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

Supreme Court brief1999

Ask Donna

What actually matters in this document.

Text

No. 97-125 JUN 4 1996

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

CITY OF MONTEREY,

v. Petitioner,

DEL MONTE DUNES AT MONTEREY, LTD. and

MONTEREY-DEL MONTE DUNES CORPORATION,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL ASSOCIATION OF COUNTIES,

COUNCIL OF STATE GOVERNMENTS,

US. CONFERENCE OF MAYORS,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

AS AMICI CURIAE SUPPORTING PETITIONER

RICHARD RUDA *

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WILSON - Eres PRINTING Co. Inc. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

Amici will address the following question:

Whether there is a right to a jury trial on a regu-

latory takings/inverse condemnation claim brought in

federal court under 42 U.S.C. § 1983.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED PoE —— i

TABLE OF AUTHORITIEB8— iv

INTEREST OF THE AMICI CURA 1

SUMMARY OF ARGUMENT — 3

/ /... r eee 5

THERE IS NO RIGHT TO A JURY TRIAL ON A

REGULATORY TAKINGS/INVERSE CONDEM-

NATION CLAIM BROUGHT IN FEDERAL

COURT UNDER 42 U.S.C. § 1933 5

A. Eminent Domain And Regulatory Takings/

Inverse Condemnation Claims Are Not Actions

r 6

B. Whether A Land Use Regulation Substantially

Advances A Legitimate Government Interest Is

A Question Of Law Which Is Outside The Prov-

ince Of The Jury ............ Pets WEE ER Te Ee 19

CONCLUSION .................0000-s000: — 27

(iii)

TABLE OF AUTHORITIES

Cases Page

Alabama Power Co. v. 1854.02 Acres of Land, 709

F.2d 666 (Iith Cir. 198))) 14

Atlantic & Pacific Telegraph Co. v. City of Phila-

delphia, 190 U.S. 160 (1903))):; — 23

Bailey v. Philadelphia, Wilm. & Balt. R.R. Co., 4

Del. (4 Harr.) 389 (184)))) 14, 18

Baltimore Belt R.R. Co. v. Baltzell, 75 Md. 94

(| —.——— 8,14

Bauman v. Ross, 167 U.S. 548 (1897) lial 8. 9

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

1913), cert. denied, 232 U.S. 463 (1914) ........... 15

Beekman v. Saratoga & Schenectady R.R. Co., 3

Paige Ch. 45 (N.Y. Ch. 1881) -..................-.---- 8,14

Berman v. Parker, 348 U.S. 26 (1954) .................... 25

Commissioner v. Duberstein, 363 U.S. 278 (1960) .. 22

Custiss v. Georgetown and Alexandria Turnpike

Co., 10 U.S. (6 Cranch) 233 (1810) 8,10,14

Dolan v. City of Tigard, 512 U.S. 374 (1994) 24

First English Evan. Luth. Church v. Los Angeles

Cty., 482 U.S. 304 (198 0—T—Tẽæ6„7U47——— 8,17

Gardner v. Village of Newburgh, 2 Johns. Ch. 162

e 18

Garrison v. City of New York, 88 U.S. (21 Wall.)

196 (1874)......... 63 8 9,18

Georgia Power Co. v. 138.30 Acres of Land, 596

F.2d 644 (6th Cir. 197999 14

Goldblatt v. Town of Hempstead, 369 U.S. 590

ee 23

Hamer v. School Bd., 393 S.E.2d 623 (Va. 1990) &

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229

(1984) a

Hunter v. Bryant, 502 U.S. 224 (1991) 21

Jacksonville, T. & K. W. Ry. Co. v. Adams, 11 So.

1 — 8

Jacobs v. United States, 290 U.S. 13 (1933 17

Kendall v. United States, 37 U.S. (12 Pet.) 524

5 13

KLK, Inc. v. US. bert of Interior, 35 F.3d 454

(9th Cir. 1994) . Cae * 18

TABLE OF AUTHORITIES—Continued

Kohl v. United States, 91 U.S. 367 (1875) 7,8

Lake Bowling Alley v. City of Richmond, 82 S.E.

ff % reer 8

Lewis v. Du Pont, 22 A. 2d 832 (Del. Super. Ct.

1941) ee ee ee 5 Eee 8,18

Lincoln County v. Luning, 133 U.S. 529 (1890) 14

Louisiana Power & Light Co. v. City of Thibodauz,

Se. CO SD 6,7

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

D ee eee 19-20

a California Coastal Comm'n, 483 U.S. 825

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

U.S. 104 (1978) 8 20

Pennsylvania Coal Co. v. Mahon. 260 ‘US. 303

FE 19, 22-23

Sear! v. School Dist. No. 2, 188 U.S. 553 (1890) * 9. 18

Sproles v. Binford, 286 U.S. 374 (1932) * 23

Stanley v. Schwalby, 162 U.S. 255 ( 1896) a 18

ae City of New Orleans, 97 So. 440 (La.

Tennessee v. Garner, 471 U.S. 1 (1985) * —

Tull v. United States, 481 U.S. 412 (1987) 13. 17

United States v. Carolene Products Co., 304 U.S.

. 4. 20, 23

United States v. Gettysburg Elec. Ry. Co., 160 U.S.

eee 25

United States v. Moreno, 742 F.2d 582 (9th Cir.

1 ͤ A 21

United States v. Reynolds. 397 U.S. 18 (1970) 10, 12-18

Village of Euclid v. Ambler Realty Co., 272 U.S.

r Ee es ae 23

Western & Southern Life Ins. Co. v. State Bd. of

Equalization, 451 U.S. 648 (19811) 26

Wilson v. United States, 221 U.S. 361 (19100 14

Statutes and Rules

r 7

— — 10, 11. 13

TABLE OF AUTHORITIES—Continued

Other Authorities Page

27 Am. Jur. 2d Eminent Domain (1996). .............. 12

Paxton Blair, “Federal Condemnation Proceedings

And The Seventh Amendment,” 41 Harv. L. Rev.

CD SS .... 10, 10-11

20 Corpus Juris Eminent Domain (1920 11

Kenneth Culp Davis & Richard J. Pierce, Jr., Ad-

ministrative Law Treatise (199))ͥꝓ7:U 20, 24

Jacques B. Gelin & David W. Miller, The Federal

Law of Eminent Domain (198 10

W. Page Keeton et al., Prosser and Keeton on the

Law of Torts (5th ed. 198: 15

James Kent, Commentaries on American Law

(O. W. Holmes, Jr. ed., 12th ed. 1873) 9, 11, 15, 18

Irving L. Levey, Condemnation in U.S.A. (1969).. 17

Henry E. Mills, A Treatise Upon The Law Of

Eminent Domain (187 9)9))9„9 passim

James Moore, Federal Practice (2d ed. 1969) 13

James Moore, Federal Practice (3d ed. 1998) 16, 19

Nichols, The Law Of Eminent Domain (Julius L.

Sackman ed., rev. 3d ed. 1990) _........................... passim

Carman F. Randolph, The Law Of Eminent Do-

main In The United States (1894) ..................... 8-9, 12

Joseph Story, Commentaries On Equity Jurispru-

11 ED citiedtentteecintincctinenitchitis 3 16-17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1235

CITY OF MONTEREY,

* Petitioner,

DEL MONTE DUNES AT MONTEREY, LTD. and

MONTEREY-DEL MONTE DUNES CORPORATION,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL ASSOCIATION OF COUNTIES,

COUNCIL OF STATE GOVERNMENTS,

U.S. CONFERENCE OF MAYORS,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

AS AMICI CURIAE SUPPORTING PETITIONER

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county and municipal governments and officials

throughout the United States, have a compelling in-

terest in legal issues that affect state and local gov-

ernments. One of the principal functions of state and

local governments is land use regulation. The proce-

dures used in judicial challenges to land use decisions

are thus of fundamental importance to amici and

their members.

The court of appeals’ holding that a jury properly

decided the City of Monterey’s liability for a regu-

latory taking is a serious error that is contradicted

by hundreds of years of practice and precedent. As

one authority explained shortly after the enactment

of 42 U.S.C. 5 1983, “[c]Jondemnation is not an

action at law, but an inquisition on the part of the

state for the ascertainment of a particular fact, and

may be conducted without the intervention of a jury.”

Henry E. Mills, A Treatise Upon The Law Of Emi-

nent Domain § 91, at 121 (1879). The court of ap-

peals’ additional holding that the district court prop-

erly submitted to the jury the question of whether

the city’s actions substantially advanced a legitimate

government interest reflects a fundamental misunder-

standing of the role of courts in reviewing the actions

of state and local legislative and administrative

bodies.

Because of the importance of these issues to amici

and their members, this brief is submitted to assist

the Court in its resolution of this case.’

1 The parties have consented to the filing of this brief

amicus curiae. Letters indicating their consent have been filed

with the Clerk of the Court. Pursuant to Rule 37.6 of the

Rules of this Court, amici state that no counsel for a party

has authored this brief in whole or in part, and that no per-

son or entity, other than amici, their members, or their

counsel, has made a monetary contribution to the preparation

or submission of this brief.

SUMMARY OF ARGUMENT

A. Regulatory takings/inverse condemnation claims,

like eminent domain claims, are not actions at law

in which there is a right to a jury trial. “Condemna-

tion is not an action at law, but an inquisition on

the part of the state for the ascertainment of a par-

ticular fact, and may be conducted without the inter-

vention of a jury.” Henry E. Mills, A Treatise Upon

The Law Of Eminent Domain § 91, at 121 (1879).

Such proceedings derive from the writ ad quod

damnum, which was issued by courts of equity to the

sheriff to conduct an inquest into the amount of dam-

ages incurred by a landowner as a result of a taking.

It has thus long been the rule that there is no right,

in the absence of statute, to a jury trial in an eminent

domain action. This rule applies to the determina-

tion of both liability and damages. Moreover, it ap-

plies regardless of whether the condemning authority

is a sovereign or a non-government entity such as a

railroad or utility that has been granted eminent

domain powers.

The similarities between eminent domain and in-

verse condemnations actions compel the conclusion

that there is no right to a jury trial on a regulatory

takings claim. The right to bring a regulatory tak-

ings claim is “based on the right to recover just com-

pensation for property taken by the [sovereign] for

public use in the exercise of its power of eminent

domain. The fact that condemnation proceedings

were not instituted and that the right was asserted

in suits by the owners [does] not change the essential

nature of the claim.” First English Evan, Luth.

Church v. Los Angeles Cty., 482 U.S. 304, 315 (1987)

(citation omitted).

Inverse condemnation actions have traditionally

sought such equitable relief as compelling the govern-

ment to condemn the property or enjoining the en-

forcement of police power regulations. And an in-

verse condemnation action which seeks monetary re-

lief for a temporary taking bears a strong resem-

blance to the equitable remedies of restitution and

accounting for rents. There is, of course, no right to

a jury trial in these equitable proceedings. Whether

the proceeding is initiated by the condemnor or land-

owner does not alter its fundamental nature, which

is not an action at law, but a special proceeding of

equitable origin in which the court has a duty to see

that the estimates made “are just, not merely to the

individual whose property is taken, but also to the

public, which is to pay for it.” Searl v. School Dist.

No. 2, 133 U.S. 553, 562 (1890).

B. The court of appeals erred in concluding that

the question of whether “the City’s actions substan-

tially advanced a legitimate public purpose” is so

“essentially factual” that it should be decided by a

jury. The court’s conclusion demonstrates a funda-

mental misunderstanding of the relative roles of

courts and juries in constitutional adjudication.

Contrary to the court’s reasoning, this question

embraces a predictive judgment about the efficacy of

the government’s chosen means of achieving a par-

ticular end. The Constitution commits these judg-

ments to legislative and administrative bodies, as this

Court’s cases have long made clear. As the Court has

explained, “neither the finding of a court arrived at

by weighing the evidence, nor the verdict of a jury

ean be substituted” for the legislature’s judgment.

United States v. Carolene Products Co., 304 U.S. 144,

154 (1938). The deferential standards of review

which courts apply in reviewing administrative action

likewise demonstrate that juries have no role in as-

sessing the validity of these predictive judgments.

The Court’s cases interpreting the Takings Clause’s

“public use” requirement reinforce the conclusion that

juries have no role in assessing whether a land use

regulation substantially advances a legitimate govern-

ment purpose. [Where the exercise of the eminent

domain power is rationally related to a conceivable

public purpose, the Court has never held a compen-

sated taking to be proscribed by the Public Use

Clause.” Hawaii Housing Auth. v. Midkiff, 467 U.S.

229, 241 (1984). If courts are not to engage in “em-

pirical debates over the wisdom of takings,” id. at

243, juries should not be empowered to engage in

empirical debates over the efficacy of land use regu-

lations.

ARGUMENT

THERE IS NO RIGHT TO A JURY TRIAL ON A REG-

ULATORY TAKINGS/INVERSE CONDEMNATION

CLAIM BROUGHT IN FEDERAL COURT UNDER 42

U.S.C. § 1983

The court of appeals erroneously held that the dis-

trict court properly submitted to the jury the issue of

whether the City was liable for a regulatory taking of

Del Monte’s property. The court’s holding that Del

Monte was entitled to a jury trial on its regulatory

taking inverse condemnation claim because “plaintiffs

who bring an action at law under Section 1983 have

the right to a jury trial,” Pet. App. 7a-8a, rests on

two flawed premises—that an inverse condemnation

claim is an action at law, and that the nature of the

remedy sought dictates whether the issue of liability

is to be decided by a common law jury.

As explained below, there is no right to a jury trial

in the analogous eminent domain proceeding. Con-

trary to the reasoning of the court of appeals, this

rule is not the consequence of the United States’ sov-

ereign immunity. Rather, it is the result of the long-

standing recognition that such cases, which derive

from the equitable writ ad quod damnum, are “of a

special and peculiar nature,” Louisiana Power &

Light Co. v. City of Thibodaux, 360 U.S. 25, 28

(1959), and are not cases in which trial by jury is a

matter of right. Courts have thus denied jury trials

not only when the United States has been a party but

also when such non-governmental entities as utility

companies have exercised the power of eminent

domain.

Nor was the court of appeals on any firmer ground

in reasoning that Del Monte was entitled to a jury

trial because it sought as relief “compensatory or

‘legal’ damages.” Pet. App. 9a. To the extent this is

even relevant in assessing whether the issue of lia-

bility in a regulatory takings case is for the jury, a

long tradition exists of courts assigning the task of

determining the adequacy of compensation to bodies

other than the common law jury. Moreover, in emi-

nent domain proceedings, courts, rather than juries,

have long determined such questions as whether a

taking is for a public purpose, an issue which is

analogous to the question of liability in a regulatory

takings action. The judgment of the court of appeals

should therefore be reversed.

A. Eminent Domain And Regulatory Takings/Inverse

Condemnation Claims Are Not Actions At Law

1. The court of appeals correctly observed that 42

U.S.C. § 1983 “is silent with respect to whether plain-

tiffs have a right to a jury trial in actions brought

pursuant to it.” Pet. App. 7a. The court reasoned that

because Section 1983’s text “[mlJirror[s] the split

then existing between courts of law (trial by jury)

and courts of equity (bench trial),” and “section

1983 gives aggrieved parties the right to bring an

‘action at law’ or a ‘suit in equity,’” it “logically”

follows that “plaintiffs who bring an action at law

under section 1983 have the right to a jury trial.”

Id. at Ta-8a.

Contrary to the court of appeals’ reasoning, Section

1983 does not provide aggrieved parties with only the

remedies of “an action at law” or “suit in equity.”

42 U.S.C. § 1983. Rather, it provides the remedies of

“an action at law, suit in equity, or other proper

ceeding for redress.” Id. (emphasis added). The in-

evitable consequence of the court’s ignoring the ex-

istence of this third category of remedies was its

conclusion that eminent domain and inverse condem-

nation actions must be actions at law which are

triable to a jury because property owners customarily

seek monetary relief. See Pet. App. 9a. The court of

appeals’ holding ignores the history and accepted

understanding of the nature of eminent domain pro-

ceedings and two centuries of practice to the contrary.

This Court has recognized that “[a]lthough an

eminent domain proceeding is deemed for certain pur-

poses of legal classification a ‘suit at common law,’

it is of a special and peculiar nature.” Thibodaux,

360 U.S. at 28 (quoting Kohl v. United States, 91

U.S. 367, 375-76 (1875)). Indeed, as a leading au-

thority explained shortly after the enactment of Sec-

tion 1983, eminent domain proceedings derive from

the writ ad quod damnum, which was issued by courts

of equity to the sheriff to conduct an inquest into the

amount of damages incurred by a landowner as a

result of a taking. See Henry E. Mills, A Treatise

Upon The Law Of Eminent Domain § 84, at 111

(1879); see also 2 Nichols, The Law Of Eminent

Domain § 4.105[1], at 4-107 (Julius L. Sackman ed.,

rev. 3d ed. 1990); 6 id. § 24.06[1], at 24-28 - 24-29

(“The statutory system of condemnation by judicial

decree prevailing in the great majority of states has

grown and developed out of the early ad quod damnum

proceedings. ); Custiss v. Georgetown and Alex-

andria Turnpike Co., 10 U.S. (6 Cranch) 233 (1810) ;

Lewis v. Du Pont, 22 A.2d 832, 834 (Del. Super. Ct.

1941); Lake Bowling Alley v. City of Richmond, 82

S.E. 97, 99 (Va. 1914); Jacksonville, T. & K. W. Ry.

Co. v. Adams, 11 So. 169, 171 (Fla. 1982). That

issuance of this writ was the province of courts of

equity belies the Ninth Circuit’s suggestion, Pet. App.

Sa, that eminent domain proceedings “are actions at

law.” “

Rather, eminent domain proceedings “are special

proceedings for the exercise of public powers.” Car-

man F. Randolph, The Law Of Eminent Domain In

2 See also 1 Nichols, Eminent Domain § 1.22[1], at 1-78—

1-79 (It is apparent that the whole system of exercising

eminent domain in the American colonies was influenced to a

considerable extent by the English practice of inquest by a

jury, and in many colonies the writ of ad quod damnum was

used, eo nomine, and continued to be so used long after the

Revolution.“).

Inquest juries are not the same as common law juries and

are not subject to the same rules as common law juries. See

Bauman v. Ross, 167 U.S. 549, 592-93 (1897): see also

Hamer v. School Bd., 393 S.E.2d 623, 627 (Va. 1990); Ba’ti-

more Belt R.R. Co. v. Baltzell, 75 Md. 94, 106-08 (1891);

Beekman v. Saratoga & Schenectady R.R. Co., 3 Paige Ch.

45. 75-76 (N.Y. Ch. 1831).

3 The Kohl! opinion states that “[t]}he right of eminent do-

main always was a right at common law. It was not a right in

equity, nor was it even the creature of a statute.” 91 U.S.

at 376. The Kohl dictum cites no authority for this statement,

which is at odds with the numerous authorities cited above.

The United States § 314, at 288 (1894). “Condemna-

tion is not an action at law, but an inquisition on the

part of the state for the ascertainment of a particular

fact, and may be conducted without the intervention

of a jury.“ Mills, Eminent Domain § 91, at 121. This

is so, as the Court has explained, because “[i]t is the

duty of the state to see that the estimates made are

just, not merely to the individual whose property is

taken, but also to the public, which is to pay for it.”

Searl v. School Dist. No. 2, 133 U.S. 553, 562 (1890);

see also Mills, Eminent Domain § 84, at 111 (citing

Garrison v. New York, 88 U.S. (21 Wall.) 196

(1874) ).

It has thus long been the rule that

the estimate of the just compensation for prop-

erty taken for the public use, under the right of

eminent domain, is not required to be made by a

jury, but may be entrusted by Congress to com-

missioners appointed by a court or by the execu-

tive, or to an inquest consisting of more or fewer

men than an ordinary jury.

Bauman, 167 U.S. at 593. See also II James Kent,

Commentaries on American Law *339 note e (O. W.

Holmes, Jr. ed., 12th ed. 1873) (“The damages may

be assessed in any equitable and fair mode, to be

provided by law, without the intervention of a jury,

inasmuch as trial by jury is only required on issues

of fact, in civil and criminal cases in courts of jus-

tice.“); Mills, Eminent Domain § 85, at 112-13

(value of property can be assessed by “a jury, or

commissioners, or [a] court without a jury”); 6

Nichols, Eminent Domain § 24.06, at 24-27 (“the

amount of compensation to which each owner is en-

titled is determined by commissioners or by a jury as

the local constitution or statute requires”) (footnote

omitted). Cf. Custiss, 10 U.S. (6 Cranch) at 233

(describing early federal statute using writ ad quod

damnum).

This remains the rule today. Thus, under Fed. R.

Civ. P. 71A(h), “[i]f the action involves the exercise

of the power of eminent domain under the law of the

United States, any tribunal specially constituted by

an Act of Congress governing the case for the trial

of the issue of just compensation shall be the tribunal

for the determination vf that issue.” While in the

absence of a “specially constituted tribunal any party

may have a trial by jury of the issue of just compen-

sation,” the court may in its discretion order that the

issue of compensation shall be determined by a com-

mission of three persons appointed by it.” Id., see

also United States v. Reynolds, 397 U.S. 14, 18

(1970); Jacques B. Gelin & David W. Miller, The

Federal Law of Eminent Domain 436-41 (1982).

That to this day the federal rules allow for the issue

of just compensation to be decided by bodies other

than a common law jury demonstrates that eminent

domain proceedings are not actions at law.“

As one commentator observes, the early federal eminent

domain statutes reflect a great “diversity in methods of assess-

ment.” Paxton Blair, “Federal Condemnation Proceedings

And The Seventh Amendment,” 41 Harv. L. Rev. 29, 37

(1927). Describing these statutes, Blair notes:

Thus we find, in close succession, provisions for assess-

ment by a jury of twenty-three, by twelve freeholders,

by not less than twelve jurymen out of a panel of twenty-

four, and by not less than seven out of twelve, while we

likewise find, all within the same decade, provisions in

no less than four different statutes for reference of the

assessment to three commissioners or a majority of them.

Id. at 37 (footnotes omitted). He concludes that “the com-

mon law sanctioned such diverse methods of assessment that

As Mills further explained contemporaneously with

the enactment of Section 1983:

The persons appointed to assess damages in cases

of this kind do not perform the proper and usual

functions of a jury .... Juries are for the trial

of issues of fact in civil and criminal proceedings

in courts of justice, and are not necessarily re-

quired in the assessment of land- damages.

The right to trial by jury is not claimed in equity

cases, although rights of property are involved

and issues of fact arise. Condemnation is not an

action at law, but an inquisition on the part of

the state for the ascertainment of a particular

fact, and may be conducted without the interven-

tion of a jury.

Mills, Eminent Domain § 91, at 120-21; see also II

Kent, Commentaries at *339 note e.

If juries are not constitutionally required to adjudi-

cate the issue of just compensation in an eminent

domain proceeding, it is even more remarkable to

suggest they have a role in determining whether the

government is liable for a taking in the first place.

Notable in this regard is Federal Rule 71A(h), which

furth., provides that the “[t]rial of all issues shall

otherwise be by the court.” Fed. R. Civ. P. 71A(h).

The latter provision is in keeping with longstanding

practice. Even when a party is entitled to trial by

jury on the issue of just compensation, “[i]t is gen-

erally the province of the court to determine the

preliminary questions of the right to condemn,

whether the use is a public one, and the necessity of

[the] taking.” 20 Corpus Juris Eminent Domain

§ 381, at 974-75 (192) (footnotes omitted). See also

no one method can be said to have been made imperative by

the Seventh Amendment.” Id. at 36.

Randolph, Eminent Domain § 322, at 294-95 (“A

strict limitation usually imposed upon these tribunals

is that they are not compet<m to pass upon questions

of law.... A jury, whose sole duty is to assess com-

pensation, [is] not competent to decide whether or not

the construction of the undertaking is duly author-

ized.”)° As these authorities demonstrate, there is no

right to a jury trial on liability issues in eminent

domain proceedings and there is no basis to conclude

that Section 1983 confers such a right.“

5A current statement of the rule is found in 27 Am. Jur.

2d Eminent Domain §617, at 163-64 (1996) (footnotes

omitted) :

Generally, the court has the duty to determine such

issues as the condemnor’s legal authority to take and the

limits thereon, the purpose of the taking, the necessity

and expediency of the taking, and questions of title.

Accordingly, a landowner has no constitutional right to

be heard by a jury on the validity of a taking, as this

issue presents a question of law for the court. Similarly,

the landowner is not entitled to a jury determination of

the public necessity of the proposed taking. The thres-

hold question of liability for unreasonable or unlawful

precondemnation conduct is to be determined by the

court.

See also 2 Nichols, Eminent Domain § 4.105[5], at 4-119.

6 The result is no different under the Seventh Amendment.

As this Court has held:

“The practice in England and in the colonies prior to

the adoption in 1791 of the Seventh Amendment, the

position taken by Congress contemporancously wiih, and

subsequent to, the adoption of the Amendment, and the

position taken by the Supreme Court and nearly all of the

lower federal courts lead to the conclusion that there is

no constitutional right to jury trial in the federal courts

2. The court of appeals ignored the extensive au-

thority demonstrating that eminent domain proceed-

ings derive from the equitable writ ad quod damnum

and are special and unique proceedings rather than

actions at law in which there is a right to a jury trial.

Instead, the court asserted that eminent domain

“proceedings are not tried before a jury because the

United States traditionally is a party.” Pet. App. 8a

(citing ALK, Inc. v. U.S. Dep’t of Interior, 35 F.3d

454, 456 (9th Cir. 1994)). This is wrong for several

reasons.

First, the court of appeals’ assumption that the un-

availability of a jury trial in eminent domain pro-

ceedings stems from sovereign immunity principles

ignores that such principles do not control when the

United States initiates a condemnation proceeding.

Indeed, if the court of appeals is correct, then Rule

71A(h)’s provision that “if there is no [statute au-

thorizing a] specially constituted tribunal any party

may have a trial by jury of the issue of just com-

pensation” would stand in contrast to the longstand-

ing rule that only Congress can waive the United

States’ sovereign immunity. See, e.g., Stanley v.

Schwalby, 162 U.S. 255 (1896); Kendall v. United

States, 38 U.S. (12 Pet.) 524 (1838).

in an action for the condemnation of property under the

power of eminent domain.”

Reynolds, 397 U.S. at 18 (quoting 5 J. Moore, Federal Prac-

tice 7 38.32[1], at 239 (2d ed. 1969)). And as explained

infra, both the similarities between eminent domain and

inverse condemnation proceedings and the nature of regula-

tory takings actions compel the conclusion that there is no

right to a jury trial on liability issues in such proceedings.

7 Indeed, it is settled that when the United States initiates

a suit at common law the Seventh Amendment applies. See

Tull v. United States, 481 U.S. 412, 420 (1987).

Second and most significantly, the court of appeals

has ignored the long tradition of sovereigns granting

the power of eminent domain to both municipal cor-

porations and non-governmental entities such as rail-

roads, highway companies, and utilities. Such entities

do not enjoy sovereign immunity. See, e.g., Lincoln

County v. Luning, 133 U.S. 529 (1890); ef. Wilson

v. United States, 221 U.S. 361 (1910). Yet they

frequently exercised the eminent domain power in

proceedings in which there was no right to a jury

trial. See Alabama Power Co. v. 1354.02 Acres of

Land, 709 F.2d 666, 667-68 (11th Cir. 1983); Geor-

gia Power Co. v. 188.30 Acres of Land, 596 F.2d

644, 647-50 (5th Cir. 1979); see also Custiss v.

Georgetown and Alexandria Turnpike Co., 10 U.S.

(6 Cranch) at 233-34; Baltimore Belt R.R. Co. v.

Baltzell, 75 Md. 94, 107 (1891) (noting that “as to

railroads, the [Maryland] Legislature [has] without

exception, provided that the compensation should be

awarded by a special jury” summoned by warrant

rather than a common law jury); Bailey v. Phila-

delphia, Wilm. & Balt. R.R. Co., 4 Del. (4 Harr.)

389, 390-91 (1846); Beekman v. Saratoga & Sche-

nectady R.R. Co., 3 Paige Ch. 45, 75 (N.Y. Ch. 1831).

As these authorities demonstrate, the reason eminent

domain proceedings are tried without juries is not

“because the United States [or some other sovereign |

traditionally is a party.” Pet. App. 8a. Rather, it is

because eminent domain proceedings derive from the

writ ad quod damnum, which was the province of

courts of equity where there is no right to a jury

trial.

3. The equitable pedigree of eminent domain pro-

ceedings demonstrates the court of appeals’ error in

reasoning that “the similarities between eminent do-

main and inverse condemnation suggest that the lat-

ter derives from common law.” Pet. App. 9a. The

court, however, syllogized that inverse condemnation

suits are actions at law because they are similar to

eminent domain proceedings, which “ha[ve] been

characterized as a ‘trespass committed by the sover-

eign,““ and “[a]ctions brought for trespass are com-

mon-law actions.” Jd. at 9a (quoting Beatty v.

United States, 203 F. 620, 626 (4th Cir. 1913), cert.

denied, 232 U.S. 463 (1914)).

The court’s syllogism is correct only in its recog-

nition that eminent domain and inverse condemnation

proceedings are similar; indeed, its analysis ought to

have stopped there. Moreover, the court’s analogy to

trespass actions ignores a critical difference between

eminent domain proceedings and regulatory takings—

that the common law action of trespass requires a

physical invasion of the land which interferes with

possession. See W. Page Keeton, et al., Prosser and

Keeton on The Law Of Torts § 13, at 67-73 (5th ed.

1984). While a physical invasion necessarily occurs

when the power of eminent domain is exercised—

it is, after all, the very point of exercising the power

—no invasion occurs when the government merely

regulates the use of land.“

The court’s further assertion that “eminent domain

and inverse condemnation actions resemble common-

The court of appeals’ characterization of eminent domain

proce dings as a “trespass by the sovereign” is contradicted

by a leading commentator. See II Kent, Commentaries *399

note (It is not to be understood that a statute assuming

private property for public purposes, without compensation,

is absolutely void, so as to render all persons acting in execu-

tion of it trespassers.”’).

law actions for trover to recover damages for conver-

sion of personal property, and detinue and replevin,“

Pet. App. 9a, is also incorrect. First, it is hard to

understand how eminent domain proceedings resemble

these actions given that the entity seeking to condemn

property ordinarily initiates the proceeding.

Nor is the court’s analogy any more persuasive

with respect to inverse condemnation proceedings.

Courts of equity have long exercised broad jurisdic-

tion over disputes involving real property through

such actions as a suit to quiet title and a suit for

specific performance. See J. Moore, Federal Practice

§ 38.10[3][a] [iii] (3d ed. 1998). Both of these equi-

table actions bear a far greater resemblance to in-

verse condemnation proceedings which assert that a

land use regulation effects a taking of property than

to common law actions involving chattels.

The purpose of most inverse condemnation actions

is, after all, to compel the government either to con—

demn the property or to rescind a regulation. Com-

pelling government action—whether it be to concemn

property or to rescind a regulation—is typically ob-

tained through the equitable remedy of an injunction.

Moreover, as a practical matter, compelling the vov-

ernment to condemn property results in it becoming

the owner of the property in return for paying com-

pensation. In a dispute between private parties, such

relief is traditionally obtained through a suit in

equity for specific performance. And even an in-

verse condemnation action which seeks only monetary

relief for a temporary taking bears a strong resem-

blance to the equitable remedies of restitution and

accounting for rents. See I Joseph Storv, Cen-

taries On Equity Jurisprudence 508-09 (12th ed.

1984); see also Tull v. United States, 481 U.S. at

424.

The court of appeals’ suggestion that inverse con-

demnation actions “derive{] from [the] common

law,” Pet. App. 9a, is hard to square with the ac-

cepted understanding of the nature of these proceed-

ings. As the Court itself has long recognized, the

right to bring an inverse condemnation action is

“based on the right to recover just compensation for

property taken by the [sovereign] for public use in

the exercise of its power of eminent domain. . The

fact that condemnation proceedings were not insti-

tuted and that the right was asserted in suits by the

owners did not change the essential nature of the

claim.” First English Evan. Luth. Church v. Los

Angeles Cty., 482 U.S. 304, 315 (1987) (quoting

Jacobs „. United States, 290 U.S. 13, 16 (1933) ).

And as one treatise explains in describing the

practice throughout the States:

‘Inverse condemnation’ is the popular description

of the cause of action against a governmental

defendant to recover value of property taken in

fact by the defendant even though no formal

exercise of the power of eminent domain has

been attempted. The three methods by which the

owners of real property seek to compel an assess-

ment of damages in the same manner as in con-

demnation proceedings without resort to con-

demnation proceedings are by injunction, cer-

tiorari, and mandamus.

Irving L. Levey, Condemnation in U.S.A. § 44, at 455

(1969) (footnote omitted); see also 3 Nichols, Emi-

nent Domain § 8.01[4][a], at 8-39 (“Traditionally,

an [inverse condemnation] attack upon police power

legislation sought merely declaratory relief by way

of an adjudication of invalidity, and equitable relief

by way of an injunction against its enforcement, or

both.”) ; II Kent’s Commentaries at 339 note f (“if

the government proceed without” providing compen-

sation or a tribunal for assessing compensation, “their

officers and agents may and ought to be restrained by

injunction”); Gardner v. Village of Newburgh, 2

Johns. Ch. 162, 166 (N.Y. Ch. 1816); cf. Lewis v.

Du Pont, 22 A.2d at 834 (noting owner’s remedy of

writ ad quod damnum); Bailey, 4 Del. (4 Harr.) at

9 (same).

There is, of course, no right to a jury trial in these

proceedings. And contrary to the reasoning of the

court of appeals, the similarities between eminent

domain and inverse condemnation actions suggest

that whether the proceeding is initiated by the con-

demnor or the landowner does not alter the funda-

mental mature of the proceeding, which is not an

action at law. Rather, it is a special proceeding of

equitable origin in which the court has a duty to see

that the estimates made “are just, not merely to the

individual whose property is taken, but also to the

public, which is to pay for it.“ Searl v. School Dist.

No. 2, 133 U.S. 553, 562 (1890): see also Mills,

Eminent Domain § 84, at 111 (citing Garrison v.

New York, 88 U.S. (21 Wall.) 196 (1874)).

4. The court of appeals also reasoned that “Del

Monte was entitled to have a jury try its inverse con-

demnation claim” because it asserted “legal rights”

and sought “ ‘legal’ damages.” Pet. App. 9a (cita-

tions omitted). But as explained above, it is hard to

view the requirement of providing “just compensa-

tion” for taking property as a legal right or the com-

pensation as legal damages when this right was tradi-

— ——

— —

tionally enforced by seeking the equitable writ of ad

quod damnum. That to this day there is no right to

a jury trial in an eminent domain proceeding further

demonstrates that the right to just compensation is

equitable and not legal in nature. As a leading au-

thority explains, “[w]hile an action seeking a mone-

tary award will frequently be legal in nature, when

a monetary claim is made in a context historically

allowed in equity rather than at law, it will not be

triable to a jury.” J. Moore, Federal Practice § 38.10

[3][a][ii], at 38-45 (citations omitted).

B. Whether A Land Use Regulation Substantially Ad-

vances A Legitimate Government Interest Is A Ques-

tion Of Law Which Is Outside The Province Of The

Jury

The court of appeals also erred in concluding that

the question of “whether the City’s actions substan-

tially advanced a legitimate public purpose,” Pet.

App. 12a, is so “essentially factual” that “it is the

type of issue that can be put to the jury.” Id. at 15a

(citation omitted). The court’s conclusion demon-

strates a fundamental misunderstanding of the rela-

tive roles of court and jury in constitutional adjudi-

cation which has grave implications for the review

of the actions of state and local government legislative

and administrative bodies.

1. The Court has said that the determination of

whether “regulation goes too far” so as to be a

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

393, 415 (1922), involves “ ‘essentially ad hoc, fac-

tual inquiries.’” Lucas v. South Carolina Coastal

9 Amici agree with petitioner’s other amici that this is not

the proper test for determining whether land use regulation

effects a taking.

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

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

104, 124 (1978)). But, contrary to the view of the

court of appeals, this language hardly “points . . . to-

ward the use of the jury” to resolve the question of

whether a government regulation substantially ad-

vances a legitimate government interest. To say that

an inquiry is “essentially factual” does not address

whether resolution of a particular prong of one of the

Court’s formulations for determining whether a regu-

latory taking has occurred is factual in nature.

Nor does it answer the questior of whether the

“facts” necessary to resolve a particular inquiry are

adjudicative in nature and thus must presumably be

found by a jury. Cf. II Kenneth Culp Davis & Richard

J. Pierce, Jr., Administrative Law Treatise § 10.6,

at 152-53 (1994) (discussing distinction between

“adjudicative facts,” which are “ ‘facts concerning

immediate parties,’” and “legislative facts,” which

„are utilized for informing a court’s legislative

judgment on questions of law and policy’”) (citation

omitted). Indeed, this Court has a long tradition of

taking judicial notice of legislative facts in constitn-

tional litigation. See id. at 154-55: United States „.

Carolene Products Co., 304 U.S. 144, 153-54 (1928).

The court of appeals correctly noted that whether

the government has a legitimate government purpose

is “‘a legal determination.” Pet. App. 14a. The court

went astray, however, in reasoning that the issue of

whether “the City’s actions substantially advanced a

legitimate state interest’”—-which it deemed to be a

“reasonableness determination,” id.—was “essentially

factual” and thus “the type of issue that can be put

to the jury.” Id. at 15a.

—— —2—

The court’s conclusion that a jury is properly

charged with the duty to assess the constitutional

adequacy of the nexus between the means government

has chosen and the end it seeks rests on several flawed

premises. The first of these is that “the reasonable-

ness issue in this case is essentially ‘fact-bound [in]

nature.“ Id. (quoting United States v. Moreno, 742

F.2d 532, 537 (9th Cir. 1984) (Wallace, J., concur-

ring) ). Moreno, which involved the issue of whether

an arrest was based on probable cause and thus “rea-

sonable” under the Fourth Amendment, see 742 F.2d

at 534-36, provides no authority for the court’s

assertion.

Legal concepts such as reasonableness are terms of

art which derive their meaning from context. Even

in the realm of the Fourth Amendment, whether the

issue of reasonableness is essentially legal or factual

in nature cannot be answered without reference to

its context. For example, the Court’s determination

that it is unreasonable to shoot an unarmed, non-

dangerous felony suspect—a determination which the

Court made by “ ‘balanc[ing] the nature and quality

of the intrusion on the individual’s Fourth Amend-

ment interests against the importance of the govern-

mental interests alleged to justify the intrusion,’ ”

Tennessee v. Garner, 471 U.S. 1, 8 (1985) (citation

omitted) —is indisputably a question of law which a

jury is not competent to decide. Cf. Hunter v. Bryant,

502 U.S. 224, 228 (1991) (per curiam) (“whether

[secret service] agents acted reasonably under settled

law in the circumstances” and are entitled to quali-

fied immunity should be decided by the court and

not a jury).

Indeed, whether the denial of a permit substantially

advances (or as the lower courts put it, is reasonably

related to) the acknowledged governmental interests

in “protecting the environment, preserving open

space agriculture, protecting the health and safety of

its citizens, and regulating the quality of the com-

munity,’ ” Pet. App. 13a (quoting district court’s jury

instructions), embraces a predictive judgment about

the efficacy of the government’s chosen means of

achieving a particular end. Jurors bring no special

expertise to this issue.“ Rather, the Constitution com-

mits these judgments to legislative and administra-

tive bodies, as the Court made clear as early as Penn-

sylvania Coal:

One fact for consideration in determining [the]

limits [of the police power] is the extent of the

diminution. When it reaches a certain magni-

tude, in most if not all cases there must be an

exercise of eminent domain and compensation to

sustain the act. So the question depends upon

the particular facts. The greatest weight is given

to the judgment of the legislature but it is al-

ways open to interested parties to contend that

the legislature has gone beyond its constitutional

power.

10 Among the stranger statements in the court of appeals’

opinion is its assertion that “the reasonableness issue in this

case is founded largely ‘on the application of the fact-

finding tribunal’s experience with the mainsprings of human

conduct.” Pet. App. 15a (quoting Commissioner v. Duber-

stein, 363 U.S. 278, 289 (1960)). The court’s statement might

be understandable if the jury had been instructed that it

could disregard the City’s assertions if it deemed them to be

pretextual. But the instructions given prohibited the jury

from considering the motives of the city council members.

The only issue the jurors were allowed to consider was

whether the regulation advanced the City’s legitimate inter-

ests. At bottom, this is an inquiry into the validity of a

predictive judgment and not a question of fact.

—

—ͤ—D ü—

— 2 — —— —

260 U.S. at 413. And the Court later explained:

“If the municipal council deemed any of the

reasons which have been suggested, or any other

substantial reason, a sufficient reason for adopt-

ing the ordinance in question, it is not the pro-

vince of the courts to take issue with the council.

We have nothing to do with the question of the

wisdom or good policy of municipal ordinances.

If they are not satisfying to a majority of the

citizens, their recourse is to the ballot—not the

courts.”

Village of Euclid v. Ambler Realty Co., 272 U.S. 365,

393 (1926) (quoting State v. City of New Orleans,

97 So. 440, 444 (La. 1923) ).

Because “ ‘debatable questions as to reasonableness

are not for the court but for the Legislature,’ ”

Goldblatt v. Town of Hempstead, 369 U.S. 590, 595

(1962) (quoting Sproles v. Binford, 286 U.S. 374,

388 (1932) ), juries obviously have no role to play in

assessing the “reasonableness” of legislative means.

As the Court has explained:

[Where the legislative judgment is drawn in

question, [the inquiry] must be restricted to the

issue whether any state of facts either known

or which could reasonably be assumed affords

support for it. . I Nleither the finding of a

court arrived at by weighing the evidence, nor

the verdict of a jury can be substituted for it.

United States v. Carolene Products, 304 U.S. at 154;

see also Atlantic & Pacific Telegraph Co. v. City of

Philadelphia, 190 U.S. 160, 166 (1903) (quoting 1

Dillon, Municipal Corporations 8 327 (4th ed.)

Whether an ordinance be reasonable and consistent

with the law or not is a question for the court, and

not the jury, and evidence to the latter on this subject

is inadmissible.’ ’’) ).

2. Notwithstanding the similarity between this in-

quiry and the substantive due process standard of re-

view, the court of appeals rejected as unhelpful the

City’s argument that in determining whether there is

a right to a jury trial on this issue, it “analogize this

inquiry to that undertaken by courts addressing sub-

stantive due process claims.” Pet. App. 12a. Instead,

the court declared that “referring to eminent domain

and inverse condemnation cases appears to us to be

a safer course.” Id. at 13a. The court largely failed

to follow this course, however, citing only one case,

Dolan v. City of Tigard, 512 U.S. 374 (1994), which

it read as “indicat[ing] that the inquiry is essentially

factual” and thus for a jury to decide. Pet. App. 15a.

This is an odd conclusion to draw from Dolan given

that there was no jury trial at any point in the va’.

ous administrative and judicial proceedings in ch

the case was litigated. See 512 U.S. at 379-88 In-

deed, it is noteworthy that the factual findings which

the Dolan Court found insufficient to support the

City’s dedication requirement were made by the City’s

planning commission, an administrative agency with

substantial expertise, and not by a common law jury.

As a general matter, when courts review orders of an

administrative agency they are required to give the

agency’s factual findings broad deference. II Davis

& Pierce, Administrative Law Treatise § 11.2, at 174.

Notably, Dolan says nothing that even remotely sug-

gests that the issue of whether a land use regulation

substantially advances a legitimate government inter-

est is within the competence of a common law jury.

Courts are quite capable of resolving the constitu-

tionality of agency orders and regulations on the basis

of an administrative record. See, e.g., Nollan v. Cali-

fornia Coastal Comm'n, 483 U.S. 825, 837-42 (1987)

(holding unconstitutional, on basis of agency record,

permit condition imposed by land use planning agency

because it was irrational). Indeed, as Nollan demon-

strates, whether a permit condition substantially ad-

vances a legitimate government interest is a question

of law that the court decides.

This Court’s cases interpreting the Takings Clause’s

“public use” requirement reinforce the conclusion that

juries have no role in assessing the validity of a land

use regulation. As this Court has made clear, the

federal courts’ role “in reviewing a legislature’s judg-

ment of what constitutes a public use . . is an ex-

tremely narrow’ one.” Hawaii Housing Auth. v.

Midkiff, 467 U.S. 229, 240 (1984) (quoting Berman

v. Parker, 348 U.S. 26, 32 (1954)). The Court ac-

cordingly “will not substitute its judgment for a legis-

lature’s judgment as to what constitutes a public use

‘unless the use be palpably without reasonable founda-

tion.’” Id. at 241 (quoting United States v. Gettys-

burg Elec. Ry. Co., 160 U.S. 668, 680 (1896) ).

Thus, “where the exercise of the eminent domain

power is rationally related to a conceivable public pur-

pose, the Court has never held a compensated taking

to be proscribed by the Public Use Clause.” Id. (eita-

tions omitted). This is so even though a regulation

“may not be successful in achieving its intended

goals.” Id. at 242. As the Court has further ex-

plained

“whether in fact the provision will accomplish its

objectives is not the question: the [constitutional

requirement] is satisfied if... the... [state]

Legislature rationally could have believed that

the [Act] would promote its objective.” When

the legislature’s purpose is legitimate and its

means are not irrational, our cases make clear

that empirical debates over the wisdom of takings

—no less than debates over the wisdom of other

kinds of socioeconomic legislation—are not to be

carried out in the federal courts.

Id. at 242-43 (quoting Western & Southern Life Ins.

Co. v. State Bd. of Equalization, 451 U.S. 648, 671-72

(1981) ) (other citations omitted).

The Court’s circumscription of the scope of judicial

inquiry in eminent domain proceedings highlights the

inappropriateness of submitting to a jury the analo-

gous question of whether a land use regulation sub-

stantially advances a legitimate government interest.

If courts are not to engage in “empirical debates over

the wisdom of takings,” id., juries cannot be em-

powered to engage in empirical debates over the effi-

cacy of land use regulations. Rather, the limited judi-

cial inquiry which the takings clause contemplates

with respect to the rationality of government action,

whether it be for purposes of formal condemnation

proceedings or for land use regulation, is a question

of law which the court must decide. The court of ap-

peals erred in failing to recognize as much.

CONCLUSION

The judgment of the court of appeals should be

reversed.

June 4, 1998

Respectfully submitted,

RICHARD RuDA *