526 U.S. 687
Argued Oct. 7, 1998.
Decided May 24, 1999.
687 Syllabus [FN*]
FN* The syllabus
constitutes no part of the opinion of the Court but has been prepared by
the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,
337, 26 S.Ct. 282, 50 L.Ed. 499.
petitioner city imposed more rigorous demands each of the five times it
rejected applications to develop a parcel of land owned by respondent Del
Monte Dunes and its predecessor in interest, Del Monte Dunes brought this
suit under 42 U.S.C. § 1983. The
District Court submitted the case to the jury on Del Monte Dunes' theory
that the city effected a regulatory taking or otherwise injured the
property by unlawful acts, without paying compensation or providing an
adequate postdeprivation remedy for the loss.
The court instructed the jury to find for Del Monte Dunes if it
found either that Del Monte Dunes had been denied all economically viable
use of its property or that the city's decision to reject the final
development proposal did not substantially advance a legitimate public
purpose. The jury found for Del Monte Dunes. In affirming, the Ninth Circuit ruled, inter alia, that
the District Court did not err in allowing Del Monte Dunes' takings claim
to be tried to a jury, because Del Monte Dunes had a right to a jury trial
under § 1983; that whether
Del Monte Dunes had been denied all economically viable use of the
property and whether the city's denial of the final proposal substantially
advanced legitimate public interests were, on the facts of this case,
questions suitable for the jury; and
that the jury reasonably could have decided each of these questions in Del
Monte Dunes' favor.
judgment is affirmed.
F.3d 1422, affirmed.
KENNEDY delivered the opinion of the Court, except as to Part IV-A-2,
The Ninth Circuit's discussion of the rough-proportionality standard of
Dolan v. City of Tigard, 512 U.S. 374, 391, 114 S.Ct. 2309, 129
L.Ed.2d 304, is irrelevant to this Court's disposition of the case.
Although this Court believes the Dolan standard is inapposite to a
case such as this one, the jury instructions did not mention
proportionality, let alone require the jury to find for Del Monte Dunes
unless the city's actions were roughly proportional to its asserted
rough-proportionality discussion, furthermore, was unnecessary to
sustain the jury's verdict, given the Ninth Circuit's holding that Del
Monte Dunes had proffered evidence sufficient to rebut
688 each of the city's reasons for denying the final
development plan. P.
In holding that the jury could have found the city's denial of the final
development plan not reasonably related to legitimate public interests,
the Ninth Circuit did not impermissibly adopt a rule allowing wholesale
interference by judge or jury with municipal land-use policies, laws, or
routine regulatory decisions. As
the city itself proposed the essence of the jury instructions, it cannot
now contend that these instructions
did not provide an accurate statement of the law.
In any event, the instructions are consistent with this Court's
previous general discussions of regulatory takings liability. See, e.g., Agins v. City of Tiburon, 447 U.S. 255, 260,
100 S.Ct. 2138, 65 L.Ed.2d 106.
Given that the city did not challenge below the applicability or
continued viability of these authorities, the Court declines the
suggestions of amici to revisit them.
To the extent the city contends the District Court's judgment was
based upon a jury determination of the reasonableness of its general
zoning laws or land-use policies, its argument can be squared neither with
the jury instructions nor the theory on which the case was tried, which
were confined to the question whether, in light of the case's history and
context, the city's particular decision to deny Del Monte Dunes' final
development proposal was reasonably related to the city's proffered
justifications. To the
extent the city argues that, as a matter of law, its land‑use
decisions are immune from judicial scrutiny under all circumstances, its
position is contrary to settled regulatory takings principles and is
rejected. Pp. 1635-1637.
The District Court properly submitted the question of liability on Del
Monte Dunes' regulatory takings claim to the jury.
Pp. 1637-1639, 1642-645.
The propriety of such submission depends on whether Del Monte Dunes had a
statutory or constitutional right to a jury trial, and, if it did, the
nature and extent of the right.
Because § 1983 does not itself confer the jury right when it
authorizes "an action at law" to redress deprivation of a
federal right under color of state law, the constitutional question must
be reached. The Court's interpretation of the Seventh Amendment -- which
provides that "[i]n Suits at common law, ... the right of trial by
jury shall be preserved" -- has been guided by historical analysis
comprising two principal inquiries: (1)
whether the cause of action either was tried at law at the time of the
founding or is at least analogous to one that was, and (2) if so, whether
the particular trial decision must fall to the jury in order to preserve
the substance of the common-law right as it existed in 1791.
Markman v. Westview Instruments, Inc., 517 U.S. 370, 376, 116 S.Ct.
1384, 134 L.Ed.2d 577. Pp.
(b) Del Monte Dunes' § 1983 suit is an action at law for Seventh
Amendment purposes. Pp.
That Amendment applies not only to common-law causes of action but also to
statutory causes of action analogous to common-law causes of action
ordinarily decided in English law courts in the late 18th century, as
opposed to those customarily heard by courts of equity or admiralty.
E.g., Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340,
348, 118 S.Ct. 1279, 140 L.Ed.2d 438.
A § 1983 suit seeking legal relief is an action at law within the Seventh
Amendment's meaning. It
is undisputed that when the Amendment was adopted there was no action
equivalent to § 1983. It
is settled law, however, that the Amendment's jury guarantee extends to
statutory claims unknown to the common law, so long as the claims can be
said to "soun[d] basically in tort," and seek legal relief.
Curtis v. Loether, 415 U.S. 189, 195‑196, 94 S.Ct. 1005, 39
L.Ed.2d 260. There can
be no doubt that § 1983 claims sound in tort.
See, e.g., Heck v. Humphrey, 512 U.S. 477, 483, 114 S.Ct. 2364, 129
L.Ed.2d 383. Here Del
Monte Dunes sought legal relief in the form of damages for the
unconstitutional denial of just compensation.
Damages for a constitutional violation are a legal remedy.
See, e.g., Teamsters v. Terry, 494 U.S. 558, 570, 110 S.Ct. 1339,
108 L.Ed.2d 519. Pp.
The particular liability issues were proper for determination by the jury.
In making this determination, the Court looks to history to determine
whether the particular issues, or analogous ones, were decided by judge or
by jury in suits at common law at the time the Seventh Amendment was
adopted. Where history does not provide a clear answer, the Court looks to
precedent and functional considerations.
Markman, supra, at 384, 116 S.Ct. 1384.
There is no precise analogue for the specific test of liability submitted
to the jury in this case,
although some guidance is provided by the fact that, in suits sounding in
tort for money damages, questions of liability were usually decided by the
jury, rather than the judge. P.
None of the Court's regulatory takings precedents has addressed the proper
allocation of liability determinations between judge and jury in explicit
terms. In Williamson
County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S.
172, 191, 105 S.Ct. 3108, 87 L.Ed.2d 126, the Court assumed the propriety
of submitting to the jury the question whether a county planning
commission had denied the plaintiff landowner all economically viable use
of the property. However,
because Williamson is not a direct holding, further guidance must be found
in considerations of process and function.
690 In actions at law otherwise within the purview of the
Seventh Amendment, the issue whether a landowner has been deprived of all
economically viable use of his property is for the jury.
The issue is predominantly factual, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct.
158, 67 L.Ed. 322, and in actions at law such issues are in most cases
allocated to the jury, see, e.g., Baltimore & Carolina Line, Inc. v.
Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 79 L.Ed. 1636.
Although the question whether a land-use decision substantially advances
legitimate public interests is probably best understood as a mixed
question of fact and law, here, the narrow question submitted to the jury
was whether, when viewed in light of the context and protracted history of
the development application process, the city's decision to reject a
particular development plan bore a reasonable relationship to its
proffered justifications. This
question was essentially fact-bound in nature, and thus was properly
submitted to the jury. P. 1644.
This Seventh Amendment holding is limited in various respects:
It does not address the jury's role in an ordinary inverse
condemnation suit, or attempt a precise demarcation of the respective
provinces of judge and jury in determining whether a zoning decision
substantially advances legitimate governmental interests that would extend
to other contexts. Del
Monte Dunes' argument was not that the city had followed its zoning
ordinances and policies but rather that it had not done so.
As is often true in § 1983 actions, the disputed questions were
whether the government had denied a constitutional right in acting outside
the bounds of its authority, and, if so, the extent of any resulting
damages. These were
questions for the jury. Pp.
KENNEDY, joined by THE CHIEF JUSTICE, Justice STEVENS, and Justice THOMAS,
concluded in Part IV‑A‑2 that the city's request to create an
exception to the general Seventh Amendment rule governing § 1983 actions
for claims alleging violations of the Fifth Amendment Takings Clause must
be rejected. Pp. 1639-1642.
This Court has declined in other contexts to classify § 1983 actions
based on the nature of the underlying right asserted, and the city
provides no persuasive justification for adopting a different rule for
Seventh Amendment purposes. P.
Even when analyzed not as a § 1983 action simpliciter, but as a § 1983
action seeking redress for an uncompensated taking, Del Monte Dunes' suit
remains an action at law. Contrary
to the city's submission, a formal condemnation proceeding -- as to which
the Court has said there is no constitutional jury right, e.g., United
States v. Reynolds, 397 U.S. 14, 18, 90 S.Ct. 803, 25 L.Ed.2d 12 -- is not
the controlling analogy here. That
analogy is rendered
691 inapposite by fundamental differences between a
condemnation proceeding and a § 1983 action to redress an uncompensated
taking. Most important,
when the government initiates condemnation proceedings, it concedes the
landowner's right to receive just compensation and seeks a mere
determination of the amount of compensation due.
Liability simply is not an issue.
This difference renders the analogy not only unhelpful but
inapposite. See, e.g., Bonaparte v. Camden & Amboy R. Co., 3 F.
Cas. 821, 829 (No. 1, 617) (CC NJ).
Moreover, when the government condemns property for public use, it
provides the landowner a forum for seeking just compensation
as is required by the Constitution.
See First English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304, 316, 107 S.Ct. 2378, 96 L.Ed.2d 250.
If the condemnation proceedings do not, in fact, deny the landowner
just compensation, the government's actions are neither unconstitutional
nor unlawful. E.g.,
Williamson, supra, at 195, 105 S.Ct. 3108.
In this case, however, Del Monte Dunes was denied not only its
property but also just compensation or even an adequate forum for seeking
it. In these
circumstances, the original understanding of the Takings Clause and
historical practice support the conclusion that the cause of action sounds
in tort and is most analogous to the various actions that lay at common
law to recover damages for interference with property interests.
In such common-law actions, there was a right to trial by jury.
See, e.g., Feltner, supra, at 349, 118 S.Ct. 1279.
The city's argument that because the Constitution allows the
government to take property for public use, a taking for that purpose
cannot be tortious or unlawful, is rejected.
When the government repudiates its duty to provide just
compensation, see, e.g., First English, supra, at 315, 107 S.Ct. 2378, it
violates the Constitution, and its actions are unlawful and tortious.
The Seventh Amendment provides respondents with a right to a jury trial on
their § 1983 claim. All
§ 1983 actions must be treated alike insofar as that right is concerned. Section 1983 establishes a unique, or at least distinctive,
cause of action, in that the legal duty which is the basis for relief is
ultimately defined not by the claim-creating statute itself, but by an
extrinsic body of law to which the statute refers, namely "federal
rights elsewhere conferred." Baker
v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433. The
question before the Court then is not what common-law action is most
analogous to some generic suit seeking compensation for a Fifth Amendment
taking, but what common‑law action is most analogous to a § 1983
claim. This Court has
concluded that all § 1983 claims should be characterized in the same way,
Wilson v. Garcia, 471 U.S. 261, 271-272, 105 S.Ct. 1938, 85 L.Ed.2d 254,
as tort actions for the recovery of damages for personal injuries, id., at
276, 105 S.Ct. 1938. Pp.
2. It is clear that a § 1983 cause of action for damages is a tort action
for which jury trial would have been provided at common law.
See, e.g., Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 39
L.Ed.2d 260. Pp. 1647-1648.
The trial court properly submitted the particular issues raised by
respondents' § 1983 claim to the jury.
The question whether they were deprived of all economically viable
use of their property presents primarily a question of fact appropriate
for jury consideration. As
to the question whether petitioner's rejection of respondents' building
plans substantially advanced a legitimate public purpose, the subquestion
whether the government's asserted basis for its challenged action
represents a legitimate state interest was properly removed from the
jury's cognizance, but the subquestion whether that legitimate state
interest is substantially furthered by the challenged government action
is, at least in the highly particularized context of the present case, a
jury question. Pp. 1648-1649.
J., announced the judgment of the Court and delivered the opinion for a
unanimous Court with respect to Parts I and II, the opinion of the Court
with respect to Parts III, IV‑A‑1, IV‑B, IV‑C, and
V, in which REHNQUIST, C. J., and STEVENS, SCALIA, and THOMAS, JJ.,
joined, and an opinion with respect to Part IV‑A‑2, in which
REHNQUIST, C. J., and STEVENS and THOMAS, JJ., joined.
SCALIA, J., filed an opinion concurring in part and concurring in
the judgment. SOUTER,
J., filed an opinion concurring in part and dissenting in part, in which
O'CONNOR, GINSBURG, and BREYER, JJ., joined.
A. Yuhas, San Francisco, CA, for petitioner.
Edwin S. Kneedler, Washington, DC, for
the United States as amicus curiae, by special leave of the Court.
M. Berger, Santa Monica, CA, for the respondent.
U.S. Supreme Court Briefs See:
WL 297462 (Pet.Brief)
WL 457674 (Resp.Brief)
WL 596784 (Reply.Brief)
WL 290370 (Amicus.Brief)
WL 290372 (Amicus.Brief)
WL 297454 (Amicus.Brief)
WL 297459 (Amicus.Brief)
WL 297460 (Amicus.Brief)
WL 297461 (Amicus.Brief)
WL 308006 (Amicus.Brief)
WL 419410 (Amicus.Brief)
WL 430027 (Amicus.Brief)
WL 435969 (Amicus.Brief)
WL 438519 (Amicus.Brief)
WL 438520 (Amicus.Brief)
WL 438521 (Amicus.Brief)
WL 438522 (Amicus.Brief)
Transcript of Oral Argument See:
WL 721087 (U.S.Oral.Arg.)
Justice KENNEDY delivered the opinion of the Court, except as to Part IV-A-2.
case began with attempts by the respondent, Del Monte Dunes, and its
predecessor in interest to develop a parcel of land within the
jurisdiction of the petitioner, the
694 city of Monterey.
The city, in a series of repeated rejections, denied proposals to
develop the property, each time imposing more rigorous demands on the
developers. Del Monte
Dunes brought suit in the United States District Court for the Northern
District of California, under Rev. Stat. § 1979, 42 U.S.C. § 1983.
After protracted litigation, the case was submitted to the jury on
Del Monte Dunes' theory that the city effected a regulatory taking or
otherwise injured the property by unlawful acts, without paying
compensation or providing an adequate postdeprivation remedy for the loss.
The jury found for Del Monte Dunes, and the Court of Appeals
petitioner contends that the regulatory takings claim should not have been
decided by the jury and that the Court of Appeals adopted an erroneous
standard for regulatory takings liability.
We need not decide all of the questions presented by the
petitioner, nor need we examine each of the points given by the Court of
Appeals in its decision to affirm.
The controlling question is whether, given the city's apparent
concession that the instructions were a correct statement of the law, the
matter was properly submitted to the jury. We conclude that it was, and
that the judgment of the Court of Appeals should be affirmed.
property which respondent and its predecessor in interest
(landowners) sought to develop was a 37.6 acre ocean-front parcel
located in the city of Monterey, at or near the city's boundary to the
north, where Highway 1 enters. With the exception of the ocean and a state park
located to the northeast, the parcel was virtually surrounded by a
railroad right-of-way and properties devoted to industrial, commercial,
and multifamily residential uses.
The parcel itself was zoned for multifamily residential use under
the city's general zoning ordinance.
The parcel had not been untouched by its urban and industrial proximities.
A sewer line housed in 15-foot man-made dunes covered with jute
matting and surrounded by snow fencing traversed the property.
Trash, dumped in violation of the law, had accumulated on the
premises. The parcel
had been used for many years by an oil company as a terminal and tank farm
where large quantities of oil were delivered, stored, and reshipped.
When the company stopped using the site, it had removed its oil
tanks but left behind tank pads, an industrial complex, pieces of pipe,
broken concrete, and oil-soaked sand. The company had introduced nonnative
ice plant to prevent erosion and to control soil conditions around the oil
tanks. Ice plant
secretes a substance that forces out other plants and is not compatible
with the parcel's natural flora.
By the time the landowners sought to develop the property, ice
plant had spread to some 25 percent of the parcel, and, absent human
intervention, would continue to advance, endangering and perhaps
eliminating the parcel's remaining natural vegetation.
natural flora the ice plant encroached upon included buckwheat, the
natural habitat of the endangered Smith's Blue Butterfly. The butterfly lives for one week, travels a maximum of
200 feet, and must land on a mature, flowering buckwheat plant to survive.
Searches for the butterfly from 1981 through 1985 yielded but a
single larva, discovered in 1984.
No other specimens had been found on the property, and the parcel
was quite isolated from other possible habitats of the butterfly.
1981 the landowners submitted an application to develop the property in
conformance with the city's zoning and general plan requirements. Although the zoning requirements permitted the
development of up to 29 housing units per acre, or more than 1,000 units
for the entire parcel, the landowners' proposal was limited to 344
residential units. In
1982 the city's planning commission denied the application
696 but stated that a proposal for 264 units would receive
favorable consideration. In
keeping with the suggestion, the landowners submitted a revised proposal
for 264 units. In late
1983, however, the planning commission again denied the application.
The commission once more requested a reduction in the scale of the
development, this time saying a plan for 224 units would be received with
favor. The landowners
returned to the drawing board and prepared a proposal for 224 units,
which, its previous statements notwithstanding, the planning commission
denied in 1984. The
landowners appealed to the city council, which overruled the planning
commission's denial and referred the project back to the commission, with
instructions to consider a proposal for 190 units.
landowners once again reduced the scope of their development proposal to
comply with the city's request, and submitted four specific, detailed site
plans, each for a total of 190 units for the whole parcel. Even so, the planning commission rejected the
landowners' proposal later in 1984. Once more the landowners appealed to
the city council. The
council again overruled the commission, finding the proposal conceptually
satisfactory and in conformance with the city's previous decisions
regarding, inter alia, density, number of units, location on the property,
and access. The council
then approved one of the site plans, subject to various specific
conditions, and granted an 18-month conditional use permit for the
landowners spent most of the next year revising their proposal and taking
other steps to fulfill the city's conditions.
Their final plan, submitted in 1985, devoted 17.9 of the 37.6 acres
to public open space (including a public beach and areas for the
restoration and preservation of the buckwheat habitat), 7.9 acres to open,
landscaped areas, and 6.7 acres to public and private streets (including
public parking and access to the beach).
Only 5.1 acres were allocated to buildings and patios.
The plan was designed, in accordance with 697 the city's
demands, to provide the public with a beach, a buffer zone between the
development and the adjoining state park, and view corridors so the
buildings would not be visible to motorists on the nearby highway;
the proposal also called for restoring and preserving as much of
the sand dune structure and buckwheat habitat as possible consistent with
development and the city's requirements.
detailed review of the proposed buildings, roads, and parking facilities,
the city's architectural review committee approved the plan. Following
hearings before the planning commission, the commission's professional
staff found the final plan addressed and substantially satisfied the
city's conditions. It
proposed the planning commission make specific findings to this effect and
recommended the plan be approved.
January 1986, less than two months before the landowners' conditional use
permit was to expire, the planning commission rejected the recommendation
of its staff and denied the development plan.
The landowners appealed to the city council, also requesting a
12‑month extension of their permit to allow them time to attempt to
comply with any additional requirements the council might impose.
The permit was extended until a hearing could be held before the
city council in June 1986. After
the hearing, the city council denied the final plan, not only declining to
specify measures the landowners could take to satisfy the concerns raised
by the council but also refusing to extend the conditional use permit to
allow time to address those concerns.
The council's decision, moreover, came at a time when a sewer
moratorium issued by another agency would
have prevented or at least delayed development based on a new plan.
council did not base its decision on the landowners' failure to meet any
of the specific conditions earlier prescribed by the city. Rather, the council made general findings that the
landowners had not provided adequate access for the development (even
though the landowners had twice
698 changed the specific access plans to comply with the city's
demands and maintained they could satisfy the city's new objections if
granted an extension), that the plan's layout would damage the environment
(even though the location of the development on the property was
necessitated by the city's demands for a public beach, view corridors, and
a buffer zone next to the state park), and that the plan would disrupt the
habitat of the Smith's Blue Butterfly (even though the plan would remove
the encroaching ice plant and preserve or restore buckwheat habitat on
almost half of the property, and even though only one larva had ever been
found on the property).
five years, five formal decisions, and 19 different site plans, 10 Tr.
1294-1295 (Feb. 9, 1994), respondent Del Monte Dunes decided the city
would not permit development of the property under any circumstances. Del Monte Dunes commenced suit against the city in the
United States District Court for the Northern District of California under
42 U.S.C. § 1983, alleging, inter alia, that denial of the final
development proposal was a violation of the Due Process and Equal
Protection provisions of the Fourteenth Amendment and an uncompensated,
and so unconstitutional, regulatory taking.
District Court dismissed the claims as unripe under Williamson County
Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172,
105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), on the grounds that Del Monte Dunes
had neither obtained a definitive decision as to the development the city
would allow nor sought just compensation in state court.
The Court of Appeals reversed.
920 F.2d 1496 (C.A.9 1990).
After reviewing at some length the history of attempts to develop
the property, the court found that to require additional proposals would
implicate the concerns about repetitive and unfair procedures expressed in
MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 350, n. 7,
106 S.Ct. 2561, 91 L.Ed.2d 285 (1986),
699 and that the city's decision was sufficiently final to
render Del Monte Dunes' claim ripe for review.
920 F.2d, at 1501-1506.
The court also found that because the State of California had not
provided a compensatory remedy for temporary regulatory takings when the
city issued its final denial, see First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378,
96 L.Ed.2d 250 (1987), Del Monte Dunes was not required to pursue relief
in state court as a precondition to federal relief.
See 920 F.2d, at 1506-1507.
remand, the District Court determined, over the city's objections, to
submit Del Monte Dunes' takings and equal protection claims to a jury but
to reserve the substantive due process claim for decision by the court.
Del Monte Dunes argued to the jury that, although the city had a
right to regulate its property, the combined effect of the city's various
demands -- that the development be invisible from the highway, that a
buffer be provided between the development and the state park, and that
the public be provided with a beach -- was to force development into the
"bowl" area of the parcel.
As a result, Del Monte Dunes argued, the city's subsequent decision
that the bowl contained sensitive buckwheat habitat which could not be
disturbed blocked the development of any portion of the property.
See 10 Tr. 1288-1294, 1299-1302, 1317 (Feb. 9, 1994).
While conceding the legitimacy of the city's stated regulatory
purposes, Del Monte Dunes emphasized the tortuous and protracted history
of attempts to develop the property, as well as the shifting and sometimes
inconsistent positions taken by the city throughout the process, and
argued that it had been treated in an unfair and irrational manner.
Del Monte Dunes also submitted evidence designed to undermine the
validity of the asserted factual premises for the city's denial of the
final proposal and to suggest that the city had considered buying, or
inducing the State to buy, the property for
700 public use as early as 1979, reserving some money for this
purpose but delaying or abandoning its plans for financial reasons. See
id., at 1303-1306. The
State of California's purchase of the property during the pendency of the
litigation may have bolstered the credibility of Del Monte Dunes'
the close of argument, the District Court instructed the jury it should
find for Del Monte Dunes if it found either that Del Monte Dunes had been
denied all economically viable use of its property or that "the
city's decision to reject the plaintiff's 190 unit development proposal
did not substantially advance a legitimate public purpose."
App. 303. With
respect to the first inquiry, the jury was instructed, in relevant part,
purpose of a taking claim, you will find that the plaintiff has been
denied all economically viable use of its property, if, as the result of
the city's regulatory decision there remains no permissible or beneficial
use for that property. In
proving whether the plaintiff has been denied all economically viable use
of its property, it is not enough that the plaintiff show that after the
challenged action by the city the property diminished in value or that it
would suffer a serious economic loss as the result of the city's
With respect to the second inquiry, the jury received the following
bodies, such as the city, have the authority to take actions which
substantially advance legitimate public interest[s] and legitimate public
interest[s] can include protecting the environment, preserving open space
agriculture, protecting the health and safety of its citizens, and
regulating the quality of the community by looking at development.
So one of your jobs as jurors is to decide if the city's decision
here substantially advanced any such legitimate public purpose.
regulatory actions of the city or any agency substantially advanc [e] a
legitimate public purpose if the action bears a reasonable relationship to
"Now, if the preponderance of the evidence establishes that
there was no reasonable relationship between the city's denial of the ...
proposal and legitimate public purpose, you should find in favor of the
plaintiff. If you find
that there existed a reasonable relationship between the city's decision
and a legitimate public purpose, you should find in favor of the city. As long as the regulatory action by the city
substantially advances their legitimate public purpose, ... its underlying
motives and reasons are not to be inquired into."
Id., at 304.
The essence of these
instructions was proposed by the city.
See Tr. 11 (June 17,
The jury delivered a
general verdict for Del Monte Dunes on its takings claim, a separate
verdict for Del Monte Dunes on its equal protection claim, and a damages
award of $1.45 million. Tr.
2 (Feb. 17, 1994). After
the jury's verdict, the District Court ruled for the city on the
substantive due process claim, stating that its ruling was not
inconsistent with the jury's verdict on the equal protection or the
takings claim. App. to
Pet. for Cert. A‑39. The court later denied the city's motions for a
new trial or for judgment as a matter of law.
The Court of Appeals
affirmed. 95 F.3d 1422 (C.A.9
1996). The court first
ruled that the District Court did not err in allowing Del Monte Dunes'
regulatory takings claim to be tried to a jury, id., at 1428, because Del
Monte Dunes had a right to a jury trial under § 1983, id., at
1426‑1427, and whether Del Monte Dunes had been denied all
economically viable use of the property and whether the city's denial of
the final proposal substantially advanced legitimate public interests
were, on the facts of this case, questions suitable for the jury, id., at
1430. The court ruled
that sufficient evidence had been presented to the jury from which it
702 could have decided each of these questions in Del Monte
Dunes' favor. Id., at
upholding the verdict on the regulatory takings claim was sufficient to
support the award of damages, the court did not address the equal
protection claim. Id., at 1426.
presented in the city's petition for certiorari were
(1) whether issues of liability were properly submitted to the jury
on Del Monte Dunes' regulatory takings claim, (2) whether the Court of
Appeals impermissibly based its decision on a standard that allowed the
jury to reweigh the reasonableness of the city's land-use decision, and
(3) whether the Court of Appeals erred in assuming that the
rough‑proportionality standard of Dolan v. City of Tigard, 512 U.S.
374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), applied to this case.
We granted certiorari, 523 U.S. 1045 (1998), and now address these
questions in reverse order.
In the course of
holding a reasonable jury could have found the city's denial of the final
proposal not substantially related to legitimate public interests, the
Court of Appeals stated: "[e]ven
if the City had a legitimate interest in denying Del Monte's development
application, its action must be 'roughly proportional' to furthering that
interest .... That is, the City's denial must be related 'both in nature
and extent to the impact of the proposed development.' "
95 F.3d, at 1430, quoting Dolan, supra, at 391, 114 S.Ct. 2309.
Although in a general sense concerns for proportionality
animate the Takings Clause, see Armstrong v. United States, 364 U.S. 40,
49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960) ("The Fifth Amendment's
guarantee ... was designed to bar the Government from forcing some people
alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole"), we have not extended the rough-proportionality
test of Dolan beyond the special context of exactions -- land-use
decisions conditioning approval of development on the dedication of
property to public use. See
Dolan, supra, at 385, 114 S.Ct. 2309;
Nollan v. California Coastal Comm'n, 483 U.S. 825, 841, 107 S.Ct.
3141, 97 L.Ed.2d 677 (1987).
703 The rule applied in Dolan considers whether dedications
demanded as conditions of development are proportional to the
development's anticipated impacts.
It was not designed to address, and is not readily applicable to,
the much different questions arising where, as here, the landowner's
challenge is based not on excessive exactions but on denial of
believe, accordingly, that the rough-proportionality test of Dolan is
inapposite to a case such as this one.
The instructions given
to the jury, however, did not mention proportionality, let alone require
it to find for Del Monte Dunes unless the city's actions were roughly
proportional to its asserted interests.
The Court of Appeals' discussion of rough proportionality, we
conclude, was unnecessary to its decision to sustain the jury's verdict.
Although the court stated that "[s]ignificant evidence
supports Del Monte's claim that the City's actions were disproportional to
both the nature and extent of the impact of the proposed
development," 95 F.3d, at 1432, it did so only after holding that
"Del Monte provided evidence sufficient to rebut each of these
reasons [for denying the final proposal]. Taken together, Del Monte argued that the City's reasons for
denying their application were invalid and that it unfairly intended to
forestall any reasonable development of the Dunes. In light of the evidence proffered by Del Monte, the
City has incorrectly argued that no rational juror could conclude that the
City's denial of Del Monte's application lacked a sufficient nexus with
its stated objectives." Id.,
Given this holding,
it was unnecessary for the Court of Appeals to discuss rough
it did so is irrelevant to our disposition of the case.
The city challenges
the Court of Appeals' holding that the jury could have found the city's
denial of the final development
704 plan not reasonably related to legitimate public interests.
Although somewhat obscure, the city's argument is not cast as a
challenge to the sufficiency of the evidence; rather, the city maintains
that the Court of Appeals adopted a legal standard for regulatory takings
liability that allows juries to second-guess public land-use policy.
As the city itself proposed the essence of the instructions given
to the jury, it cannot now contend that the instructions did not provide
an accurate statement of the law.
In any event, although this Court has provided neither a definitive
statement of the elements of a claim for a temporary regulatory taking nor
a thorough explanation of the nature or applicability of the requirement
that a regulation substantially advance legitimate public interests
outside the context of required dedications or exactions, cf., e.g.,
Nollan, supra, at 834-835, n. 3, 107 S.Ct. 3141, we note that the trial
court's instructions are consistent with our previous general discussions
of regulatory takings liability.
See Dolan, supra, at 385, 114 S.Ct. 2309;
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016, 112
S.Ct. 2886, 120 L.Ed.2d 798 (1992); Yee
v. Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992);
Nollan, supra, at 834, 107 S.Ct. 3141;
Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 485,
107 S.Ct. 1232, 94 L.Ed.2d 472 (1987);
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126,
106 S.Ct. 455, 88 L.Ed.2d 419 (1985);
Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65
L.Ed.2d 106 (1980). The
city did not challenge below the applicability or continued viability of
the general test for regulatory takings liability recited by these
authorities and upon which the jury instructions appear to have been
modeled. Given the posture of the case before us, we decline the
suggestions of amici to revisit these precedents.
To the extent the city
contends the judgment sustained by the Court of Appeals was based upon a
jury determination of the reasonableness of its general zoning laws or
land-use policies, its argument can be squared neither with the
instructions given to the jury nor the theory on which the case was tried. The instructions did not ask the jury whether the city's
zoning ordinances or policies were unreasonable
705 but only whether "the City's decision to reject the
plaintiff's 190 unit development proposal did not substantially advance a
legitimate public purpose," App. 303, that is, whether "there
was no reasonable relationship between the city's denial of the ...
proposal and legitimate public purpose." Id., at 304, 100 S.Ct. 2138.
Furthermore, Del Monte Dunes' lawyers were explicit in conceding
that "[t]his case is not about the right of a city, in this case the
city of Monterey, to regulate land."
10 Tr. 1286 (Feb. 9, 1994).
See also id., at 1287 (proposals were made " keeping in mind
various regulations and requirements, heights, setbacks, and densities and
all that. That's not
what this case is about"); id.,
at 1287-1288 ("They have the right to set height limits. They have the right to talk about where they want
access. That's not what
this case is about. We
all accept that in today's society, cities and counties can tell a land
owner what to do to some reasonable extent with their property").
Though not presented for review, Del Monte Dunes' equal protection
argument that it had received treatment inconsistent with zoning decisions
made in favor of owners of similar properties, and the jury's verdict for
Del Monte Dunes on this claim, confirm the understanding of the jury and
Del Monte Dunes that the complaint was not about general laws or
ordinances but about a particular zoning decision.
regarding the city's decision also did not allow the jury to consider the
reasonableness, per se, of the customized, ad hoc conditions imposed on
the property's development, and Del Monte Dunes did not suggest otherwise.
On the contrary, Del Monte Dunes disclaimed this theory of the case
in express terms: "Del
Monte Dunes partnership did not file this lawsuit because they were
complaining about giving the public the beach, keeping it [the
development] out of the view shed, devoting and [giving] to the State all
this habitat area. One-third
[of the] property is going to be given away for the public use forever.
That's not what we filed the lawsuit about."
Id., at 1288; see also
id., at 1288-1289 706
(conceding that the city may "ask an owner to give away a
third of the property without getting a dime in compensation for it and
providing parking lots for the public and habitats for the butterfly, and
Rather, the jury was
instructed to consider whether the city's denial of the final proposal was
reasonably related to a legitimate public purpose. Even with regard to
this issue, however, the jury was not given free rein to second-guess the
city's land-use policies. Rather,
the jury was instructed, in unmistakable terms, that the various purposes
asserted by the city were legitimate public interests.
See App. 304.
The jury, furthermore,
was not asked to evaluate the city's decision in isolation but rather in
context, and, in particular, in light of the tortuous and protracted
history of attempts to develop the property.
See, e.g., 10 Tr. 1294-1295 (Feb. 9, 1994).
Although Del Monte Dunes was allowed to introduce evidence
challenging the asserted factual bases for the city's decision, it also
highlighted the shifting nature of the city's demands and the
inconsistency of its decision with the recommendation of its professional
staff, as well as with its previous decisions.
See, e.g., id., at 1300. Del Monte Dunes also introduced evidence
of the city's longstanding interest in acquiring the property for public
use. See, e.g., id., at
In short, the question
submitted to the jury on this issue was confined to whether, in light of
all the history and the context of the case, the city's particular
decision to deny Del Monte Dunes' final development proposal was
reasonably related to the city's proffered justifications.
This question was couched, moreover, in an instruction that had
been proposed in essence by the city, and as to which the city made no
Thus, despite the
protests of the city and its amici, it is clear that the Court of Appeals
did not adopt a rule of takings law allowing wholesale interference by
judge or jury with municipal land-use policies, laws, or routine
regulatory 707 decisions.
To the extent the city argues that, as a matter of law, its land-use
decisions are immune from judicial scrutiny under all circumstances, its
position is contrary to settled regulatory takings principles.
We reject this claim of error.
We next address
whether it was proper for the District Court to submit the question of
liability on Del Monte Dunes' regulatory takings claim to the jury. (Before the District Court, the city agreed it was proper for
the jury to assess damages. See
Supplemental Memorandum of Petitioner Re:
Court/Jury Trial Issues in No. C86-5042 (ND Cal.), p. 2, Record,
Doc. No. 111.) As the
Court of Appeals recognized, the answer depends on whether Del Monte Dunes
had a statutory or constitutional right to a jury trial, and, if it did,
the nature and extent of the right.
Del Monte Dunes asserts the right to a jury trial is conferred by
§ 1983 and by the Seventh Amendment.
Under our precedents, "[b]efore inquiring into the
applicability of the Seventh Amendment, we must 'first ascertain whether a
construction of the statute is fairly possible by which the
[constitutional] question may be avoided.' "
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 345,
118 S.Ct. 1279, 140 L.Ed.2d 438 (1998) (quoting Tull v. United States, 481
U.S. 412, 417, n. 3, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987));
accord Curtis v. Loether, 415 U.S. 189, 192, n. 6, 94 S.Ct. 1005,
39 L.Ed.2d 260 (1974).
The character of § 1983 is vital to our Seventh Amendment
analysis, but the statute does not itself confer the jury right.
See Feltner, supra, at 345, 118 S.Ct. 1279 (quoting Tull, supra,
at, 417, n. 3) ("[W]e cannot discern 'any congressional intent to
grant ... the right to a jury trial' "). Section 1983 authorizes a
party who has been deprived of a federal right under the color of state
law to seek relief through "an action at law, suit in equity, or
other proper proceeding for redress." Del Monte Dunes contends that the phrase "action
at law" is a 708 term of art implying a right to a jury trial.
We disagree, for this is not a necessary implication.
In Lorillard v. Pons,
434 U.S. 575, 583, 98 S.Ct. 866, 55 L.Ed.2d 40
(1978), we found a statutory right to a jury trial in part because
the statute authorized "legal ... relief." Our decision, however, did not rest solely on the
statute's use of the phrase but relied as well on the statute's explicit
incorporation of the procedures of the Fair Labor Standards Act, which had
been interpreted to guarantee trial by jury in private actions.
Id., at 580, 98 S.Ct. 866.
We decline, accordingly, to find
a statutory jury right under § 1983 based solely on the authorization of
"an action at law."
As a consequence, we must reach the constitutional question.
The Seventh Amendment provides that "[i]n Suits at common law,
where the value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved ... ." Consistent with the textual
mandate that the jury right be preserved, our interpretation of the
Amendment has been guided by historical analysis comprising two principal
inquiries. "[W]e ask,
first, whether we are dealing with a cause of action that either was tried
at law at the time of the founding or is at least analogous to one that
was." Markman v.
Westview Instruments, Inc., 517 U.S. 370, 376, 116 S.Ct. 1384, 134 L.Ed.2d
577 (1996). "If the action in question belongs in the law category,
we then ask whether the particular trial decision must fall to the jury in
order to preserve the substance of the common-law right as it existed in
With respect to the first inquiry, we have recognized that
"suits at common law" include "not merely suits, which the
common law recognized among its old and settled proceedings, but [also]
suits in which legal rights were to be ascertained and determined, in
contradistinction to those where equitable rights alone were recognized,
and equitable remedies were administered."
Parsons v. Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830). The
Seventh Amendment thus applies not only
709 to common-law causes of action but also to statutory causes
of action " 'analogous to common-law causes of action ordinarily
decided in English law courts in the late 18th century, as opposed to
those customarily heard by courts of equity or admiralty.' " Feltner,
supra, at 348, 118 S.Ct. 1279 (quoting Granfinanciera, S.A. v. Nordberg,
492 U.S. 33, 42, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989));
accord Curtis, supra, at 193, 94 S.Ct. 1005.
Del Monte Dunes
brought this suit pursuant to § 1983 to vindicate its constitutional
rights. We hold that a
§ 1983 suit seeking legal relief is an action at law within the meaning
of the Seventh Amendment. Justice
SCALIA's concurring opinion presents a comprehensive and convincing
analysis of the historical and constitutional reasons for this conclusion.
We agree with his analysis and conclusion.
It is undisputed that when the Seventh Amendment was adopted
there was no action equivalent to § 1983, framed in specific terms for
vindicating constitutional rights.
It is settled law, however, that the Seventh Amendment jury
guarantee extends to statutory claims unknown to the common law, so long
as the claims can be said to "soun[d] basically in tort," and
seek legal relief. Curtis,
415 U.S., at 195-196, 94 S.Ct. 1005.
As Justice SCALIA
explains, see post, at 1647-1649, there can be no doubt that claims
brought pursuant to § 1983 sound in tort.
Just as common-law tort actions provide redress for interference
with protected personal or property interests, § 1983 provides relief for
invasions of rights protected under federal law.
Recognizing the essential character of the statute, " '[w]e
have repeatedly noted that 42 U.S.C. § 1983 creates a species of tort
liability,' " Heck v.
Humphrey, 512 U.S. 477, 483, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)
(quoting Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305,
106 S.Ct. 2537, 91 L.Ed.2d 249 (1986)), and have interpreted the statute
in light of the "background of tort liability," Monroe v. Pape,
365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (overruled on other
grounds, Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978)); accord
Heck, supra, at 483, 114 S.Ct. 2364.
710 Our settled understanding of § 1983 and the Seventh
Amendment thus compel the conclusion that a suit for legal relief brought
under the statute is an action at law.
Here Del Monte
Dunes sought legal relief. It
was entitled to proceed in federal court under § 1983 because, at the
time of the city's actions, the State of California did not provide a
compensatory remedy for
temporary regulatory takings. See
First English 482 U.S., at 308-311, 107 S.Ct. 2378.
The constitutional injury alleged, therefore, is not that property
was taken but that it was taken without just compensation.
Had the city paid for the property or had an adequate
postdeprivation remedy been available, Del Monte Dunes would have suffered
no constitutional injury from the taking alone.
See Williamson, 473 U.S., at 194-195, 105 S.Ct. 3108.
Because its statutory action did not accrue until it was denied
just compensation, in a strict sense Del Monte Dunes sought not just
compensation per se but rather damages for the unconstitutional denial of
such compensation. Damages
for a constitutional violation are a legal remedy. See, e.g., Teamsters v.
Terry, 494 U.S. 558, 570, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990)
("Generally, an action for money damages was 'the traditional form of
relief offered in the courts of law' ") (quoting Curtis, supra, at
196, 94 S.Ct. 1005).
Even when viewed
as a simple suit for just compensation, we believe Del Monte Dunes' action
sought essentially legal relief. "We
have recognized the 'general rule' that monetary relief is legal."
Feltner, 523 U.S., at 352, 118 S.Ct. 1279 (quoting Teamsters v.
Terry, supra, at 570, 110 S.Ct. 1339).
Just compensation, moreover, differs from equitable restitution and
other monetary remedies available in equity, for in determining just
compensation, "the question is what has the owner lost, not what has
the taker gained." Boston
Chamber of Commerce v. Boston, 217 U.S. 189, 195, 30 S.Ct. 459, 54 L.Ed.
725 (1910). As its name
suggests, then, just compensation is, like ordinary money damages, a
compensatory remedy. The
Court has recognized that compensation is a purpose "traditionally
associated with legal
711 relief." Feltner,
supra, at 352, 118 S.Ct. 1279.
Because Del Monte Dunes' statutory suit sounded in tort and sought
legal relief, it was an action at law.
In attempt to avoid
the force of this conclusion, the city urges us to look not to the
statutory basis of Del Monte Dunes' claim but rather to the underlying
constitutional right asserted.
At the very least, the city asks us to create an exception to the
general Seventh Amendment rule governing § 1983 actions for claims
alleging violations of the Takings Clause of the Fifth Amendment.
See New Port Largo, Inc. v. Monroe County, 95 F.3d 1084 (C.A.11
1996) (finding, in tension with the Ninth Circuit's decision in this case,
that there is no right to a jury trial on a takings claim brought under §
1983). Because the
jury's role in estimating just compensation in condemnation proceedings
was inconsistent and unclear at the time the Seventh Amendment was
adopted, this Court has said "that there is no constitutional right
to a jury in eminent domain proceedings."
United States v. Reynolds, 397 U.S. 14, 18, 90 S.Ct. 803, 25
L.Ed.2d 12 (1970); accord,
Bauman v. Ross, 167 U.S. 548, 593, 17 S.Ct. 966, 42 L.Ed. 270 (1897). The city submits that the analogy to formal
condemnation proceedings is controlling, so that there is no jury right
As Justice SCALIA
notes, see post, at 1646-1647, we have declined in other contexts to
classify § 1983 actions based on the nature of the underlying right
asserted, and the city provides no persuasive justification for adopting a
different rule for Seventh Amendment purposes.
Even when analyzed not as a § 1983 action simpliciter, however,
but as a § 1983 action seeking redress for an uncompensated taking, Del
Monte Dunes' suit remains an action at law.
proceedings spring from the same Fifth Amendment right to compensation
which, as incorporated by the Fourteenth Amendment, is applicable here,
see First English, supra, at 315, 107 S.Ct. 2378 (citing Jacobs v. United
States, 290 U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed. 142 (1933)), a condemnation
action differs in important 712 respects from a § 1983 action to redress an
uncompensated taking. Most
important, when the government initiates condemnation proceedings, it
concedes the landowner's right to receive just compensation and seeks a
mere determination of the amount of compensation due.
Liability simply is not an issue.
As a result, even if condemnation proceedings were an appropriate
analogy, condemnation practice would provide little guidance on the
specific question whether Del Monte Dunes was entitled to a jury
determination of liability.
renders the analogy to condemnation proceedings not only unhelpful but
also inapposite. When
the government takes property without initiating condemnation proceedings,
it "shifts to the landowner the burden to discover the encroachment
and to take affirmative action to recover just compensation."
United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63
L.Ed.2d 373 (1980). Even
when the government does not dispute its seizure of the property or its
obligation to pay for it, the mere "shifting of the initiative from
the condemning authority to the condemnee" can place the landowner
"at a significant disadvantage."
Id., at 258, 100 S.Ct. 1127; cf. id., at 255, 100 S.Ct. 1127
("There are important legal and practical differences between an
inverse condemnation suit and a condemnation proceeding");
84 Stat.1906, § 304, 42 U.S.C. § 4654 (recognizing, at least
implicitly, the added burden by providing for recovery of attorney's fees
in cases where the government seizes property without initiating
condemnation proceedings but not in ordinary condemnation cases).
Where, as here, the government not only denies liability but fails
to provide an adequate postdeprivation remedy (thus refusing to submit the
question of liability to an impartial arbiter), the disadvantage to the
owner becomes all the greater.
At least in these circumstances, the analogy to ordinary
condemnation procedures is simply untenable.
Our conclusion is
confirmed by precedent. Early
authority finding no jury right in a condemnation proceeding did so
713 on the ground that condemnation did not involve the
determination of legal rights because liability was undisputed:
"We are therefore of opinion that the trial by jury is
preserved inviolate in the sense of the constitution, when in all criminal
cases, and in civil cases when a right is in controversy in a court of
law, it is secured to each party.
In cases of this description [condemnation proceedings], the right
to take, and the right to compensation, are admitted;
the only question is the amount, which may be submitted to any
impartial tribunal the legislature may designate."
Bonaparte v. Camden & Amboy Railroad Co., 3 F. Cas. 821, 829
(No. 1, 617) (CCD N.J. 1830) (Baldwin, Circuit Justice).
SOUTER's dissenting opinion takes issue with this distinction, its
arguments are unpersuasive. First,
it correctly notes that when the government initiates formal condemnation
procedures, a landowner may question whether the proposed taking is for
public use. The
landowner who raises this issue, however, seeks not to establish the
government's liability for damages, but to prevent the government from
taking his property at all. As
the dissent recognizes, the relief desired by a landowner making this
contention is analogous not to damages but to an injunction;
it should be no surprise, then, that the landowner is not entitled
to a jury trial on his entitlement to a remedy that sounds not in law but
in equity. Second, the
dissent refers to "the diversity of rationales underlying early state
cases in which the right of a direct condemnee to a jury trial was
considered and decided." Post,
at 1654. The dissent mentions only the rationale that because
the government is immune from suit for damages, it can qualify any remedy
it provides by dispensing with the right to a jury trial.
The cases cited for this proposition -- two state-court cases
antedating the adoption of the Fourteenth Amendment and an off-point
federal case -- do not implicate 714 the Fifth Amendment.
Even if the sovereign immunity rationale retains its vitality in
cases where this Amendment is applicable, cf.
First English, 482 U.S., at 316, n. 9, 107 S.Ct. 2378, it is
neither limited to nor coextensive with takings claims. Rather, it would apply to all constitutional suits
against the Federal Government or the States, but not to constitutional
suits such as this one against municipalities like the city of Monterey.
Third, the dissent contends that the distinction we have drawn is absent
from our condemnation cases. Even
if this were true -- and it is not obvious that it is -- equally absent
from those decisions is any analysis or principle that would extend beyond
the narrow context of direct condemnation suits to actions such as this
one. Rather, as
apparent even from the passages quoted by the dissent, see post, at 1651-1652
and n. 1, these cases rely only on the Court's perception of historical
English and Colonial practice in direct condemnation cases.
Nothing in these cases detracts from the authorities cited in this
opinion that do support the distinction we draw between direct
condemnation and a suit like this one. Finally, the existence of a different historical
practice distinguishes direct condemnation from an ordinary tort case in
which the defendant concedes liability.
See post, at 1654, n. 5.)
proceedings differ from the instant cause of action in another fundamental
respect as well. When
the government condemns property for public use, it provides the landowner
a forum for seeking just compensation, as is required by the Constitution. See First English, supra, at 316, 107 S.Ct. 2378.
If the condemnation proceedings do not, in fact, deny the landowner
just compensation, the government's actions are neither unconstitutional
nor unlawful. See
Williamson, 473 U.S., at 194, 105 S.Ct. 3108 ("The Fifth Amendment
does not proscribe the taking of property; it proscribes taking without just compensation").
Even when the government takes property without initiating
condemnation proceedings, there is no constitutional violation "
'unless or until the state fails to provide
715 an adequate postdeprivation remedy for the property loss.'
" Id., at 195, 105 S.Ct. 3108 (quoting Hudson v. Palmer, 468 U.S.
517, 532, n. 12, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). In this case, however, Del Monte Dunes was denied not
only its property but also just compensation or even an adequate forum for
seeking it. That is the
gravamen of the § 1983 claim.
circumstances, we conclude the cause of action sounds in tort and is most
analogous to the various actions that lay at common law to recover damages
for interference with property interests.
Our conclusion is consistent with the original understanding of the
Takings Clause and with historical practice.
Early opinions, nearly
contemporaneous with the adoption of the Bill of Rights, suggested that
when the government took property but failed to provide a means for
obtaining just compensation, an action to recover damages for the
government's actions would sound in tort.
See, e.g., Lindsay v. East Bay Street Commissioners, 2 Bay 38, 61
(S.C.1796) (opinion of Waties, J.) ("But suppose they could sue, what
would be the nature of the action?
It could not be founded on contract, for there was none.
It must then be on a tort; it
must be an action of trespass, in which the jury would give a reparation
in damages. Is not this acknowledging that the act of the
legislature [in authorizing uncompensated takings] is a tortious
act?") (emphases in original); Gardner
v. Village of Newburgh, 2 Johns.Ch. 162, 164, 166 (N.Y.1816) (Kent, Ch.)
(uncompensated governmental interference with property right would support
a tort action at law for nuisance).
Consistent with this
understanding, and as a matter of historical practice, when the government
has taken property without providing an adequate means for obtaining
redress, suits to recover just compensation have been framed as common-law
tort actions. See,
e.g., Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58
L.Ed. 1088 (1914) (nuisance); Pumpelly
v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557 (1871) (trespass on the
case); Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed.
672 (1833) (unspecified tort); Bradshaw
v. Rodgers, 20 Johns. 103 (N.Y.1882) (trespass).
716 Tort actions of these descriptions lay at common law, 3 W.
Blackstone, Commentaries on the Laws of England, ch. 12 (1768) (trespass;
trespass on the case); id.,
ch. 13 (trespass on the case for nuisance), and in these actions, as in
other suits at common law, there was a right to trial by jury, see, e.g.,
Feltner, 523 U.S., at 349, 118 S.Ct. 1279 ("Actions on the case, like
other actions at law, were tried before juries").
criticism of our reliance on these early authorities misses the point of
our analysis. We do not
contend that the landowners were always successful.
As the dissent makes clear, prior to the adoption of the Fourteenth
Amendment and the concomitant incorporation of the Takings Clause against the States, a variety of obstacles -- including
various traditional immunities, the lack of a constitutional right, and
the resulting possibility of legislative justification -- stood in the way
of the landowner who sought redress for an uncompensated taking.
Rather, our point is that the suits were attempted and were
understood to sound in tort. It is therefore ironic that the dissent invokes a law
review article discussing such suits entitled "The First
Constitutional Tort: The
Remedial Revolution in Nineteenth-Century State Just Compensation
Law." Post, at 1656- 1657 (citing Brauneis, 52 Vand. L.Rev. 57
(1999)). It is true, as
the dissenting opinion observes, that claims for just compensation were
sometimes brought in quasi contract rather than tort.
See, e.g., United States v. Lynah, 188 U.S. 445, 458-465, 23 S.Ct.
349, 47 L.Ed. 539 (1903) (overruled on other grounds, United States v.
Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 61 S.Ct. 772, 85 L.Ed.
1064 (1941)) (comparing claims for just compensation brought in
quasi-contract with just-compensation claims brought in tort).
The historical existence of quasi contract suits for just
compensation does nothing to undermine our Seventh Amendment analysis,
however, since quasi contract was frequently available to the victim of a
tort who elected to waive the tort and proceed 717 instead in quasi
contract. See, e.g., W.
Prosser, Law of Torts § 110 (1941).
In any event, quasi contract was itself an action at law.
See, e.g., 1 G. Palmer, Restitution §§ 1.2, 2.2-2.3 (1978);
F. Woodward, Quasi Contracts § 6 (1913).)
The city argues that
because the Constitution allows the government to take property for public
use, a taking for that purpose cannot be tortious or unlawful.
We reject this conclusion.
Although the government acts lawfully when, pursuant to proper
authorization, it takes property and provides just compensation, the
government's action is lawful solely because it assumes a duty, imposed by
the Constitution, to provide just compensation.
See First English, 482 U.S., at 315, 107 S.Ct. 2378 (citing Jacobs,
290 U.S., at 16, 54 S.Ct. 26).
When the government repudiates this duty, either by denying just
compensation in fact or by refusing to provide procedures through which
compensation may be sought, it violates the Constitution.
In those circumstances the government's actions are not only
unconstitutional but unlawful and tortious as well.
See Gardner v. Village of Newburgh, supra, at 166, 168 ("[T]o
render the exercise of the [eminent domain] power valid," the
government must provide landowner "fair compensation";
"[u]ntil, then, some provision be made for affording him
compensation, it would be unjust, and contrary to the first principles of
government" to deprive plaintiff of his property rights;
absent such a provision, the plaintiff "would be entitled to
his action at law for the interruption of his right");
Beatty v. United States, 203 F. 620, 626 (C.A.4 1913) ("The
taking of property by condemnation under the power of eminent domain is
compulsory. The party is deprived of his property against his will.
It is in effect a lawful trespass committed by the sovereign, and
lawful only on the condition that the damages inflicted by the trespass
are paid to the injured party. The analogy to a suit at common law for trespass is
close and complete").
718 (The argument that
an uncompensated taking is not tortious because the landowner seeks just
compensation rather than additional damages for the deprivation of a
remedy reveals the same misunderstanding.
Simply put, there is no constitutional or tortious injury until the
landowner is denied just compensation.
That the damages to which the landowner is entitled for this injury
are measured by the just compensation he has been denied is neither
surprising nor significant.)
Del Monte Dunes' § 1983 suit was an action at law, we must determine
whether the particular issues of liability were proper for determination
by the jury. See
Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134
L.Ed.2d 577 (1996). In actions at law, issues that are proper for the jury
must be submitted to it "to preserve the right to a jury's resolution
of the ultimate dispute," as guaranteed by the Seventh Amendment.
Id., at 377, 116 S.Ct.
1384. We determine
whether issues are proper for the jury, when possible, "by using the
historical method, much as we do in characterizing the suits and actions
within which [the issues] arise."
Id., at 378, 116 S.Ct. 1384.
We look to history to determine whether the particular issues, or
analogous ones, were decided by judge or by jury in suits at common law at
the time the Seventh Amendment was adopted.
Where history does not provide a clear answer, we look to precedent
and functional considerations. Id.,
at 384, 116 S.Ct. 1384.
Just as no exact
analogue of Del Monte Dunes' § 1983 suit can be identified at common law,
so also can we find no precise analogue for the specific test of liability
submitted to the jury in this case.
We do know that in suits sounding in tort for money damages,
questions of liability were decided by the jury, rather than the judge, in
most cases. This allocation preserved the jury's role in resolving
what was often
719 the heart of the dispute between plaintiff and defendant.
Although these general observations provide some guidance on the
proper allocation between judge and jury of the liability issues in this
case, they do not establish a definitive answer.
We look next to our existing precedents. Although this Court has decided many regulatory takings
cases, none of our decisions has addressed the proper allocation of
liability determinations between judge and jury in explicit terms.
This is not surprising.
Most of our regulatory takings decisions have reviewed suits
against the United States, see, e.g., United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985);
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452
U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), suits decided by state
courts, see, e.g., Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309,
129 L.Ed.2d 304 (1994); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112
S.Ct. 2886, 120 L.Ed.2d 798 (1992); Nollan
v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677
(1987); First English
Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S.
304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), or suits seeking only
injunctive relief, see, e.g., Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987).
It is settled law that the Seventh Amendment does not apply in
these contexts. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69
L.Ed.2d 548 (1981) (suits against the United States);
Curtis, 415 U.S., at 192, n. 6, 94 S.Ct. 1005 (suits brought in
state court); Parsons, 3
Pet., at 447, 7 L.Ed. 732 (suits seeking only equitable relief).
In Williamson, we did
review a regulatory takings case in which the plaintiff landowner sued a
county planning commission in federal court for money damages under §
1983. 473 U.S., at 182, 105
S.Ct. 3108. Whether the
commission had denied the plaintiff all economically viable use of the
property had been submitted to the jury.
Id., at 191, and n. 12, 105 S.Ct. 3108.
Although the Court did not consider the point, it assumed the
propriety of this procedure. E.g.,
id., at 191, 105 S.Ct. 3108 ("It is not clear whether the jury would
have found that the respondent had
720 been denied all reasonable beneficial use of the property
had any of the eight objections been met through the grant of a variance
.... Accordingly, until the Commission determines that no variances will
be granted, it is impossible for the jury to find, on this record, whether
respondent 'will be unable to derive economic benefit' from the
Williamson is not a
direct holding, however, and we must look for further guidance.
We turn next to considerations of process and function.
In actions at law
predominantly factual issues are in most cases allocated to the jury.
See Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654,
657, 55 S.Ct. 890, 79 L.Ed. 1636 (1935).
The allocation rests on a firm historical foundation, see, e.g., 1
E. Coke, Institutes 155b (1628) ("ad quaestionem facti non respondent
judices; ad quaestionem
juris non respondent juratores"), and serves "to preserve
the right to a jury's resolution of the ultimate dispute," Markman,
supra, at 377, 116 S.Ct. 1384.
Almost from the
inception of our regulatory takings doctrine, we have held that whether a
regulation of property goes so far that "there must be an exercise of
eminent domain and compensation to sustain the act ... depends upon the
particular facts." Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 67 L.Ed. 322 (1922);
accord Keystone Bituminous Coal, supra, at 473‑474, 107 S.Ct.
1232. Consistent with
this understanding, we have described determinations of liability in
regulatory takings cases as " 'essentially ad hoc, factual
inquiries,' " Lucas, supra, at 1015, 112 S.Ct. 2886 (quoting Penn
Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57
L.Ed.2d 631 (1978)), requiring "complex factual assessments of the
purposes and economic effects of government actions," Yee, 503 U.S.,
at 523, 112 S.Ct. 1522.
with these pronouncements, we hold that the issue whether a landowner has
been deprived of all economically viable use of his property is a
predominantly factual question.
As our implied acknowledgment of the procedure in Williamson,
supra, suggests, in actions at law
721 otherwise within the purview of the Seventh Amendment, this
question is for the jury.
The jury's role
in determining whether a land-use decision substantially advances
legitimate public interests within the meaning of our regulatory takings
doctrine presents a more difficult question.
Although our cases make clear that this inquiry involves an
essential factual component, see Yee, supra, at 523, 112 S.Ct. 1522, it no
doubt has a legal aspect as well, and is probably best understood as a
mixed question of fact and law.
In this case, the
narrow question submitted to the jury was whether, when viewed in light of
the context and protracted history of the development application process,
the city's decision to reject a particular development plan bore a
reasonable relationship to its proffered justifications.
See Part III, supra. As
the Court of Appeals recognized, this question was "essentially fact-bound
[in] nature." 95 F.3d,
at 1430 (internal quotation marks omitted) (alteration by Court of
Appeals). Under these
circumstances, we hold that it was proper to submit this narrow, factbound
question to the jury.
We note the
limitations of our Seventh Amendment holding.
We do not address the jury's role in an ordinary inverse
condemnation suit. The
action here was brought under § 1983, a context in which the jury's role
in vindicating constitutional rights has long been recognized by the
federal courts. A
federal court, moreover, cannot entertain a takings claim under § 1983
unless or until the complaining landowner has been denied an adequate
postdeprivation remedy. Even
the State of California, where this suit arose, now provides a facially
adequate procedure for obtaining just compensation for temporary takings
such as this one. Our
decision is also circumscribed in its conceptual reach.
The posture of the case does not present an appropriate occasion to
define with precision the elements of a temporary regulatory takings
claim; although the city objected to submitting 722 issues of
liability to the jury at all, it approved the instructions that were
submitted to the jury and therefore has no basis to challenge them.
For these reasons, we
do not attempt a precise demarcation of the respective provinces of judge
and jury in determining whether a zoning decision substantially advances
legitimate governmental interests.
The city and its amici suggest that sustaining the judgment here
will undermine the uniformity of the law and eviscerate state and local
zoning authority by subjecting all land-use decisions to plenary, and
potentially inconsistent, jury review.
Our decision raises no such specter.
Del Monte Dunes did not bring a broad challenge to the
constitutionality of the city's general land-use ordinances or policies,
and our holding does not extend to a challenge of that sort.
In such a context, the determination whether the statutory purposes
were legitimate, or whether the purposes, though legitimate, were
furthered by the law or general policy, might well fall within the
province of the judge. Nor
was the gravamen of Del Monte Dunes' complaint even that the city's
general regulations were unreasonable as applied to Del Monte Dunes'
property; we do not address
the proper trial allocation of the various questions that might arise in
that context. Rather,
to the extent Del Monte Dunes' challenge was premised on unreasonable
governmental action, the theory argued and tried to the jury was that the
city's denial of the final development permit was inconsistent not only
with the city's general ordinances and policies but even with the shifting
ad hoc restrictions previously imposed by the city.
Del Monte Dunes' argument, in short, was not that the city had
followed its zoning ordinances and policies but rather that it had not
done so. As is often
true in § 1983 actions, the disputed questions were whether the
government had denied a constitutional right in acting outside the bounds
of its authority, and, if so, the extent of any resulting damages. These
were questions for the jury.
For the reasons
stated, the judgment of the Court of Appeals is affirmed.
It is so ordered.
concurring in part and concurring in the judgment.
I join all except Part
IV-A-2 of Justice KENNEDY's opinion.
In my view, all §
1983 actions must be treated alike insofar as the Seventh Amendment right
to jury trial is concerned; that
right exists when monetary damages are sought;
and the issues submitted to the jury in the present case were
properly sent there.
Rev. Stat. § 1979, 42
U.S.C. § 1983, creates a duty to refrain from interference with the
federal rights of others, and provides money damages and injunctive relief
for violation of that duty. Since
the statute itself confers no right to jury trial, such a right is to be
found, if at all, in the application to § 1983 of the Seventh Amendment,
which guarantees a jury "[i]n Suits at common law, where the value in
controversy shall exceed twenty dollars."
In determining whether a particular cause of action is a "[s]ui[t]
at common law" within the meaning of this provision, we must examine
whether it was tried at law in 1791 or is analogous to such a cause, see,
e.g., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S.Ct. 2782,
106 L.Ed.2d 26 (1989), and whether it seeks relief that is legal or
equitable in nature, see, e.g., Tull v. United States, 481 U.S. 412, 421,
107 S.Ct. 1831, 95 L.Ed.2d 365 (1987).
difference between my view of this case and Justice SOUTER's is that I
believe § 1983 establishes a unique, or at least distinctive, cause of
action, in that the legal duty which is the basis for relief is ultimately
defined not by the claim-creating statute itself, but by an extrinsic body
of law to which the statute refers, namely "federal
724 rights elsewhere conferred."
Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61
L.Ed.2d 433 (1979). In
this respect § 1983 is, so to speak, a prism through which many different
lights may pass. Unlike Justice SOUTER, I believe that, in analyzing
this cause of action for Seventh Amendment purposes, the proper focus is
on the prism itself, not on the particular ray that happens to be passing
through in the present case.
The Seventh Amendment
inquiry looks first to the "nature of the statutory action."
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 348,
118 S.Ct. 1279, 140 L.Ed.2d 438 (1998).
The only "statutory action" here is a § 1983 suit.
The question before us, therefore, is not what common-law action is
most analogous to some generic suit seeking compensation for a Fifth
Amendment taking, but what common-law action is most analogous to a §
1983 claim. The fact
that the breach of duty which underlies the particular § 1983 claim at
issue here -- a Fifth Amendment takings violation -- may give rise to
another cause of action besides a § 1983 claim, namely a so-called
inverse condemnation suit, which is (according to Part IV-A-2 of Justice
KENNEDY's opinion) or is not (according to Justice SOUTER's opinion)
entitled to be tried before a jury, seems
to me irrelevant. The
central question remains whether a § 1983 suit is entitled to a jury. The fortuitous existence of an inverse-condemnation
cause of action is surely not essential to the existence of the § 1983
claim. Indeed, for
almost all § 1983 claims arising out of constitutional violations, no
alternative private cause of action does exist -- which makes it
practically useful, in addition to being theoretically sound, to focus on
the prism instead of the refracted light.
This is exactly the
approach we took in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85
L.Ed.2d 254 (1985) -- an opinion whose analysis is so precisely in point
that it gives this case a distinct quality of deja vu. Wilson required us
to analogize § 1983 actions to common-law suits for a different purpose: not to determine applicability of the jury-trial right, but
to identify the relevant
725 statute of limitations.
Since no federal limitations period was provided, the Court had to
apply 42 U.S.C. § 1988(a), which stated that, in the event a federal
civil rights statute is "deficient in the provisions necessary to
furnish suitable remedies and punish offenses against law, the common law,
as modified and changed by the constitution and statutes of the State
wherein the court having jurisdiction of such civil or criminal cause is
held, so far as the same is not inconsistent with the Constitution and
laws of the United States, shall be extended to and govern the [federal]
courts in the trial and disposition of the cause ...." In applying
this provision, the Court identified as one of the steps necessary for its
analysis resolution of precisely the question I have been discussing here: "[W]e must ... decide whether all § 1983 claims should
be characterized in the same way, or whether they should be evaluated
differently depending upon the varying factual circumstances and legal
theories presented in each individual case."
471 U.S., at 268, 105 S.Ct. 1938.
The Court concluded (as I do here) that all § 1983 claims should
be characterized in the same way.
It said (as I have) that § 1983 was "a uniquely federal
remedy," and that it is "the purest coincidence ... when state
statutes or the common law provide for equivalent remedies;
any analogies to those causes of action are bound to be
imperfect." Id., at 271-272,
105 S.Ct. 1938 (citations,
footnotes, and internal quotation marks omitted).
And the Court was affected (as I am here) by the practical
difficulties of the other course, which it described as follows:
"Almost every § 1983 claim can be favorably analogized to
more than one of the ancient common-law forms of action, each of which may
be governed by a different statute of limitations. ...
"A catalog of ... constitutional claims that have been alleged
under § 1983 would encompass numerous and diverse topics and subtopics:
discrimination in public employment on the basis of race or the
exercise of First Amendment rights, discharge or demotion without
726 due process, mistreatment of schoolchildren, deliberate
indifference to the medical needs of prison inmates, the seizure of
chattels without advance notice or sufficient opportunity to be heard --
to identify only a few." Id.,
at 272-273, 105 S.Ct. 1938 (footnotes omitted).
For these reasons the
Court concluded that all § 1983 actions should be characterized as
"tort action[s] for the recovery of damages for personal
injuries." Id., at 276,
105 S.Ct. 1938.
To be sure, § 1988 is
not the Seventh Amendment. It
is entirely possible to analogize § 1983 to the "common law" in
one fashion for purposes of that statute, and in another fashion for
purposes of the constitutional guarantee.
But I cannot imagine why one would want to do that.
For both purposes it is a "unique federal remedy" whose
character is determined by the federal cause of action, and not by the
innumerable constitutional and statutory violations upon which that cause
of action is dependent. And
for both purposes the search for (often nonexistent) common-law analogues
to remedies for those particular violations is a major headache. Surely, the burden should be upon Justice SOUTER to
explain why a different approach is appropriate in the present context.
I adhere to the approach of Wilson, reaffirmed and refined in Owens
v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594
(1989), that a § 1983 action is a § 1983 action. [FN1]
FN1. Justice SOUTER
properly notes that "trial by jury is not a uniform feature of §
1983 actions." Post,
at 1659. This does not lead, however, to his desired conclusion
that all § 1983 actions can therefore not properly be analogized to tort
claims. Post, at 1654,
1658-1659. Before the
merger of law and equity, a contested right would have to be established
at law before relief could be obtained in equity. Thus, a suit in equity
to enjoin an alleged nuisance could not be brought
until a tort action at law established the right to relief.
See 1 J. High, Law of Injunctions 476-477 (2d ed. 1880).
Since the merger of law and equity, any type of relief, including
purely equitable relief, can be sought in a tort suit -- so that I can
file a tort action seeking only an injunction against a nuisance.
If I should do so, the fact that I seek only equitable relief would
disentitle me to a jury, see, e.g., Curtis v. Loether, 415 U.S. 189, 198,
94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Dairy Queen, Inc. v. Wood, 369 U.S.
469, 471, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962);
Parsons v. Bedford, 3 Pet. 433, 446‑447, 7 L.Ed. 732 (1830);
E. Re & J. Re, Cases and Materials on Remedies 46 (4th ed.1996)
-- but that would not render the nuisance suit any less a tort suit, so
that if damages were sought a jury would be required.
So also here: Some §
1983 suits do not require a jury because only equitable relief is sought.
But since they are tort suits, when damages are requested, as they are in
the present case, a jury must be provided.
Thus, the relief sought is an important consideration in the
Seventh Amendment inquiry, but contrary to Justice SOUTER's belief it is a
consideration separate from the determination of the analogous common-law
cause of action.
apply this methodology to the present case:
There is no doubt that the cause of action created by § 1983 is,
and was always regarded as, a tort claim.
Thomas Cooley's treatise on tort law, which was published roughly
contemporaneously with the enactment of § 1983, tracked Blackstone's
view, see 3 W. Blackstone, Commentaries on the Laws of England
115‑119 (1768), that torts are remedies for invasions of certain
rights, such as the rights to personal security, personal liberty, and
property. T. Cooley,
Law of Torts 2-3 (1880). Section
1983 assuredly fits that description. Like other tort causes of action, it is designed to
provide compensation for injuries arising from the violation of legal
duties, see Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 55 L.Ed.2d
252 (1978), and thereby, of course, to deter future violations.
Court has confirmed in countless cases that a § 1983 cause of action
sounds in tort. We have
stated repeatedly that § 1983 "creates a species of tort
liability," Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47
L.Ed.2d 128 (1976); see also Heck v. Humphrey, 512 U.S. 477, 483, 114 S.Ct. 2364,
129 L.Ed.2d 383 (1994); Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 305, 106 S.Ct. 2537, 91
L.Ed.2d 249 (1986); Smith v.
Wade, 461 U.S. 30, 34, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983);
Carey, supra, at 253, 98 S.Ct. 1042;
Hague v. Committee for Industrial Organization, 307 U.S. 496, 507,
59 S.Ct. 954, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.)
(describing a claim brought under a predecessor of § 1983 as
seeking relief for "tortious invasions of alleged civil rights by
persons acting under color
728 of state authority").
We have commonly described it as creating a "constitutional
tort," since violations of constitutional rights have been the most
frequently litigated claims. See
Crawford-El v. Britton, 523 U.S. 574, 600-601, 118 S.Ct. 1584, 140 L.Ed.2d
759 (1998); Jefferson v. City
of Tarrant, 522 U.S. 75, 78-79, 118 S.Ct. 481, 139 L.Ed.2d 433 (1997);
McMillian v. Monroe County, 520 U.S. 781, 784, 117 S.Ct. 1734, 138 L.Ed.2d
1 (1997); Richardson v.
McKnight, 521 U.S. 399, 401, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997);
Johnson v. Jones, 515 U.S. 304, 307, 115 S.Ct. 2151, 132 L.Ed.2d
238 (1995); Albright v.
Oliver, 510 U.S. 266, 269, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994);
Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d
277 (1991); St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S.Ct. 915, 99
L.Ed.2d 107 (1988); Daniels
v. Williams, 474 U.S. 327, 329, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986);
Memphis Community School Dist., supra, at 307, 106 S.Ct. 2537;
Smith, supra, at 35, 103 S.Ct. 1625;
Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
In Wilson v. Garcia, we explicitly identified § 1983 as a personal-injury
tort, stating that "[a] violation of [§ 1983] is an injury to the
individual rights of the person," and that
"Congress unquestionably would
have considered the remedies established in the Civil Rights Act [of
1871] to be more analogous to tort claims for personal injury than, for
example, to claims for damages to property or breach of contract."
471 U.S., at 277, 105 S.Ct. 1938.
described earlier, in Wilson, supra, and Okure, supra, we used § 1983's
identity as a personal-injury tort to determine the relevant statute of
limitations under 42 U.S.C. § 1988(a).
We have also used § 1983's character as a tort cause of action to
determine the scope of immunity, Kalina v. Fletcher, 522 U.S. 118,
124‑125, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997), the recoverable
damages, Heck, supra, at 483, 114 S.Ct. 2364; Memphis Community School
Dist., supra, at 305‑306, 106 S.Ct. 2537, and the scope of
liability, Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492
(1961). In Owen v. City
of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980),
we even asserted that the attributes of § 1983 could change to keep up
with modern developments in the law of torts:
"Doctrines of tort law have changed significantly over the
past century, and our notions of governmental responsibility should
properly reflect that evolution. ...
[ 729 T]he principle of
equitable loss-spreading has joined fault as a factor in distributing the
costs of official misconduct."
Seventh Amendment's right to jury trial attaches to a statutory cause of
action that, although unknown at common law, is analogous to common-law
causes that were tried before juries.
See, e.g., Feltner v. Columbia Pictures Television, Inc., 523 U.S.
340, 347-348, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998).
The initial Seventh Amendment question before us, therefore, is
whether a tort action seeking money damages was a "suit at common
law" for which a jury trial was provided.
The answer is obviously yes.
Common‑law tort actions were brought under the writs of
trespass and trespass on the case. See generally S.F.C. Milsom, Historical Foundations of
the Common Law 283-313 (2d ed.1981).
Trespass remedied direct, forcible tortious injuries, while the
later developed trespass on the case remedied indirect or consequential
harms. See, e.g., Dix,
Origins of the Action of Trespass on the Case, 46 Yale L.J. 1142, 1163
(1937); Krauss, Tort Law and Private Ordering, 35 St. Louis U.L.J.
623, 637, and n. 66 (1991). Claims
brought pursuant to these writs and seeking money damages were triable to
juries at common law. See,
e.g., T. Plucknett, A Concise History of the Common Law 125, 348 (4th
ed.1948); J. Baker, An
Introduction to English Legal History 59 (2d ed.1979).
It is clear from our cases that a tort action for money damages is
entitled to jury trial under the Seventh Amendment.
See Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 39 L.Ed.2d
260 (1974) (according jury trial because "[a] damages action under
[Title VIII of the Civil Rights Act of 1968] sounds basically in tort --
the statute merely defines a new legal duty, and authorizes the courts to
compensate a plaintiff for the injury caused by the defendant's wrongful
breach"); Pernell v.
Southall Realty, 416 U.S. 363, 370, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974)
("This Court has long assumed that ... actions for damages to a
person or property ... are actions at law triable to a jury");
Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 24 L.Ed.2d 729
(1970) 730 ("The Seventh
Amendment ... entitle[s] the parties to a jury trial in actions for
damages to a person or property ... ").
number of lower courts have held that a § 1983 damages action --
without reference to what might have been the most analogous common-law
remedy for violation of the particular federal right at issue -- must be
tried to a jury. See,
e.g., Caban‑Wheeler v. Elsea, 71 F.3d 837, 844 (C.A.11 1996); Perez-Serrano
v. DeLeon-Velez, 868 F.2d 30, 32-33 (C.A.1 1989);
Laskaris v. Thornburgh, 733 F.2d 260, 264 (C.A.3 1984);
Segarra v. McDade, 706 F.2d 1301, 1304 (C.A.4 1983);
Dolence v. Flynn, 628 F.2d 1280, 1282 (C.A.10 1980);
Amburgey v. Cassady, 507 F.2d 728, 730 (C.A.6 1974);
Brisk v. Miami Beach, 726 F.Supp. 1305, 1311-1312 (S.D.Fla.1989);
Ruth Anne M. v. Alvin Independent School Dist., 532 F.Supp. 460,
475 (S.D.Tex.1982); Mason v.
Melendez, 525 F.Supp. 270, 282 (W.D.Wis.1981);
Cook v. Cox, 357 F.Supp. 120, 124-125, and n. 4 (E.D.Va.1973).
sum, it seems to me entirely clear that a § 1983 cause of action for
damages is a tort action for which jury trial would have been provided at
common law. The right
of jury trial is not eliminated, of course, by virtue of the fact that,
under our modern unified system, the equitable relief of an injunction is
also sought. See, e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469,
479, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962);
Scott v. Neely, 140 U.S. 106, 109-110, 11 S.Ct. 712, 35 L.Ed. 358
(1891). Nor -- to
revert to the point made in Part I of this discussion -- is the tort
nature of the cause of action, and its entitlement to jury trial, altered
by the fact that another cause of action was available (an inverse
condemnation suit) to obtain the same relief.
Even if that were an equitable cause of action -- or, as Justice
SOUTER asserts, a peculiar legal cause of action to which the right to
jury trial did not attach -- the nature of the § 1983 suit would no more
be transformed by it than, for example, a common-law fraud action would be
deprived of the right to jury trial by the fact that
731 the defendant was a trustee who could, instead, have been
sued for an equitable accounting.
say that respondents had the right to a jury trial on their § 1983 claim
is not to say that they were entitled to have the jury decide every issue.
The precise scope of the jury's function is the second Seventh
Amendment issue before us here -- and there again, as we stated in Markman
v. Westview Instruments, Inc., 517 U.S. 370, 377, 116 S.Ct. 1384, 134
L.Ed.2d 577 (1996), history is our guide. I agree with the Court's methodology, see ante, at 1642-1643,
1643-1644, which, in the absence of a precise historical analogue,
recognizes the historical preference for juries to make primarily factual
determinations and for judges to resolve legal questions.
See Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654,
657, 55 S.Ct. 890, 79 L.Ed. 1636 (1935).
That fact-law dichotomy is routinely applied by the lower courts in
deciding § 1983 cases. For
instance, in cases alleging retaliatory discharge of a public employee in
violation of the First Amendment, judges determine whether the speech that
motivated the termination was constitutionally protected speech, while
juries find whether the discharge was caused by that speech.
See, e.g., Horstkoetter v. Department of Public Safety, 159 F.3d
1265, 1271 (C.A.10 1998). And
in cases asserting municipal liability for harm caused by unconstitutional
policies, judges determine whether the alleged policies were
unconstitutional, while juries find whether the policies in fact existed
and whether they harmed the plaintiff.
See, e.g., Myers v. County of Orange, 157 F.3d 66, 74-76 (C.A.2
1998), cert. denied, 525 U.S. 1146, 119 S.Ct. 1042, 143 L.Ed.2d 49 (1999).
the present case, the question of liability for a Takings Clause violation
was given to the jury to determine by answering two questions:
(1) whether respondents were deprived of "all economically
viable use" of their property, and (2) whether petitioner's 1986
rejection of respondents' building plans "substantially advance[d][a]
legitimate public interes [ 732
t]." I concur in the Court's assessment that the "economically
viable use" issue presents primarily a question of fact appropriate
for consideration by a jury. Ante,
at 1644. The second
question -- whether the taking " substantially advance[s][a]
legitimate public interes[t]" [FN2]
-- seems to me to break down (insofar as is relevant to the instructions
here) into two subquestions: (1)
Whether the government's asserted basis for its challenged action
represents a legitimate state interest.
That was a question of law for the court.
(2) Whether that legitimate state interest is substantially
furthered by the challenged government action.
I agree with the Court that at least in the highly particularized
context of the present case, involving the denial of a single application
for stated reasons, that was a question of fact for the jury.
As the matter was put to the jury in the present case, the first
subquestion was properly removed from the jury's cognizance:
the court instructed that "legitimate public interest[s] can
include protecting the environment, preserving open space agriculture,
protecting the health and safety of its citizens, and regulating the quality of the community by looking at
304. These included the
only public interests asserted in the case.
The second subquestion, on the other hand, was properly left to the
jury: "[O]ne of your
jobs as jurors is to decide if the city's decision here substantially
advanced any such legitimate public purpose." Ibid.;
see ante, at 1644.
FN2. As the Court
explains, petitioner forfeited any objection to this standard, see ante,
at 1635, and I express no view as to its propriety.
* * *
I conclude that the Seventh Amendment provides respondents
with a right to a jury trial on their § 1983 claim, and that the trial
court properly submitted the particular issues raised by that § 1983
claim to the jury. For these reasons, I concur in the judgment and join
all but Part IV‑A‑2 of Justice KENNEDY's opinion.
Justice SOUTER, with whom Justice O'CONNOR, Justice GINSBURG, and Justice
BREYER join, concurring in part and dissenting in part.
A federal court commits error by submitting an issue to a jury
over objection, unless the party seeking the jury determination has a
right to a jury trial on the issue. Fed.
Rule Civ. Proc. 39(a)(2). In
this action under Rev. Stat. § 1979, 42 U.S.C. § 1983, the city
unsuccessfully objected to submitting respondents' regulatory taking (or
inverse condemnation) claim to a jury. Respondents had no right to a jury
trial either by statute or under the Constitution;
the District Court thus erred in submitting their claim to a jury.
In holding to the contrary, that such a right does exist under the
Seventh Amendment, the Court misconceives a taking claim under § 1983 and
draws a false analogy between such a claim and a tort action.
I respectfully dissent from the erroneous Parts III and IV of the
I see eye to eye with the Court on some of the preliminary
issues. I agree in
rejecting extension of "rough proportionality" as a standard for
reviewing land-use regulations generally and so join Parts I and II of the
majority opinion. I
also join the Court in thinking the statutory language "an action at
law" insufficient to provide a jury right under 42 U.S.C. § 1983,
ante, at 1638, with the consequence that Markman v. Westview Instruments,
Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), must provide
the appropriate questions in passing on the issue of a constitutional
guarantee of jury trial: "
'whether we are dealing with a cause of action that either was tried at
law at the time of the founding or is at least analogous to one that was'
"; and, if so,
"whether the particular trial decision must fall to the jury in order
to preserve the substance of the common-aw right as it existed in
1791." Ante, at 1638
(quoting Markman, supra, at 376, 116 S.Ct. 1384).
The Court soundly concedes that at the adoption of the Seventh
Amendment there was no action like the modern inverse
734 condemnation suit for obtaining just compensation when the
government took property without invoking formal condemnation procedures.
Like the Court, I am accordingly remitted to a search for any
analogy that may exist and a consideration of any implication going to the
substance of the jury right that the results of that enquiry may raise.
But this common launching ground is where our agreement ends.
The city's proposed analogy of inverse condemnation
proceedings to direct ones is intuitively sensible, given their common
Fifth Amendment constitutional source and link to the sovereign's power of
eminent domain. Accord,
e.g., New Port Largo, Inc. v. Monroe County, 95 F.3d 1084, 1092 (C.A.11
1996) ("We have discovered no indication that the rule in regulatory
takings cases differs from the general eminent domain framework");
Northglenn v. Grynberg, 846 P.2d 175, 178 (Colo.1993)
("Because an inverse condemnation action is based on the 'takings'
clause of our constitution, it is to be tried as if it were an eminent
domain proceeding"). See
Grant, A Revolutionary View of the Seventh Amendment and the Just
Compensation Clause, 91 Nw. U.L.Rev. 144, 191-205 (1996).
The intuition is borne out by closer analysis of the
respective proceedings. The
ultimate issue is identical in both direct and inverse condemnation
actions: a determination of "the fair market value of the property [taken] on the date
it is appropriated," as the measure of compensation required by the
Fifth Amendment. Kirby Forest
Industries, Inc. v. United States, 467 U.S. 1, 10, 104 S.Ct. 2187, 81
L.Ed.2d 1 (1984). It
follows, as Justice Brandeis said in Hurley v. Kincaid, 285 U.S. 95, 52
S.Ct. 267, 76 L.Ed. 637 (1932), that "[t]he compensation which [a
property owner] may obtain in [an inverse condemnation] proceeding will be
the same as that which he might have been awarded had the [government]
instituted ... condemnation proceedings," id., at 104, 52 S.Ct. 267.
This, indeed, has been our settled understanding, in cases 735 before Hurley and after
Kirby Forest Industries, which have emphasized the common underlying
nature of direct and inverse condemnation cases; the commencement of inverse condemnation actions by property
owners, and direct condemnation proceedings by the government, does not go
to the substance of either. As
we said in First English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987):
" 'The fact
that condemnation proceedings were not instituted and that the right was
asserted in suits by the owners d[oes] not change the essential nature of
the claim. The form of
the remedy did not qualify the right.
It rested upon the Fifth Amendment.' "
Id., at 315, 107 S.Ct. 2378 (quoting Jacobs v. United States, 290
U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed. 142 (1933)).
Accord, Mississippi & Rum River Boom Co. v. Patterson, 98 U.S.
403, 407, 25 L.Ed. 206 (1878) ("The point in issue [in the inverse
condemnation proceeding] was the compensation to be made to the owner of
the land; in other words, the
value of the property taken.... The
case would have been in no essential particular different had the State
authorized the company by statute to appropriate the particular property
in question, and the owners to bring suit against the company in the
courts of law for its value").
It is presumably for this reason that this Court has described
inverse condemnation actions as it might speak of eminent domain
proceedings brought by property owners instead of the government.
See Agins v. City of Tiburon, 447 U.S. 255, 258, n. 2, 100 S.Ct.
2138, 65 L.Ed.2d 106 (1980) ("Inverse condemnation is 'a shorthand
description of the manner in which a landowner recovers just compensation
for a taking of his property when condemnation proceedings have not been
instituted' ") (quoting United States v. Clarke, 445 U.S. 253, 257,
100 S.Ct. 1127, 63 L.Ed.2d 373 (1980)).
See also Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct.
1563, 4 L.Ed.2d 1554 (1960); Grant,
supra, at 192‑193 ("The difference between condemnation and
inverse condemnation inheres precisely in the 'character' of
736 the former as United
States v. Landowner and the latter as Landowner v. United States ").
Thus, the analogy between direct and inverse condemnation is apparent
whether we focus on the underlying Fifth Amendment right or the common
remedy of just compensation.
The strength of the analogy is fatal to respondents' claim to
a jury trial as a matter of right.
Reaffirming what was already a well‑established principle,
the Court explained over a century ago that "the estimate of the just
compensation for property taken for the public use, under the right of
eminent domain, is not required to be made by a jury," Bauman v.
Ross, 167 U.S. 548, 593, 17 S.Ct. 966, 42 L.Ed. 270 (1897) (citing, inter
alia, Custiss v. Georgetown & Alexandria Turnpike Co., 6 Cranch 233, 3
L.Ed. 209 (1810); United States v. Jones, 109 U.S. 513, 519, 3 S.Ct. 346,
27 L.Ed. 1015 (1883); and
Shoemaker v. United States, 147 U.S. 282, 300, 301, 13 S.Ct. 361, 37 L.Ed.
170 (1893)), [FN1] 737 and we have since then thought it "long ... settled that
there is no constitutional right to a jury in eminent domain
States v. Reynolds, 397 U.S. 14, 18, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970).
[FN2] See 12 C. Wright, A.
Miller, & R. Marcus, Federal Practice and Procedure § 3051, p. 224
(1997) ("It is absolutely settled that there is no constitutional
right to a trial by jury in compensation cases").
FN1. In Bauman, the Court
upheld a statute (providing for condemnation of land for streets) that
contemplated a form of jury "differing from an ordinary jury in
consisting of less than twelve persons, and in not being required to act
with unanimity," and stated that the just compensation determination
"may be entrusted by Congress to commissioners appointed by a court
or by the executive, or to an inquest consisting of more or fewer men than
an ordinary jury." 167
U.S., at 593, 17 S.Ct. 966. The
Court relied upon prior cases that had assumed the absence of a
constitutional right to a jury determination of just compensation.
See, e.g., Shoemaker, 147 U.S., at 301-302, 304-305, 13 S.Ct. 361
(upholding statute providing for ascertainment of the value of condemned
land by three presidentially appointed commissioners);
Jones, 109 U.S., at 519, 3
S.Ct. 346 ("The proceeding for the ascertainment of the value
of the property and consequent compensation to be made, is merely an
inquisition to establish a particular fact as a preliminary to the taking;
and it may be prosecuted before commissioners or special boards or
the courts, with or without the intervention of a jury, as the legislative
power may designate"). See
also Kohl v. United States, 91 U.S. 367, 376, 23 L.Ed. 449 (1875)
("That [the right of eminent domain] was not enforced through the
agency of a jury is immaterial; for
many civil as well as criminal proceedings at common law were without a
jury"); Crane v. Hahlo,
258 U.S. 142, 147, 42 S.Ct. 214, 66 L.Ed. 514 (1922) ("[T]he
reference of such a question [determining the amount of compensation],
especially in eminent domain proceedings, to a commission, or board, or
sheriff's jury, or other non-judicial tribunal, was so common in England
and in this country prior to the adoption of the Federal Constitution that
it has been held repeatedly that it is a form of procedure within the
power of the State to provide").
FN2. Similarly, the
Due Process Clause of the Fourteenth Amendment does not require a jury
trial in state condemnation proceedings.
See, e.g., Long Island Water-Supply Co. v. Brooklyn, 166 U.S. 685,
694, 17 S.Ct.
718, 41 L.Ed. 1165 (1897); Crane,
supra, at 147, 42 S.Ct. 214; Dohany
v. Rogers, 281 U.S. 362, 369, 50 S.Ct. 299, 74 L.Ed. 904 (1930).
The reason that direct condemnation proceedings carry no jury
right is not that they fail to qualify as "Suits at common-law"
within the meaning of the Seventh Amendment's guarantee, for we may assume
that they are indeed common law proceedings, [FN3] see Kohl v. United
States, 91 U.S. 367, 376, 23 L.Ed. 449 (1876) ("The right of eminent
domain always was a right at common law");
Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25,
28, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) ("[A]n eminent domain
proceeding is deemed for certain purposes of legal classification a 'suit
at common law' "). The
reason there is no right to
738 jury trial, rather, is that the Seventh Amendment "preserve[s]"
the common law right where it existed at the time of the framing, but does
not create a right where none existed then. See U.S. Const., Amdt. 7
("In Suits at common law ... the right of trial by jury shall be
also 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice ¶
38.32 , p. 38-268 (2d ed. 1996)
("[T]he Seventh Amendment does not guarantee a jury trial in all
common law actions in the federal courts;
[instead] it preserves the right of jury trial as at common
law"). There is no
jury right, then, because condemnation proceedings carried "no
uniform and established right to a common law jury trial in England or the
colonies at the time ... the Seventh Amendment was adopted."
Ibid. See, e.g., Atlas Roofing Co. v. Occupational Safety and
Health Review Comm'n, 430 U.S. 442, 458, 97 S.Ct. 1261, 51 L.Ed.2d 464
(1977) ("Condemnation was a suit at common law but constitutionally
could be tried without a jury").
The statement in Reynolds indeed expressly rested on these
considerations, as shown in the Court's quotation of Professor Moore's
statement that "[t]he practice in England and in the colonies prior
to the adoption in 1791 of the Seventh Amendment, the position taken by
Congress contemporaneously with, and subsequent to, the adoption of the
Amendment, and the position taken by the Supreme Court and nearly all of
the lower federal courts lead
to the conclusion that there is no constitutional right to jury trial in
the federal courts in an action for the condemnation of property under the
power of eminent domain." Reynolds,
supra, at 18, 90 S.Ct. 803 (quoting 5 J. Moore, Federal Practice ¶
38.32, p. 239 (2d ed.1969) (internal quotation marks omitted)).
Several commentators and courts have advanced theories that a condemnation
proceeding is not an action at law, but rather is either some sort of
special proceeding, or else an equitable proceeding.
See, e.g., H.
Mills & A. Abbott, Mills on Law of Eminent Domain § 84, p. 225 (2d
ed. 1888); id., § 91, at 239
("Condemnation is not an action at law, but an inquisition on the
part of the state for the ascertainment of a particular fact, and may be
conducted without the intervention of a jury");
1A J. Sackman, Nichols on Eminent Domain § 4.105, p.
4‑137 (rev.3d ed. 1998)
("Condemnation proceedings are not suits at common law").
There is some accumulated support for the idea that condemnation
proceedings derive from the writ ad quod damnum, which was issued by the
courts of equity to the sheriff to conduct an inquest into the amount of
damages incurred by a landowner as a result of the taking.
Nonetheless, since Kohl v. United States, supra, at 376 the first
case involving the Federal Government's exercise of its power of eminent
domain, this Court has classified condemnation proceedings as suits at
The Court in Reynolds was on solid footing.
In England, while the general practice of Parliament was to provide
for the payment of compensation, parliamentary supremacy enabled it to
take private property for public use without compensation.
See, e.g., Randolph, The Eminent Domain, 3 L.Q. Rev. 314, 323
(1887) ("That there is no eminent domain
739 sub nomine in England is because the power is included, and
the right to compensation lost, in the absolutism of Parliament.
The only technical term approximating eminent domain is 'compulsory
powers' as used in statutes granting to companies and associations the
right to take private property for their use").
See also McNulty, The Power of "Compulsory Purchase"
Under the Law of England, 21 Yale L.J. 639, 644-646 (1912).
Thus, when Parliament made provision for compensation, it was free
to prescribe whatever procedure it saw fit, and while the agency of a
common-law jury was sometimes chosen, very frequently other methods were
adopted. See Blair,
Federal Condemnation Proceedings and the Seventh Amendment, 41 Harv. L.Rev.
29, 32-36 (1927); id., at 36
("[A]n ample basis exists in the parliamentary precedents for the
conclusion that the common law sanctioned such diverse methods of
assessment that no one method can be said to have been made imperative by
the Seventh Amendment"). See
also 1A J. Sackman, Nichols on Eminent Domain § 4.105, p. 4-115, and,
§ 4.107, pp. 4-136 to 4-137 (rev.3d ed.
1998) ("It had become the practice in almost all of the
original thirteen states at the time when their constitutions were
adopted, to refer the question of damages from the construction of [high]ways
... to a commission of viewers or appraisers, generally three or five in
number"); id., at 4-137 ("[I]t has been repeatedly held that when
land is taken by authority of the United States, the damages may be
ascertained by any impartial tribunal").
In sum, at the time of the framing the notion of regulatory
taking or inverse condemnation was yet to be derived, the closest analogue
to the then-unborn claim was that of direct condemnation, and the right to
compensation for such direct takings carried with it no right to a jury
trial, just as the jury right is foreign to it in the modern era.
On accepted Seventh Amendment analysis, then, there is no reason to
find a jury right either by direct analogy or for the sake of preserving
the substance of any jury practice known to the law 740 at the crucial
time. Indeed, the
analogy with direct condemnation actions is so strong that there is every
reason to conclude that inverse condemnation should implicate no jury
The plurality avoids this obvious conclusion in two
alternative ways. One
way is to disparage the comparison of inverse to direct taking, on the
grounds that litigation of the former involves proof of liability that the
latter does not and is generally more onerous to the landowner.
The disparagement is joined with adoption of a different analogy,
between inverse condemnation proceedings and actions for tortious
interference with property interests, the latter of which do implicate a
right to jury trial. The
plurality's stated grounds for avoiding the direct condemnation analogy,
however, simply break down, and so does the purported comparison to the
tort actions. The other
way the plurality avoids our conclusion is by endorsing the course
followed by Justice SCALIA in his separate opinion, by selecting an
analogy not to tort actions as such, but to tort-like § 1983 actions.
This alternative, however, is ultimately found wanting, for it
prefers a statutory analogy to a constitutional one.
The plurality's argument that no jury is required in a direct
condemnation proceeding because the government's liability is conceded,
leaving only the issue of damages to be assessed, rests on a premise
that is only partially true. The
part that is true, of course, is that the overwhelming number of direct
condemnation cases join issue solely on the amount of damages, that is, on
the just compensation due the landowner.
But that is not true always.
Now and then a landowner will fight back by denying the
government's right to condemn, claiming that the object of the taking was
not a public purpose or was otherwise unauthorized by statute.
741 See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S.
229, 240, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984) ("There is ... a role
for courts to play in reviewing a legislature's judgment of what
constitutes a public use, even ... [if] it is an 'extremely narrow'
one" (citation omitted)); Shoemaker,
147 U.S., at 298, 13 S.Ct. 361.
See also 2A Sackman, supra, at 7-81 to 7-82, and nn. 89-90 (listing
state cases where condemnation clauses and the Due Process Clause of the
Fourteenth Amendment have been relied upon by property owners to contest
attempts to acquire their property for private purposes);
2 J. Lewis, Law of Eminent Domain § 417, p. 923, and n. 51 (2d
ed.1900). What is more, when such a direct condemnation does have
more than compensation at stake, the defense of no public purpose or
authority closely resembles, if indeed it does not duplicate, one of the
grounds of liability for inverse condemnation noted in Agins, 447 U.S., at
260-261, 100 S.Ct. 2138, and raised in this case: the failure of the
regulation to contribute substantially to the realization of a legitimate
governmental purpose. [FN4] Indeed,
the distinction between direct and inverse condemnation becomes murkier
still when one considers that, even though most inverse condemnation
plaintiffs accept the lawfulness of the taking and just want money, see
infra, at 1657-1658, some such plaintiffs ask for an injunction against
the government's action, in which event they seek the same ultimate relief
as the direct condemnee who defends against the taking as unauthorized.
If the direct condemnee has no right to a jury, see 2A Sackman,
supra, § 7.03[a], at 7-90 ("The question of whether a
legislative determination of a public use is really public has been
declared by the courts ultimately to be a judicial one"), the inverse
condemnee should fare no differently.
FN4. See, e.g., J. Laitos, Law of Property Rights Protection §
12.04 [A], pp. 12-12 to 12-13 (1999) ("The police power takings
standard also means that the taking prohibition becomes more like a due
process check on the police power";
describing two claims as "an identical test").
742 This recognition
may underlie the fact that the plurality's absence-of-liability-issue
reasoning for distinguishing direct and inverse condemnation fails to
resonate through the cases holding that direct actions carry no jury right
or commenting on the absence of juries in such cases. While the plurality
cites an opinion of Justice Baldwin, sitting on Circuit, for its position,
ante, at 1640 (citing Bonaparte v. Camden & Amboy R. Co., 3 F.Cas.
821, 829 (No. 1,617) (CC NJ 1830)), this citation leaves the reader with a
rather skewed perspective on the diversity of rationales underlying early
state cases in which the right of a direct condemnee to a jury trial was
considered and denied. Several
courts rested on the fact that proceedings to secure compensation were in
the nature of suits against the sovereign, and thus the legislature could
qualify and condition the right to bring such suits, at least to the
extent of providing that they be conducted without a jury.
See, e.g., Ligat v. Commonwealth, 19 Pa. 456, 460
(1852) ( "A sovereign state is not liable to an action at law,
against her consent; and the
right of trial by jury has, therefore, no existence in such a case"); Pennsylvania R. Co. v. First German Lutheran Congregation of
Pittsburgh, 53 Pa. 445, 449 (1867) ("In taking private property for
its road [the railroad corporation] exercises a part of the sovereign
power of the state ... [and] the right of trial by jury has never been
held to belong to the citizen himself in proceedings by the state under
her powers of eminent domain").
See also McElrath v. United States, 102 U.S. 426, 440, 16 Ct.Cl.
630, 26 L.Ed. 189 (1880). Just
as significantly, the plurality's new rationale is absent from any of our
precedents, including those underlying the Reynolds decision.
FN5. See n. 1, supra. Moreover,
if presence of a liability issue were crucial, then the jury right
presumably would be lost in every tort case with liability conceded, which
goes to trial on damages alone.
Such, of course, is not the practice.
See, e.g., Blazar v. Perkins, 463 A.2d 203, 207 (R.I.1983)
("The fact that prior to trial, defendants admitted liability,
thereby removing one issue from the consideration of the jury, does not
alter the application of th[e] principle [that plaintiffs cannot
waive a jury trial on the issue of damage when defendants have
demanded a jury trial]").
743 Finally, the absence of the plurality's rationale from our prior
discussions of the matter most probably reflects the fact that the want of
a liability issue in most condemnation cases says nothing to explain why
no jury ought to be provided on the question of damages that always is
before the courts. The
dollars-and-cents issue is about as "factual" as one can be (to
invoke a criterion of jury suitability emphasized by the Court in another
connection, ante, at 1644), and no dispute about liability provokes more
contention than the price for allowing the government to put a landowner
out of house and home. If
an emphasis on factual issues vigorously contested were a sufficient
criterion for identifying something essential to the preservation of the
Seventh Amendment jury right, there ought to be a jury right in direct
condemnation cases as well as the inverse ones favored by the plurality.
The plurality's second
reason for doubting the comparability of direct and inverse condemnation
is that the landowner has a heavier burden to shoulder in the latter case,
beginning with a need to initiate legal action, see United States v.
Clarke, 445 U.S., at 257, 100 S.Ct. 1127.
Once again, however, it is apparent that the two varieties of
condemnation are not always so distinguishable.
The landowner who defends in a direct condemnation action by
denying the government's right to take is in no significantly different
position from the inverse condemnee who claims the government must pay or
be enjoined because its regulation fails to contribute substantially to
its allegedly public object. See,
e.g., 2A Sackman, Nichols on Eminent Domain § 7.03, at 7-105 to 7-106
(citing cases where "the challenger has the burden of proof to show
that the taking is not for a public purpose").
And once again one may ask why, even if the inverse condemnee's
burden always were the heavier, that should make any difference.
Some plaintiffs' cases are easy and some are difficult, but the
744 are no different in front of a jury (except on the
assumption that juries are more apt to give David the advantage against
Goliath, which I do not believe is the plurality's point). Neither the
Fifth nor the Seventh Amendment has ever been thought to shift and spring
with ease of proof. Cf.
United States v. 101.88 Acres of Land, More or Less, Situated in St. Mary
Parish, La., 616 F.2d 762, 772 (C.A.5 1980) ("The 5th Amendment,
while it guarantees that compensation be just, does not guarantee that it
be meted out in a way more convenient to the landowner than to the
Just as the
plurality's efforts to separate direct from inverse condemnation actions
thus break down, so does its proposal to analogize inverse condemnation to
property damage torts. Whereas
the plurality posits an early practice of litigating inverse condemnation
as a common‑law tort, there was in fact a variety of treatments,
some of them consistent with the plurality's argument, some of them not.
None of those treatments turned on the plurality's analysis that a
State's withholding of some recovery process is essential to the cause of
action. In the end, the
plurality's citations simply do not point to any early practice both
consistently followed and consistent with the concepts underlying today's
inverse condemnation law.
introduces its claimed analogue of tort actions for property damage by
emphasizing what it sees as a real difference between the action of the
government in direct condemnations, and those inverse condemnations, at
least, that qualify for litigation under § 1983.
Whereas in eminent domain proceedings the government admits its
liability for the value of the taking, in the inverse condemnation cases
litigated under § 1983, it refuses to do so inasmuch as it denies the
landowner any state process (or effective
process) for litigating his claim.
See Williamson County Regional Planning Comm'n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 194-195, 105 S.Ct. 3108, 87 L.Ed.2d 126
745 Thus the plurality explains that
"[a]lthough the government acts lawfully when, pursuant to
proper authorization, it takes property and provides just compensation,
the government's action is lawful solely because it assumes a duty,
imposed by the Constitution, to provide just compensation.
See First English, 482 U.S., at 315, 107 S.Ct. 2378 (citing Jacobs,
290 U.S., at 16, 54 S.Ct. 26).
When the government repudiates this duty, either by denying just
compensation in fact or by refusing to provide procedures through which
compensation may be sought, it violates the Constitution.
In those circumstances the government's actions are not only
unconstitutional but unlawful and tortious as well." Ante, at 1642.
According to the plurality, it is the taking of property without
providing compensation or a mechanism to obtain it that is tortious and
subject to litigation under § 1983. See ante, at 1641, 1642.
By this reasoning, the plurality seeks to distinguish such a §
1983 action from a direct condemnation action and possibly from "an
ordinary inverse condemnation suit," as well, ante, at 1644, by which
the plurality presumably means a suit under a state law providing a
mechanism for redress of regulatory taking claims.
plurality claims to have authority for this view in some early state and
federal cases seeing regulatory interference with land use as akin to
nuisance, trespass, or trespass on the case, ante, at 1641, and I agree
that two of the plurality's cited cases, [FN6] decided under state law,
are 746 authority for the tort treatment the plurality claims
to be the appropriate analogy.
See Gardner v. Village
of Newburgh, 2 Johns.Ch. 162 (N.Y.1816) (Kent, Ch.);
Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557 (1871). One other is arguably such authority; Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct.
654, 58 L.Ed. 1088 (1914), is somewhat ambiguous, holding that the law of
nuisance would provide compensation for interference with enjoyment of
land when the State chose not to take the interest by direct condemnation;
the measure of damages (not explained) may well have been what the
Fifth Amendment would provide for a temporary partial taking.
FN6. Two of the cases cited
by the plurality offer at most tangential support.
Plaintiff's claim in Barron ex rel. Tiernan v. Mayor of Baltimore,
7 Pet. 243, 249, 8 L.Ed. 672 (1833), was dismissed for lack of
jurisdiction, on the ground that the Fifth Amendment was not applicable to
the States. In Lindsay
v. East Bay Street Commissioners, 2 Bay 38 (S.C.1796), the plaintiff
sought a writ of prohibition restraining city commissioners from laying
out a street, not damages. While
the plurality relies on the opinion of one justice favoring the granting
of the writ, the court actually divided equally, the result
being denial of the writ. Moreover,
even within that opinion, the quoted statement is the equivalent of dictum
since it is not necessary to the reasoning in favor of granting the writ.
these cases, however, any prospect of a uniform tort treatment disappears.
One of the plurality's cited cases, Bradshaw v. Rodgers, 20 Johns.
103 (N.Y.1882), was reversed by Rogers v. Bradshaw, 20 Johns. 735
(N.Y.1823). As the
concept of public liability was explained in the latter opinion, it turned
not on an issue of garden variety tort law, but on whether there was a
total absence or not of legal authority for a defending public officer's
action with respect to the land.
See id., at 743 ("I should doubt exceedingly, whether the
general principle, that private property is not to be taken for public
uses without just compensation, is to be carried so far as to make a
public officer, who enters upon private property by virtue of legislative
authority, specially given for a public purpose, a trespasser, if he
enters before the property has been paid for.
I do not know, nor do I find, that the precedents will justify any
court of justice in carrying the general principle to such an
extent"). See also
Brauneis, The First Constitutional Tort:
The Remedial Revolution in Nineteenth‑Century State Just
Compensation Law, 52 Vand. L.Rev. 57, 64‑65 (1999) (demonstrating
that pre-Civil War owner-initiated just compensation plaintiffs
747 could recover retrospective damages under common law action
of trespass or trespass on the
case only after defendant was "stripped of his [legislative]
Leader v. Moxon, 2 Black. W. 924, 927, 96 Eng. Rep. 546, 547 (C.P. 1773)
(commissioners acted outside their statutory authority and were thus
liable in tort); Boulton v.
Crowther, 2 Barn. & Cress. 701, 707, 107 Eng. Rep. 544, 547
(K.B.1824). Under these
cases, there would be no recovery unless the public officer interfering
with the property right was acting wholly without authority.
But as absence of legal authorization becomes crucial to recovery,
the analogy to tort liability fades.
What is even more damaging to the attempted tort analogy, whether
it rests on simple tort cases like Gardner or legal authorization cases
like Bradshaw, is that this very assumption that liability flows from
wrongful or unauthorized conduct is at odds with the modern view of acts
effecting inverse condemnation as being entirely lawful. [FN7]
See First English Evangelical Lutheran, 482 U.S., at 314-315, 107
S.Ct. 2378 (citing Williamson County Regional Planning Comm'n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126
(1985)); Hodel v. Virginia
Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 297, n. 40,
101 S.Ct. 2352, 69 L.Ed.2d 1 (1981);
Hurley v. Kincaid, 285 U.S., at 104, 52 S.Ct. 267;
Monongahela Nav. Co. v. United States, 148 U.S. 312, 336, 13 S.Ct.
622, 37 L.Ed. 463 (1893); United
States v. Jones, 109 U.S., at 518, 3 S.Ct. 346.
Unlike damages to redress a wrong as understood in Gardner or
Bradshaw (or even in a modern tort action), a damages award in an inverse
condemnation action orders payment of the "just compensation"
required by the Constitution for payment of an obligation lawfully
FN7. When an inverse
condemnee seeks an injunction (as when a direct condemnee challenges the
taking, or a plaintiff claims a substantive due process violation), there
is a claim of wrong in the sense of lack of authority. But this is not so in the usual case where damages are
To the plurality's collection of tort and authorization cases,
one must add those that are so far from reflecting any early understanding
of inverse condemnation as conventionally
748 tortious that they treat inverse condemnation as grounding
an action in quasi contract, see, e.g., Jacobs v. United States, 290 U.S.,
at 16, 54 S.Ct. 26. Although
the quasi-contractual action seems to be the closest cousin to the
plurality's conception of § 1983 as applied here, the resemblance is
limited by that strain of quasi contract
[FN8] theory holding that the defendant must pay for what he has
received to avoid unjust enrichment, see E. Farnsworth, Farnsworth on
Contracts § 2.20, p. 101 (3d ed.1994), whereas the theory of just
compensation for a taking is that the owner must be paid for what he has
lost, United States v. Miller, 317 U.S. 369, 373-374, 63 S.Ct. 276, 87
L.Ed. 336 (1943).
See Williston on Contracts § 1.6, pp. 27‑28 (4th ed.1990)
(restitution not limited by theory of unjust enrichment).
After a canvass of these materials, the only conclusion that
seems reasonable to me is that prior to the emergence of the modern
inverse condemnation action a spectrum of legal theories was employed to
respond to the problem of inverse taking.
No one of these experiments can be accepted as a definitive
analogue of the contemporary action, and each of them is inconsistent in
some way with the contemporary view that inverse condemnation enforces
payment for the owner's value in property lawfully taken.
If the chosen tort analogy were not already too weak to
sustain the plurality's position, it would be rendered so by the
plurality's inability to identify any tort recovery under the old cases
for the government's sin of omission in failing to provide a process of
compensation (which the plurality finds at the heart of the § 1983
claim), as distinct from the acts of interfering with use or enjoyment of
land. The plurality
simply fails to find any analogue on this element, and its failure is in
fact matched by the failure of its § 1983 theory to fit the reality of §
1983 litigation for inverse takings. When an inverse condemnation claim is brought under §
1983, the "provision" of law that is thereby enforced, 749 Golden State
Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989), is the Fifth Amendment Just Compensation Clause
and no other. [FN9] There is
no separate cause of action for withholding process, and respondents in
the instant case do not claim otherwise;
they simply seek just compensation for their land, subject to the
usual rules governing § 1983 liability and damages awards. [FN10]
FN9. Of course, § 1983 "is not itself a source of substantive
rights, but a method for vindicating federal rights elsewhere conferred by
those parts of the United States Constitution and federal statutes that it
describes." Baker v.
McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).
Accord, Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469,
481 (C.A.7 1995) ("Because § 1983 does not create
substantive rights, but rather provides a remedy for violations of
pre-existing rights, § 1983 claims must specifically allege a violation
of the Constitution or 'laws' of the United States").
FN10. Respondents in this case sought damages for the fair market
value of the property, interim damages for a temporary taking, holding
costs, interest, attorney's fees, costs, and other consequential damages.
Complaint pp. 14-15; First
Amended Complaint pp. 16-17. The
jury was instructed that in calculating damages:
"[I]t's up to you to decide the difference in value, the fair
market value as a result of the City's decision.
Multiply it by an interest rate you think is appropriate, for a
length of time you think is appropriate.
So those are the three elements of computing the damages claimed if
you determine the plaintiff is entitled to recover."
11 Record 1426. Respondents
thus sought no incremental "damages" (beyond just compensation)
for denial of state compensation procedures.
Indeed, the only "damages" available in inverse
condemnation cases is the just compensation measured by the value of the
land. See supra, at 1651. See, e.g., Eide v. Sarasota County,
908 F.2d 716 (C.A.11 1990). The
fact that no further element of damages is recognized confirms rejection
of the tort analogy, for it would be a peculiar tort
indeed that did not recognize its concomitant injury in damages.
Cf. Miller v. Campbell
County, 854 P.2d 71, 77 (Wyo.1993) (rejecting reliance on tort law in
holding that emotional distress is not a proper element of damages in
inverse condemnation actions).
Finally, it must be
said that even if the tort analogue were not a failure, it would prove too
much. For if the
comparison to inverse condemnation were sound, it would be equally 750 sound as to direct
condemnation and so require recognition of the very jury right that we
have previously denied. This perception was apparent to the Court of
Appeals in this case, when it wrote (erroneously) that "both eminent
domain and inverse condemnation actions resemble common‑law actions
for trover to recover damages for conversion of personal property, and
detinue and replevin." 95
F.3d 1422, 1427 (C.A.9 1996). The
Court of Appeals, indeed, cited Beatty v. United States, 203 F. 620 (C.A.4
1913), as does the plurality, ante, at 1642, in which the Fourth Circuit
held that the landowner in a direct condemnation proceeding had a Seventh
Amendment right to a jury determination of just compensation:
"The taking of
property by condemnation under the power of eminent domain is compulsory.
The party is deprived of his property against his will....
The analogy to a suit at common law for trespass is close and
complete, and it is for that reason presumably the Supreme Court of the
United States, acting on the definition of a suit at common law previously
indicated by it, has decided that a proceeding by the United States to
condemn lands for public purposes is a suit at common law.
If so it be, then it would follow that the defendant, if he claims
it, is entitled at some stage in the proceeding to have his damages
assessed by a jury." 203
F., at 626.
The plurality's analogy, if accepted, simply cannot be confined to
inverse condemnation actions alone, and if it is not so confined it runs
squarely against the settled law in the field of direct condemnation.
In addition to the plurality's direct tort analogy, it pursues
a different analytical approach in adopting Justice SCALIA's analogy to §
1983 actions seeking legal relief, see ante, at 1638. Justice SCALIA begins with a more sweeping 751 claim:
"The central question remains whether a § 1983 suit is
entitled to a jury." Ante,
at 1645 (opinion concurring in part and concurring in judgment).
The analogy to the broad class of § 1983 actions is put forward as
serving the undoubted virtues of simplicity and uniformity in treating
various actions that may be brought under a single remedial statute. It is
only when "apply[ing] this methodology to the present case,"
ante, at 1638, that Justice SCALIA is careful not to claim too much:
he no longer argues for drawing an analogy between § 1983 inverse
condemnation actions and all § 1983 actions, but only those § 1983
actions brought to recover money damages, see ante, at 1645. This subclass
of § 1983 actions, he quite correctly notes, has been treated as tortlike
in character and thus as much entitled to jury trial as tort actions have
been at common law. For
two independent reasons, however, I think the analogy with § 1983
actions, either as a class or as a subclass of damages actions, is
First, the analogy to all § 1983 actions does not serve any
unified field theory of jury rights under § 1983. While the statute is indeed a prism through which
rights originating elsewhere may pass on their way to a federal jury
trial, trial by jury is not a uniform feature of § 1983 actions. The statute provides not only for actions at law with
damages remedies where appropriate, but for "suit[s] in equity, or
other proper proceeding[s] for redress."
42 U.S.C. § 1983. Accordingly,
rights passing through the § 1983 prism may in proper cases be vindicated
by injuction, see, e.g., Mitchum v. Foster, 407 U.S. 225, 242‑243,
92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (§ 1983 falls within "expressly
authorized" exception of Anti-Injunction Act and thus authorizes
injunctions staying state-court proceedings), orders of restitution, see,
e.g., Samuel v. University of Pittsburgh, 538 F.2d 991, 994-995 (C.A.3
1976) (restitution of university fees collected pursuant to rule held to
violate Equal Protection Clause), and by declaratory judgments, see, e.g.,
Steffel v. Thompson, 415 U.S. 452, 454, 475, 94 S.Ct. 1209, 39 L.Ed.2d 505
(declaratory relief under § 1983 available in suit claiming state
criminal statute constitutionally invalid), none of which implicate, or
always implicate, a right to jury trial. Comparing inverse condemnation
actions to the class of § 1983 actions that are treated like torts does
not, therefore, preserve a uniformity in jury practice under § 1983 that
would otherwise be lost. Justice
SCALIA's metaphor is, indeed, an apt one:
§ 1983 is a prism, not a procrustean bed.
Nor, as I have already mentioned, see supra, at 1657-1658, is
there a sound basis for treating inverse condemnation as providing damages
for a tort. A State's
untoward refusal to provide an adequate remedy to obtain compensation, the
sine qua non of an inverse condemnation remedy under § 1983, is not
itself the independent subject of an award of damages (and respondents do
not claim otherwise); the
remedy is not damages for tortious behavior, but just compensation for the
value of the property taken.
Even if an argument for § 1983 simplicity and uniformity were
sustainable, however, it would necessarily be weaker than the analogy with
direct condemnation actions. That
analogy rests on two elements that are present in each of the two
varieties of condemnation actions: a
Fifth Amendment constitutional right and a remedy specifically mandated by
that same amendment. Because
constitutional values are superior to statutory values, uniformity as
between different applications of a given constitutional guarantee is more
important than uniformity as between different applications of a given
statute. If one accepts
that proposition as I do, a close analogy between direct and inverse
condemnation proceedings is necessarily stronger than even a comparably
close resemblance between two statutory actions.
Were the results of the analysis to this point uncertain, one
final anomaly of the Court's position would point up its error.
The inconsistency of recognizing a jury trial right in inverse
condemnation, notwithstanding its absence in condemnation actions, appears
the more pronounced on recalling that under Agins one theory of recovery
in inverse condemnation cases is that the taking makes no substantial
contribution to a legitimate governmental
purpose. [FN11] This issue
includes not only a legal component that may be difficult to resolve, but
one so closely related to similar issues in substantive due process
property claims, that this Court cited a substantive due process case when
recognizing the theory under the rubric of inverse condemnation. See Agins, 447 U.S., at 260, 100 S.Ct. 2138 (citing
Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 72 L.Ed. 842
(1928)). [FN12] Substantive
due process claims are, of course, routinely reserved without question for
the court. See, e.g.,
County of Sacramento v. Lewis, 523 U.S. 833, 853‑855, 118 S.Ct.
1708, 140 L.Ed.2d 1043 (1998); Washington
v. Glucksberg, 521 U.S. 702, 722‑723, 117 S.Ct. 2258, 138 L.Ed.2d
772 (1997); FM Properties Operating Co. v. Austin, 93 F.3d 167, 172, n. 6
(C.A.5 1996) (rational relationship to legitimate government interest for
purposes of substantive due process a question of law for the court);
Sameric Corp. v. Philadelphia, 142 F.3d 582, 590-591 (C.A.3 1998)
(same as to city
754 historical commission action). [FN13] Thus, it would be far removed from usual practice to charge a
jury with the duty to assess the constitutional legitimacy of the
government's objective or the constitutional adequacy of its relationship
to the government's chosen means.
FN11. The jury's inverse
condemnation verdict did not indicate which of the theories formed the
basis of its liability finding: (1)
whether the city's action did not substantially advance a legitimate
purpose; or (2)
whether the city's denial of the permit deprived the subject
property of all economically viable use.
FN12. I offer no
opinion here on whether Agins was correct in assuming that this prong of
liability was properly cognizable as flowing from the Just Compensation
Clause of the Fifth Amendment, as distinct from the Due Process Clauses of
the Fifth and Fourteenth Amendments.
The substantive due process taking claim concentrates on whether the
government's aims are "clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or general
welfare." Village of
Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303
The usual practice makes perfect sense. While juries are not customarily called upon to assume
the subtleties of deferential review, courts apply this sort of limited
scrutiny in all sorts of contexts and are routinely accorded institutional
competence to do it. See,
e.g., Pearson v. Grand Blanc, 961 F.2d 1211, 1222 (C.A.6 1992)
(deferential substantive due process review a matter of law for the
the legal basis for governmental action is "one of those things that
judges often do and are likely to do better than juries unburdened by
training in exegesis." Markman,
517 U.S., at 388, 116 S.Ct. 1384. It therefore should bring no surprise to find that in
the taking cases a question whether regulatory action substantially
advances a legitimate public aim has more often than not been treated by
the federal courts as a legal issue.
See, e.g., New Port Largo, Inc. v. Monroe County, 95 F.3d 1084,
1092 (C.A.11 1996) (whether regulatory taking occurred is an issue for the
court); Mid Gulf, Inc. v.
Bishop, 792 F.Supp. 1205, 1213-1214, 1215 (D.Kan.1992) (whether city's
regulations unreasonable and a taking a question of law for the court);
Gissel v. Kenmare Township, 512 N.W.2d 470, 474 (N.D.1994)
(necessity for proposed taking a question for the court); Yegen v.
Bismarck, 291 N.W.2d 422, 424 (N.D.1980) (taking vel non of private
property for public use a question of law).
But see Gray v. South Carolina Dept. of Highways, 311 S.C. 144, 427
S.E.2d 899 (1992) (whether no taking because closing of intersection was
needed to prevent serious public harm is jury issue).
These practices point up 755 the great gulf between the practical realities of
taking litigation, and the Court's reliance on the assertion that "in
suits sounding in tort for money damages, questions of liability were
decided by the jury, rather than the judge, in most cases," ante, at
Perhaps this is the reason that the Court apparently seeks to
distance itself from the ramifications of today's determination.
The Court disclaims any attempt to set a "precise demarcation
of the respective provinces of judge and jury in determining whether a
zoning decision substantially advances legitimate governmental
interests." Ante, at
1644. It denies that
today's holding would extend to "a broad challenge to the
constitutionality of the city's general land-use ordinances
or policies," in which case, "the determination whether the
statutory purposes were legitimate, or whether the purposes, though
legitimate, were furthered by the law or general policy, might well fall
within the province of the judge."
Ibid. (And the plurality presumably does not mean to address any
Seventh Amendment issue that someone might raise when the government has
provided an adequate remedy, for example, by recognizing a compensatory
action for inverse condemnation, see ante, at 1641, 1642.)
But the Court's reticence is cold comfort simply because it rests
upon distinctions that withstand analysis no better than the tort-law
analogies on which the Court's conclusion purports to rest.
The narrowness of the Court's intentions cannot, therefore, be
accepted as an effective limit on the consequences on its reasoning, from
which, I respectfully dissent. [FN14]
FN14. I would therefore remand the case. There would be no need for a new trial;
the judge could treat the jury's verdict as advisory, so long as he
recorded his own findings consistent with the jury's verdict.
See Fed. Rule of Civ. Proc. 52(a).