CITY OF MONTEREY,
Petitioner,
v.
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 FOR THE RESPONDENTS

FREDERIK A. JACOBSEN, 520 South El Camino Real, Suite 630, San Mateo, California 94402, (650) 375-8991.
MICHAEL M. BERGER, Counsel of Record.
BERGER & NORTON, 1620 26th Street, Suite 200 South, Santa Monica, California 90404, (310) 449-1000.
Counsel for Respondents.

[*i] QUESTIONS PRESENTED

1. (a) When a citizen sues a local government agency for damages under 42 U.S.C. § 1983, for a violation of federally protected rights, may a jury decide whether the government is liable, whatever the substantive constitutional or statutory rights invaded?

(b) May a municipal defendant in a § 1983 action for damages forbid a trial by jury?

2. In light of this Court's decisions in Nollan v. California Coastal Commn., 483 U.S. 825, 841 (1987), Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031 (1992), and Dolan v. City of Tigard, 512 U.S. 374, 391, fn. 8 (1994), each of which concluded that purported "findings" made by state and local government agencies to support land use regulatory actions must be subjected to searching review to determine the validity of their bases, is it proper for the trier of fact in a regulatory taking case to review the reasonableness of such governmental action?

3. When local government regulates the use of land, must the extent of the regulatory restrictions imposed on the property be in proportion to the harm sought to be prevented?

[*ii] PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT

Respondents Del Monte Dunes at Monterey, Ltd. and Monterey Del Monte Dunes Corporation are affiliated with Borg Warner, a Chicago, Illinois company that has issued shares to the public. [*iii]

[*1] STATEMENT OF THE CASE

This 42 U.S.C. § 1983 case was filed in U.S. District Court in 1986, when California courts provided no compensatory remedy for regulatory takings. California's erroneous rule of Agins v. City of Tiburon, 24 Cal.3d 266 (1979), aff'd on other grounds, 447 U.S. 255 (1980) was not overruled by this Court until First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). Thus, in 1986, just compensation was available only in federal courts, under federal law.

The District Court initially dismissed the suit as unripe under Williamson County Reg. Plan. Comm'n v. Hamilton Bank, 473 U.S. 172 (1985). The Court of Appeals (Judges Hug, Tang, and Boochever) reversed, holding that, because five different plans had been denied by the City, the dispute was ripe for litigation. (Del Monte Dunes v. City of Monterey, 920 F.2d 1496 [9th Cir. 1990] [Del Monte I].) On remand, the jury decided in Del Monte's favor on the takings and equal protection claims and the court decided in the City's favor on the due process claim. That result was affirmed (Judges Wallace, Leavy, and Baird). (Del Monte Dunes v. City of Monterey, 95 F.3d 1422 [9th Cir. 1996] [Del Monte II].) This Court granted certiorari.

The City's factual statement (adopted by its seven amici curiae as well) omits virtually all reference to Del Monte I and the facts underlying it. Those facts, however, make clear why the jury, the trial Judge, and six appellate Judges all concluded that the City had unlawfully taken Del Monte's property.

The history of this case is accurately summed up in Del Monte I (920 F.2d at 1502-1503) (incorporated into the opinion under review here [95 F.3d at 1425]), and reflected in the evidence in the Joint Appendix. Del Monte I shows ripeness under Williamson County, as well as the intense planning done by Del Monte Dunes and its predecessor, Ponderosa Homes (collectively, Del Monte), in their efforts [*2] to satisfy the City. But after years of effort, it became clear that the City, belying its repeated representations, really wanted to preserve this property undeveloped. (See JA 5, 192-193.)

The property is a 37.6-acre, roughly rectangular parcel of land on the Pacific Ocean coast at the northern end of the City of Monterey. (JA 11.) For many years (dating back to before World War II), it was a Phillips Petroleum Co. terminal and tank farm where large quantities of oil were delivered, stored, and re-shipped. (JA 13.) Thus, the record sometimes refers to it as the Phillips Petroleum parcel. When Phillips ceased using the property, it removed its large oil storage tanks, but left behind pieces of pipe, broken concrete, and oil that had soaked into the sand. (JA 13, 157, 171.) It was, in short, an abandoned industrial site that would need cleaning and restoration before it could be used for anything. (JA 211-212.) No matter how the City and its amici seek to cloak it in environmentally attractive descriptions, that remains the undeniable fact. n1

n1 Giving an environmental slant to the facts has become a favored tactic of pro-regulation advocates these days. See, e.g., Lazarus, Litigating Suitum v. Tahoe Reg'l Planning Agency in the United States Supreme Court, 12 J. Land Use & Env'tl Law 179 (1997), in which counsel for the government in Suitum v. Tahoe Reg. Plan. Agency, 520 U.S. , 137 L.Ed.2d 980 (1997) describes the way he spun the issue away from the constitutional issues at its heart and toward paeans to the beauty of Lake Tahoe.

In addition to the post-industrial debris (and trash that local citizens surreptitiously dumped on the site) (JA 211-212), Phillips Petroleum had left behind non-native ice plant, planted to prevent erosion around its oil tanks. (JA 212.) As ice plant covers the ground, it secretes a substance that forces out other plants (JA 21), including the native buckwheat, the only known habitat for an endangered insect known as Smith's Blue Butterfly (or SBB). There were scattered buckwheat plants on the property but, absent human intervention, the ice plant would wholly displace them. (JA [*3] 213-214.) Although buckwheat is the natural habitat of the SBB, no eggs, larvae, or adults of the species were found during extensive searches of this property in 1981, 1982, 1983, and 1984 (JA 16); one SBB larva was found late in 1984 (JA 114); none in 1985 (JA 115). The SBB lives for only one week, travels 200 feet (maximum) and must land on a mature, flowering buckwheat plant in order to survive. (JA 219.) The site is quite isolated from other possible SBB habitats, so that travel to or from this property is unlikely, if not impossible. (JA 218-221.) Ironically, without Del Monte's project (that would remove all ice plant and sow additional buckwheat) the putative SBB habitat was about to be overrun and eliminated by ice plant. (JA 213-214.)

Before 1981, the City zoned the property for multi-family residential use, in keeping with the commercial, industrial, and multi-family residential uses virtually surrounding it -- 29 units per acre, or more than 1,000 homes for the entire parcel. (JA 158.)

But the owners didn't ask for 1,000 units. Or anything close. Rather, in 1981, they submitted an application for only a 344-home development. The City's Planning Commission rejected the proposal. But the City went beyond mere denial, saying that a plan with only 7 units per acre, or 264 units, "would be received favorably." (Del Monte I, 920 F.2d at 1502.) n2

n2 That was in keeping with this Court's belief in Williamson County that planners would not merely deny applications, but indicate "how [the property owner] will be allowed to develop its property." (Williamson County, 473 U.S. at 190.) Please note that, without any pretense of changing the zoning, the City's planners arbitrarily announced that they wanted a development proposed at 1/4 the density allowed by law.

So the owners, at considerable expense, redesigned the project accordingly, keeping in constant contact with the City's planners to ensure that their new plan would be appropriate. (JA 159.) In 1983, they submitted their plan for the 264 units the City said it wanted. However, the City [*4] Planning Commission turned down the application. This time, the planners said that a 224-unit proposal "would be received favorably." (Del Monte I, 920 F.2d at 1502.)

The owners then complied with the City's 224-home demand. But when they took that one to City Hall, in early 1984, the same Planning Commission that solicited this proposal said "no." The owners appealed to the City Council, which remanded the matter to the Planning Commission with directions to consider a 190-unit development (Del Monte I, 920 F.2d at 1502), representing a further 15% reduction in homes and a corresponding 15% reduction in ground coverage. (JA 164.)

Back the owners went. Another redesign; another resubmittal; another Planning Commission denial; another administrative appeal to the City Council. The City Council again overruled the Planning Commission and approved the 190-unit development, using a plan that showed the size and shape of buildings, roads and open spaces (Del Monte I, 920 F.2d at 1502), n3 but with a surprise or two up the municipal sleeve.

n3 The City's brief sums up all that work and all those proceedings and its own direct participation in the planning of Del Monte's property with the bland phrase "gradually, Ponderosa [Del Monte's predecessor] scaled back its proposal." (City 5.) The City's summary fails to inform this Court of either its own actions or the events that caused a temporary taking after five projects were turned down.

This Court has noted the importance of such a "series of official actions" in determining § 1983 liability. (Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 267 [1977].)

The plan ostensibly approved by the City Council for this 37.6 acres had buildings and patios on only 5.1 acres, with another 6.7 acres in public and private streets (including public parking and accessways to the beach). The remainder was to be left open: 17.9 acres in public open space, and another 7.9 acres in landscaped areas. (JA 87.) In other words, contrary to the assertions of the City and its amici, [*5] there were exactions galore in this project. The City insisted that Del Monte "give" it a large portion of the property for use as a public beach (including public access and parking), preserve the sand dunes to hide the homes from passing motorists, and to provide a buffer to separate the homes from the neighboring state beach. n4

n4 In the teeth of that record, the American Planning Association brazenly asserts as fact that "no dedication of land or exactions in lieu of dedication were imposed as project conditions by the City of Monterey" (APA, p. 17) and "the City never attempted to coerce Del Monte Dunes into yielding some incident of ownership connected with its land." (APA, p. 18.)

Aside from its evident lack of familiarity with the record, APA's brief needs to be read with more than a grain of salt for a more unfortunate reason; this Court cannot be sure whether to trust APA's representations. APA recently "repudiated" the amicus brief it filed here in Suitum v. Tahoe Reg. Plan. Agency, 137 L.Ed.2d 980, in a September 16, 1997, letter by its President to the Chairman of the House Judiciary Committee. APA's arguments to this Court in Suitum were being used in Congress to support legislation APA opposed. So APA simply disavowed what it solemnly told this Court in Suitum. With APA's analysis that transient, caution is warranted.

But the City Council's approval knowingly forced development into the "bowl" (or depressed) area in the property's center, that would have to be graded even deeper in order to comply with the City's order that no buildings be visible to motorists on the nearby highway. There were buckwheat plants in the bowl that would thus be destroyed. (JA 180, 184, 251-252.)

Then came the coup de grace. The City announced that the very place it had earmarked for the homes was also the only place to create a butterfly preserve for the SBB, even though none actually lived on the property. The City believed that if the remnants of the Phillips Petroleum tank farm were removed from the property, and the property cleaned, and the invasive ice plant removed, and the area seeded with buckwheat, then possibly some SBB would [*6] decide to live there. n5 However, in a classic Catch-22 move, the City refused to permit Del Monte to shift its development to any of the other parts of the property because the City had already earmarked the rest for public use or nonuse or acquisition (i.e., the beach, the dunes, and the State park buffer). (JA 250; R 487.) That left no place on the 37.6 acres on which to build anything. (R 203, 486-487.) The wipeout was total. As the Court of Appeals would later summarize it, "the City progressively denied use of portions of the Dunes until no part remained available for a use inconsistent with leaving the property in its natural state." (95 F.3d at 1433.) n6

n5 The City simply ordered it prepared on the if-you-build-it-they-will-come theory of the movie "Field of Dreams." But this isn't Hollywood, it's real life, and this is an abandoned petroleum tank farm. Because of that, as the Solicitor General notes, the U.S. Fish and Wildlife Service commented that even complete elimination of this site would not threaten the survival of the SBB. (U.S. 3, fn. 2.)

n6 That's hardly the "'simple limitation on the use' of the property" portrayed by amicus League for Coastal Protection (p. 5).

Del Monte then filed this action because, as in Lucas, 505 U.S. 1003, the City's actions had denied it all productive private use. Moreover, as Del Monte quickly learned, it could not sell the property in the open market either. In light of the City's actions, potential buyers disappeared. (JA 254-258.) The State of California then bought the property for less than half of its fair market value, with a non-negotiable, "take it or leave it" offer. (JA 259-260, 264.) n7

n7 Under California law, when city confiscatory action causes a property owner to sell land at a loss, the owner is entitled "to recover from the City any loss sustained as a result . . . ." (City of Los Angeles v. Ricards, 10 Cal.3d 385, 388, 515 P.2d 585 [1973].) This is a generally prevailing rule. (See, e.g., Argier v. Nevada Power Co., 952 P.2d 1390 [Nev. 1998].) Although Del Monte was paid slightly more than it had paid for the property four years earlier, it received nothing for its carrying, planning, and legal costs, and it was stuck with the responsibility for cleaning environmental problems before the State would accept it. (R 518.)

[*7] After hearing this evidence, the jury found a temporary taking, as well as denial of equal protection of the laws. n8 It awarded $ 1.45 million. The District Court would not allow damages for anything else including loss in the value of the property. (95 F.3d at 1425.) The Judge thereafter decided that the City's actions did not violate Del Monte's substantive due process rights (Pet. App. 41), while concluding that that did not conflict with the jury's verdict (Pet. App. 39). The Judge also denied the City's post-trial motions for entry of judgment as a matter of law and for a new trial (95 F.3d at 1425), thus accepting the jury's evaluation of the taking and equal protection issues. The Court of Appeals affirmed.

n8 The equal protection violation was based on the substantially different treatment given Del Monte when compared to the industrial and high-density residential developments of adjacent properties. The Court of Appeals did not deal with this issue, as the legal ruling was duplicative of the taking issue.

SUMMARY OF ARGUMENT

In Dolan, 512 U.S. at 392, this Court admonished:

"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 the Fourth Amendment, should be relegated to the status of a poor relation . . . ."

In the teeth of that explicit pronouncement, the City asserts that Fifth Amendment rights should receive a lesser level of protection than others.

1. This is a civil rights case brought under 42 U.S.C. § 1983, not an "inverse condemnation" case. The City, acting under color of state law, failed in its legal duty to acquire the subject property, and denied Del Monte the Fifth [*8] Amendment's protection. n9 All § 1983 plaintiffs are entitled to be treated alike, as all are invoking the same statutory remedial scheme against local government entities and officials who violate federal constitutional or statutory guarantees, regardless of the nature of the violation.

n9 The Fifth Amendment right to just compensation was the first item from the Bill of Rights to be selectively incorporated into the Fourteenth Amendment's due process guarantee. (Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239 [1897].)

All Circuit Courts have consistently held that § 1983 liability issues are for juries to decide; some have held that liability issues must be so decided. Until the City's bald assertion here, no one questioned this practice. This Court's jurisprudence assumes the propriety of jury trials. (See, e.g., Jett v. Dallas Independent School Dist., 491 U.S. 701 [1989]; Hetzel v. Prince William County, 523 U.S. , 140 L.Ed.2d 336 [1998].)

The courts below were correct in ruling that it was not error to submit the liability issue to a jury. Section 1983 authorizes an "action at law," which implies that such actions should be tried to juries, as such actions are understood to mean those in which damages are awarded by juries. Beyond that, the Seventh Amendment authorizes a jury trial in this kind of action, because it protects the right to trial by jury in "suits at common law," another phrase commonly understood to mean suits that were of a type traditionally tried to juries. This Court treats § 1983 suits as "constitutional torts," i.e., suits in which liability turns on wrongful governmental conduct, not the specific federally protected rights that are violated. Tort actions for damages are the kind that would have been tried to a common law jury.

2. Land use decisions of local regulators are not immune from judicial review for constitutionality. That has always been true. (Nectow v. City of Cambridge, 277 U.S. 183 [1928].) The City and its amici ask this Court to revolutionize the field of land use law by creating some sort of [*9] regulatory aristocracy whose decisions would be beyond judicial review. Their demand is for nothing less than a rule that no court -- neither judge nor jury -- can review what they have done and determine whether it is constitutionally permissible.

This Court has repeatedly told government agencies that their bare conclusions are not sufficient to justify regulations that stultify the use of land. (Nollan, 483 U.S. at 841, Lucas, 505 U.S. at 1031, and Dolan, 512 U.S. at 389-391.) As the Court of Appeals put it in McDougal v. County of Imperial, 942 F.2d 668, 676 (9th Cir. 1991):

"We cannot agree that any legitimate purpose automatically trumps the deprivation of all economically viable use, such that whenever a regulation has a health or safety purpose, no compensation is ever required even if the land owner is thereby denied all use of his property. We read the Supreme Court as requiring us to balance the strength of the public interest against the severity of the private deprivation."

That has always been the law, and the City has offered no legitimate reason why it should even be questioned, much less overturned.

3. It is entirely in keeping with American jurisprudence that land use restrictions be proportional to the detriment the regulators are seeking to prevent. Proportionality is central to our system of law in general, and it permeates the field of land use regulatory takings, as well. As McDougal put it, "we believe that a court is required to consider the nature as well as the legitimacy of the state's interest together with the nature and extent of its impact on the owner's use of his land." (942 F.2d at 676.) In other words, it is perfectly legitimate to ask whether the regulation is proportional to its stated goal, or whether the asserted harm justifies the regulation.

The City and its amici, however, insist on compartmentalizing takings law in ways this Court has never done. As [*10] will be shown, this Court's takings decisions have always considered whether the means is proportional to the end. And they have done so whether the regulation required physical dedication of property or regulatory stultification of use.

In any event, the issue is academic. The jury was not instructed to consider proportionality, only reasonableness. (JA 304.) The Court of Appeals affirmed the jury's reason-ableness determination and, beyond that, concluded that the City's actions were disproportional to its stated purpose. This was a fact-intensive case, and the City simply doesn't like the outcome. The issues it raises do not warrant reversal.

I.
IN § 1983 CIVIL RIGHTS ACTIONS, JURIES CAN DECIDE LIABILITY ISSUES. DEFENDANTS HAVE NO RIGHT TO FORBID TRIAL BY JURY

The City and its amici misfocus their analysis on the question of whether a § 1983 plaintiff has the right to a jury trial. Although Del Monte believes it would be appropriate for this Court to agree with all the Circuit Courts and so hold, it is not necessary to go that far to affirm the decision below. The Court of Appeals held only that "the district court did not err by allowing Del Monte's § 1983 action to be tried before a jury" (95 F.3d at 1428; emphasis added) because "it is the type of issue that can be put to the jury" (95 F.3d at 1430; emphasis added). The court below did not hold, as the City would have it, that all such cases must always be tried by a jury. The issue is not whether a jury must try this case, but whether it may. In order to prevail, the City must demonstrate that it has an absolute right not to have a jury decide the case, and that a jury trial in this case therefore constituted prejudicial error per se. Neither the City nor any of its numerous amici even attempt to make that argument. Nor could they -- the law is to the contrary.

[*11] "The right to jury trial is a constitutional one, . . . while no similar requirement protects trials by the court . . . ." (Beacon Theatres v. Westover, 359 U.S. 500, 510 [1959]; emphasis added; see 9 Wright & Miller, Federal Practice and Procedure § 2317 [2d ed. 1995].)

Curiously, the City framed the question properly as "whether . . . 42 U.S.C. § 1983 requires that . . . liability issues be determined by the court rather than by a jury" (Br. for Pet., p. i; emphasis added), but its briefing is devoted to the converse, i.e., that Del Monte could not compel a jury trial. But, even were the City correct, it would not follow that trial of liability by the jury requires reversal. Any such asserted error had to be harmless because the jury reached the right result on these facts -- and the trial court agreed when it denied the City's motion for new trial and motion for judgment as a matter of law. (Pet. App. 4.) The City got the same result from the judge as it did from the jury. It's a case of "no harm, no foul," even on the City's premise. n10

n10 As noted earlier, the trial judge concluded that the substantive due process issue was a legal one for his determination and he decided there was no such violation. Contrary to the City's view (City 42), however, that decision casts no doubt on the jury's verdict, as the questions were different. The due process issue only questioned whether there was any rational basis for the City's action. As discussed infra, p. 38, such a rational basis does not insulate the City from a Fifth Amendment taking challenge. In other § 1983 cases, the courts have experienced no discomfort in permitting juries to decide some issues and courts to decide other, seemingly parallel, issues, regardless of their possibly different outcomes. (E.g., Kim v. Coppin State College, 662 F.2d 1055 [4th Cir. 1981] [Title VII employment claims were for the court, § 1983 claims were for the jury]; B.C.R. Transport Co., Inc. v. Fontaine, 727 F.2d 7 [1st Cir. 1984] [criminal jury found search reasonable and convicted arrestee; § 1983 jury found it unreasonable and awarded same arrestee damages; both OK].)

The correct rule is: "Where an action at law is erroneously tried in equity, very different questions are raised [*12] upon appeal from those which arise where a suit in equity is erroneously tried at law. In the latter case the court, if satisfied that the proper result was reached, may treat the error as harmless. In the former, it must send the case back for a new trial, because of the constitutional guaranty of trial by jury." (Great American Ins. Co. v. Johnson, 27 F.2d 71 [4th Cir. 1928], cert. denied, 278 U.S. 629; emphasis added; see also Hurwitz v. Hurwitz, 136 F.2d 796, 798-799 [U.S. App. D.C. 1943]; Turner v. Burlington Northern R. Co., 771 F.2d 341, 345, fn. 1 [8th Cir. 1985].)

The City and its amici also err in arguing as though this were an "inverse condemnation" case they are apparently used to facing in state courts. It is not. This is a federal statutory case brought under 42 U.S.C. § 1983 because the City, acting under color of state law, denied Del Monte rights protected by the Fifth Amendment.

As this Court has repeatedly stressed, a § 1983 case is a "species of tort liability," n11 specifically, a statutorily created "constitutional tort" n12 that sweeps within its ambit all manner of governmental actions that defy Bill of Rights protections. Properly so. Section 1983 was intended to provide "a uniquely federal remedy" (Mitchum v. Foster, 407 [*13] U.S. 225, 239 [1972]) with "broad and sweeping protection" (Lynch v. Household Fin. Corp., 405 U.S. 538, 543 [1972] [quoting with approval]) "read against the background of tort liability that makes a man responsible for the natural consequences of his actions" (Monroe v. Pape, 365 U.S. 167, 187 [1961], overruled in part, to expand government liability, in Monell, 436 U.S. 658) so that individuals in a wide variety of factual situations are able to obtain a federal remedy when their federally protected rights are abridged (Burnett v. Grattan, 468 U.S. 42, 50, 55 [1984]). While read against the general common law tort background, "the coverage of the statute [s 1983] is . . . broader" (Kalina v. Fletcher, 522 U.S. , 139 L.Ed.2d 471, 477 [1997]), and must be broadly and liberally construed to achieve its goals (Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105 [1989]; Lake Country Estates v. Tahoe Reg. Plan. Agency, 440 U.S. 391, 399-400 [1979]). "The central purpose of the Reconstruction-Era laws is to provide compensatory relief to those deprived of their federal rights by state actors" (Felder v. Casey, 487 U.S. 131, 141 [1988]) by "interposing the federal courts between the States and the people, as guardians of the people's federal rights" (Mitchum, 407 U.S. at 243). Simply put, when James Monroe sued Frank Pape, he was not suing for trespass and false arrest; he was suing for a violation of a federal constitutional right that, in that case, happened to implicate acts that were also trespass and battery under state law (see 365 U.S. at 169). The same is true here. Del Monte has sued not to vindicate state law (see Cal. Const., Art. I, § 19; Cal. Govt. Code § 7267.6), but to secure statutorily authorized redress for the violation of its federal rights secured by § 1983.

n11 Heck v. Humphrey, 512 U.S. 477, 483 (1994); Wyatt v. Cole, 504 U.S. 158, 163 (1992); Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305 (1986); Smith v. Wade, 461 U.S. 30, 34 (1983); Owen v. City of Independence, 445 U.S. 622, 635 (1980); Carey v. Piphus, 435 U.S. 247, 253 (1978).

n12 Jefferson v. City of Tarrant, 522 U.S. , 139 L.Ed.2d 433, 439 (1997); Richardson v. McNight, 521 U.S. , 138 L.Ed.2d 540, 545, 546 (1997); McMillian v. Monroe County, U.S. , 138 L.Ed.2d 1, 7 (1997); Johnson v. Jones, 515 U.S. 304, 307 (1995); Collins v. City of Harker Heights, 503 U.S. 115, 121 (1992); City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988); Memphis Community School Dist. v. Stachura, 477 U.S. 299, 307 (1986); Pembaur v. City of Cincinnati, 475 U.S. 469, 477 (1986); Polk County v. Dodson, 454 U.S. 312, 326 (1981); Monell v. Department of Social Services, 436 U.S. 658, 691 (1978).

A. Juries Routinely Decide Liability In § 1983 Actions

The City and several of its amici apparently fear submitting the reasonableness of municipal land use actions to a [*14] jury, as if trial by jury were some sort of social evil, rather than the bulwark of American liberties. (See, e.g., Dimick v. Schiedt, 293 U.S. 474, 486 [1935]; Chauffeurs, Teamsters, etc. v. Terry, 494 U.S. 558, 565 [1990].) n13 This elitist argument that juries are not competent to evaluate such issues (City 27-36; Municipal Art Society 12-13; National League of Cities 22) is without merit. It is particularly disingenuous in the field of planning and zoning, where so-called "ballot box zoning" (i.e., zoning enacted by citizens by initiative measures) is common. (E.g., DeVita v. County of Napa, 9 Cal.4th 763, 889 P.2d 970 [1995]; see City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 [1976].) If the California populace at large is thus deemed competent to make and enact complex land use decisions within the confines of a voting booth, how can it be argued with a straight face that specific members of the California public who are carefully selected, instructed and supervised by a federal judge, somehow lose that ability when seated in a jury box?

n13 Juries leaven the proceedings by injecting common sense into the balancing process. (See United States v. Reynolds, 397 U.S. 14, 23 [1970] [Douglas and Black, JJ., dissenting].) Additionally, as the California Supreme Court has noted, local government officials and local judges can have an unwholesome closeness. (Garrett v. Superior Court, 11 Cal.3d 245, 248, 520 P.2d 968 [1974].) Jurors can buffer that problem.

Moreover, complex issues are routinely submitted to juries, n14 particularly in § 1983 cases, in which juries have been called on to judge the reasonableness of a broad range [*15] of municipal policies. n15 "Surely eminent domain is no more mystically involved with 'sovereign prerogative' than . . . a host of other governmental activities carried on by the States and their subdivisions which have been brought into question in the Federal District Courts . . . ." (County of Alegheny v. Frank Mashuda Co., 360 U.S. 185, 192 [1959].) As this Court put it after noting that § 1983 cases can present difficult problems, "judge and jury, doing their respective jobs, will be adequate to the task." (City of Canton v. Harris, 489 U.S. 378, 391 [1989].)

n14 E.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959) (antitrust). Even Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), relied on by the City and its amici, refused to establish a blanket rule that complex issues must be removed from juries. It only removed a discrete issue in patent cases, and expressly limited its decision to such cases. (517 U.S. at 383, fn. 9.) Whether removing that issue from juries had a salutary effect on patent law is apparently an open question. (See Fisk, "Confusion Follows '96 Landmark Patent Case," The National Law Journal, p. A1 [June 15, 1998].)

n15 These include city budget policy (Berkley v. Common Council, 63 F.3d 295 [4th Cir. 1995] [en banc]), county law enforcement policy (Turner v. Upton County, 915 F.2d 133 [5th Cir. 1990]), municipal policy governing the use of force during arrests (Beck v. City of Pittsburgh, 89 F.3d 966 [3d Cir. 1996], cert. denied, 117 S.Ct. 1086 [1997]), county road acquisition policy (Hammond v. County of Madera, 859 F.2d 797 [9th Cir. 1988]), municipal employment policy (Richardson v. Leeds Police Dept., 71 F.3d 801 [11th Cir. 1995], city medical care policy (Simmons v. City of Philadelphia, 947 F.2d 1042 [3d Cir. 1991]), school district sexual abuse policy (Gonzalez v. Ysleta Ind. School Dist., 996 F.2d 745 [5th Cir. 1993]), the conflict between a police department's chain-of-command policy and a township's sexual harassment policy (Gares v. Willingboro Twp., 90 F.3d 720 [3d Cir. 1996], and even the question whether "extortion of outsiders, businessmen, or developers . . . was 'the way things are done and have been done' in the Town" (Roma Constr. Co. v. aRusso, 96 F.3d 566 [1st Cir. 1996]). There has been no limit placed on the variety of local policies whose validity has been submitted to juries for review. Land use decisions and takings law are no more arcane in general, and are a lot less complex in this case than in some of those cited.

This Court had no question about the jury's role in § 1983 cases when it decided Jett v. Dallas Independent School Dist., 491 U.S. 701 (1989):

". . . the identification of those officials whose decisions represent the official policy of the local governmental unit is itself a legal question to be resolved by the trial judge before the case is [*16] submitted to the jury . . . . Once those officials who have the power to make official policy on a particular issue have been identified, it is for the jury to determine whether their decisions have caused the deprivation of rights at issue." (Jett, 491 U.S. at 737; emphasis added.)

Nor did this Court have any question about the jury's role in Hetzel v. Prince William County, 523 U.S. , 140 L.Ed.2d 336 (1998), where the Seventh Circuit had reduced a jury's award. This Court reversed in order to preserve the § 1983 plaintiff's Seventh Amendment right to a jury trial. (140 L.Ed.2d at 339.)

Indeed, in a host of § 1983 cases reviewed by this Court after a trial on the merits, juries had regularly determined both liability and compensation issues. (See Hetzel, 523 U.S. , 140 L.Ed.2d 336; Bogan v. Scott-Harris, 523 U.S. , 140 L.Ed.2d 79 [1998]; Board of County Comm'rs v. Brown, 520 U.S. 397 [1997]; Jaffee v. Redmond, 518 U.S. 1 [1996]; Helling v. McKinney, 509 U.S. 25 [1993]; City of Canton v. Harris, 489 U.S. 378 [1989]; Blanchard v. Bergeron, 489 U.S. 87 [1989]; City of St. Louis v. Praprotnik, 485 U.S. 112 [1988]; Memphis Community School Dist. v. Stachura, 477 U.S. 299 [1986]; Williamson County Reg. Plan. Comm'n v. Hamilton Bank, 473 U.S. 172 [1985]; City of Oklahoma City v. Tuttle, 471 U.S. 808 [1985]; Chardon v. Soto, 462 U.S. 650 [1983]; Smith v. Wade, 461 U.S. 30 [1983].) n16

n16 As for the argument that the proceedings in Dolan v. City of Tigard, 512 U.S. 374 (1994) leading up to this Court's decision had not involved a jury (National League of Cities 24), it bears note that on remand, the constitutional taking case was tried to a jury. At the end of Mrs. Dolan's evidentiary presentation, the city agreed to settle with a combination of compensation and development entitlement. (Dolan v. City of Tigard, case no. C 94-1259 CV [Ore. Cir. Ct., Washington County].)

[*17] Every Circuit that has considered the issue has concluded that juries may determine municipal liability in a wide variety of § 1983 cases (some have held that they must). n17 Significantly, many of the cases consist of reversals of directed defense verdicts on the ground that the liability decision was for the jury.

n17 The First, Third, Fourth, Fifth, Sixth, Eighth, Ninth and Tenth Circuits have held that parties to § 1983 actions are entitled to jury trials under either the statute itself or the Seventh Amendment. (Perez-Serrano v. DeLeon-Velez, 868 F.2d 30, 32 [1st Cir. 1989]; Patzig v. O'Neil, 577 F.2d 841, 848 [3d Cir. 1978]; Burt v. Abel, 585 F.2d 613, 616, fn. 7 [4th Cir. 1978]; Anderson v. Nosser, 456 F.2d 835, 841 [5th Cir. 1972], cert. denied, 409 U.S. 848; Amburgey v. Cassady, 507 F.2d 728, 730 [6th Cir. 1974]; Drone v. Nutto, 565 F.2d 543, 544 [8th Cir. 1977]; Del Monte Dunes v. City of Monterey, 95 F.3d 1422, 1427 [9th Cir. 1996]; Dolance v. Flynn, 628 F.2d 1280, 1282 [10th Cir. 1980].) The Second, Seventh and Eleventh Circuits routinely submit such cases to juries. (E.g., Moore v. Comesanas, 32 F.3d 670, 673 [2d Cir. 1994]; Lewis v. O'Grady, 853 F.2d 1366, 1368 [7th Cir. 1988]; Richardson v. Leeds Police Dept., 71 F.3d 801, 806 [11th Cir. 1995].)

Neither the City nor any of its amici have been able to point to a single case decided in § 1983's 127-year history that denied a plaintiff the right to a jury trial except the one aberrational Eleventh Circuit decision in New Port Largo, Inc. v. Monroe County, 95 F.3d 1084 (11th Cir. 1996). n18 As the lone exception to an otherwise unbroken phalanx of Circuit Court decisions, New Port Largo warrants no more than disapproval. The variety of issues litigated in § 1983 suits is as great as the capacity of municipal employees to violate the constitutional rights of citizens. As the City concedes, the intent of the statute was "to provide remedies as broad as the protections afforded by the constitution." (City 21.) That breadth of coverage is in harmony with this [*18] Court's view that § 1983 "provides a remedy 'against all forms of official violation of federally protected rights.' [Citing Monell.]" (Golden State Transit, 493 U.S. at 106; emphasis added.) And that breadth of remedial coverage encompasses the guarantee of trial by jury.

n18 In contrast to the opinion below, New Port Largo contains no analysis of the issue. It merely accepted the government's assertion (dealt with at pp. 24-27, infra) that inverse and direct condemnation cases are the same. They are not. New Port Largo got it wrong.

And yet the City and its amici ask this Court to arbitrarily carve out one subject of § 1983 litigation in which juries must not operate, namely, whether overreaching municipal regulatory action takes property through the subterfuge of "regulating" it into total disutility. And they do so on the self-stultifying ground that if the City had acted lawfully and condemned the property in the first place, then it would have been entitled to a different trier of fact to try a "liability" issue that wouldn't have existed (because a direct condemnation action concedes liability). The short answer is that it didn't, and therefore it wasn't.

The City's argument becomes disingenuous when it is remembered that one of the specific reasons for adopting § 1983 -- indeed, the Fourteenth Amendment itself -- was to provide a federal remedy against cities that took property without paying for it.

"Representative Bingham, for example, in discussing § 1 of the bill [which would become 42 U.S.C. § 1983], explained that he had drafted § 1 of the Fourteenth Amendment with the case of Baron v. Mayor of Baltimore, 7 Pet 243, 8 L Ed 672 (1833), especially in mind. 'In [that] case the city had taken private property for public use, without compensation . . ., and there was no redress for the wrong . . . .' Bingham's further remarks clearly indicate his view that such takings by cities, as had occurred in Barron, would be redressable under § 1 of the bill. More generally . . ., § 1 of the bill would logically be the vehicle by which Congress provided redress for takings, since that section provided the only civil remedy for Fourteenth Amendment violations and that Amendment [*19] unequivocally prohibited uncompensated takings. Given this purpose, it beggars reason to suppose that Congress would have exempted municipalities from suit, insisting instead that compensation for a taking come from an officer in his individual capacity rather than from the government unit that had the benefit of the property taken." (Monell, 436 U.S. at 686-687; emphasis added.)

Similarly, it "beggars reason" to believe that the problem of uncompensated takings by cities, although one of the explicit bases for both the Fourteenth Amendment and § 1983, would be the only type of constitutional violation that would be insulated from jury review -- or, indeed, any judicial review under the City's overreaching theory.

The City's attempt to differentiate the protection afforded by § 1983 on the basis of the right invaded was rejected a quarter-century ago:

"The dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a 'personal' right, whether the 'property' in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right to property. Neither could have meaning without the other." (Lynch v. Household Fin. Corp., 405 U.S. 538, 552 [1972].)

B. Both § 1983 and the Seventh Amendment Entitled Del Monte to a Jury Trial

In determining whether a party has the right to a jury, the issue is first examined under the statute. (Lorillard v. Pons, 434 U.S. 575, 577 [1978].) Here, both the statute and the Seventh Amendment call for a jury trial.

[*20] 1. Section 1983 Mandates a Jury Trial in Actions For Damages

Section 1983 gives the injured party a broad range of remedies, by making the violator liable ". . . in an action at law, suit in equity, or other proper proceeding for redress." The choice of remedies is the plaintiff's; the complaint determines the kind of action. (Bell v. Hood, 327 U.S. 678, 681 [1946].) Here, Del Monte filed an action at law, seeking compensation for the damage inflicted by the City's unconstitutional actions. The right to a trial by jury follows.

"Where an action is simply for the recovery and possession of specific real or personal property, or for the recovery of a money judgment, the action is one at law." (Pernell v. Southall Realty, 416 U.S. 363, 370 [1974]; see Feltner v. Columbia Pictures Tel., 140 L.Ed.2d 438, 448 [1998] ["We have recognized the 'general rule' that monetary relief is legal."]) Where Congress statutorily creates an action and provides a remedy traditionally enforced at law, then the trial is by jury. (Pernell, 416 U.S. at 375; Curtis v. Loether, 415 U.S. 189, 195 [1974].) When words are used that have a well-known meaning, Congress is presumed to have used the words in that sense. (Standard Oil Co. v. United States, 221 U.S. 1, 59 [1911].) The words "action at law" have always had a clearly understood meaning that involves the right to a jury trial. (See Lorillard, 434 U.S. at 583.) A Congressional authorization of an "action at law" authorizes a jury trial. By using a legal term of art like "action at law," Congress allowed this Court to infer a jury trial. (434 U.S. at 583.) Compare Feltner, 140 L.Ed.2d at 448, where, lacking any such terms of art in another statute, this Court was not able to infer the statutory right to a jury trial.

[*21] 2. The Seventh Amendment Mandates a Jury Trial in Actions at Law

In determining whether the Seventh Amendment guarantees a right to a jury in a statutory cause of action, this Court uses a two-part test: first, compare the statutory action to actions in 18th-century England, and second, determine whether the remedy is legal or equitable. (Tull v. United States, 481 U.S. 412, 417-418 [1987]; Granfinanciera v. Nordberg, 492 U.S. 33, 42 [1989]; see Markman 517 U.S. at 376.)

The remedy sought trumps the precise analog to old English forms of action. (Tull, 481 U.S. at 421; Granfinanciera, 492 U.S. at 42; Curtis, 415 U.S. at 196; Chauffeurs, 494 U.S. at 565; Wooddell v. Electrical Workers, 502 U.S. 93, 97 [1991].)

"Whether or not a close equivalent to [the statute] existed in England in 1791 is irrelevant for Seventh Amendment purposes, for that Amendment requires trial by jury in actions unheard of at common law, provided that the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than in an action in equity or admiralty." (Pernell, 416 U.S. at 375, emphasis added; see also Curtis, 415 U.S. at 193, Tull, 481 U.S. at 420; Granfinanciera, 492 U.S. at 42.)

The Seventh Amendment's reference to jury trials in "suits at common law" extended "beyond the common law forms of action recognized at that time." (Curtis, 415 U.S. at 193.) The phrase "suits at common law" was intended to do no more than to distinguish suits traditionally tried to juries from those tried in admiralty or equity. (Parsons v. Bedford, 3 Pet. 433, 446 [1830].) The Seventh Amendment right to a jury trial applies to "all but" those cases involving solely equitable remedies. (Granfinanciera, 492 U.S. at 43-44; see Chauffeurs, 494 U.S. at 564.) When "legal" issues are presented, a jury is mandated upon request. (Dairy Queen v. Wood, 369 U.S. 469, 472-473 [1962].)

[*22] Applying this Court's two-factor test to this case, it is clear that this case is an action at law, and the closest common law analogs would have been tried to juries.

a. The Closest Common Law Analogs to This Case Are Tort Cases Tried to Juries, Not Equitable Actions Seeking Specific Relief

When seeking analogs to common law causes of action, one must focus on cases involving wrongful, rather than lawful, acts. Here, the City took property without paying for it. That is not proper conduct and should not be treated as if it were municipal business as usual. n19 Thus, for example, when this Court analyzed Monroe v. Pape, it viewed police actions as illegal, rather than proper. ("Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . . ." [365 U.S. at 184; quoting with approval.])

n19 The City and its amici appear to disagree (City 25), but their words betray the true situation. As the brief of 87 cities and counties puts it, ". . . the taking is not considered a wrong or an injury as long as the government pays compensation." (Brief of San Francisco et al. 13; emphasis added.) The truth is in the italics: here, the City did not pay and still resists paying. That makes its actions concededly wrongful.

The City and its amici simply ignore that fundamental concept. Their simplistic, and legally erroneous, conclusion is that this is an "inverse condemnation" case. Hence, goes the argument, it is like direct "condemnation" because both spring from the substantive provisions of the Fifth Amendment and both labels contain the word "condemnation." The City's approach boils down to this syllogism:

* condemnation cases don't require juries (Bauman v. Ross, 167 U.S. 548 [1897]; Reynolds, 397 U.S. 14);

[*23] * an inverse condemnation case is like a condemnation case;

* therefore, inverse condemnation cases don't require juries.

The syllogism is fallacious. For multiple reasons. n20

n20 The argument in the text assumes arguendo that juries are not constitutionally required in federal direct condemnation cases, as that issue is beyond those presented here for review. When the occasion presents itself, however, there are good reasons to reconsider the accepted bromide that juries are not required. Key among them is an apparent misconception about English practice in the 18th century. From 1708 through 1798, condemnation cases -- including both valuation and any other challenges to the taking -- were tried to juries on demand. (deKeyser's Royal Hotel v. The King, 2 Ch. 222 [1919].) Indeed, "until 1854, trial by jury was the only form of trial used in any court of common law." (Sir Patrick Devlin, Trial By Jury 130 [Stevens & Sons. Ltd. 1956].) A fuller explication may be found in the amicus brief of Pacific Legal Foundation herein, and an exhaustive analysis of both English and early American practices is in Grant, A Revolutionary View of the Seventh Amendment and the Just Compensation Clause, 91 Nw. U.L. Rev. 144 (1996). Nor does this analysis affect takings cases against the United States, as those cases are bound up with the concept of waiver of sovereign immunity (see McElrath v. United States, 102 U.S. 426 440 [1880]), something not involved here.

First, § 1983 comes into play here not because the City is condemning the subject property, but because the City refused to condemn it, but took it anyway. This is no more an "inverse condemnation" case than Owen v. City of Independence, 445 U.S. 622 was a civil service personnel action, or a "wrongful termination" case. Prosecution under § 1983 determines the character of the litigation. See, e.g., Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977) which dealt with a mother's right to custody of her children. Lawful proceedings to terminate parental rights are universally held in non-jury, family court, settings. Yet when done wrongfully, and the matter is brought to court via § 1983, the issue becomes one of constitutional tort for the jury, not a [*24] proper family court matter. "These causes of action . . . exist independent of any other legal or administrative relief that may be available as a matter of federal or state law." (Felder, 487 U.S. at 148; quoting with approval.)

Second, even if one were to assume this case to be an inverse condemnation case rather than a constitutional tort case, inverse condemnation and direct condemnation are not the same. This Court spoke to this point in United States v. Clarke, 445 U.S. 253 (1980). There, the Court had to decide whether a statute authorizing a state to "condemn" land allotted to native Americans also authorized the "inverse," i.e., the seizure of such land by a state, forcing the owner to recover compensation through an inverse condemnation action. This Court made it clear that inverse condemnation is not direct condemnation.

"There are important legal and practical differences between an inverse condemnation suit and a condemnation proceeding . . . . [and there is a] well-established distinction between condemnation actions and physical takings by governmental bodies that may entitle a landowner to sue for compensation." (445 U.S. at 255-256.)

"There are sufficient legal and practical differences between 'condemnation' and 'inverse condemnation' to convince us that when § 357 authorizes the condemnation of lands . . ., the term 'condemned' refers not to an action by a landowner to recover compensation for a taking, but to a formal condemnation proceeding instituted by the condemning authority." (445 U.S. at 258.) n21

n21 Thus, when the amicus brief of the 87 California cities and counties asserts that "inverse condemnation differs from direct condemnation . . . only insofar as the action is initiated by the property owner" (p. 6; emphasis added), it argues from a flawed premise. The Court also receives little assistance from the brief filed by 29 states and Guam which, in direct contradiction of this Court's analysis in Clarke, asserts that "with respect to proofs and issues, state inverse condemnation cases are generally the same as traditional eminent domain proceedings." (p. 8; emphasis added.) Both Clarke and litigational reality show that they are nothing of the sort.

[*25] Some of those "differences" were noted in Clarke. First, condemnation law requires the government to observe many procedural safeguards; a seizure of property fails to fit that mold. n22 As this Court put it with understatement, "such a taking thus shifts to the landowner the burden to discover the encroachment and to take affirmative action to recover just compensation." (445 U.S. at 257.) n23 That shift is important -- indeed, sometimes it is critical. n24 It can put the property owner at a "significant disadvantage." (445 U.S. at 258.) While the only issue in virtually all direct condemnation cases is the amount of compensation, n25 an inverse [*26] condemnation plaintiff cannot address that issue until the trier of fact first concludes that an uncompensated taking has occurred. n26 In this context, that difference is crucial.

n22 At a minimum, there are the procedures in Rule 71A, Fed. R. Civ. P., and its state equivalents. There are also the rules adopted by Congress to ensure fair treatment of property owners when government acquires their property (42 U.S.C. § 4651) which have been adopted in all of the states as well (e.g., Cal. Govt. Code § 7267 et seq.) and "govern, to some extent" the manner in which government acquires title to property. (Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 5-6 [1984].) Obviously, in a case like this, the government evades these statutory duties and safeguards and commits a constitutional wrong that is subject to redress under § 1983. (See Lake Country Estates, 440 U.S. 391.)

n23 Earlier, this Court described the shift as "putting on the owner the onus of determining" the fact, nature and timing of the taking (United States v. Dickinson, 331 U.S. 745, 748 [1947].) Whether "onus" or "burden," it's oppressive, and falls leagues short of the governmental concession of liability that is axiomatic in a direct condemnation action.

n24 See Agins v. City of Tiburon, 447 U.S. 255, 258, fn. 2 (1980), noting that this is the principal distinguishing feature between direct and inverse condemnation.

n25 In rare cases, property owners challenge the government's right to condemn. These challenges are rarely successful. (See, e.g., Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 [1984].) And they don't deal with liability for the taking (contrary to the assertion of the League of Cities' brief, pp. 11-12), but with the government's right to proceed with the acquisition. That's not a question of liability, but of power and jurisdiction. Liability (i.e., the obligation to pay) is conceded in a condemnation action.

n26 Here is another false premise of the 87 California cities and counties. Their brief says "it would be incongruous to require liability issues in direct condemnation to be tried by a judge, and simultaneously allow liability for inverse condemnation to be tried to a jury." (p. 14.) But by filing a direct condemnation complaint, the government admits "liability" to pay for the property it is taking. Such complaints typically pray that compensation be awarded to the property owner and title be transferred to the condemnor. An exemplar of the prayer in such a complaint appears at 7 Nichols on Eminent Domain § 2.11[2], p. 2-49 (3d ed. 1998). For a California form with which the 87 cities and counties ought to be familiar, see 1 Condemnation Practice in California § 8.2 at 310 (Cal. Cont. Ed. Bar, 2d ed. 1998).

Congress agrees. For example, attorney's fees are not recoverable in direct condemnation actions under Rule 71A, but they are authorized in successful inverse condemnation cases (42 U.S.C. § 4654), because the government forced onto the property owner the extra burden and expense of proving liability. (Pete v. United States, 569 F.2d 565, 568 [Ct. Cl. 1978].) When the government forces a landowner to sue, it violates not only the Constitution, but also statutory provisions. It cannot very well demand that its wrongdoing be rewarded by the courts treating it as if its acts were lawful when, in fact, they give rise to a constitutional tort that encompasses all compensable harms, of which the uncompensated taking is but one. n27

n27 Thus, in a § 1983 action for an unlawful taking of private property, compensation is awarded not only for the taking but for other tortious harms inflicted in the process. (McCulloch v. Glasgow, 620 F.2d 47 [5th Cir. 1980].)

[*27] The short of it is this: if the City wanted the benefits of direct condemnation procedure, then it should have condemned this property in the state courts (see Cal. Govt. Code § 7267.6), rather than making Del Monte and Ponderosa Homes jump through bureaucratic hoops, going through five different plans in five years, and then tell them that no use could be made of this land. The City was statutorily obligated to initiate a condemnation action. It didn't. It is not here as some sort of virtual condemnation plaintiff, but as a constitutional tortfeasor/defendant. The City put its liability in issue by its deliberate conduct. It is in no position to complain because this issue was resolved by a jury -- the same as in all other "constitutional tort" cases.

If there is a common law analog to unlawfully taking property without payment, it would be trespass or conversion, as the Court of Appeals held below. (95 F.3d at 1427.) The facts show a deliberate, persistent municipal course of conduct to deny Del Monte all economically productive use, and force the transfer of its land to governmental ownership. The City's plan succeeded. n28 Additionally, as an action whose gravamen is that the City has taken property without [*28] paying for it, the action is analogous to actions to recover land. Nearly a quarter-century ago, this Court noted that it had "long assumed that actions to recover land . . . are actions at law triable to a jury." (Pernell v. Southall Realty, 416 U.S. 363, 370 [1974].) After a thorough review, that assumption was confirmed. (416 U.S. at 376.) Here, the jury found (and the trial judge and appellate panel confirmed) that, by regulating it into total disutility, the City had temporarily taken Del Monte's property as surely as if it had seized it and built a fence around it. As Professor Tribe put it, ". . . forcing someone to stop doing things with his property -- telling him 'you can keep it, but you can't use it' -- is at times indistinguishable, in ordinary terms, from grabbing it and handing it over to someone else." (Tribe, American Constitutional Law § 9-3 at 593 [2d ed. 1988].)

n28 The property is now owned by the State of California. After the City got done with it, there was no private use for the property and no market for it, except a conveyance to the State at a fraction of its fair market value. Presumably, the property will become part of the adjacent State beach.

One must be careful in predicting governmental action, however. This Court may remember, for example, that in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), South Carolina argued strenuously that Mr. Lucas must leave his property vacant to protect various public interests. After this Court remanded the case to the South Carolina courts, the government settled the case and bought the property. Did it remain vacant? No. The government sold it to another private individual for development so it could recoup its purchase price. (See Kanner, Not with a Bang, but a Giggle: The Settlement of the Lucas Case, in Takings: Land-Development Conditions and Regulatory Takings after Dolan and Lucas, ch. 15 [Callies, ed., ABA Press 1996.])

Moreover, the determination of liability is "essential to preserve the right to a jury's resolution of the ultimate dispute." (Markman, 517 U.S. at 377.) Liability is the sine qua non of this dispute. If a jury is not permitted to determine whether the City's actions took property in violation of the Fifth Amendment's guarantee, then it has effectively been removed from the core of the case. Liability is the case. That's the key difference between direct and inverse condemnation.

In short, it is the violation, not the nature of the violated right or of the constitutional provision, that is the essence of the § 1983 action. And where the violation is subject to redress by a monetary award, it is an action at law, historically triable to a jury.

b. The Remedy Sought Here is Compensation, a Traditional Legal Remedy Granted by Juries

Although it seems clear that the closest common law analogs to this case would have been tried to juries, there is, as this Court put it, no need to "rest our conclusion on . . . an [*29] 'abstruse historical' search for the nearest 18th-century analog. . . . Characterizing the relief sought is 'more important' than finding a precisely analogous common-law cause of action in determining whether the Seventh Amendment guarantees a jury trial." (Tull, 481 U.S. at 421; citations omitted.) The test is the nature of the remedy, whether equitable or legal. n29 And the general rule is clear: ". . . where an action is simply for the recovery and possession of specific real or personal property, or for the recovery of a money judgment, the action is one at law." (Pernell, 416 U.S. at 370; see Feltner, 140 L.Ed.2d at 448 ["We have recognized the 'general rule' that monetary relief is legal."]) Where Congress statutorily creates an action and provides a remedy traditionally enforced at law, then the trial is by jury. (Pernell, 416 U.S. at 375; Curtis, 415 U.S. at 195.) n30

n29 In Chauffeurs, for example, the Court concluded that a union's breach of the duty of fair representation more closely resembled an equitable action for breach of trust than a legal action for attorney malpractice, although both were close. Nonetheless, because the remedy sought was purely legal (monetary recovery), a jury was required. (494 U.S. at 566-570.)

n30 The National League of Cities urges (p. 16) that the appropriate remedial analog is injunction, because the purpose of an inverse condemnation action is to compel the government either to condemn the property or rescind the regulation. Wrong. The purpose is to obtain compensation for property that has already been taken, as this Court held in First English. (482 U.S. at 315.) As for compelling the government to condemn, First English is directly to the contrary, denying the courts the power to compel such action (482 U.S. at 321), which is legislative in nature (Rindge Co. v. County of Los Angeles, 262 U.S. 700, 709 [1923]).

Chauffeurs, 494 U.S. at 570-571, describes two factors that could, on rare occasion, make payment of money an equitable, rather than a legal, remedy: restitution or an award that is incidental to or intertwined with injunctive relief. In Chauffeurs, the damages consisted of back pay and benefits. That was not restitution. (494 U.S. at 571.) Here, the damages consist of compensation for a temporary taking. [*30] That's not restitution either. Injunctive relief wasn't present in Chauffeurs, and it isn't present here. This case presents no reason to depart from well-settled law that views a monetary recovery as one at law -- traditionally a province of juries.

Noting that the statute authorizes relief via "an action at law, a suit in equity or other proper proceeding," the City ignores Del Monte's complaint seeking the legal remedy of damages, and presses the non sequitur that the statute some-how allows a jury only in "appropriate cases," of which, assertedly, this is not one. (City 20.) n31 Aside from ignoring the plain text of the statute which provides for a broad range of remedies at the victim's election, this argument ignores basic doctrine under which the plaintiff "is master to decide what law he will rely upon" and, consequently, what kind of case he or she will file. (Bell, 327 U.S. at 681.) See also Tull, 481 U.S. at 425, in which this Court told the United States that if it wanted equitable procedures, it should have filed a pleading seeking equitable relief. No reason appears why the City should get to occupy a litigational position more favorable than the federal government.

n31 Two of the City's amici carry the argument to an extreme, if not a reductio ad absurdum, in suggesting that cases involving property rights must be automatically transformed into "other proper proceedings" (which they insist are proceedings not permitting juries at all) no matter what the facts, or how the plaintiff pleads the case. (Municipal Art Society 5, fn. 2; National League of Cities, et al., 7.) No legal or historical basis is provided for this extremist argument.

The short answer to these arguments is contained in Lorillard, where this Court analyzed a statute authorizing the trial court to grant "legal or equitable relief . . . ." (29 U.S.C. § 626[c].) Because that plaintiff sought legal relief, and because Congress had to have known the import of the language it chose, this Court held that the plaintiff was entitled to a jury trial. The same is true here.

(continued)

If you have questions or comments about this website or
Community Rights Counsel email us!

© 2005 Community Rights Counsel. All rights reserved.