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

No. 97-1235

In The

Supreme Court of the United States

October Term, 1997

CITY OF MONTEREY,

Petitioner,

vs. °

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

DEFENDERS OF PROPERTY RIGHTS,

ALLIANCE FOR AMERICA

AS AMICI CURIAE IN SUPPORT OF RFSPONDENTS

Nancie G. Marzulla*

DEFENDERS OF

PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

July 31, 1998 (202) 822-6770

A —

ciceieaeiiememion

*Counsel for Amici Curiae

QUESTION PRESENTED

Whether trial by jury is guaranteed for all claims

under 42 U.S.C. § 1983?

TABLE OF CONTENTS

QUESTION PRESENTED ...................ussserssersesssessssrssseeeees i

TABLE OF AUTHORITIES. ...........:c::usseeeeeeeeeeeneneseeenenenes iil

IDENTITYAND INTERESTS OF AMICI CURIAE........... |

STATEMENT OF THE CASE ............nsessessseeseseeeesenneeeenees 3

SUMMARY OF ARGUMENT............cscccecseeeneeeeneeeneennnens 5

ARGUMENT. ......:0scscscrcccsccrcsvsresssorsresetsersnsceesseessosseessees 11

I. THIS COURT HAS HELD THAT THE SEVENTH

AMENDMENT’S GUARANTEE OF A RIGHT TO

TRIAL BY JURY APPLIES TO ACTIONS FOR

DAMAGES IN FEDERAL COURT UNDER

STATUTES THAT “SOUND IN TORT.” ........... 1]

Il. AN ACTION FOR DAMAGES UNDER 42 U.S.C.

§ 1983 SOUNDS IN TORT. .... cccccccceeeeeeceereeeeneeees 15

Ill. | THERE IS NO BASIS FOR DISTINGUISHING

AMONG CLAIMS BROUGHT FOR VIOLATION

OF “RIGHTS GUARANTEED BY THE

CONSTITUTION” UNDER 42 U.S.C. § 1983 .... 19

CONCLUSION ......ccscscocrssccsssenscerscrscoensoencrseesensesssssesssesees 22

TABLE OF AUTHORITIES

CASES

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959) .... 13

Carey v. Piphus, 435 U.S. 247 (1978).....ccccccccccccceeceeeeees 18, 19

City of Newport v. Fact Concerts, Inc., 453 U.S. 247

REET aaa en SS Coe EN OD 18

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

SITTIITET cniiddnaetitndinstathenrninititansantiiedientietidiaiieinidaeetaasintiainemuende 16

Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir.

Su iaa i icissicibstelipsalbendttsindelaisdndesditaeniiedlitigshaidippaliataniesctintamnateammeansemes 7

Curtis v. Loether, 415 U.S. 189 (1974) ......cccccecceeeeees passim

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962)... 12

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

I tatiana cairns eleateri alittle etesethnead 4

Dolan v. City of Tigard, 512 U.S. 374 (1994)... 11,21

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987) .........c..0000 21

Gargiulo v. Delsole, 769 F.2d 77 (2d Cir. 1985) «0.0.0.0... 9

Heck v. Humphrey, 512 U.S. 477 (1994) .......cccccccccceeceees 8, 18

Imbler v. Pachtman, 424 U.S. 409 (1976)........6cccccccccccceceeens 18

Jacobs v. United States, 290 U.S. 13 (1933) ......c00000000 10, 21

ili

TABLE OF AUTHORITIES--cont.

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701

GBD casrecsnncssitenneitndmeniigimanstisoaineesiniomiinnionaintiod passim

Keller v. Prince George's County Dep't of Soc. Servs.,

616 F. Supp. 540 (D. Md. 1985) ............cccccccceseeeneeeeneneeeees 8

Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299

CRED ceceerscennbidusigactirinibinininininniniicantitiapenmeuents 19

Mitchum v. Foster, 407 U.S. 225 (1972) ...cccccccccccceceeeeeeees 5,17

Monell v. Department of Soc. Servs. of the City of New York,

GID es Ga a Oi acintteniteiencttininetnstainiidiilne 8,17

Monroe v. Pape, 365 U.S. 167 (1961 )..........0cccccceeeee 8, 17, 20

New Port Largo, Inc. v. Monroe County, 95 F.3d 1084 (11th

Cir. 1996), cert. denied, 117 S.Ct. 2514 (1997)................. )

Pernell v. Southall Realty, 416 U.S. 363 (1974)........ 8, 12, 14

Ross v. Bernhard, 396 U.S. 531 (1970)...........cccccccceeceeeeeeeees 12

Tull v. United States, 481 U.S. 412 (1987)..............0000 12, 15

Will v. Michigan Dep't of State Police 491 U.S. 58

CIPI Caicicactchienenstinndinneasnbbnsbeebubtiaiaiieaanatiptitannitinntiinia 20

Williamson County Reg'] Planning Comm'n v. Hamilton

Beh, SED Gabe FH ee ectcteicinadeaieemntintinnnils 21

iv

TABLE OF AUTHORITIES --cont.

CONSTITUTIONS

Ee IE IIE WF ccrnencsenescreccmssncesenndeenisseuiedtdecnenentiostonas 10

Sn es CUTIE, WUE citintdscassncteresrsissnscsnndentainahinasmneetintecsints 7

STATUTES

ee passim

oe ee a I ecerierecnnncicnsnscincerasisninsnsenpieneitadinetinnats 13

D.C. CODE §§ 16-1051- 1505 (1981 & Supp. 1985)......... 15

OTHER AUTHORITIES

Jack M. Beermann, Symposium on Section 1983: Common

Law Elements on the Section 1983 Action, 72 Chi.-Kent.

RESELL ES Sn ee 17

Alexander Hamilton, The Federalist No. 78 (Henry Cabot

| Sheldon H. Nahmod, Civil Rights and Civil Liberties

Litigation, The Law of Section 1983 §1:52

I Se 16

9 Wright, Miller & Cooper, Federal Practice and Procedure

Pa ldinieisciiachesliididilacasiicbicsscdendnsacesnbeniubsedbiabinsoasedesunatenseesubenseess 7

v

TABLE OF AUTHORITIES --cont.

9 Wright & Miller, Federal Practice and Procedure §2302.2,

CBG CE, BIG sccccceccccecsescessscurecoresnsesnseencnssininasantentatatistisiteth 13

2 Records of the Federal Convention 587 (Max Farrand ed.,

vi

——- eee

~~

a

Pisuant to Rule 37.3 of the Rules of this Court,

amici curiae submit this brief in support of Respondents. '

Both parties have consented to the filing of this brief.

INTEREST OF AMICI CURIAE

Defenders of Property Rights is a non-profit, public

interest legal foundation dedicated to the preservation of

constitutionally protected property rights. Defenders’

mission is to protect those rights considered essential by the

Framers of the Constitution and to promote a better

understanding of the relationship among all the rights

protected under the Bill of Rights. Defenders’ goal of the

vigorous protection of property rights recognizes the special

role of federal courts in protecting those rights. Since its

founding in 1991, Defenders has participated in every

significant property rights case in this Court inc!uding

‘ No counsel for either party authored this brief amici curiae, either in

whole or in part. Furthermore, no persons other than amici curiae (their

Phillips v. Washington Legal Found., No. 96-1578, 1998

U.S. LEXIS 4003 (U.S. Jan. 20, 1998); Suitum v. Tahoe

Regional Planning Agency, _U.S.__, 117 8. Ct. 1659

(1997); Bennett v. Spear, 520 U.S. 154 (1997); Dolan v. City

of Tigard, 5\2 U.S. 374 (1994); Keene Corp. v. United

States, 508 U.S. 200 (1993); and Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992).

Alliance for America is a non-profit coalition of

grassroots groups all across the country dedicated to making

property rights a part of environmental decision-making.

The Alliance represents over five hundred local organizations

comprised of ranchers, teachers, homemakers, loggers,

farmers, and other private individuals interested in protecting

private property rights. The Alliance firmly supports the

need to balance safeguarding the environment with

guaranteeing the private property rights enshrined in the

Constitution.

members or counsel) contributed financially to the preparation of this

brief.

2

STATEMENT OF THE CASE

This case involves the alleged deprivation of rights to

due process, just compensation, and equal protection secured

by the Fifth and Fourteenth Amendments to the U.S.

Constitution under color of state law in violation of 42

U.S.C. § 1983. The violations of Section 1983 arise from the

attempts of a property owner to develop a 37-acre parcel of

unimproved land located in the City of Monterey, California.

At trial, a jury awarded $1.45 million in damages for

the temporary taking, under color of state law, of

Respondent’s property rights secured by the Fifth and

Fourteenth Amendments. Pet. App. 3.

On appeal, Petitioner argued that Respondent had no

right to a jury trial under either 42 U.S.C. § 1983 or the

Seventh Amendment to temporary taking claims founded

upon the Fifth and Fourteenth Amendments. The Ninth

Circuit rejected Petitioner’s argument, concluding instead

that the district court properly allowed the claims to go to the

3

jury. Pet. App. 10. The court below reasoned that even

though Section 1983 is silent on the issue, allowing jury trials

under the statute is consistent with Congress’ intent in

passing the law. Pet. App. 7-8. Moreover, the court below

also examined Seventh Amendment jurisprudence, and found

that claims that are analogous to common law actions are

entitled to be tried by a jury. Pet. App. 8-9. Thus, the court

below concluded that Respondent’s Section 1983 claim was

properly tried by a jury:

More important than the nature of the claim

is the second inquiry: the type of reinedy

sought. . . . Del Monte seeks compensatory

or “legal” damages. . . . Because legal relief

is available and legal rights are asserted, we

conclude that Del Monte’s _ inverse

condemnation action is an ‘action at law’. . .

Pet. App. 9 (citing Del Monte Dunes, Ltd. v. City of

Monterey, 95 F.3d 1422, 1427 (9th Cir. 1996)) (citations

omitted).

SUMMARY OF ARGUMENT

In enacting 42 U.S.C. § 1983 as a statutory cause of

action to protect civil rights, Congress saw the role of federal

courts as uniquely important in achieving this goal:

The very purpose of Section 1983 was to

interpose the federal courts between the

States and the people, as guardians of the

people’s federal rights — to protect the

people from unconstitutional action under

color of state law. . .

Mitchum v. Foster, 407 U.S. 225, 243 (1972).

Congress viewed the role of federal courts as essential

in protecting civil rights; a floor statement by Representative

Lowe concerning Section | of the Ku Klux Act of 1871, the

predecessor of Section 1983, explicates the thinking of

Congress in passage of the law: “The case has arisen . . .

when the Federal Government must resort to its own

agencies to carry its own authority into execution. Hence

this bill throws open the doors of the United States courts to

those whose rights under the Constitution are denied or

impaired.” Cong. Globe, 42™ Cong., I“ Sess., App. 68

(1871), quoted in Jett v. Dallas Indep. Sch. Dist., 491 U.S.

701, 725 (1989).?

The constitutional right to a trial by jury embodied in

the Seventh Amendment enhances the role of courts in

accomplishing their role in the protection of individual rights

by providing a check against biased judges.’ See, e.g.,

Alexander Hamilton, The Federalist No. 83, 562 (J. Cooke

ed. 1961)(stating that the right to a trial by jury serves as a

check or “barrier to the tyranny of popular magistrates.”’); see

also Rep. Gerry urging “the necessity of Juries to guard

against corrupt Judges,” 2 Records of the Federal Convention

587 (Max Farrand ed., 1911).

* Not only has Congress expressed support for the notion that federal

courts play an important role in protecting individual rights, so did t..e

Framers of our Constitution: “But it is not with a view to infractions of

the Constitution only, that the independence of the judges may be an

essential safeguard against the effects of occasional ill humors in the

society. . . . Considerate men, of every description, ought to prize

whatever will tend to beget or fortify that temper in the courts; as no man

can be sure that he may not be to-morrow the victim of a spirit of

injustice . . .” Alexander Hamilton, The Federalist No. 78, 488-489

(Henry Cabot Lodge ed., 1888).

* The Seventh Amendment states that, “In Suits at common law, where

the value in controversy shall exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by a jury, shall be otherwise re-

In recognition of the importance of the right to a trial

by jury in our constitutional system of individual rights and

liberties, this Court has broadly construed the reach of the

Seventh Amendment. See Crocker v. Piedmont Aviation,

Inc., 49 F.3d 735, 749 (D.C. Cir. 1995)(“Given the

importance of the constitutional right to a jury trial, we will

require a new trial when that right is erroneously withheld

‘except in the rare instances in which denial of a jury

demonstrably was harmless error.””)(citing 9 Wright, Miller

& Cooper § 2322, at 175).

Further, and consistent with the constitutional

purpose of the Seventh Amendment, this Court has

repeatedly held that, regarding statutory claims for damages

that “sound basically in tort” and which are “analogous to a

number of tort actions recognized at common law,” the

Seventh Amendment right to a jury trial applies. See, e.g.,

Curtis v. Loether, 415 U.S. 189, 195 (1974)(“[W]hen

examined in any Court of the United States, than according to the rules of

common law.” U.S. CONST. amend. VII.

7

Congress provides for enforcement of statutory rights in an

ordinary civil action in the district courts . . . a jury trial must

be available if the action involves rights and remedies of the

sort typically enforced in an action at law.”) and Pernell v.

—_=

Southall Realty, 416 U.S. 363 (1974)(upholding the Seventh

Amendment guarantee for a jury trial in an action for the

recovery of real property where analogous actions existed at

common law).

Section 1983 is a statutory cause of action that this Court has

described as “a species of tort liability.” Heck v. Humphrey,

512 U.S. 477, 483 (1994). This Court has also held that

Section 1983 is to be interpreted against a "background of

tort liability.” Monroe v. Pape, 365 U.S. 167, 187

(1961 (overruled on other grounds by Monell v. Dep't of Soc.

Servs. of the City of New York, 436 U.S. 658, 663 (1978)).

Hence, several federal courts have allowed claims for

damages under Section 1983 to be tried by ajury. See, e.g.,

Keller v. Prince George's County Dep't of Soc. Servs., 616 F.

Supp. 540 (D. Md. 1985) and Gargiulo v. Delsole, 769 F.2d

77 (2d Cir. 1985).

Citing only one decision from the United States Court

of Appeals for the Eleventh Circuit that has so held, Pet. Br.

24 (citing New Port Largo, Inc. v. Monroe County, 95 F.3d

1084, 1092 (11th Cir. 1996), cert. denied, 117 S.Ct. 2514

(1997)), Petitioner argues for an interpretation of Section

1983 that would bar claimants seeking relief for the taking of

their property rights in violation of the Fifth and Fourteenth

Amendments to be singled out under the statute for special

treatment. However, nothing in Section 1983 or Seventh

Amendment jurisprudence authorizes federal judges to pick

and choose among constitutional claims for damages brought

under Section 1983, favoring some with Seventh

Amendment protections but not others.

The statute itself makes no distinction among the

constitutional rights it protects. Indeed, it would appear to

apply to all violations of all constitutional rights. See, e.g.,

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 723

9

(1989)(stating that Section 1983, on its face and as it was

originally passed in 1871, “explicitly ordained that any

‘person’ acting under color of state law or custom who was

responsible for the deprivation of constitutional rights would |

‘be liable to the party injured in any action at law.’”). Nor i

does the Fifth Amendment provide any basis for such a rule.

The Just Compensation Clause of the Fifth Amendment is the

only express money damages provssion in the Constitution (it

conditions the taking of private property by government for

public use upon the payment of jus compensation); the state

commits a legally compensable wrong when it takes property

without making provision for compensation, thus violating

the Constitution and giving rise to a claim for damages both

under the Constitution directly and under 42 U.S.C. § 1983.

Jacobs v. Unites States, 290 U.S. 13, 16-17 (1933).

Siace property rights are civil rights, no less than ’

freesoms of speech, religion, press and assembly, ‘ any rules

*“We see no reason why the Takings Clause of the Fifth Amendment. as

much a part of the Bill of Rights as the First Amendment or Fourth

10

adopted by this Court concerning the right to a jury trial in

actions for damages under Section 1983 (as well as other

rules, such as ripeness) must be uniform among all claims

brought for violation of “rights guaranteed by the

Constitution” under 42 U.S.C. § 1983 if Congress’ purpose

in passing the statute is to be accomplished.

Accordingly, the court below properly analyzed and

decided the issue of the Respondent’s right to trial by jury,

and ihis Court on review should affirm that decision.

ARGUMENT

I. THIS COURT HAS HELD THAT THE

SEVENTH AMENDMENT’S GUARANTEE OF

A RIGHT TO TRIAL BY JURY APPLIES TO

ACTIONS FOR DAMAGES IN FEDERAL

COURT UNDER STATUTES THAT “SOUND IN

TORT.”

Amendment, should be relegated to the status of a poor relation in these

comparable circumstances.” Dolan v. City of Tigard, 512 U.S. 374, 392

(1994),

Although this Court has never expressly addressed

the applicability of the Seventh Amendment's’ guarantee to

actions brought in federal court pursuant to 42 U.S.C.

§1983, this Court has repeatedly held that where the claim

“sounds basically in tort” and where the remedy sought is

damages (“the traditional form of relief offered in the courts

of law”), there is a right to trial by jury. Curtis v. Loether,

415 U.S. 189, 195-96 (1974); see also Perneil v. Southall

Realty, 416 U.S. 363 (1974); Tull v. United States, 481 U.S.

412 (1987)(upholding the right to jury trial for a liability

issue under Section 404 of the Clean Water Act where the

government sought civil penalties); Ross v. Bernhard, 396

U.S. 53', 538-42 (1970)(holding that an underlying

substantive corporate claim in a shareholder’s derivative

action was legal in nature, even though such a derivative

action is historically equitable); Dairy Queen, Inc. v. Wood,

369 U.S. 469, 470-73 (1962) finding that the litigant was

* The Seventh Amendment provides that “{I}n Suits at common law . . .

the right of trial by jury shall be preserved . . .” U.S. CONST. amend. VII.

12

entitled to jury trial even though the legal issues of the

action were “incidental” to the primary equitable claim);

Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 503-11

(1959)(ruling that the Seventh Amendment guarantees the

right to a jury trial for an antitrust counterclaim because the

remedy requested was “legal” in nature).

The seminal case on this issue of the right to a trial by

jury for statutory constitutional claims is Curtis v. Loether,

415 U.S. 189 (1974). Curtis involved Section 812 of Title

VIII of the Civil Rights Act of 1968, enabling private

plaintiffs to sue on violations of fair housing provisions. 42

U.S.C. § 3612 (1982). Congress was silent as to its intent

concerning a right to a jury trial under the statute. The Curtis

Court utilized a three-part test to determine whether the

action was one sufficiently similar to an action at common

law to merit a jury trial: (1) the type of relief sought; (2) the

function of the action; and, (3) whether the proceeding was

administrative or judicial. 9 Wright & Miller, Federal

Practice and Procedure §2302.2, at 49-50 (2d ed. 1994).

13

Analogizing the cause of action to one in tort, the Curtis

Court concluded that Title VIII provides a right to a trial by

jury. Curtis, 415 U.S. at 195, n. 10. Critical to this Court’s

analysis of the jury trial issue was the fact that the remedy

sought — actual and punitive damages — was relief

traditionally obtained in courts of law. /d. at 196. As Justice

Marshall, writing for the Court, explained:

[W]hen Congress provides for enforcement of

statutory rights in an ordinary civil action in

the district courts, where there is obviously no

functional justification for denying the jury

trial right, a jury trial must be available if the

action involves rights and remedies of the sort

typically enforced in an action at law....A

damages action under the statute sounds

basically in tort — the statute merely defines a

new legal duty, and authorizes the courts to

compensate a plaintiff for the injury caused by

the defendant’s wrongful breach. ... More

important, the relief sought here — actual and

punitive damages — is the traditional form of

relief offered in the courts of law.

Curtis, 415 U.S. at 195-96.

In Pernell v. Southall Realty, 416 U.S. 363 (1974),

this Court looked to the nature of the remedy (damages) as a

basis upon which to decide whether the Seventh Amendment

14

right to a trial by jury was available under a statutory

framework. Pernell involved a District of Columbia statute,

D.C. CODE §§ 16-1051 — 1505 (1981 & Supp. 1985), that

established a procedure for the recovery of possession of real

property. The Court concluded that, because the relief made

available by the statute (damages) was the same relief

afforded by a common law action, a trial by jury was

available under the statute even though Congress was silent

on the issue. 416 U.S. at 383. See also Tull v. United States,

481 U.S. 412 (1987)(focusing on the remedy sought to

determine whether there is a right to a jury trial under the

Seventh Amendment).

Il. AN ACTION FOR DAMAGES UNDER 42 U.S.C.

§1983 SOUNDS IN TORT.

Although this Court has never held that an action for

damages under 42 U.S.C. § 1983 is entitled to a right to trial

by jury, such an action satisfies the test for a trial by jury set

forth by this Court in Curtis v. Loether, 415 U.S. 189

(1974), and Tull v. United States, 481 U.S. 412 (1987). See

15

generally 1 Sheldon H. Nahmod, Civil Rights and Civil

Liberties Litigation, The Law of Section 1983 §1:52, at 1-81

(4th ed. 1997).

First, 42 U.S.C. § 1983 creates a statutory cause of

action with damages as a remedy for constitutional injuries:

As a result of the new structure of law that

emerged in the post-Civil War era — and

especially of the Fourteenth Amendment,

which was its centerpiece — the role of the

Federal Government as a guarantor of basic

federal rights against state power was clearly

established. Section 1983 opened the federal

courts to private citizens, offering a uniquely

federal remedy against incursions under the

° Although Section 1983 does not, of course, create any new

constitutional rights, it does create a statutory right which would not exist

in its absence. Thus, for example, a person denied due process (such as a

worker terminated without a pre-termination hearing, see

prohibits the State, and not the individual, from denying life, liberty, or

property without due process. Also, since the State is immune from suit

under the Eleventh Amendment, the practical result is that no damages

remedy would exist at all. This is not to say that injunctive or declaratory

relief might not be available, but only that a damages remedy ~ at least

against an individual - would not lie. Indeed, Section 1983 was passed

16

cece i,” ll ae

ee —

claimed authority of state law upon rights

secured by the Constitution . . .

Mitchum v. Foster, 407 U.S. 225, 238-39 (1972)(citations

omitted).

Additionally, this Court has held that Section 1983 is

to be interpreted against a “background of tort liability.”

Monroe v. Pape, 365 U.S. 167 (1961) overruled (on the local

government immunity issue alone) by Monell v. Department

of Soc. Servs. of the City of New York, 436 U.S. 658 (1978).

Subsequent decisions of this Court and writings by

commentators repeatedly describe the damages remedy

provided by Section 1983 as “a species of tort.” Jack M.

Beermann, Symposium on Section 1983: Common Law

Elements on the Section 1983 Action, 72 Chi.-Kent. L. Rev.

’ Broad liability under Section 1983 is app priate because as one

commentator explained, “constitutional rights are basic to the

maintenance of our form of limited, democratic government. That is why

Congress passed the civil rights acts of the Reconstruction-era and why

civil rights cases were granted a federal forum. Congress found

enforcement of these rights so important that it granted plaintiffs the

option of a federal forum even when the defendant could prove that an

equally effective remedy was available in state court. . . ” Jack M.

Beermann, Symposium on Section 1983: Common Law Elements on the

Section 1983 Action, 72 Chi.-Kent. L. Rev. 695, 704 (1997).

17

695, 704 n. 29 (1997). See also Heck v. Humphrey, 512

U.S. 477, 483 (1994); Imbler v. Pachtman, 424 U.S. 409, 417

(1976)(“The statute thus creates a species of tort liability that

on its face admits of no immunities, and some have argued

that should be applied as stringently as it reads.”); Carey v.

Piphus, 435 U.S. 247, 253 (1978)(“The legislative history of

§1983, elsewhere detailed, demonstrates that it was intended

to ‘create a species of tort liability’ in favor of persons who

are deprived of ‘rights, privileges, or immunities secured’ to

them by the Constitution.” )(quoting /mbler, 424 U.S. 409,

417 (1976)); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,

723 (1989)(Section 1983 “was designed to expose state and

local officials to a new form of liability.”); City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 259 (1981)(“Indeed,

because the 1871 Act was designed to expose state and local

officials to a new form of liability, it would defeat the

promise of the statute to recognize any pre-existing immunity

without determining both the policies that it serves and its

compatibility with the purposes of §1983.”).

18

In Heck v. Humphrey, 512 U.S. 477 (1994), an action

brought by a state prisoner under Section 1983 for alleged

violations of his civil rights, Justice Scalia, writing for the

Court, left no doubt about the relationship between Section

1983 and tort law:

We have repeatedly noted that 42 U.S.C. §

1983 creates a species of tort liability. . . .

Over the centuries the common law of torts

has developed a set of rules to implement the

principle that a person should be compensated

fairly for injuries caused by the violation of

his legal rights. These rules, defining the

elements of damages and the prerequisites for

their recovery, provide the appropriate starting

point for the inquiry under 1983 as

well. . . . Thus, to determine whether there is

any bar to the present suit, we look first to the

common law of tort.

Id. at 483 (quoting Memphis Community Sch. Dist. v.

Stachura, 477 U.S. 299, 305 (1986), and Carey v. Piphus,

435 U.S. 247, 257-58 (1978)).

Ill. THERE IS NO BASIS FOR DISTINGUISHING

AMONG CLAIMS BROUGHT FOR

VIOLATION OF “RIGHTS GUARANTEED BY

THE CONSTITUTION” UNDER 42 U.S.C.

§ 1983.

19

Unless this Court holds that there is no right to a jury

trial under a Section 1983 damages action, there is no basis in

either the Act or the Constitution to limit that right to only

certain constitutional claims. On its face, the language of

Section 1983 purports to apply to a// claims for all rights

guaranteed by the Constitution. See, e.g., Jett v. Dallas Indep.

Sch. Dist., 491 U.S. 701, 723 (1989). The legislative history

of Section 1983 also supports the conclusion that Congress

fully intended for the statute to apply equally among all

constitutional rights. For example, during the floor debates

over Section | of the 1871 Act, Senator Edmund, who was

then chairman of the Senate Judiciary Committee, making no

distinction among the various provisions of the Constitution,

simply stated: “The first section [of the Act] is one that |

believe nobody objects to, as defining the rights secured by

the Constitution of the United States . . ..” Cong. Globe, 42

Cong., 1" Sess., App. 68 (1871), quoted in Monroe v. Pape,

365 U.S. 167, 171 (1961) and Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701, 729 (1989). See also Will v. Michigan Dep't

20

of State Police, 491 U.S. 58, 66 (1989)(“[A] principle

purpose behind the enactment of §1983 was to provide a

federal forum for civil rights claims. . . .”).

If Congress’ purpose in passing the statute is to be

accomplished, any rules adopted by this Court concerning the

right to a jury trial in actions for damages under Section 1983

(as well as other rules, such as ripeness) must be uniform

among all claims brought for violation of “rights guaranteed

by the Constitution” under 42 U.S.C. § 1983. Property rights

are civil rights, no less than freedoms of speech, religion,

press and assembly, and must not be “relegated to the status

of a poor relation in these comparable circumstances.”

Dolan v. City of Tigard, 512 U.S. 374, 392 (1994).*

* Petitioner confuses the constitutional right to just compensation with the

damages remedy under Section 1983, charac erizing the 1983 claim as

“inverse condemnation.” As this Court has repeatedly held, however, the

right to just compensation for taking of private property arises not from

statutes or regulations, but from the Constitution itself. See Jacobs v.

United States, 290 U.S. 13 (1933); see also First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304,

339 (1987)(Stevens, J., dissenting). Indeed, in order to bring an action

for violation of the constitutional right to just compensation, the plaintiff

must ordinarily first bring an inverse condemnation claim in state court to

establish that state law does not in fact provide him just compensation.

Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S.

21

CONCLUSION

For all of these reasons, amici curiae urge this Court

to affirm the decision below.

Respectfully submitted,

Nancie G. Marzulla*

Defenders of Property Rights

1350 Connecticut Ave., N.W.

Suite 410

Washington, D.C. 20036

July 31, 1998 202-822-6770

*Counsel for Amici Curiae

172 (1985). Only after the plaintiff has exhausted his inverse

condemnation remedy may he file a statutory claim in federal court under

Section 1983 to recover damages for violation of the constitutional right

to be paid for the property taken. As Petitioner itself seems to concede, if

the Section 1983 remedy is merely a second, sequential inverse

condemnation claim, it would always be precluded by the decision in the

prior state case — leaving no 1983 remedy at all. Such an interpretation

would provide a money damages remedy for every other constitutional

violation committed under color of state law, excluding only the taking of

private property without just compensation. Nothing in the text or history

of the statute supports such an exception to the salutary requirement that

state officers who deny constitutional rights should be held accountable.

22