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CITY OF MONTEREY
v.
DEL MONTE DUNES AT MONTEREY, LTD.
No. 97-1235
from Court transcript, with names of questioning
Justices added from notes of attendees at oral argument
Wednesday, October 7, 1998
Washington, D.C.
The above-entitled matter came on for oral argument
before the Supreme Court of the United States at 10:03
a.m.
APPEARANCES:
GEORGE A. YUHAS, ESQ., San Francisco, California; on
behalf of the Petitioner.
EDWIN S. KNEEDLER, ESQ., Deputy Solicitor General,
Department of Justice, Washington, D.C.; on behalf of the
United States, as amicus curiae, supporting the
Petitioner
MICHAEL M. BERGER, ESQ., Santa Monica, California; on
behalf of the Respondents.
*2 CONTENTS
ORAL ARGUMENT OF GEORGE A. YUHAS, ESQ. On behalf of
the Petitioner ... 3
ORAL ARGUMENT OF EDWIN S. KNEEDLER, ESQ. On behalf of
the United States, as amicus curiae, supporting the
Petitioner ... 20
ORAL ARGUMENT OF MICHAEL M. BERGER, ESQ. On behalf of
the Respondent ... 29
*3 PROCEEDINGS
(10:03 a.m.)
CHIEF JUSTICE REHNQUIST: We'll hear argument first
this morning in Number 97- 1235, the City of Monterey v.
Del Monte Dunes, et cetera.
Mr. Yuhas. Is that the correct pronunciation of your
name?
MR. YUHAS: Yes.
ORAL ARGUMENT OF GEORGE A. YUHAS
ON BEHALF OF THE PETITIONER
MR. YUHAS: Mr. Chief Justice, and may it please the
Court:
We are asking this Court to decide three issues in
this inverse condemnation case. First and most important
the constitutional standard for review of a city's land
use decision does not allow the imposition of takings
liability based upon a de novo second guessing of the
city's policy and factual determinations.
Second, courts, not juries, are the appropriate
decisionmakers for all inverse condemnation liability
issues and, finally, the concept of rough proportionality
does not apply to this case, where the city denied the
proposed development.
What ties these issues together are the concepts of
deference and the concepts of the limited role of the *4
Constitution and the Federal courts in the local land use
planning process.
This case is not atypical in some respects. The city
was faced with a complex decision it had to reconcile
competing interests, sift through facts, and exercise its
discretion and judgment, and it did so.
SCALIA J: Five times.
MR. YUHAS: It did so, Your Honor. It was a complicated
project. In this particular case it only exercised
discretion once, that is directly relevant, and that is,
its consideration of the restoration plan presented by
the respondents.
SCALIA J: This was the fifth plan presented, right?
Each one was successively rejected for a different reason
each time?
MR. YUHAS: The initial rejections were for density,
and the fifth one was rejected down for two reasons only.
There was access, and there was the restoration plan, and
that was the first time that--in fact, the city council
had faced the question as to whether there was an
adequate recommended plan.
SCALIA J: And this is typical, you say?
MR. YUHAS: It is typical in this kind of complex. It
was a complicated project.
KENNEDY J: Well, in asking whether the decision *5 in
question was reasonable, the history of the zoning and
the previous attempts are relevant, are they not, in
determining the reasonableness of the city's action?
MR. YUHAS: I submit that the issue is not the
reasonableness of the city's action, but rather the issue
is whether, in fact, the city's action in the first
instance bears a reasonable relationship to a legitimate
goal.
KENNEDY J: Well, could you--suppose you told the jury,
the issue for you to decide is, was the decision based on
reason? Did it substantially advance a legitimate public
goal? Could the jury answer that question?
MR. YUHAS: I believe that that is two different
questions.
KENNEDY J: Well, that was your argument to the jury.
I've read the record.
MR. YUHAS: I submit that the question presented to the
jury in the instructions was, does the city's action bear
a reasonable relationship to a legitimate goal. Here--
KENNEDY J: You said, did it substantially advance a
legitimate goal? You said that's the issue for the jury,
and you said the issue for you to decide was the decision
based on reason. Those are two questions, and *6 you said
those are presented here, and it seems to me that the
past history of what the developer was required to do is
relevant to that.
MR. YUHAS: And we didn't argue that the jury could not
consider that past history, but on the specific issue
that the jury was asked to address, over our objection,
because we continue to believe that that is an issue for
the court, on the first prong, the substantially advance
a legitimate public interest, that prong, which derives
essentially from substantive due proc language, that is a
deferential test.
REHNQUIST J: Well, are you saying that the jury was
not entitled to consider the length of time that these
proceedings were underway at all?
MR. YUHAS: I'm not suggesting that, Your Honor.
REHNQUIST J: How long were they underway, from
beginning to end?
MR. YUHAS: The first time that the city was presented
with this development application was 1983. The final
consideration was 1986. There was some additional
planning for 1983, because the local coastal plan was
being implemented or developed at that time.
REHNQUIST J: What happened between 1986 and now?
MR. YUHAS: After 1986, the testimony is that the
developer made no further effort to develop the *7
property or contact the city. The property was sold in
1991 for $4.5 million, approximately $800,000 more than
the developer paid, and something less than--
REHNQUIST J: We have a lawsuit here. Surely the
lawsuit must have begun sometime after 1986, one hopes.
MR. YUHAS: Well, one hopes. Believe it not, the
lawsuit began in 1986. In 1986 the lawsuit was filed,
there was a ripeness challenge, that went up to the Ninth
Circuit, it was reversed, it came back, and that resulted
in the trial that brings it to today.
GINSBURG J: May I ask about that ripeness challenge,
and it relates to how significant this jury trial issue
is because, as I understand it, the Ninth Circuit said it
was ripe because at the time California had no proceeding
which the developer could bring, but now California does
and, as I understand our case law, a developer in the
situation that this one is in would be obliged to go to
the State court, not Federal court, is that correct?
MR. YUHAS: That is correct, Your Honor.
GINSBURG J: And under the California procedure the
liability issue would not go to a jury.
MR. YUHAS: That is also correct, Your Honor.
GINSBURG J: So is there, now that the States have been
told that they must have these proceedings, is this *8
question of jury trial or not just a question for these
cases hanging over from the eighties?
MR. YUHAS: Your Honor, I certainly submit that the
issue of the jury trial is very significant to my client
in this case. It is not--it does not have, I think, great
significance directly in cases litigated in the State
courts.
GINSBURG J: Does it have any continuing significance
at all? That's my question, because if there's no ripe
challenge until we've gone to the State, the State would
decide those questions. The State would decide the
liability questions, and then you might have some
constitutional question about it.
MR. YUHAS: There are two issues that were raised, one
which was raised by the amicus filed on behalf of some of
the States is there might be, under some circumstances, a
question as to whether, in fact, the State determination
would be fully collaterally estoppeled in a subsequent
case, or whether it would give rise to collateral
litigation.
But I think of more importance is that, depending upon
the nature and the reason why it's determined that there
is a right to jury trial, the character of the issue is
important.
If, in fact, the issue is one that requires a *9
deferential standard, because one that is akin to
substantive due process, that is an issue that cuts
across simply the procedural issue as to who decides, and
goes to what standard should be used.
The Ninth Circuit standard, the reasonableness
standard, is one that says, when a Government agency
makes a decision--it could be establishing seismic
standards. It could be anything, and all a developer, a
property owner needs to do, is to say, you know, we have
an expert, and our expert says that we can build safely,
we can essentially dispute the fact that you need these
standards, or we can say that those standards are
excessive.
O'CONNOR J: Well, let's talk about--we're dealing with
inverse condemnation here, and it's a two-part inquiry if
we follow Agins. I don't know what the inquiry is. What
do you think it is?
MR. YUHAS: I believe--
O'CONNOR J: Agins says two things, that the city's
action has to substantially advance a legitimate purpose,
and deny the subject property all economically viable
use.
MR. YUHAS: Yes, that is what Agins says. That's what
the jury was instructed here.
O'CONNOR J: And they found on both those points *10 in
favor of the respondents.
MR. YUHAS: We don't know that, Your Honor.
O'CONNOR J: Well, they gave a general verdict.
MR. YUHAS: They gave a general verdict. They found on
one or the other, or both.
O'CONNOR J: Well, was it an and or an or instruction?
Were they told to find that--
MR. YUHAS: Or.
O'CONNOR J:--it takes both, or were they told either
one?
MR. YUHAS: Either one. Either one, and that--
O'CONNOR J: It was a general verdict.
MR. YUHAS: It was a general verdict on that claim.
QUESTION: And you didn't object to those instructions?
O'CONNOR J: Even if we were to conclude that there
were one or more issues in here that were legal issues
for the court, it wouldn't require a new trial because
the court could look at the evidence and resolve it
anyway. It's not like we're having to send it back for a
new trial, regardless of the answer.
MR. YUHAS: That's correct, and I believe the Ninth
Circuit in fact indicated that in its opinion.
O'CONNOR J: And there are certainly some factual *11
issues here, like economically viable use, that
traditionally would go to a jury, it seems to me.
MR. YUHAS: Those are certainly ad hoc factual
inquiries.
QUESTION: Absolutely.
MR. YUHAS: However, they are not inquiries that I
believe are properly decided by the jury, because the
decision of economically viable use is not simply a
question of valuation. That is certainly a component, but
going with that is the question of what is the reasonable
investment-back expectations of the property?
REHNQUIST J: But surely a jury could be charged on
that. Juries decide all sorts of questions where they get
legal instructions from the judge and they decide the
factual component of the question.
MR. YUHAS: Juries are very adept at resolving
historical issues of fact. Juries are not adept at
employing balancing tests or multifactor analysis.
REHNQUIST J: Well, but juries decide questions of land
value all the time in the State courts in condemnation
actions. California, Arizona--
MR. YUHAS: Mr. Chief Justice that is absolutely
correct, and if the only issue on a denial of all
economically viable use was a valuation question, I would
say the jury had the competence, but it goes far beyond
*12 that.
For example, even where it does deprive the property
of all economically viable use, there is also the issue
of simply, is the intended use akin to a nuisance, the
Lucas issue. That is an issue which is akin to a public
nuisance determination, which is historically made by
courts.
KENNEDY J: Well, you cast the case as if the jury is
going to be assessing the reasonableness of the zoning
ordinance, but that's not what the jury was instructed.
That's not what you argued to the jury. That's not what
Mr. Jacobson argued. They said, was this decision a
reasonable implementation of that ordinance, and that's
different, and juries talk about reasonableness all the
time. That's the whole law of torts.
MR. YUHAS: Juries do decide reasonable questions. They
decide reasonable conduct because that is underlying the
legal standard of liability.
Where the standard of liability, I submit, is, in
fact, one, does an action substantially advance the
public purpose, and where that standard derives from
substantive due process principles which carries with it
a level of deference, carries with it the idea that we
don't want juries coming in in every case and saying, I
don't think that the State's action reasonably
implemented *13 zoning, that will depend upon invariably
complicated facts and subsidiary policy decisions as
well.
KENNEDY J: Well, you instruct the jury that the city
is entitled to the greatest of deference and leeway, but
that if they have been unreasonable or, say in
bad--suppose the jury's--the planning commissioner is in
bad faith in implementing the ordinance, could that
question go to the jury?
MR. YUHAS: That question did not go to the jury. In
fact--
KENNEDY J: Could that question--
MR. YUHAS: Oh--
KENNEDY J:--in a proper case go to the jury?
MR. YUHAS:--in a proper case, that question could go
to the jury. In this case, the jury was instructed that
they were to disregard motive, because there was no
evidence of bad faith and, in fact, the trial court,
considering this same record, concluded that the city
acted reasonably. They were not attempting to forestall
all reasonable development.
BREYER J: Could the jury do this. This is--am I
right--help me with this. Am I right in thinking that
we're reviewing a judgment that awarded your opponent
$1.45 million for a temporary taking, which I take it was
for the period of time from, like maybe when they bought
*14 the land or something, until California paid the $4.5
million, or 4.8. That was the judgment we're reviewing. I
may not have it precisely right, but roughly.
MR. YUHAS: The taking damages went all the way to
trial. They went 4 years beyond when they actually sold
the property, but--
BREYER J: But it's a temporary taking.
MR. YUHAS: It is, Your Honor.
BREYER J: All right. Now, if that's so, and if I
believe the jury could assess this question, had it
during that time been deprived of all value, I suppose
that's a jury question in my mind, supposedly. They can
decide that question, whether or not all value disappears
from the property, therefore it warrants--and, moreover,
the jury could assess the amount.
All right. If I believe those two things, is there any
reason for me to go further in this case?
MR. YUHAS: I believe there is, Your Honor.
BREYER J: Why?
MR. YUHAS: First, in this case the evidence was
undisputed and, in fact, the jury was instructed that if
they found insubstantial value--
BREYER J: Could anyone have found--could anyone, any
reasonable person have doubted that the property lost all
its value during that temporary time? *15 Is there some
evidence here? Is there some dispute?
I mean, I know there is a dispute as to whether or
not, when they got paid the money later--I mean, you had
4.8 million. I understand that dispute. But during the
temporary time, is there any dispute that it had no
value?
MR. YUHAS: Oh, very much so.
BREYER J: There was.
MR. YUHAS: In fact, the plaintiff's expert opined that
immediately after the city's action the property retained
$2.9 million in value, and he opined that that value from
that point in time went up, so that when the property was
sold to the State in its regulated State it was worth
$4.5 million.
Now, that was, to be fair, according to that expert, a
diminution value. In fact, the diminution I believe was
in the ball park of about 50--about 55 percent, but, in
fact, there was substantial value the entire time and
that's why, when the jury was instructed, if this
property has substantial value, you should conclude that
there has been no denial of economically viable use.
BREYER J: Is there any value, other than the value
that would come about by selling it to the State for the
use as a seashore?
*16 MR. YUHAS: Oh, I believe so. I mean, this project
was turned down for two reasons, and two reasons only.
BREYER J: Okay.
MR. YUHAS: And all that had to be done was to resubmit
the site plan that had a better restoration plan, or, in
fact, buy the property needed for the access.
SCALIA J: But I thought they did that five times to
try to get a better restoration plan.
MR. YUHAS: The very first time that the restoration
plan was ever even put together in draft form was in
1984, shortly before the city council overruled the
planning commission and approved conditionally the
190-unit development, and the conditions were, you need
to show that you can do this development consistent with
habitat protection and, in fact, they went through a
year's process.
The city council expressly said, we can't assess the
adequacy of this habitat plan because we don't know
enough. You need to talk to Fish & Wildlife and Fish
& Game.
Finally, in 1986, they for the first time said, we
have the information, you have not shown us this is good
enough.
SCALIA J: The landowner here essentially thinks *17
that it was getting jerked around, that basically the
city didn't want this land used for anything and wanted
to retain it empty so it could be used as a seashore.
That's what this thing is about.
Now, let's talk about deference to the city's
judgment. I can under--our normal rule is that we do
defer and, if there's a rational basis, that's all we
look to.
But where you have a consistent process, as is alleged
here, of turning down one plan, the next plan, the next
plan, okay, I'll do this to satisfy you, isn't there some
point at which, although there's a rational basis for the
fifth decision, a rational basis for the fourth and the
third and the second and the first, you begin to smell a
rat, and at that point can't we say, despite our normal
rational basis review, there's some other factor that
begins to come in here, and that is, at some point you
can say, this is simply unreasonable.
MR. YUHAS: I submit, Justice Scalia, that that inquiry
does not occur in the first prong of Agins as to whether
the decision substantially advances illegitimate use.
That comes into the second prong as to whether, in fact,
there are economically viable uses available.
If, in fact, the evidence demonstrates the city
intended never to approve any development, the trier of
*18 fact could conclude, well, I guess this thing doesn't
have any economically viable use, and presumably it would
have no value.
But on the first prong, the first prong simply says,
is there, in fact, the city's action denying this
development, leaving the property as it is, does that
have a substantial relationship to a legitimate goal,
whether that goal be open space, whether that goal be
habitat protection.
REHNQUIST J: What if the commission, instead of saying
no, you can't--we'll reject your plan five times, says,
we're going to reject it for 100 units but we'll approve
it for 10 units?
Now, there the owner can't say it was denied all
economic value, but isn't it possible that an element of
bad faith would come in somewhere along the lines of
Justice Scalia--I'm not saying it happened here, but if a
jury or a finder of fact was convinced that the city
council was simply going through motions here, that it
was determined not to really appraise the situation in
the light of the ordinance, couldn't a finder of fact,
either a jury or a judge, say that an element of bad
faith plays a part in the decision?
MR. YUHAS: Again, I submit that the element of bad
faith goes into whether in fact the property has been *19
deprived of all economically viable use.
KENNEDY J: But what the Chief Justice is asking, and I
think it was prompted by Justice Scalia's question in my
mind as well, let's assume that the city is unreasonable
in the implementation of its planning ordinances, and
that it's in bad faith in the implementation of its
planning ordinance. The property still has an
economically--an economic viability.
Is there--the city still liable in damages for that
unreasonable treatment of the landowner?
MR. YUHAS: Not under the Fifth Amendment. There may be
a remedy under State law and if, in fact, the city
participates in an effort to deliberately deflate the
value of the property for purposes of condemnation
there's a remedy for oppressive and unreasonable
precondemnation conduct, certainly under State law.
QUESTION: Well, may I try--
SCALIA J: Why doesn't it come under the other--the
other of the two criteria? Why do you insist that we
force this under the economically viable use criteria
rather than under whether it substantially furthers any
valid purpose?
MR. YUHAS: Because, looking at the--what the jury was
instructed in this case as to a valid purpose, which was
habitat protection, health and safety, the *20 denial of
this development, you know, did unquestionably have a
relationship--
SCALIA J: Not if there was bad faith. If there was bad
faith it rationally could further that purpose but it
wasn't being used for that purpose.
MR. YUHAS: No. In this case there was no finding of
that. The Court was-- directed the jury to disregard
questions of motive and certainly I understand that the
respondent felt that in fact they were being jerked
around.
The respondent acquired this property and only pursued
two applications. The one that got approved--I correct
myself, one application. The only application that this
respondent pursued was the one in 1986.
QUESTION: Okay--
MR. YUHAS: They bought the property--
QUESTION: Thank you, Mr. Yuhas.
Mr. Kneedler, we'll hear from you.
ORAL ARGUMENT OF EDWIN S. KNEEDLER
ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE
SUPPORTING THE PETITIONER
MR. KNEEDLER: Mr. Chief Justice, and may it please the
Court:
Before discussing the substantially advanced
legitimate Government purpose aspect of this case I would
*21 like to briefly address another point which the Ninth
Circuit addressed and that is that the Ninth Circuit,
without any prompting by the parties, brought this
Court's decisions in Nollan and Dolan into this case and
said that the overall denial of the plan in this case had
to be assessed under the rough proportionality
formulation that this Court announced in the Dolan case.
KENNEDY J: Well, of course, the jury wasn't instructed
on that theory. The oral arguments weren't on that
theory. I'm not sure why that issue is in the case if the
verdict can be sustained on another basis.
MR. KNEEDLER: Well, I--but--that seemed to be an
important aspect to the court of appeals affirmance of
the judgment.
On page 16 and page 20 of the appendix to the petition
the Court relies upon the rough proportionality standard
as the basis for finding that the jury could have found
that there was no sufficient evidence to support the city
council's verdict, and it may be sufficient for this
Court simply to vacate the judgment and eliminate that
discussion from the Ninth Circuit's decision.
But we do want to make clear our position on that
question, that this Court's decisions in Nollan and Dolan
imposed that special rule for a special situation, where
the concern was that the city might actually be *22
extorting a right of physical access, essentially an
interest in property on the land, and using the occasion
of a permit approval in order to extort that.
It was a special rule for that situation. In fact, in
the Dolan case the Court specifically distinguished that
situation from one in which the--you simply had
regulations that controlled the landowner's use of her
own property as opposed to having someone come onto the
property.
O'CONNOR: Well, suppose we agree with you that the
court of appeals got it wrong on the Dolan point, what
is--how would reversing that, or vacating it, affect the
balance of the decision, if at all?
MR. KNEEDLER: Well, the question then would be whether
the court of appeals was correct in affirming the
judgment on the ground that there was sufficient evidence
from which the jury could have concluded that there was
not a reasonable basis for the action in this case, and
that really goes to the substantial relationship prong,
and we have--we have two basic problems with that.
One is, we believe that the Court's formulation of
that aspect of finding a compensable taking in Agins was
erroneous, and that the question of whether a land use
regulation substantially advances a legitimate
governmental purpose should not be--
*23 REHNQUIST J: Was that challenged by the
petitioner, the Agins rule?
MR. KNEEDLER: It was not, Mr. Chief Justice.
REHNQUIST J: Ordinarily we don't accept any new
questions or positions from an amicus.
MR. KNEEDLER: I understand that. The reason that I do
think it's relevant to the Court's consideration,
however, is the Court is being asked to lay down a rule
for the lower courts in terms of how a jury or--if it's a
jury issue, or how a trial court should address that
question. Specifically, the petitioner is arguing, and we
think quite correctly, that if this is a proper standard
in a takings analysis.
REHNQUIST J: Well, but that's not any particular
justification for taking a new point from an amicus.
You're simply saying you think it's wrong.
MR. KNEEDLER: No--
REHNQUIST J: Presumably all new points from amicus are
based on that.
MR. KNEEDLER: My point was that in order to decide the
question of whether deference to the agency is
appropriate and whether the question should be whether
there was sufficient evidence before the city council
from which it could conclude that there was a rational
basis for this action, there is the antecedent question
as to *24 whether that is a proper inquiry at all, and we
think that where you have an antecedent question upon
which the standard of review depends--
QUESTION: Well, do you--
MR. KNEEDLER:--it would be proper for the Court--
O'CONNOR J: Do you take the position that the
legitimacy of the Government purpose is irrelevant to the
inverse condemnation question?
MR. KNEEDLER: We believe that it is irrelevant to the
question of whether a compensable taking has occurred.
That's quite--that is a--
O'CONNOR J: That's hard to derive from Agins,
certainly.
MR. KNEEDLER: No, but if--if you look at Agins, what
the court recited for that proposition was this Court's
decision in Nectow, which was a due process case, and
what the Court said there was that the action did not
substantially advance a legitimate governmental purpose
because it was arbitrary and irrational. It was language
that spoke in due process terms.
And I think this goes to Justice Kennedy's point, too,
in focusing on the reasonableness of the past history of
the consideration of this project proposal. That is
essentially an objection I think that sounds in *25
procedural due process terms. Unreasonable delay, and
that sort of thing, are procedural due process or, in the
first instance governed by State APA standards, or--
SOUTER J: Would this be a--Mr. Kneedler, would this be
a possible different way of looking at it in
nonprocedural terms? We--the discussion up to this point
has been largely in terms of the language that was used
in Agins, but if you look at the Penn Central multifactor
formulation, one of the sort of broad subjects to be
addressed is the nature of the governmental action, and
if we take that into consideration properly, isn't the
issue of bad faith something that may be considered right
up front under that particular heading?
MR. KNEEDLER: I think not. The purpose of the just
compensation clause is to address the situation where the
Government has taken lawful action, but lawful action
that benefits the entire community in a way that it's
unfair to visit that cost of a lawful action on a
particular individual.
Bad faith, arbitrary action, those are not aspects of
lawful governmental action. Those are aspects of unlawful
governmental action, and as this Court said way back in
the Pennsylvania Coal Company case the basis for the
award of compensation under the Fifth Amendment
presupposes that the action is being taken for a public
*26 purpose. It presupposes lawful, proper governmental
action. It is a question of who must pay for it.
And we think this is reinforced by the structure of
the Fifth Amendment, which separately addresses the
question of the propriety of the governmental purpose.
BREYER J: When you get--is it relevant here? It keeps
coming into my mind that the damages here were awarded
for a temporary taking, and the conditions of obtaining
damages for a temporary taking are?
MR. KNEEDLER: Well, it would--the way the jury was
instructed here, either that the property--
BREYER J: What is the fact? What do the Court's cases
say? You get money for a temporary taking, you get--does
the total value have to be destroyed?
MR. KNEEDLER: The Court has said if there was all
economic--that is the test.
BREYER J: All right. For a temporary taking--for a
temporary taking, total value destroyed, plus--anything?
MR. KNEEDLER: The Court has not really spelled out
what the standards are, but it has typically come up in
terms of saying that the property has been deprived of
all economic--all economically beneficial--
BREYER J: And if it has?
MR. KNEEDLER: Pardon?
*27 BREYER J: See, that's what keeps bothering me.
This is a temporary takings case, I take it, and
everybody's arguing as if it's not, so I must be wrong,
but why?
MR. KNEEDLER: Well, first of all we think if you focus
on the deprivation of all economic value in this case
that would simply be impossible to find, because the--as
petitioner's counsel pointed out, the respondent's own
expert said this land was worth $3 million after the
permit was denied. That's $80,000 an acre.
So it would be I think impossible to say that this
land was deprived of all economic value, and therefore we
think it would be inconsistent with the purposes of the
Just Compensation Clause, where you don't have anything
approaching the sort of physical appropriation--
QUESTION: What about a case--
SCALIA J: Mr. Kneedler, if this is--granting, for the
sake of argument, the correctness of your proposition
that this good faith factor is a due process concern
ordinarily, does it not become a proper concern in a
temporary takings case, even though it may not be in a
permanent takings case?
MR. KNEEDLER: I--I--
*28 SCALIA J: Because the argument here is you've
effectively taken it during this interim period by
jerking me around, by using an essentially unfair
procedure for me to get my rights under the existing
ordinance.
MR. KNEEDLER: As you've said, an essentially unfair
procedure. That objection sounds in due process
objections precisely--
SCALIA J: Maybe, but that's what--that's why there has
been a taking, because you have not used a fair
procedure, and so at least in the temporary takings
cases, if you believe in temporary takings--maybe you
don't believe in temporary takings at all, but once you
acknowledge there's such a thing as a temporary taking,
what else produces it except--except an unfair procedure?
MR. KNEEDLER: A temporary taking occurs, as I
understand this Court's decision in First English, not
from unlawful governmental conduct, unlawful procedure,
but where there's a substantive limitation on development
that is imposed for a temporary period of time.
Again, the purpose of the Just compensation Clause was
not to protect the people against arbitrary or unlawful
action. It presupposes lawful action. And in the land use
area there are both questions of procedure and questions
of substance.
*29 SOUTER J: So you're saying this is not a temporary
taking case. That isn't what--
MR. KNEEDLER: I believe it was not properly a
temporary--I mean, it was tried on alternative theories,
and one theory being that the property was deprived of
all economic value, but that simply can't be, given
respondent's own expert saying it was worth $3 million.
SOUTER J: Did the jury instructions advert to the
issue that the action was brought by the buyer, whereas I
guess chronologically most of the temporary taking, if
that's what there was, occurred during the ownership of
the previous owner, the prior buyer shows inaction.
MR. KNEEDLER: The premise of the temporary taking
award, it began after the period in which the buyer
purchased--
QUESTION: I see.
MR. KNEEDLER:--purchased the property.
QUESTION: Thank you, Mr. Kneedler.
Mr. Berger, we'll hear from you.
ORAL ARGUMENT OF MICHAEL M. BERGER
ON BEHALF OF THE RESPONDENTS
MR. BERGER: Mr. Chief Justice, and may it please the
Court:
I suppose I ought to start out by referring to *30
Justice Breyer's question and answer it. This is a
temporary takings case. This property was taken for a
finite period of time which the jury found under
instructions that were, by the way, drafted by the city.
The city got the jury instructed with everything that
it wanted and presumably could have offered more if it
didn't like the instructions it had.
GINSBURG J: Mr. Berger, I'd like to--this jury trial
issue, which has been posed as a discrete issue, I have
it in my mind, and I may be wrong about this, that as a
result of our two decisions, Williamson the last one,
there won't be any ripe claim to be brought in the
Federal court as a court of first view any more, because
the inverse condemnation proceeding will take place--must
take place in the California State courts, is that right?
MR. BERGER: That's my reading of this Court's cases as
well, Justice Ginsburg.
GINSBURG J: And do I also understand that these two
questions, the economic justification or deprivation,
that under the California law the liability question,
that is, whether there has been a taking, is done by the
judge?
MR. BERGER: I would have to say that's not as clear as
counsel for the city represented.
REHNQUIST J: Well, what cases are you referring *31
to, Mr. Berger? You said the last two cases from our
Court in response to Justice Ginsburg.
MR. BERGER: Oh, actually I thought that that was
Justice Ginsburg's reference. I think she was referring--
GINSBURG J: Williamson was the second one.
MR. BERGER: Williamson and probably First English--
GINSBURG J: Yes, and First English--yes.
MR. BERGER:--that mandated compensation as a remedy
for a regulatory taking.
GINSBURG J: And Judge Wallace, as I recall, said the
reason this case is ripe, he said at the time all this
happened California did not have those procedures--
MR. BERGER: That is correct. The--
GINSBURG J:--in place. Now it does.
MR. BERGER: This case arose in 1986, 1 year before
First English, at a time when California recognized no
compensatory remedy.
GINSBURG J: So that's why this whole 1983 jury trial
or not seems to me largely academic, not having any
continuing importance.
MR. BERGER: It could have little continuing
importance, I would--
REHNQUIST J: It's certainly not academic in your *32
case, though, is it?
MR. BERGER: In this case it was the heart of the case.
KENNEDY J: Well, and in California juries do, in
precondemnation delay cases, for instance, decide whether
the State was unreasonable in delaying condemnation
activity under Coppin, I take it. That's a jury question,
isn't it?
MR. BERGER: Your Honor, there are many of those kinds
of cases in California, and I would have to say I cannot
put my finger on a citation to an appellate decision that
deals with the issue. I can assure the Court we've tried
cases like that in California that have gone to juries--
QUESTION: Well, in--
MR. BERGER:--and without objection. That's why it
doesn't go up.
REHNQUIST J: In California, State condemnation is a
jury trial, is it not, because Arizona it is, and we
patterned ours after California, unlike the Federal
system where it is not.
MR. BERGER: Yes, Your Honor, but of course the only
issue in a direct condemnation case would be the
valuation of the property, a major distinction between
the kind of case we have here and a condemnation case,
but in *33 California those issues, the only issues that
are left, the valuation issues, are decided by juries.
GINSBURG J: And in the inverse condemnation case,
which is new in California, how is that division?
MR. BERGER: I'm hesitating, Justice Ginsburg, only
because there have been so few of them that have
reached--
GINSBURG: Well, I don't want to detract you on that,
but at least it's my understanding that these cases are
not going to come up under 1983 now the way they did.
MR. BERGER: They're very unlikely to make an
appearance in the way that this case did, because this
Court has ordered California to recognize compensation as
a remedy. To the extent that California complies with
that, and some of us think that it pays only lip service,
these cases will not be filed at least in the first
instance in Federal district court.
But getting back to the reasonableness issue that
counsel spent so much time on, this is not something that
I think was invented for this case. It was not something
that was even invented in Agins. This Court's
jurisprudence on regulatory takings is based on a
determination by a court, whether it be a judge or a
jury, of the reasonableness of the conduct of the
governmental--
*34 O'CONNOR: Does that derive, do you agree, from due
process concerns? I mean, it's basically whether it's
sufficiently arbitrary to violate due process.
MR. BERGER: Well, Your Honor, there are certainly some
due process aspects that could be raised in such a case.
They can't, by the way, be raised in the Ninth Circuit
any longer. We briefed this in our brief pointing out to
the Court that in an en banc decision in a case called
Armendariz v. Penman the Ninth Circuit has decided that
all property owner claims related to constitutional
infirmities have to be brought as takings claims and
cannot be brought as due process claims. There's an
Eleventh Circuit opinion in a case called Villas of Lake
Jackson v. Leon County that reaches that same conclusion.
So there are some due process-sounding concerns in
these cases, but at least in the part of the country
where we live we can't raise those on behalf of property
owners.
KENNEDY J: It seems a little odd to me, perhaps to
you, too, given your representation in the case in your
client's position, that the judge would find as a matter
of law that the planning action was substantively
reasonable under due process but then submit the takings
issue to a jury. That does seem to me somewhat *35
inconsistent.
MR. BERGER: Well, let me say at least I was
disappointed in that result, Your Honor, but I don't
think that--I don't think it's terribly inconsistent. It
depends on the standard of review that one uses in these
two different questions, and when you look at the
standard of review for a due process violation it's a
very low threshold that the city has to find.
It's a determination that the city did not act
arbitrarily, and once the Court makes that determination,
as I think it could make legitimately in this case, which
is why we did not appeal that finding, the city did not
act arbitrarily.
That doesn't mean that the impact of what it did to
this property owner in applying its general planning and
zoning laws did not result in a taking.
KENNEDY J: It was not arbitrary, but it was
unreasonable?
MR. BERGER: It was not a reasonable way for the city
to effectuate--
KENNEDY J: Well, if it's not a reasonable way, then it
was unreasonable, wasn't it?
MR. BERGER: I think in that sense, yes, but I think
that it could also pass an arbitrary standard under a due
process examination, and I think that's what *36 happened
here.
BREYER J: If this is basically a temporary takings
case, and if--and here I'm not certain--the point of the
temporary takings doctrine is to stop, say, cities from
giving people what one might call the extreme run-around,
all right, suppose that's the point of it, and if that's
so, we could answer the first question, I guess.
We could answer the first question and say, some
issues anyway--maybe we'd answer it in your favor, I
don't know. Assume that for the sake of argument.
But the second and third questions, how would we even
get to them? I mean, that's what I'm having trouble with.
This question of proportionality has nothing to do with
the temporary takings case, I would think, as--at least
if it's the extreme run-around. I don't see the
relationship.
Nor do I see the relationship of the reweighing. I
mean, I don't--in other words, I don't know what to do
with this case if I see it as a temporary takings case. I
got question 1. I guess we could answer that. But how do
you see the 2 and 3 relating to this case?
MR. BERGER: I--Justice Breyer, I have to confess that
I have trouble understanding some of this case as well. I
believe that what the city is trying to do is to get this
Court to review the standards by which *37 takings,
either permanent or temporary, are evaluated, but I--it
feels to me as though a temporary taking, where the jury
looks at what's going on and looks at the period of time,
as it was instructed to do.
Whether the action was reasonable or unreasonable,
whether it was proportional or not proportional, if they
determine that there was a period of time during which
there was a complete taking of this property, which it
appears that they did, then I would agree that those
other questions on the substantive merits of the case
become irrelevant.
SCALIA J: Well, we don't know that they did. The thing
was put to them in the alternative.
MR. BERGER: Yes.
SCALIA J: Either there was a total taking, or.
MR. BERGER: That's correct, Justice Scalia. They were
told, in the words of this Court's decision in Agins,
that they could find a taking either if it--the city's
actions failed to substantially advance a legitimate
State interest, or if it denied the property owner
economically viable use.
GINSBURG J: Mr. Berger, if the--what was submerged in
this general word is not clear to me, because even before
we get to the split on the takings there was also an
equal protection claim.
*38 As I understand it, the jury was told you could
find a violation of equal protection or unconstitutional
taking, one or the other, and how can we just uphold this
verdict without saying that the award would be
independently sustainable on either basis, equal
protection and takings, because unless there was a
special verdict, we could be talking about takings when
in fact the jury went off on equal protection.
MR. BERGER: Justice Ginsburg, the--as I read the
record in this case the equal protection issue is not
before the Court. The Ninth Circuit--
GINSBURG J: But we don't know what the jury told you
could find on either basis?
MR. BERGER: I believe that it was, Your Honor.
GINSBURG J: Do we know which one the jury did find on?
MR. BERGER: We got a general verdict from the jury.
GINSBURG J: So that's--even before you get to the
which part of the takings analysis was it, we don't even
know whether the jury ever got to a taking question.
MR. BERGER: I believe that they examined each of those
things independently. They were instructed--
GINSBURG J: But we can't tell. If it's a general
verdict they could have gone on equal protection or *39
taking. If they went on taking, then these two parts they
could have gone on, either-or there.
But if--I don't understand--unless we agree that this
verdict was independently sustainable as an equal
protection claim or a takings claim, then I don't
understand how we can do anything with it.
SCALIA J: There's been no claim of inadequacy of the
equal protection ground, has there been?
MR. BERGER: The--
SCALIA J: I didn't realize that question was here.
MR. BERGER: It was--it has not been briefed in this
Court. It was the Ninth Circuit expressly did not deal
with the equal protection issue.
SCALIA J: Then it's not one of the questions presented
in the petition, certainly.
MR. BERGER: That's certainly true, as the--I believe
in the--either in the petition or in the petitioner's--
SCALIA J: I mean, it may be true, but I didn't know we
were going to have to grapple with it.
GINSBURG J: Well, my only point is, we don't--we are
making an assumption that the jury went on the takings
claim when there's no basis for that. I mean, how much
can we make up?
*40 REHNQUIST J: Well, the petitioner framed the
question he chose to put it in terms of regulatory
takings and not to challenge the equal protection.
MR. BERGER: Your Honor, I believe that the verdict
form did distinguish between the equal protection and the
takings, and that the jury found that there was a
violation--
GINSBURG J: Then I could understand this case, but if
it was just a general verdict, so we don't know--
MR. BERGER: It was general within the takings realm,
so that we have these unanswered questions of which prong
of the Agins formulation the jury may or may not have
ruled on, and how they determined what the amount of
compensation was.
GINSBURG J: As long as they found both, the jury found
both, then I have no problem with it.
MR. BERGER: The jury found both, Your Honor.
QUESTION: Well, it found both equal protection and
takings.
GINSBURG J: Yes.
QUESTION: But within the takings--
MR. BERGER: That's right.
STEVENS J: This is the concern I have. I hope you'll
address it a little. The first prong within the taking is
not substantially advance legitimate State *41 interest
and I gather, given the judge's finding that there was no
substantive due process violation, it was nonarbitrary,
we're saying that something can be nonarbitrary that does
not substantially advance legitimate State interests.
MR. BERGER: Yes, Your Honor, that's the way it looks
here.
STEVENS J: And I frankly had not--I was here during--I
had thought that that former prong meant totally
irrational, but I guess it's--I guess there's some
intermediate area between being nonarbitrary and not
substantially advancing.
MR. BERGER: Well, it seems to me, Justice Stevens,
that this case may be an excellent example of that kind
of a determination, as I think that the court of appeals
properly analyzed.
What we had here was a jury examining whether it was a
reasonable way to achieve the city's environmental goals
to completely frustrate the development of this property,
and the jury decided that that was such an extreme
misconnection between ends and means that it failed to
substantially advance legitimate State interests.
STEVENS J: Even though it was not arbitrary.
MR. BERGER: Even though you could say that *42 there
was a reason--
QUESTION: Yes.
MR. BERGER:--why they did it.
KENNEDY J: Of course, I suppose we could sustain your
verdict by saying the judge was wrong and the jury was
right.
MR. BERGER: If the Court wanted to do that we'd
certainly--
QUESTION: But you--
KENNEDY J: Even if the two standards are the same.
QUESTION: Is it in that--
STEVENS J: But I don't think we could say that,
because you did not appeal from the judge's holding. I
think we have to accept--assume that for purposes of this
case the judge was right.
MR. BERGER: That's correct.
QUESTION: Maybe he wasn't, but it seems to me that's
the way it comes to us.
MR. BERGER: Justice Stevens, you're correct that we
did not appeal from the due process holding. As it turns
out in hindsight, if we had appealed the Ninth Circuit's
intervening decision in Armendariz would have resulted in
a conclusion that we had no due process claim in any
event, but that's--
*43 KENNEDY J: On the jury trial issue there's been
some mention in the brief that the judge would have
discretion to submit this to the jury anyway, and so
maybe that issue isn't before us, either.
But assuming the question is before us whether or not
there is a right to jury trial, what is the best case you
have for the proposition that there is, that there is a
right to jury trial on this issue under 1983?
MR. BERGER: The--well, there are no cases from this
Court, I believe, that has directly dealt with a--the
right to a jury trial in a 1983 case.
QUESTION: Ah--excuse me. Go ahead.
MR. BERGER: There are two cases that this Court has
decided.
KENNEDY J: Chauffeurs and Terry and Tull, are those
the two you have?
MR. BERGER: Chauffeurs is a good discussion of the
jury trial analysis. The cases that I was thinking of
were Jett v. Dallas Independent School District and
Hetzel v. Prince William County, both of them 1983 cases.
In Jett this Court determined that after the district
court decided a question of law as to who the appropriate
decisionmaker was in a municipality then the remainder of
the determination of liability, whether that
decisionmaker's actions resulted in section 1983
liability *44 would be decided by the jury.
In the Hetzel case, decided I think this last term,
this Court reversed a determination by the Seventh
Circuit when the Seventh Circuit attempted to reduce a
jury verdict and this Court said you can't do that. They
had a right to have a jury determine this issue, and the
court of appeals cannot arbitrarily--
O'CONNOR J: Well, I would have thought we'd look to
the Seventh Amendment in a Federal court case to decide
whether a jury should decide a particular issue or case,
and not to section 1983. I mean, there's no indication,
is there, that the drafters of section 1983 were trying
to tinker with what the Seventh Amendment required and
say every case could go to a jury at plaintiff's option?
MR. BERGER: Well, they certainly wouldn't have had any
inclination to tinker with the Seventh Amendment, Justice
O'Connor, if that's your--
O'CONNOR J: No. I mean, it just--I don't know, I
thought your argument on that was very strange, and that
we should look to the Seventh Amendment for what goes to
a jury.
MR. BERGER: Your Honor, I'm sorry that it struck the
Court as strange, but I was doing that because of this
Court's earlier decisions, which said that the first
thing to examine in determining whether there's a *45
jury trial right is the statute, and only after having
exhausted the statute do we turn to the Seventh Amendment
itself.
That's why in our brief we analyzed it both ways as
did, I believe, the court of appeals here, and concluded
that the drafters of section 1983, when they said that a
plaintiff at his or her option could file an action at
law or a suit in equity or some other appropriate
proceeding, was giving the plaintiff the right to
choose--
QUESTION: Oh, but I would think you'd--
MR. BERGER:--the kind of action he wanted.
O'CONNOR J: Yes, but you'd have to look at this
temporary takings claim and try to analogize it to
something to figure out whether there's a right to a jury
trial or not. I don't think you'd derive that from the
face of 1983.
MR. BERGER: Not from the face of 1983.
QUESTION: No.
REHNQUIST J: In the Jett case that you referred to and
the other--did the court look at it, the jury trial
right, as a statutory thing, or did they analyze it in
terms of the Seventh Amendment?
MR. BERGER: The Hetzel case was clearly a Seventh
Amendment analysis. The Jett case I believe was a *46
1983 analysis.
REHNQUIST J: The--1983 required a jury trial.
MR. BERGER: I can't push it that far, Your Honor. The
court didn't directly deal with the question of whether
the statute required a jury trial.
What the Court dealt with was how to divide the issues
in the case to determine whether a judge decided the
issues or a jury decided the issues, and what the Court
decided was that the jury would decide liability once the
judge had determined as a matter of law which municipal
official was the actual decision-making body.
BREYER J: Is it the case at the trial that when the
second half, that the city's decision to reject the
plaintiff's unit did not substantially advance a
legitimate public purpose--that was the second half of
the basic instruction. Did your opponents say, judge, we
don't want to submit that to the jury?
MR. BERGER: Your Honor, all of the jury instructions
were drafted by the city.
QUESTION: Well then--
MR. BERGER: Everything the city wanted they got.
QUESTION: How are they saying now that the error is
that it was submitted to the jury, if they didn't object?
*47 GINSBURG J: Didn't they object to a jury trial in
the beginning?
MR. BERGER: They did object to the trial, yes.
GINSBURG J: To the whole thing?
MR. BERGER: Yes.
GINSBURG J: To the whole thing, okay.
MR. BERGER: That's correct.
BREYER J: Now, was there an element in this case, when
you get back to the details of the case, which had to do
not with whether or not as a matter of law the city's
decision was reasonable or not, but as to what factually
happened?
That is, was there bad faith? Was an official saying,
I don't--I want to protect the butterfly, or was saying I
don't want to protect the butterfly, but reality, that
was his motive, or--was there a factual element to this,
or was it simply a matter of the lawfulness of a city's,
or the reasonableness of a set of facts that were not in
dispute?
MR. BERGER: Justice Breyer, let me try answering it
this way, because bad faith per se was not an issue that
was raised directly in the trial.
What the jury got was the entire history of this case
from the time that the first application was filed in
1981, the entire 5-year history of administrative *48
proceedings from 1981 through 1986, all of the trips that
were made to the planning commission, all of the
revisions that were requested, all of the revisions that
were made, and they heard the biologist who was
processing the reclamation plan on behalf of the
developer testify about what he did, how he worked with
the city staff, with the coastal commission staff, how
they accepted and incorporated all of the suggestions
that were made by any of the expert agencies, unless
they, for example, conflicted with one of the other
city's requirements.
I remember one place in the--
GINSBURG J: Mr. Yuhas--may I just interrupt to clarify
what Mr. Yuhas said, and if this is wrong please tell me,
that the motive, bad faith and motive were not made
issues in this case?
MR. BERGER: That is correct, Justice Ginsburg. Motive
was not an issue that was submitted to the jury.
GINSBURG J: And what was submitted to the jury was
either-or, and can you explain to me now why it doesn't
make any difference that we don't know whether it was the
substantially justified or the no economic value that the
jury in fact determined?
MR. BERGER: Well, I believe, Justice Ginsburg, it
doesn't make any difference, because, as the court of
appeals explained, the evidence amply supports both
prongs *49 of that Agins test, and therefore whichever
way the jury went, and they may well have gone both ways,
it's supported by the evidence in the record.
QUESTION: Mr. Berger--
O'CONNOR J: Well, how is it amply supported if the
Ninth Circuit says that there's no arbitrariness within
the meaning of the Due Process Clause? That's where we
get tangled up.
MR. BERGER: I think, Justice O'Connor, it has to do
with the level of examination that goes on in a due
process case as opposed to a takings case.
QUESTION: What if we assumed--
O'CONNOR J: How is it different in your view, the
inquiry of the substantial relationship to a legitimate
city purpose? How does that really differ from the
essential due process inquiry?
MR. BERGER: I believe that the essential due process
inquiry simply looks on its face at what the city said it
was doing, and if the city said we are basing this
determination on our conclusion that we need to protect
this habitat for a butterfly that nobody's ever seen
there, then that is sufficient to get the city past the
extremely low threshold of review that happens in a due
process case.
I think when the matter gets submitted to a *50
determination of whether there's a substantial
advancement of legitimate State interest, the jury in
this case or a judge if it didn't go to a jury would be
entitled to look at what the city is trying to
accomplish--that is, to set up a butterfly preserve--and
look at the means that it adopted to get there,
essentially total frustration of the use of this 36 1/2
acre parcel of property, and say, is this an appropriate
way to achieve that end as a matter of fact, and I think
that that's a different level of examination than you'd
get when you just look at, what is the city's
rationalization for what it was doing.
SOUTER J: But if we read Agins the way Justice Stevens
said he remembered, or he thought was intended, then we
really would have a conflict, wouldn't we, because
Justice Stevens--I hope I don't misstate him, but he said
that he thought of the Agins test, or had at one point
thought of the Agins test as being essentially an
absolute irrationality kind of test, and if that's the
case, then we really would have a conflict between what
the court found and what the jury was--would have
apparently found here.
MR. BERGER: It would appear that way, Justice Souter,
although I have to say that the trial judge at the time
that he made that ruling expressly said that he didn't
find it to be in conflict.
*51 STEVENS J: No, certainly one can draw--I mean, the
language is different, and maybe I just--you know, I
didn't understand what was going on at the time.
(Laughter.)
STEVENS J: But the other question, I'd like to have
you comment just to be sure I don't--you have a full
opportunity.
Your opponent has said it's perfectly clear that they
could not have relied on the denying economically viable
use of the land because he sold it for several million
dollars. What is your response to that?
MR. BERGER: My response is that this is a temporary
taking case, and that there was a period of time that the
jury found that this property had no use and no
particular value to a private property owner.
The fact that they actually sold the property at some
later date--
STEVENS J: But wouldn't that always be true in any
case in which time is required to make a zoning decision?
There's always going to be a period where you can't start
construction while they make up their mind and there's a
total denial--is that the same? Is there a difference
between that and what happened here?
MR. BERGER: Sure. The difference, and I agree with
you, Justice Stevens, because that's what the Court *52
said in First English, that there is this period of delay
during normal planning, although I think that the
developer here in 5 years went sort of overboard in the
normal planning process trying to find something that
would satisfy the city.
But what we have here, as the trial court instructed
the jury, that they should focus their attention in
awarding damages for a temporary taking from the time in
1986 when the permit was finally denied, the fifth permit
application was denied, until sometime between then and
the date of trial, so that it wasn't that normal period
of planning and waiting and trying to get permits that
was compensated in this case. The developer was
essentially told, that's your problem. You're going
to--you went through all that process. You'll have to
take the heat for that one.
But from the time the city denied the permit in 1986,
from there forward the jury was instructed to determine
what the period of delay was in allowing these people to
make some productive use of either their property or its
monetary equivalent, and to find a monetary equivalent
and award it.
QUESTION: Mr. Berger--
MR. BERGER: That's what they did.
SCALIA J: Could I ask about the--coming back *53 to
the jury question, the objection to the jury request, did
that go to use of the jury for any of the issues in the
case?
MR. BERGER: I believe it did, Your Honor.
SCALIA J: Including the equal protection?
MR. BERGER: I believe so, although, like Your Honor,
I--
GINSBURG J: Well, if that were the case the objection
wouldn't be sufficient if a jury would be appropriate for
the equal protection claim, even though it was not
appropriate for the taking claim, I suppose.
MR. BERGER: If it was not appropriate across the
board--
GINSBURG J: Yes.
MR. BERGER:--it certainly would not have been.
GINSBURG J: Yes.
GINSBURG J: But you don't remember--as I remember, the
position was, this action is not triable to a jury. This
action, equal protection, due process taking, goes to a
judge. I think that was--
MR. BERGER: I believe it was across the board that the
objection was raised.
GINSBURG J: That was my recollection.
MR. BERGER: The Fifth Amendment is a critically *54
important part of the Constitution. It was applied in
this case. It was enforced in this case. As this Court
said very recently in the Dolan case the Fifth Amendment
is not to be considered as some sort of poor relation in
the Bill of Rights. It is just as important as the First
Amendment or the Fourth Amendment.
The reason that it's important is that people like
this developer need to know that when they are dealing
with their regulating local government agencies that
their rights are protected, that they can't be simply
strung along and abused at the city's whim.
I think, looking at the record in this case as the
court of appeals laid it out, what you have here is a
pattern of abuse, if you will, and I think the jury was
entitled to look at that pattern that existed from 1981
when the first application for use of this land was made.
The judiciary in general and this Court in particular
remains the only hope of these kind of people.
CHIEF JUSTICE REHNQUIST: Thank you. Thank you, Mr.
Berger. The case is submitted.
(Whereupon, at 11:03 a.m., the case in the
above-entitled matter was submitted.)
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