# 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%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 687

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0159%3A16. Public record. Not legal advice.