Amicus Curiae Brief — Monterey v. Del Monte Dunes at Monterey, Ltd.

% Supreme Court, U.S.

> FILED

No. 97-1235 PEB 24 1996

wt os

Supreme Court of the United States

October Term, 1997

+

CITY OF MONTEREY,

Petitioner,

DEL MONTE DUNES AT MONTEREY, LTD., et al.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

o

BRIEF OF THE CITY AND COUNTY

OF SAN FRANCISCO AS AMICUS CURIAE

SUPPORTING PETITION FOR WRIT OF CERTIORARI

e

Louise H. Renne

City Attorney

City and County of San Francisco

JONATHAN V. H .LTZMAN*

Chief Deputy City Attorney

ELLEN FoRMAN

ANbDREW W. SCHWARTZ

Deputy City Attorneys

1390 Market Street, 6th Floor

San Francisco, CA 94102

(415) 554-3906

*Counsel of Record

[Additional Counsel Continued on Inside Cover]

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

OR CALL COLLECT (402) 342-2831

1S

The following California public entities join with the

City and County of San Francisco in this brief in support

of petitioner.

The Cities of:

Alameda

Teresa Highsmith

Assistant City Attorney

City Hall, Room 280

2263 Santa Clara Avenue

Alameda, CA 94501

Albany

Robert J]. Zweben

City Attorney

1730 Solano Avenue

Berkeley, CA 94707

Bakersfield

Judy K. Skousen

City Attorney

City Hall

1501 Truxtun Avenue

Bakersfield, CA 93301

Berkeley

Manuela Albuquerque

City Attorney

Office of the City Attorney

2180 Milvia Street,

4th Floor

Berkeley, CA 94704-1122

Bradbury

C. Edward Dilkes

City Attorney

Richards, Watson &

Gershon

333 S. Hope Street,

38th Floor

Los Angeles, CA 90071

Burbank

Terry B. Stevenson

Senior Assistant City

Attorney

Office of the City Attorney

275 E. Olive Avenue

Burbank, CA 91502

Capitola

Richard M. Manning

City Attorney

420 Capitola Avenue

Capitola, CA 95010

Carson

Darold D. Pieper

Assistant City Attorney

333 S. Hope Street,

38th Floor

Los Angeles, CA 90071

~

Chula Vista

John M. Kaheny

City Attorney

276 Fourth Avenue

Chula Vista, CA 91910

Claremont

Wynne S. Furth

City Attorney

Best, Best & Krieger LLP

3750 University Avenue,

Suite 400

P.O. Box 1028

Riverside, CA 92501

Clayton

Maurice E. Huguet, Jr.

City Attorney

924 Main Street

P.O. Box 110

Martinez, CA 94553

Colma

Roger C. Peters

City Attorney

180 Montgomery Street,

Suite 2000

San Francisco, CA

94104

Corte Madera

Jeffrey A. Walter

City Attorney

670 W. Napa, Suite F

Sonoma, CA 95476

Cotati

Jeffrey A. Walter

City Attorney

670 W. Napa, Suite F

Sonoma, CA 95476

Del Rey Oaks

Robert Wellington

City Attorney

857 Cass Street, Suite D

Monterey, CA 93940

Dinuba

Daniel T. McCloskey

City Attorney

Tuttle & McCloskey

750 E. Bullard, Suite 101

Fresno, CA 93710

El Cajon

Lynn R. McDougal

City Attorney

460 N. Magnolia

El Cajon, CA 92020

El Centro

James L. Darrow

City Attorney

1275 Main Street

El Centro, CA 92243

Escondido

Jeffrey R. Epp

City Attorney

201 N. Broadway

Escondido, CA 92025

Eureka

David E. Tranberg

City Attorney

531 K Street

Eureka, CA 95501

Fortuna

David E. Tranberg

City Attorney

531 K Street

Eureka, CA 95501

Garden Grove

John Shaw

City Attorney

701 S. “arker, Suite 7000

Orange, CA 92842

Glendale

Scott H. Howard

City Attorney

613 E. Broadway, #220

Glendale, CA 91206

Huron

Daniel T. McCloskey

City Attorney

Tuttle & McCloskey

750 E. Bullard, Suite 101

Fresno, CA 93710

Imperial Beach

Lynn R. McDougal

City Attorney

460 N. Magnolia

El Cajon, CA 92020

Lafayette

Charles J. Williams

City Attorney

1320 Arnold Drive,

Suite 160

Martinez, CA 94553

Laguna Beach

Philip D. Kohn

City Attorney

Rutan & Tucker LLP

611 Anton Boulevard,

Suite 1400

Costa Mesa, CA 92626

Long Beach

Heather A. Mahood

Principal Deputy City

Attorney

333 W. Ocean Blvd.,

11th Floor

Long Beach, CA

90802-4664

Los Altos

Robert K. Booth, Jr.

City Attorney

Box 279

Mountain View, CA 94042

Los Angeles

James K. Hahn

City Attorney

1800 City Hall East

200 N. Main Street

Los Angeles, CA 90012

eee wo

Madera

Joseph A. Soldani

City Attorney

205 North G Street

Madera, CA 93637

Marina

Robert R. Wellington

City Attorney

857 Cass Street, Suite D

Monterey, CA 93940

Merced

Steven F. Nord

City Attorney

678 W. 18th Street

Merced, CA 95340

Montclair

Diane E. Robbins

City Attorney

Robbins & Holdaway

11800 Central Avenue,

Suite 125

Chino, CA 91710

Montebello

Jonathan B. Stone

City Attorney

Barbosa & Garcia

500 Citadel Drive,

Suite 390

Los Angeles, CA 90040

Morgan Hill

Gary M. Baum

City Attorney

17555 Peak Avenue

Morgan Hill, CA 95037

Novato

Jeffrey A. Walter

City Attorney

670 W. Napa, Suite F

Sonoma, CA 95476

Oceanside

Daniel S. Hentschke

City Attorney

300 N. Coast Highway

Oceanside, CA 92054

Ontario

John E. Brown

City Attorney

Best, Best & Krieger

3750 University Avenue

Riverside, CA 92501

Orange Cove

Daniel T. McCloskey

City Attorney

Tuttle & McCloskey

750 E. Bullard, Suite 101

Fresno, CA 93710

Palm Desert

David J. Erwin

City Attorney

Best, Best & Krieger

39700 Bob Hope Drive,

Suite 312

Rancho Mirage, CA 92270

Pico Rivera

Scott Nichols

City Attorney

3610 Long Beach Blvd.,

Suite 218

Long Beach, CA 90807

Piedmont

George S. Peyton, Jr.

City Attorney

1999 Harrison Street,

18th Floor

Oakland, CA 94612

Pleasant Hill

Debra S. Margolis

City Attorney

100 Gregory Lane

Pleasant Hill, CA 94523

Poway

Stephen M. Eckis

City Attorney

P.O. Drawer 1466

El Cajon, CA 92022

Redding

W. Leonard Wingate

City Attorney

760 Parkview Avenue

Redding, CA 96601

Rialto

Robert A. Owen

City Attorney

135 W. Rialto Avenue

Rialto, CA 92376

Roseville

Mark Doane

City Attorney

311 Vernon Street, #202

Roseville, CA 95678

Ross

Hadden Roth

Town Attorney

1050 Northgate Street

San Rafael, CA 94903

Sacramento

Samuel L. Jackson

City Attorney

980 Ninth Street,

10th Floor

Sacramento, CA 95814

San Anselmo

Hadden Roth

Town Attorney

1050 Northgate Street

San Rafael, CA 94903

San Bruno

Jonathan Lowell

City Attorney

567 El Camino Real

San Bruno, CA 94066

San Buenaventura

Robert Boehm

City Attorney

City Attorney’s Office

501 Poli Street

P.O. Box 99

Ventura, CA 93002-0099

San Diego

C. Alan Sumption

Deputy City Attorney

City Attorney’s Office

1200 Third Avenue,

Suite 1100

San Diego, CA 92101

San Juan Capistrano

John Shaw

City Attorney

701 S. Parker, Suite 7000

Orange, CA 92842

San Luis Obispo

Jeffrey G. Jorgensen

City Attorney

City Attorney’s Office

990 Palm Street

San Luis Obispo, CA

93401

San Mateo

Dennis Beougher

Assistant City Attorney

330 W. 20th Avenue

San Mateo, CA 94403

San Pablo

Brian M. Libow

City Attorney

One Alvarado Square

San Pablo, CA 94806

San Rafacl

Gary T. Ragghianti

City Attorney

P.O. Box 151560

1400 Fifth Avenue

San Rafael, CA 94915-1560

Santa Clara

Michael R. Downey

City Attorney

1500 Warburton Avenue

Santa Clara, CA 95050

Santa Maria

Arther R. Montandon

City Attorney

204 E. Cook Street

Santa Maria, CA 93454

Santa Rosa

Rene Auguste Chouteau

City Attorney

100 Santa Rosa Avenue,

Room 8

Santa Rosa, CA

95402-1678

Sunnyvale

Theodore R. Bresler

Senior Assistant City

Attorney

45€ W. Olive Avenue

Sunnyvale, CA 94088-3707

Thousand Oaks

Mark G. Sellers

City Attorney

2100 Thousand Oaks Blvd.

Thousand Oaks, CA 91362

Tiburon

Ann R. Danforth

Town Attorney

1505 Tiburon Boulevard

Tiburon, CA 94920

Trinidad

David E. Tranberg

City Attorney

531 K Street

Eureka, CA 95501

Truckee

J]. Dennis Crabb

Town Attorney

591 Tahoe Keys Blvd.,

Suite D-8

South Lake Tahoe, CA

96150

Tulare

Kathleen Bales-Lange

County Counsel

2900 W. Burrel

Visalia, CA 93291

Vacaville

Charles O. Lamoree

City Attorney

650 Merchant Street

Vacaville, CA 95688

Vista

J. Wayne Dernetz

City Attorney

600 Eucalyptus Avenue

Vista, CA 92084

Walnut

Scott Nichols

City Attorney

3610 Long Beach Blvd.,

Suite 218

Long Beach, CA 90807

Wasco

G.A. Drescher

City Attorney

1420 Seventh Street

Wasco, CA 93280

Yreka

Larry G. Bacon

City Attorney

701 Fourth Street

Yreka, CA 96097

The Counties of:

Butte

Robert MacKenzie

Chief Deputy County

Counsel

25 County Center Drive

Oroville, CA 95965

Contra Costa

Victor J. Westman

County Counsel

651 Pine Street, 9th Floor

Martinez, CA 94554

Glenn

Norman Y. Herring

County Counsel

525 W. Sycamore Street

Willows, CA 95988

Lake

Cameron L. Reeves

County Counsel

255 N. Forbes Street

Lakeport, CA 95453

Napa

Robert Westmeyer

County Counsel

1195 Third Street,

Room 301

Napa, CA 94559

Riverside

Joe S. Rank

Assistant County Counsel

Riverside County Counsel

3535 Tenth Street,

Suite 300

Riverside, CA 92501-3674

San Diego

R. Mark Beesley

Deputy County Counsel

1600 Pacific Highway,

Room 355

San Diego, CA 92101

Santa Barbara

Stephen Shane Stark

County Counsel

105 E. Anapamu Street,

Suite 201

Santa Barbara, CA 93101

Santa Cruz

Dwight L. Herr

County Counsel

701 Ocean Street,

Room 505

Santa Cruz, CA 95060

Tulare

Kathleen Bales-Lange

County Counsel

2900 W. Burrel

Visalia, CA 93291

Tuolumne

Patrick B. Greenwell

County Counsel

2 South Green Street

Sonora, CA 95370

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................0005. ii

STATEMENT OF INTEREST OF AMICUS CURIAE... 1

IN dt ChdnG ind cab bbessedckeccessocess 2

STATEMENT OF THE CASE...................005. 3

REASONS FOR GRANTING THE WRIT OF CER-

WO No hOed dR dacbbacdadsccccdcédeteedencsees 4

I. REVIEW BY THIS COURT IS NECESSARY

BECAUSE THE NINTH CIRCUIT MIS-

CONSTRUED CONTROLLING PRECEDENT OF

THIS COURT ON AN IMPORTANT QUESTION

SE ED cov inbcccdnooveviaccnécocns 5

A. There Is No Right To A Jury In Cases Aris-

ing Under the Takings Clause............. 6

B. Section 1983 Does Not Create A Right To A

G6 AUOVEed ehadebeb the seeyiesdenessecess 10

Il. REVIEW BY THIS COURT IS NECESSARY TO

SECURE UNIFORMITY OF DECISION AMONG

THE CIRCUIT COURTS ..................0005. 13

PU ACRE Adhsdcddcccdoccesectectaccestes 15

TABLE OF AUTHORITIES

Page

Cases

Agins v. City Tiburon, 447 U.S. 255 (1980).......... 6, 12

Albright v. Oliver, 510 U.S. 266 (1994) ............4.. 10

Arizonans for Official English v. Arizona, __ US.

__, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)........ 11

Armstrong v. United States, 364 U.S. 40 (1960)........ 12

Atlantic Seaboard Corp. v. Van Sterkenburg, 318 F.2d

GEE. CAie Gas, WOR c ccc vcccncsadceetausecpecsnvces 12

Atlas Roofing Co. v. Occupational Safety and Health

Review Comm'n, 430 U.S. 442 (1977).......... 7, 9, 10

Baker v. McCollan, 443 U.S. 137 (1979)............... 10

Bauman v. Ross, 167 U.S. 548 (1897) ................ 7,9

Beatty v. United States, 203 F. 620 (4th Cir. 1913),

writ of error dismissed and cert. denied, 232 U.S.

BOD GIG i nica tccvccvecsvasdsccsteccodeantosigaces 12

Chapman v. Houston Welfare Rights Organization,

GEE UD. GED GROG onc ces snvccecdedeesvedewaccvase 10

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226

CORED cv cvcececesceucesscagnteccedéevsetontass A

Cook v. Cox, 357 F. Supp. 120 (E.D. Va. 1973)........ 10

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

CO Ge, Fe owtcccndccedccwswctnedtexidieoienses 4

TABLE OF AUTHORITIES — Continued

Page

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

(9th Cir. 1996), reaff’d on reh’g, ___ F.3d ____ (9th

Gee MEE bensniedeaneanaehesciescecisechscsevare 4, 14

Department of Agri. & Consum. Svcs. v. Bonanno,

Pee EE Be le BOUT 0s nv dc ccdees tivestnensienes 8

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304 (1987) ....... 6

Foucha v. Louisiana, 504 U.S. 71 (1992)................ 5

Graham v. Connor, 490 U.S. 386 (1989)............... 10

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) ..... 7

Hensler v. City of Glendale, 8 Cal.4th 1 (1994)........ 14

Jacobs v. United States, 290 U.S. 13 (1933)........... 2, 6

Kohl v. United States, 91 U.S. 367 (1876)............. 10

Lorillard v. Pons, 434 U.S. 575 (1978) ................ 11

Lucas v. South Carolina Coastal Council, 505 U.S.

NR UNE UNG cc eeb sends bocbatwsecidccer 11

Markman v. Westview Instruments, Inc., 517 U.S.

370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996)......... 7

McElroy v. United States, 455 U.S. 642 (1982)......... 13

Mid Gulf, Inc. v. Bishop, 792 F. Supp. 1205 (D. Kan.

PEN a6 ee shudeheandpesauvenednaresednweaseesas 4,8

Monell v. Dept. of Soc. Suvcs., 436 U.S. 658 (1978)..... 12

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

(11th Cir. 1996), cert denied, __ U.S. __, 117

S.Ct. 2514, 138 L.Ed.2d 1016 (1997) ....3, 4, 8, 13, 14

iV

TABLE OF AUTHORITIES —- Continued

Page

Penn Central Transp. Co. v. City of New York, 438

SF Er ee rye eo rey eee 2

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) ..... 2

Quern v. Jordan, 440 U.S. 332 (1979)................. 11

United States v. 21.54 Acres of Land, 491 F.2d 301

COE Ga Seen ob a caewans daddertetans Gecsences 9, 12

United States v. Burke, 504 U.S. 229 (1992)........... 13

United States v. Clarke, 445 U.S. 253 (1980)............ 6

United States v. Doe, 465 U.S. 506 (1984).............. 5

United States v. Lorenzetti, 467 U.S. 167 (1984) ....... 13

United States v. Reynolds, 397 U.S. 14 (1970)........ 7,9

United States v. Willow River Power Co., 324 U.S.

AAS AEE i OSE ath on a are 12

Warner/Elektra/Atlantic Corp. v. County of DuPage,

FoR Be SU. GER Ge We COE cob evceccesesisns 4,8

Williamson County Regional Planning Comm. v.

Hamilton Bank, 473 U.S. 172 (1985) ................ 12

STATUTES

Be ese Ss 6 ancdccvantséceebes cdeeuenatctses 10, 11

OTHER AUTHORITIES

DS Beene es Fabs Femc. GR GE. BOGR is ccc ve ccaceccceces 7

8 Moore's Fed’! Prac. (3d ed. 1997).................. 8, 9

Stern, et al., Supreme Court Practice (7th Ed. 1993) .... 13

STATEMENT OF INTEREST OF AMICUS CURIAE

Under Supreme Court Rule 37.4, amicus curiae City

and County of San Francisco, joined by the 84 California

cities and counties identified below (“the cities”), submit

this brief in support of the petition for a writ of certiorari

by the City of Monterey.' This case involves the tradi-

tional right of a regulatory government agency to a trial

by the court, rather than by a jury, to determine the

agency's liability for a taking under the Fifth Amendment

to the U.S. Constitution. The Ninth Circuit Court of

Appeals held that a jury may decide the liability of a city

for a taking. Each of the cities is within the jurisdiction of

the Ninth Circuit, and is therefore subject to that court's

decision in this case. Because the availability of a jury in

inverse condemnation cases could have large implications

! The following California public entities join in this brief:

the cities of Alameda, Albany, Bakersfield, Berkeley, Bradbury,

Burbank, Capitola, Carson, Chula Vista, Claremont, Clayton,

Colma, Corte Madera, Cotati, Del Rey Oaks, Dinuba, El Cajon,

El Centro, Escondido, Eureka, Fortuna, Garden Grove,

Glendale, Huron, Imperial Beach, Lafayette, Laguna Beach,

Long Beach, Los Altos, Los Angeles, Madera, Marina, Merced,

Montclair, Montebello, Morgan Hill, Novato, Oceanside,

Ontario, Orange Cove, Palm Desert, Pico Rivera, Piedmont,

Pleasant Hill, Poway, Redding, Rialto, Roseville, Ross,

Sacramento, San Anselmo, San Bruno, San Buenaventura, San

Diego, San Juan Capistrano, San Luis Obispo, San Mateo, San

Pablo, San Rafael, Santa Clara, Santa Maria, Santa Rosa,

Sunnyvale, Thousand Oaks, Tiburon, Trinidad, Truckee, Tulare,

Vacaville, Vista, Walnut, Wasco, ard Yreka; the counties of

Butte, Contra Costa, Glenn, Lake, Napa, Riverside, San Diego,

Santa Barbara, Santa Cruz, Tulare, and Tuolumne.

for local governments, this Court should consider the

cities’ viewpoint in this brief.

e

INTRODUCTION

In Del Monte Dunes at Monterey, Ltd. v. City of Mon-

tery, for the first time, the Ninth Circuit held that a

plaintiff is entitled to a jury trial in inverse condemnation

cases. In so holding, the Ninth Circuit miscontrued the

controlling precedent of this Court.

In Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 245

(1897), this Court held that there is no right to a jury trial

for cases under the Takings Clause of the Fifth Amend-

ment. At the time of this Court’s decision, the application

of the Takings Clause was limited to eminent domain,

namely, the government's physical appropriation of land,

also known as direct condemnation. Since that time, how-

ever, the application of the Takings Clause has been

expanded to inverse condemnation, namely, property

owners’ suits from indirect takings resulting from gov-

ernment regulation of land use. See Pennsylvania Coal Co.

v. Mahon, 260 U.S. 393, 414-15 (1922); Penn Central Transp.

Co. v. City of New York, 438 U.S. 104, 122 n. 25 (1978).

This Court has made clear that both direct and

inverse condemnation actions arise under the Takings

Clause of the Fifth Amendment. Jacobs v. United States,

290 U.S. 13, 16 (1933). Thus, the same rules regarding the

right to a jury trial apply to both. Review by this Court is

necessary to correct the Ninth Circuit’s deviation from

this Court’s precedent in this important area of the law.

Review by this Court is also necessary because the

Ninth Circuit’s novel conclusion that an aggrieved prop-

erty owner is entitled to a jury trial in an inverse condem-

nation proceeding directly conflicts with the only other

circuit court decision addressing this issue. In New Port

Largo, Inc. v. Monroe County, 95 F.3d 1084 (11th Cir. 1996),

cert. denied, __ U.S. ___, 117 S.Ct. 2514, 138 L.Ed.2d 1016

(1997), the Eleventh Circuit correctly decided that a prop-

erty owner is not entitled to a jury to determine liability

for inverse condemnation. This Court should grant cer-

tiorari to resolve the conflict between the circuit courts.

The petition for certiorari should be granted.

¢

STATEMENT OF THE CASE

The property at issue consists of approximately 37

acres overlooking the Pacific Ocean in the City of Mon-

terey, California (City). Beginning in 1981, the owner of

the property, Ponderosa Homes, made several unsuccess-

ful attempts to develop the property with houses.

While Ponderosa’s last application to build 190

homes was pending with the City, respondent Del Monte

Dunes at Monterey, Ltd. and Monterey-Del Monte Dunes

Corporation (Del Monte) purchased the property and

pursued the application. In 1986, the City denied Del

Monte’s application.

Del Monte brought an action in the district court

against the City for inverse condemnation, violations of

its due process and equal protection rights, estoppel, and

unjust enrichment. The district court held that Del

Monte’s constitutional claims were not ripe for review

and dismissed. The Ninth Circuit reversed, finding that

the constitutional claims were ripe for adjudication. Del

Monte Dunes v. City of Monterey, 920 F.2d 1496, 1506 (9th

Cir. 1990).

On remand, over the objection of the City, the district

court ordered the inverse condemnation and equal protec-

tion claims tried by a jury. The district court instructed the

jury that it could find the City liable for inverse condemna-

tion if there was no “reasonable relationship” between the

City’s denial of Del Monte’s project and a legitimate public

purpose. After a trial, the jury found that the City was liable

to Del Monte for inverse condemnation and for a violation of

Del Mcnte’s equal protection rights. The jury awarded Del

Monte $1,450,000 in damages.? The Ninth Circuit affirmed.

Del Monte Dunes v. City of Monterey, 95 F.3d 1422 (9th Cir.

1996), reh'g granted, 118 F.3d 660, 661 (9th Cir. 1997), reaff'd on

reh'g, ___ F.3d ___ (9th Cir. 1997), Apper.- _.o Petition for

Writ of Certiorari (App.).

¢

REASONS FOR GRANTING THE

WRIT OF CERTIORARI

In its petition for a writ of certiorari, the City of

Monterey states two reasons for granting the petition:

2 Amici cities and counties do not dispute that once liability

for inverse condemnation has been established, the question of

damages should be tried to a jury. See New Port Largo, 95 F.3d at

1092; Mid Gulf, Inc. v. Bishop, 792 F. Supp. 1205, 1215 (D. Kan.

1992); Warner/Elektra/Atlantic Corp. v. County of DuPage, 771 F.

Supp. 911, 913 (N.D. Ill. 1991).

1) the Ninth Circuit erred in allowing a jury trial on the

City’s liability for inverse condemnation; and 2) the Ninth

Circuit improperly instructed the jury on the standard of

review of the City’s decision to deny Del Monte’s project.

Because the resolution of the second issue is unnecessary to

the ultimate result in this case, San Francisco and amici cities

and counties request review on the first ground only. If this

Court reverses the Ninth Circuit’s decision on the ground

that a jury is not permitted to adjudicate liability for inverse

condemnation, the Court would remand the case for a court

trial.

I. REVIEW BY THIS COURT IS NECESSARY

BECAUSE THE NINTH CIRCUIT MIS-

CONSTRUED CONTROLLING PRECEDENT OF

THIS COURT ON AN IMPORTANT QUESTION OF

FEDERAL LAW.

Rule 10 of the Supreme Court provides that review

on a writ of certiorari is appropriate when “a United

States court of appeals has decided an important question

of federal law .. . in a way in conflict with applicable

decisions” of the Supreme Court. See Foucha v. Louisiana,

504 US. 71, 75 (1992) (“Because the case presents an

important issue and was decided by the court below in a

manner arguably at odds with prior decisions of this

Court, we granted certiorari.”); United States v. Doe, 465

U.S. 506, 610 (1984) (“We granted certiorari to resolve the

apparent conflict between the Court of Appeals’ holding

and the reasoning underlying this Court's holding in

Fisher.”). By allowing Del Monte’s inverse condemnation

claim to be tried before a jury, the Ninth Circuit mis-

construed controlling precedent of this Court.

6

A. There Is No Right To A Jury In Cases Arising

Under the Takings Clause.

Inverse condemnation cases arise directly out of the

self-executing character of the Takings Clause of the Fifth

Amendment. First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304, 315-17

(1987), citing United States v. Clarke, 445 U.S. 253, 257

(1980). Inverse condemnation is “a shorthand description

of the manner in which a landowner recovers just com-

pensation for a taking of his property when condemna-

tion proceedings have not been instituted.” United States

v. Clarke, 445 U.S. at 257. Inverse condemnation differs

from direct condemnation (eminent domain) only insofar

as the action is initiated by the property owner. See First

English, 482 U.S. at 315-17; Agins v. City Tiburon, 447 US.

255, 258 n. 2 (1980). This Court long ago acknowledged

that direct and inverse condemnation stem from the same

basic right: “The fact that condemnation proceedings

were not instituted and that the right was asserted in

suits by the owners did not change the essential nature of

the claim. The form of the remedy did not qualify the

right. It rested upon the Fifth Amendment.” Jacobs v.

United States, 290 U.S. at 16.

The right to a jury trial for claims under the US.

Constitution is determined by the Seventh Amendment.

The Seventh Amendment provides: “In suits at common

law, .. . the right of trial by jury shall be preserved.” The

Ninth Circuit determined that because an inverse con-

demnation action is a suit “at common law,” Del Monte

was entitled to a jury under the Seventh Amendment. But

this Court has held that the Seventh Amendment merely

“preserves” the right to a jury for actions for which a right to

jury trial existed in 1791 when the Seventh Amendment was

ratified. Markman v. Westview Instruments, Inc., 517 U.S. 370,

_ 116 S.Ct. 1384, 1389, 134 L.Ed.2d 577 (1996); Granfi-

nanciera, S.A. v. Nordberg, 492 U.S. 33, 40-42 (1989); Atlas

Roofing Co. v. Occupational Safety and Health Review

Comm'n, 430 U.S. 442, 459-60 (1977).

When this Court first applied the Takings Clause to

the States, the Court confirmed that no right to a jury trial

existed for condemnation in 1791:

[Bjefore the establishment of the government of

the United States[,] it had been the practice in

this country and in England to ascertain by com-

missioners, special tribunals and other lixe

agencies, the compensation to be made to

owners of private property taken for public use,

and it was not to be supposed that the general

provisions in American constitutions, national

and state, preserving the right of trial by jury,

superseded that practice. [citation omitted.]

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. at 245; see also

Atlas Roofing Co., 430 U.S. at 458; United States v. Reynolds,

397 U.S. 14, 18 (1970) (“[I]}t has long been settled that there

is no constitutional right to a jury in eminent domain

proceedings.”), citing Bauman v. Ross, 167 U.S. 548, 593

(1897) (estimate of just compensation for property taken

under right of eminent domain is not required to be made

by a jury) and 5 Moore's Fed’! Prac., @ 38.32(1) at 239 (2d

ed. 1969) (practical and jurisprudential history both before

and after 1791 lead to conclusion that there is no constitu-

tional right to jury trial in federal courts for condemnation

actions); 8 Moore's Fed'l Prac., @ 38.33(4)(a) at 125 (3d ed.

1997) (no right to jury trial existed for takings in 1791).

Accordingly, because inverse condemnation actions

are premised on the Takings Clause, and there is no right

to a jury in direct condemnation actions, inverse condem-

nation actions also do not invoke the right to a jury trial.

See New Port Largo, Inc., 95 F.3d at 1092; c.f. Department of

Agri. & Consum. Svcs. v. Bonanno, 568 So.2d 24, 28 (Fla.

1990) (no right to jury trial for inverse condemnation

under Florida Constitution because no right to jury trial

for condemnation at common law). The Eleventh Circuit

adopted this view: “We have discovered no indication

that the rule in regulatory takings cases differs from the

general eminent domain framework, in which issues per-

taining to whether a taking has occurred are for the court,

while damages issues are the province of the jury.” New

Port Largo, Inc. v. Monroe County, 95 F.3d at 1092.5

To find a right to a jury in an inverse condemnation

case, the Ninth Circuit attempted to distinguish the rule

in direct condemnation cases. Without authority, the

Court reasoned that direct condemnation proceedings are

not tried before a jury because the United States tradi-

tionally is a party. App. 8 (citing commentary and case

5 The only other federal courts to address the issue of the

right to trial by jury in an inverse condemnation case agreed

with the Eleventh Circuit. See Mid Gulf, Inc. v. Bishop, 792 F.

Supp. at 1216 (liability for inverse condemnation raises question

of law to be determined by the court); Warner/Elektra/Atlantic

Corp. v. County of DuPage, 771 F. Supp. at 913 (liability for

inverse condemnation presented question for the court).

law relating to Federal government's waiver of sovereign

immunity to jury trial for inverse condemnation). But as

shown above, the rule precluding a jury in condemnation

actions is rooted in the consistent practice of our country

before adoption of the Seventh Amendment. See Chicago,

B. & Q. R. Co., 166 U.S. at 245; Atlas Roofing Co., 430 U.S.

at 458; United States v. Reynolds, 397 U.S. at 18; Bauman v.

Ross, 167 U.S. at 593; 8 Moore's Fed’! Prac., @ 38.33(4)(a) at

125.

The Ninth Circuit found a right to a jury on the

liability issue because Del Monte’s inverse condemnation

claim raised mixed questions of fact and law, and Del

Monte sought a damages remedy. App. 11-15. The former

reason is not relevant to the jury issue; direct condemna-

tion cases also raise mixed questions of law and fact. See,

e.g., United States v. 21.54 Acres of Land, 491 F.2d 301,

306-07 (4th Cir. 1973). Yet, as demonstrated above, the

unanimous and long-standing rule of this Court pre-

cludes juries in direct condemnation cases under the Fifth

Amendment. As the Supreme Court stated in Atlas Roof-

ing Co.: “The point is that the Seventh Amendment was

never intended to establish the jury as the exclusive

mechanism for factfinding in civil cases.” 430 U.S. at 460.

The latter reason also is not relevant to whether the

liability issue should be decided by a jury; courts have

consistently treated liability for inverse condemnation

differently from damages.®

6 If a court finds that the government is liable for inverse

condemnation, a jury determines just compensation. See infra p.

2 and footnote 2.

10

The Ninth Circuit also found a right to a jury because

inverse condemnation actions are actions “at law” rather

than suits “in equity.” App. 7-9. This logic fails. Direct

condemnation also is a right at law; it is not a right in

equity, nor a creature of statute. Atlas Roofing Co., 30 U.S.

at 458, citing Kohl v. United States, 91 U.S. 367, 375-76

(1876) (Judiciary Act of 1789 conferred upon circuit courts

jurisdiction over condemnation actions). Yet, direct con-

demnation claims have never included a right to jury

trial. Id.

B. Section 1983 Does Not Create A Right To A Jury.

The Ninth Circuit erroneously assumed that a plain-

tiff in an inverse condemnation action is entitled to a jury

trial because an inverse condemnation action against a

local government agency is brought under 42 U.S.C. Sec-

tion 1983. App. 7-10. The Ninth Circuit’s reliance on

Section 1983 is misplaced.

Whether a jury is available in an action brought

under Section 1983 turns on whether a jury is a‘ ailable

for infringement of the underlying constitutiona: right.

See Albright v. Oliver, 510 U.S. 266, 271 (1994) (citing Baker

v. McCollan, 443 U.S. 137, 144 n.3 (1979) and Graham v.

Connor, 490 U.S. 386, 393-94 (1989) (Section 1983 purely a

remedy for violation of other federal rights; Section 1983

not a source of substantive rights); see also Chapman ov.

Houston Welfare Rights Organization, 441 U.S. 600, 617

(1979) (Civil Rights Act of 1871 provides merely a rem-

edy, not any substantive rights); but see Cook v. Cox, 357 F.

Supp. 120, 123-25 (E.D. Va. 1973) (Section 1983 creates

separate federal right that implicates right to jury trial).

11

As demonstrated above, there is no constitutional right to

a jury in a takings case. Section 1983 does not create such

a right.”

The Ninth Circuit relied on Lorillard v. Pons, 434 U.S.

575 (1978), for the proposition that Section 1983 confers a

right to a jury. However, in Lorillard, the underlying right

the plaintiff sought to enforce originated with the Age

Discrimination in Employment Act of 1967 (ADEA). This

Court found that in creating a new legal right under the

ADEA, Congress intended to incorporate the right to a

jury trial that existed for enforcement of similar federal

statutes as of 1967. 434 U.S. at 581, 584. Thus, it is wholly

consistent with the Seventh Amendment to allow a jury

in an action for violation of a right created by Congress

after 1791.

The Ninth Circuit rule would also produce anoma-

lous results. A property owner cannot sue a state under

Section 1983. Arizonans for Official English v. Arizona, ___

U.S. _ 117 S.Ct. 1055, 1069, 137 L.Ed.2d 170 (1997);

Quern v. Jordan, 440 U.S. 332, 338-41 (1979). Actions for

inverse condemnation against a state government are

brought directly under the Fifth Amendment. See, e.g.,

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1006

(1992). Accordingly, under the Ninth Circuit rule, a prop-

erty owner would have a constitutional right to a jury in

an inverse condemnation case in federal court against a

? The predecessor statute to Section 1983 was enacted in

1871. At the time of its enactment, there was no right to a jury

trial for condemnation actions because there was no right to a

jury trial for such actions in 1791. See infra pp. 7-8. The mere

enactment of Section 1983 did not create the right to a jury trial

for claims for which no such right existed in 1871.

12

local public entity, see Monell v. Dept. of Soc. Svcs., 436 U.S.

658, 690 (1978), but not against a state entity.

The Ninth Circuit also misconstrued a takings action

as a type of common-law tort, such as trespass. The Ninth

Circuit relied on Beatty v. United States, 203 F. 620, 626

(4th Cir. 1913), writ of error dismissed and cert. denied, 232

U.S. 463 (1914) (appeal denied because order not final) for

the proposition that inverse condemnation is similar to

trespass. However, the Fourth Circuit overruled Beatty by

implication in United States v. 21.54 Acres of Land, 491 F.2d

at 306-07 (trial judge had jurisdiction to find facts relative

to takings claim) and Atlantic Seaboard Corp. v. Van Ster-

kenburg, 318 F.2d 455, 459 (4th Cir. 1963) (“there is no

absolute right to a jury trial on the issue of just compen-

sation in condemnation cases.”).

An inverse condemnation claim is not analogous to

common-law torts like trespass. In cases of trespass and

other common-law torts, the plaintiff sues the defendant

for damages for a wrong committed by the defendant. In

contrast, under the Takings Clause, the taking is not

considered a wrong or an injury as long as the govern-

ment pays compensation. See Williamson County Regional

Planning Comm. v. Hamilton Bank, 473 U.S. 172, 194 (1985).

The framers intended the Takings Clause only to appor-

tion the burdens of public projects between the individ-

ual and the public as a whole. Agins v. City of Tiburon, 447

U.S. at 260 (taking is determination that public at large

rather than single owner must bear burden of state’s

action); Armstrong v. United States, 364 U.S. 40, 49 (1960)

(Takings Clause “designed to bar Government from forc-

ing some people alone to bear public burdens”), United

States v. Willow River Power Co., 324 U.S. 499, 502 (1945)

(Takings Clause redistributes economic losses inflicted by

a e+ ee

13

public improvements so they fall upon public rather than

those happening to lie in path of project).

Il. REVIEW BY THIS COURT IS NECESSARY TO

SECURE UNIFORMITY OF DECISION AMONG

THE CIRCUIT COURTS.

Rule 10 of the Supreme Court provides that review on

a writ of certiorari is also appropriate when “a United

States court of appeals has entered a decision in conflict

with the decision of another United States court of appeals

on the same important matter.” According to one commen-

tator: “One of the prime purposes of the certiorari jurisdic-

tion is to bring about uniformity of decisions on [questions

of federal law] among the federal courts of appeals. Hence

a square and irreconcilable conflict . . . ordinarily should be

enough to secure review.” Stern, et al., Supreme Court Prac-

tice, 169 (7th Ed. 1993) (emphasis in original); see, e.g.,

United States v. Burke, 504 U.S. 229, 233 (1992) (“We granted

certiorari to resolve a conflict among the Courts of

Appeals concerning the exclusion of Title VII backpay

awards from gross income”); United States v. Lorenzetti, 467

U.S. 167, 173 (1984) (certiorari granted to review Third

Circuit opinion that recognized that its interpretation of a

statute was “squarely inconsistent” with Sixth Circuit's);

McElroy v. United States, 455 U.S. 642, 643 (1982) (certiorari

granted because of “a conflict among the Circuits on this

issue of statutory construction”).

The decision of the Ninth Circuit conflicts directly

with a decision of another circuit court. App. 7-15. In New

Port Largo, a landowner sued the county for inverse con-

demnation, alleging that the county’s rezoning of the

14

property from residential to airport use constituted a

regulatory taking under the Fifth Amendment. The trial

court rejected the landowner’s claim that a jury should

decide “subsidiary facts” raised by the takings claim. The

Eleventh Circuit affirmed, holding that “no jury had to be

empaneled for the regulatory takings claim.” 95 F.3d at

1092.8

This Court should not defer resolution of the conflict.

For two reasons, the only means to effectively resolve the

conflict is by immediate review by this Court. First, both

circuit courts stated their holdings in unequivocal,

unqualified terms. Accordingly, there is no room for mod-

ification of either position in future decisions.? Second,

because the right to a jury trial is controlled by the

Seventh Amendment and historical fact, there is no pros-

pect for a legislative resolution of this conflict.

In addition, unless the Court grants review, the con-

flict will undoubtedly cause confusion in the circuits that

have not addressed this jury issue. If circuits adopt the

8 The Eleventh Circuit’s position is consistent with the rule

prevailing in the great majority of the 50 states. See, e.g., Hensler

v. City of Glendale, 8 Cal.4th 1, 15 (1994). Accordingly, the Ninth

Circuit rule would promote forum shopping between the

federal and state courts.

% The opinion in New Port Largo was filed on September 25,

1996, 12 days after the filing of Del Monte Dunes. On August 6,

1997, the Ninth Circuit heard oral argument on rehearing in Del

Monte Dunes. (Appendix 47 incorrectly states the date of oral

argument as August 6, 1996.) On October 28, 1997, the Ninth

Circuit filed its Order declining to amend its opinion and

rejected rehearing en banc. The Ninth Circuit’s failure to

distinguish or to reconcile its decision with New Port Largo

demonstrates that the two decisions cannot be reconciled.

15

Ninth Circuit rule, cases tried to a jury before resolution

of the issue by this Court may require retrial. The inter-

ests of justice and judicial economy require a prompt and

definitive resolution.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated: February 24, 1998

Respectfully submitted,

Louise H. ReNNE

City Attorney

City and County of

San Francisco

JONATHAN V. HoLtzMan*

Chief Deputy City Attorney

Eten ForMAN

ANDREW W. SCHWARTZ

Deputy City Attorneys

By ANprew W. ScHwartz

Attorneys for Amicus Curiae

City and County of San Francisco

*Counsel of Record