# Amicus Curiae Brief — Monterey v. Del Monte Dunes at Monterey, Ltd. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0159%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 526 U.S. 687 ## Text % 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0159%3A04. Public record. Not legal advice.