

(650) 375-8991

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

INTRODUCTION

THE LIABILITY ISSUES WERE PROPERLY

TRIED TO THE JURY

THE NINTH CIRCUIT PROPERLY APPLIED

SUPREME COURT TAKINGS STANDARDS IN

AFFIRMING THE VERDICT

CONCLUSION

TABLE OF AUTHORITIES

Page

Cases:

Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) ..... 5

Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994) ........... 4

Cochran v. City of Charlotte, 281 S.E.2d 179 (N.C.

App. 1891), cert. denied, 288 S.E.2d 380 (1982)...... 3

Del Monte Dunes v. City of Monterey, 920 F.2d 1496

i Ms. «cuGhGcddb dnb seeetegesceoseedeses 2 §

Del Monte Dunes v. City of Monterey, 95 F.3d 1422

EE Ss 65d Gk vekdndntebbswks ccoes cess 1, 2, 5, 6

Dolan v. City of Tigard, 512 U.S. 374 (1994)...... 1, 6, 7

First English Evangelical Lutheran Church v. City of

Ss GE. CE Dn oc ce ce ciccccescecestes 2

Jett v. Dallas Independent School District, 491 U.S.

RE RES eT ry eee a ee 3

Lynch v. Household Finance Corporation, 405 U.S.

Sh 6 oak a ky NGL ie b's HALON. OCR Pere tce bee's bone 4

Maryland Port Admin. v. QC Corp., 529 A.2d 829

SC Is hed 66d h ah bNbcb0Eb O's deta nehecdotec’ 4

New Port Largo, Inc. v. Monroe County, 95 F.3d 1084

ee ate ek cnuner enema es nébes 3

QC Corp. v. Maryland Port Admin., 510 A.2d 1101

i i chs iste dvaadeanthenuevaceescc’eees 3

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985)............... 2,4

STATUTES:

es UP ML weiss Gun 4.6.66:45 9 A004 a0s bdcck¥e kdeabese 2

I. INTRODUCTION

Petitioner City of Monterey’s Petition for Writ of

Certiorari does not justify the exercise of this Court's

jurisdiction over a routine civil rights action that happens

to involve a property owner plaintiff.

The Ninth Circuit faithfully followed this court’s

holdings in affirming the verdict, ruling that liability in a

takings case is unavoidably an ad hoc factual inquiry. Del

Monte Dines v. City of Monterey, 95 F.3d 1422, 1428 (9th

Cir. 1996) (hereafter Del Monte Dunes Il). The authorities

relied upon by the Ninth Circuit, and ignored by the City,

establish that such factual questions of liability in federal

civil rights actions are properly decided by the jury. A

recent en banc decision in the Ninth Circuit affirms this

principle.

The City also tortures the Ninth Circuit's opinion to

argue that traditional standards governing inverse con-

demnation actions were not properly applied in review-

ing the verdict. The Ninth Circuit did nothing of the sort.

The jury instruction, submitted by the City at trial, correctly

set forth the applicable standards for determining

whether a taking had occurred. Del Monte Dunes II at

1429. The Ninth Circuit’s discussion of Dolan v. City of

Tigard, 512 U.S. 374 (1994) in that connection did not

impose a new standard on the City because Dolan merely

clarified, but did not change, the traditional standard.

The parade of horrors imagined by the City are

unseemly and unfounded. Given that juries routinely

decide municipal liability in a wide spectrum of civil

rights actions, it is illogical to suggest that juries are

incapable of deciding constitutional liability only in tak-

ings cases. Moreover, as a practical matter, the Ninth

Circuit's decision has little effect on the governments that

have raised such a shrill cry herein. The State of Califor-

nia is immune from suit under 42 U.S.C. § 1983 because it

is not a “person” as defined under the act and because

the Eleventh Amendment bars damages suits against the

State in federal courts. Williamson County Regional Plan-

ning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985)

requires property owners to pursue state remedies for

alleged takings in state courts. Thus state law regarding

juries will govern takings claims against California local

governments. The only reason that this action was tried

under the federal civil rights act was that, at the time of

the 1986 denial of Del Monte Dunes development pro-

posal, California did not provide a monetary remedy for

inverse condemnation. Del Monte Dunes v. City of Mon-

terey, 920 F.2d 1496, 1507 (9th Cir. 1990) (hereafter Del

Monte Dunes 1). This Court’s decision in First English

Evangelical Lutheran Church v. City of Glendale, 482 U.S. 304

(1987), which required California to provide a monetary

remedy, will result in cases such as this being filed in

state court, not federal, after 1987.

Il. THE LIABILITY ISSUES WERE PROPERLY TRIED

TO THE JURY

The Ninth Circuit’s analysis of the jury’s ability to

decide liability is correctly premised on the principle that

takings liability is a factual inquiry. Del Monte Dunes II at

1428. Given that Del Monte Dunes sought damages, its

action was at law, and thus entitled to a jury determina-

tion of liability. Id. at 1427.

In Jett v. Dallas Independent School District, 491 US.

701 (1989), this Court foreordained the conclusion

reached by the Ninth Circuit in upholding the jury's right

to decide liability in civil rights actions seeking damages:

“Once those officials who have the power to

make official policy on a particular issue have

been identified [by the district court] it is for the

jury to determine whether their decisions have

caused the deprivation of rights at issu’ by policies

which affirmatively command that it occur.” Id. at

737 (emphasis added).

New Port Largo, Inc. v. Monroe County, 95 F.3d 1084

(11th Cir. 1996) simply ignores the Jett precedent.

The City does not dispute the inherently factual

nature of an inverse condemnation claim. Nor could it

given that it adduced dozens of exhibits and witnesses at

trial relevant to the factual disputes at issue.

The City does not attempt to distinguish the

numerous authorities the Ninth Circuit relied upon in

affirming the jury’s role in determining liability.

The City instead argues that no federal or state case

has ever allowed a jury to decide liability in an inverse

condemnation case. The City’s legal research is a tad

selective.

In Cochran v. City of Charlotte, 281 S.E.2d 179, 183, 190

(N.C. App. 1981), cert. denied, 288 S.E.2d 380 (1982), a jury

decided inverse condemnation liability for airplane over-

flights. Likewise, in QC Corp. v. Maryland Port Admin., 510

A.2d 1101 (Md. App. 1986), a jury decided inverse con-

demnation liability. The Maryland Supreme Court

reversed the verdict for insufficient evidence, but did not

disturb the principle that the jury was empowered to

decide liability. Maryland Port Admin. v. QC Corp., 529

A.2d 829 (Md. 1987).

The City also ignores that the inverse condemnation

case in which this Court clarified the ripeness test arose

from a jury verdict under Tennessee law. Williamson

County Regional Planning Comm'n v. Hamilton Bank, 473

U.S. 172, 182-183 (1985).

If the City’s arguments were adopted, federal district

courts would be governed by state law, and a civil rights

plaintiff would receive jury trial in some states and not

others. This result would undermine the national unifor-

mity of the civil rights act.

The City also fails to explain why the reasonableness

of governmental conduct regarding land should be tried

to the court but questions of reasonableness in cases such

as police conduct are entitled to trial by jury. See Chew v.

Gates, 27 F.3d 1432, 1443 (9th Cir. 1994).

In Lynch v. Household Finance Corporation, 405 U.S.

538, 552 (1972), this Court categorically denied any dis-

tinction between property rights and the personal liberty

interests:

“ . .. [T]he dichotomy between personal liber-

ties and property rights is a false one. Property

does not have rights. People have rights. The

right to enjoy property without unlawful depri-

vation, no less that the right to speak or the

right to travel, is in truth, a ‘personal’ right,

} ed

5

whether the ‘property’ in question be a welfare

check, a home, or a savings account. In fact a

fundamental interdependence exists between

the personal right to liberty and the personal

right to property. Neither could have meaning

without the other.”

In Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996),

an en banc panel of the Ninth Circuit affirmed the district

court’s denial of summary judgment on an equal protec-

tion civil rights claim brought by property owners:

“Of course, a jury might reject the plaintiffs’

claim that the defendants were motivated by a

desire to deflate the value of the plaintiffs’

buildings, purchase them, and replace them

with a shopping center. However, if proven at

trial, the facts alleged by the plaintiffs are suffi-

cient to support a claim of a violation of the

equal protection clause.” Id. at 1327 (emphasis

added).

In Del Monte Dunes I, the Ninth Circuit ruled that Del

Monte Dunes’ similar claims were sufficient to establish

liability if proven. Id. at 1508.

Del Monte Dunes proved at trial, just as the Armen-

dariz plaintiffs alleged, that the City denied the develop-

ment proposal in order to acquire the property. The City

advances no principled reason why an equal protection

claim premised on this theory should go to the jury, but

not inverse condemnation claim based on the identical

governmental conduct should not.

The reasonableness of the City’s actions were prop-

erly decided by the jury.

6

lil. THIS NINTH CIRCUIT PROPERLY APPLIED

SUPREME COURT TAKINGS STANDARDS IN

ASFIRMING THE VERDICT

The City concedes that the jury verdict was based

upon a proper legal 1 istruction defining the elements of

inverse condemnation liability.

The jury was instructed that liability could only be

found where the City’s decision did not -“substantially

advance [a] legitimate public purpose” and that the City’s

decision would substantially advance a legitimate public

purpose “if the action bears a reasonable relationship to

that objective.” Del Monte Dunes I] at 1429. As the Ninth

Circuit framed the issue it Was reviewing: “The legitimate

purposes — a legal determination - were define in the

instructions. The jurors were left With a reasonableness

determination: was the denial reasonably related.” Id.

The opinion then catalogues the abundant evidence

supporting the jury's verdict that the City’s actions were

unreasonable. Id. at 1430-1432. The City does not contest

the adequacy of this evidence.

The Ninth Circuit's affirmance of the jury verdict

under the instructed standard does not create a new

inverse condemnation test.

The Ninth Circuit’s discussion of Dolan arose in the

context of the nexus between the City’s actions and its

claimed public purposes. This nexus requirement is not

peculiar to cases involving dedications. Denials of devel-

opment that have no nexus to legitimate public purposes

by definition do not “substantially advance” those pur-

poses. The jury so found.

As the Ninth Circuit found, Dolan did rot “disap-

prove this [traditional] test but, for Fifth Amendment

purposes, proposed ‘rough proportionality’ as an ade-

quate term.” Id. at 1429. Thus Dolan did not create a new

takings test. The test remains one of reasonableness, and

“Del Monte provided evidence sufficient to rebut each of

[the City’s] reasons” for denial. Id. at 1431.

Moreover, the City conveniently overlooks the fact

that this case involved excessive dedications for public

use. Del Monte Dunes was required to dedicate the west-

ern one-third of the property as a public beach, to con-

struct and maintain a public parking lot thereon, and

provide a road through the development for access

thereto. The City further required dedication of a public

viewshed over the eastern one-third of the property.

These dedications, when combined with the City’s ulti-

mate refusal to allow development on the remainder of

the property, rendered the property unusable and

unmarketable.

Thus the City’s argument that Dolan should not

apply because it is limited to dedications is factually

wrong as well as legally incorrect. The City’s required

dedications of Del Monte Dunes’ property were the basis

for finding that the property was rendered undevelopable

and unusable. Thus the Ninth Circuit's discussion of

Dolan was appropriate, although not necessary to affirm

the verdict.

IV. CONCLUSION

The jury in this action evaluated the evidence under

the identical standards that this Court has created in its

takings jurisprudence. Those standards are not chal-

lenged by the City. For the reasons given above, Del

Monte Dunes requests the Court to deny the Petition for

Writ of Certiorari.

Dated: February 25, 1998.

Respectfully submitted,

Freperik A. JACOBSEN

520 South El Camino Real,

Suite 630

San Mateo, California 94402

Telephone: (650) 375-8991

Counsel for Respondents