OCTOBER TERM, 1998
Syllabus
CITY OF MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD., ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 97-1235. Argued October 7, 1998-Decided May 24,1999
After 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.
Held: The judgment is affirmed.
95
F.3d 1422, affirmed.
JUSTICE KENNEDY delivered the opinion of the Court, except as to
Part IV-A-2, concluding that:
1. The Ninth Circuit's discussion of the rough-proportionality
standard of
Dolan v.
City of Tigard, 512 U. S. 374, 391, 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 interests. The 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
688 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Syllabus
each of the city's reasons for denying the final development
plan. pp. 702-703.
2. 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. 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 with neither 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.703-707.
3. The District Court properly submitted the question of
liability on Del Monte Dunes' regulatory takings claim to the jury.
Pp. 707-711, 718-722.
(a) 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. Pp.
707-708.
689
(b) Del Monte Dunes' § 1983 suit is an action at law for Seventh
Amendment purposes. Pp.708-711.
(1) 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.
Pp.708-709.
(2) 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.
There can be no doubt that § 1983 claims sound in tort. See,
e.
g., Heck v.
Humphrey, 512 U. S. 477,483. 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. Pp.709-711.
(c) The particular liability issues were proper for
determination by the jury. Pp. 718-722.
(1) 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. P. 718.
(2) 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. Pp. 718-719.
(3) 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, 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.
Pp. 719-720.
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690 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Syllabus
(4) 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, 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. Pp.
720-721.
(5) 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.721.
(d) 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. 721-722.
JUSTICE 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. 711-718.
1. 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.711.
2. 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-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. 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. 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. 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, it
violates the Constitution, and its actions are unlawful and
tortious. Pp. 711-718.
JUSTICE SCALIA concluded:
1. 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. 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, as tort actions for the recovery of damages
for personal injuries, id., at 276. Pp. 723-726.
692
692 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Syllabus
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,
3. 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. 731-732.
KENNEDY, 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,
post, p. 723. SOUTER, J., filed an opinion
concurring in part and dissenting in part, in which O'CONNOR,
GINSBURG, and BREYER, JJ., joined,
post, p. 733.
George A. Yuhas argued the cause for petitioner. With him
on the briefs was
Richard E. v:
Harris.
Deputy Solicitor General Kneedler argued the cause for the
United States as amicus curiae urging reversal. With him on the
brief were Solicitor General Waxman, Assistant Attorney General
Schiffer, Malcolm L. Stewart, David C. Shilton, Timothy J. Dowling,
and Nina Mendelson.
Michael M. Berger argued the cause for respondents.
With him on the brief was
Frederik A. Jacobsen. *
*Briefs of
amici curiae urging reversal were filed for
the State of New Jersey et al. by
Peter Verniero, Attorney
General of New Jersey,
Stefanie A. Brand, Deputy Attorney
General,
Mary C.
Jacobson, Assistant Attorney
General,
Dan Schweitzer, and
Gus F.
Diaz,
Acting Attorney General of Guam, and by the Attorneys General for
their respective jurisdictions as follows:
Bruce M. Botelho
of Alaska,
Grant Woods of Arizona,
Winston
693
JUSTICE KENNEDY delivered the opinion of the Court, except as to
Part IV -A-2.
This case began with attempts by respondent Del Monte Dunes and
its predecessor in interest to develop a parcel of land within the
jurisdiction of the petitioner, the
Bryant of Arkansas, Richard Blumenthal of Connecticut, M. Jane
Brady of Delaware, Robert A. Butterworth of Florida, Margery S.
Bronster of Hawaii, Alan G. Lance of Idaho, Jim Ryan of Illinois,
Jeffrey A. M odisett of Indiana, Thomas J. Miller of Iowa, Andrew
Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Frank J.
Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Joseph P.
Mazurek of Montana, Philip T. McLaughlin of New Hampshire, Tom
Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley
of North Carolina, Heidi Heitkamp of North Dakota, Hardy Myers of
Oregon, Jeffrey B. Pine of Rhode Island, John Knox Walkup of
Tennessee, William H. Sorrell of Vermont, Mark L. Earley of
Virginia, Christine Q Gregoire of Washington, and Darrell V.
McGraw, Jr., of West Virginia; for the City and County of San
Francisco et al. by Louise H. Renne, Dennis Aftergut, Andrew W
Schwartz, Pamela Albers, Gary T. Ragghianti, Zach Cowan, Ronald R.
Ball, John L. Cook, Joel D. Kuperberg, Edward J. Foley, Philip D.
Kohn, Lois E. Jeffrey, John Sanford Todd, William W Wynder, Steven
F. Nord, Thomas B. Brown, George H. Eiser III, James R. Anderson,
Monte L. Widders, Gary Gillig, Debra S. Margolis, Michael F. Dean,
Stan Yamamoto, Hadden Roth, C. Alan Sumption, Daniel J. Wallace,
John G. Barisone, Rene Auguste Chouteau, Victor J. Westman, Norman
Y. Herring, Cameron L. Reeves, H. Peter Klein, Alan Seltzer, and
Dwight L. Herr; for the American Planning Association by Robert H.
Freilich and Terry D. Morgan; for the League for Coastal Protection
et al. by John D. Echeverria; for the Municipal Art Society of New
York, Inc., by Michael B. Gerrard, Michael S. Gruen, Dennis C.
O'Donnell, John J. Kerr, Jr., Norman Marcus, and Otis Pratt
Pearsall; and for the National League of Cities et al. by Richard
Ruda and James I. Crowley.
Briefs of
amici curiae urging affirmance were filed for
the American Farm Bureau Federation et al. by
Timothy S.
Bishop, Jeffrey W Sarles, John J.
Rademacher, Nancy N.
McDonough, and
Carolyn S.
Richardson; for the
California Association of Realtors et al. by
Roger J.
Marzulla; for Defenders of Property Rights et al. by
Nancie G.
Marzulla; for the Institute for Justice by
William H. Mellor, Clint Bolick, Scott G.
Bullock,
and
Richard A. Epstein; for the National Association of Home
Builders et al. by
Gus Bauman, Mary V. DiCrescenzo, and
Nick Cammarota; for the Pacific Legal Foundation et al. by
James S.
Burling; and for the Washington Legal
Foundation et al. by
Daniel J.
Popeo and
Paul D.
Kamenar.
694
694 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
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 affirmed.
The 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.
I A
The property which Del Monte Dunes 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.
695
The parcel had not been untouched by its urban and industrial
proximities. A sewer line housed in is-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.
The 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.
B
In 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
696 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
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.
The 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 proposed development.
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.
After 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.
In 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.
The 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
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698 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
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).
C
After five years, five formal decisions, and 19 different site
plans, 10 Tr. 1294-1295 (Feb. 9, 1994), 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.
The District Court dismissed the claims as unripe under
Williamson County Regional Planning Comm'n v.
Hamilton
Bank of Johnson City, 473 U. S. 172 (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 (CA9 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
699
County, 477
U. S. 340, 350, n. 7 (1986), 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 (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.
On 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
700 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
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' position.
At 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, as follows:
"For the 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 actions." Ibid.
With respect to the second inquiry, the jury received the
following instruction:
"Public 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.
701
"The regulatory actions of the city or any agency substantially
advanc[e] a legitimate public purpose if the action bears a
reasonable relationship to that objective.
"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." I d., at 304.
The essence of these instructions was proposed by the city. See
Tr. 11 (June 17, 1994).
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 (CA9 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 reason-
702
702 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
ably could have decided each of these questions in Del Monte
Dunes' favor.
Id., at 1430-1434. Because 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.
The questions 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 (1994),
applied to this case. We granted certiorari, 523 U. S. 1045 (1998),
and now address these questions in reverse order.
II
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:
"Even 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.
Although in a general sense concerns for proportionality animate
the Takings Clause, see
Armstrong v.
United States,
364 U. S. 40, 49
(1960) ("The Fifth Amendment's guarantee ... was designed to bar
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;
Nollan v.
Cali-
703
fornia Coastal Comm'n, 483 U. S. 825, 841
(1987). 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 development. We
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., at
1431-1432.
Given this holding, it was unnecessary for the Court of Appeals
to discuss rough proportionality. That it did so is irrelevant to
our disposition of the case.
III
The city challenges the Court of Appeals' holding that the jury
could have found the city's denial of the final develop-
704
704 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
ment 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, we
note that the trial court's instructions are consistent with our
previous general discussions of regulatory takings liability. See
Dolan, supra, at 385;
Lucas v.
South Carolina
Coastal Council, 505 U. S. 1003, 1016
(1992);
Yee v.
Escondido, 503 U. S. 519, 534
(1992);
Nollan, supra, at
834; Keystone Bituminous Coal
Assn. v.
DeBenedictis, 480 U. S. 470, 485 (1987);
United States v.
Riverside Bayview Homes, Inc.,
474 U. S. 121,
126 (1985);
Agins v.
City of Tiburon, 447 U. S. 255, 260
(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 with neither 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. 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 to day'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.
The instructions 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-
706
706 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
1289 (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 boardwalks").
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 1303-1306.
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 objection.
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.
IV
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 (1998)
(quoting
Tull v.
United States, 481 U. S. 412, 417, n. 3
(1987)); accord,
Curtis v.
Loether, 415 U. S. 189, 192, n. 6
(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 ("[W]e cannot discern 'any
congressional intent to grant ... the right to a jury trial'"
(quoting
Tull, supra, at 417, n. 3)). 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
708 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
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
(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. 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
(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 1791."
Ibid.
A
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
(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 (quoting
Granfinanciera, S.
A. v.
Nordberg, 492 U. S. 33, 42 (1989));
accord,
Curtis, supra, at 193.
1
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 opinion concurring in part and
concurring in the judgment 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,
supra, at 195-196.
As JUSTICE SCALIA explains, see
post, at 727-731, 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 (1994)
(quoting
Memphis Community School Dist. v.
Stachura,
477 U. S. 299,
305 (1986)), and have interpreted the statute in light of the
"background of tort liability,"
Monroe v.
Pape,
365 U. S. 167,
187 (1961) (overruled on other grounds,
Monell v.
New
York City Dept. of Social Servs., 436
710
710 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
u. S. 658 (1978)); accord,
Heck, supra, at 483. 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. 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. 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 (1990)
("Generally, an action for money damages was 'the traditional form
of relief offered in the courts of law' ") (quoting
Curtis,
415 U. S., at 196).
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 (quoting
Teamsters
v.
Terry, supra, at 570). 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 (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. Because Del Monte Dunes'
statutory suit sounded in tort and sought legal relief, it was an
action at law.
2
In an 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 (CAll 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 (1970); accord,
Bauman v.
Ross,
167 U. S. 548,
593 (1897). The city submits that the analogy to formal
condemnation proceedings is controlling, so that there is no jury
right here.
As JUSTICE SCALIA notes, see
post, at 724-726, 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.
Although condemnation 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 (citing
Jacobs v.
United States,
290 U. S. 13, 16
(1933)), a condemnation action differs in im-
712
712 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of KENNEDY, J.
portant 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.
This difference 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 (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; cf.
id., at 255 ("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 R. Co., 3 F.
Cas. 821, 829 (No. 1,617) (CC NJ 1830) (Baldwin, Circuit
Justice).
(Although JUSTICE SOUTER'S opinion concurring in part and
dissenting in part 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 denied."
Post, at 742. 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
714 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of KENNEDY, J.
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, 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 736-739, 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
742-743, n. 5.)
Condemnation 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. 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 ("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
pro-
715
vide an adequate postdeprivation remedy for the property loss.'"
Id., at 195 (quoting
Hudson v.
Palmer,
468 U. S. 517,
532, n. 12 (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.
In these 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.
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 (1914)
(nuisance);
Pumpelly v.
Green Bay Co., 13 Wall. 166
(1872) (trespass on the case);
Barron ex rel. Tiernan v.
Mayor of Baltimore, 7 Pet. 243
716
716 MONTEREY
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Opinion of KENNEDY, J.
(1833) (unspecified tort);
Bradshaw v.
Rodgers, 20
Johns. 103 (N. Y. 1822) (trespass). 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
("Actions on the case, like other actions at law, were tried before
juries").
(JUSTICE SOUTER'S 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 NineteenthCentury State Just
Compensation Law."
Post, at 746-747 (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, 458465
(1903) (overruled on other grounds,
United States v.
Chicago, M., St. P. &
P. R. Co., 312 U. S. 592 (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, pp. 1118-1127 (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 (citing
Jacobs, 290
U. S., at 16). 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.6d
0, 626
(CA4 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
718 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
(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.)
B
Having decided 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 (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. 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. 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.
1
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.
2
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 (1985);
Hodel v.
Virginia Surface Mining &
Reclamation
Assn., Inc., 452
U. S. 264 (1981), suits decided by state courts, see,
e. g.,
Dolan v.
City of Tigard, 512 U. S. 374 (1994);
Lucas v.
South Carolina Coastal Council, 505 U. S. 1003 (1992);
Nollan v.
California Coastal Comm'n, 483 U. S. 825 (1987);
First English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, 482 U. S. 304 (1987), or
suits seeking only injunctive relief, see,
e. g., Keystone
Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470 (1987). It
is settled law that the Seventh Amendment does not apply in these
contexts.
Lehman v.
Nakshian, 453 U. S. 156, 160 (1981)
(suits against the United States);
Curtis, 415 U. S., at
192, n. 6 (suits brought in state court);
Parsons, 3 Pet.,
at 447 (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.
Whether the commission had denied the plaintiff all economically
viable use of the property had been submitted to the jury.
Id., at 191-192, and n. 12. Although the Court did not
consider the point, it assumed the propriety of this procedure. E.
g., id., at 191 ("It is not clear whether the jury would have found
that the respondent had
720
720 MONTEREY
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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 land").
Williamson is not a direct holding, however, and we must
look for further guidance. We turn next to considerations of
process and function.
3
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
(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.
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
(1922); accord,
Keystone Bituminous Coal, supra, at 473-474.
Consistent with this understanding, we have described
determinations of liability in regulatory takings cases as
"'essentially ad hoc, factual inquiries,'"
Lucas, supra, at
1015 (quoting
Penn Central Transp. Co. v.
New York
City, 438 U. S.
104, 124 (1978)), requiring "complex factual assessments of the
purposes and economic effects of government actions,"
Yee,
503 U. S., at 523.
In accordance 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, 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,
fact-bound question to the jury.
C
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
722 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
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.
723
V
For the reasons stated, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
JUSTICE SCALIA, 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.
I
Revised 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 (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 (1987).
The fundamental 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
724 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SCALIA, J.
rights elsewhere conferred."
Baker v.
McCollan,
443 U. S. 137,
144, n. 3 (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
(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 IVA-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 existwhich 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 (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 rele-
725
vant 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. 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 (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 pro-
726
726 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SCALIA, J.
cedural 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 (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.
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 (1989), that a § 1983 action is a § 1983 action.1
IJU8TICE SOUTER properly notes that "trial by jury is not a
uniform feature of § 1983 actions."
Post, at 751. This does
not lead, however, to his desired conclusion that all § 1983
actions can therefore not properly be analogized to tort claims.
Post, at 740, 750-752. 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
(1974);
Dairy Queen,
727
II
To 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 115119 (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
(1978), and thereby, of course, to deter future violations.
This 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 (1976); see also
Heck v.
Humphrey,
512 U. S. 477,
483 (1994);
Memphis Community School Dist. v.
Stachura, 477
U. S. 299, 305 (1986);
Smith v.
Wade, 461 U. S. 30, 34 (1983);
Carey, supra, at 253;
Hague v.
Committee for
Industrial Organization, 307 U. S. 496, 507 (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
Inc. v.
Wood, 369 U. S. 469, 471
(1962);
Parsons v.
Bedford, 3 Pet. 433, 446-447
(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.
728
728 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SCALIA, J.
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
(1998);
Jefferson v.
City of Tarrant, 522 U. S. 75, 78-79
(1997);
McMillian v.
Monroe County, 520 U. S. 781, 784
(1997);
Richardson v.
McKnight, 521 U. S. 399, 401
(1997);
Johnson v.
Jones, 515 U. S. 304, 307 (1995);
Albright v.
Oliver, 510 U. S. 266, 269
(1994); Siegert v.
Gilley, 500 U. S. 226, 231
(1991);
St. Louis v.
Praprotnik, 485 U. S. 112, 121
(1988);
Daniels v.
Williams, 474 U. S. 327, 329
(1986);
Memphis Community School Dist., supra, at 307;
Smith, supra, at 35;
Monell v.
New York City Dept.
of Social Servs., 436 U. S. 658, 691
(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.
As 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 (1997), the recoverable damages,
Heck,
supra, at 483;
Memphis Community School Dist., supra, at
305-306, and the scope of liability,
Monroe v.
Pape,
365 U. S. 167,
187 (1961). In
Owen v.
Independence, 445 U. S. 622, 657
(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 evo-
729
lution .... [T]he principle of equitable loss-spreading has
joined fault as a factor in distributing the costs of official
misconduct. "
The 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., at 347-348. 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. 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 (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 (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.
730
730 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SCALIA, J.
Bernhard, 396 U. S. 531, 533 (1970)
("The Seventh Amendment ... entitle[s] the parties to a jury trial
in actions for damages to a person or property ... ").
A 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 (CAll
1996); Perez-Serrano v.
DeLeon-Velez, 868 F.2d
30, 32-33
(CA1 1989); Laskaris v.
Thornburgh,
733 F.2d
260, 264
(CA3 1984); Segarra v.
McDade, 706 F.2d
1301, 1304
(CA4 1983);
Dolence v.
Flynn,
628 F.2d
1280, 1282 (CAlO 1980);
Amburgey v.
Cassady,
507 F.2d
728, 730
(CA6 1974);
Brisk v.
Miami Beach,
726 F. Supp. 1305, 1311-1312 (SD Fla. 1989);
Ruth Anne M. v.
Alvin Independent School Dist., 532 F. Supp. 460, 475 (SD
Tex. 1982);
Mason v.
Melendez, 525 F. Supp. 270, 282
(WD Wis. 1981);
Cook v.
Cox, 357 F. Supp. 120,
124125, and n. 4 (ED Va. 1973).
In 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 (1962);
Scott v.
Neely, 140 U. S. 106, 109-110
(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.
III
To 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 (1996), history is our guide. I agree with the Court's
methodology, see
ante, at 718-719, 720, 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
(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 (CAlO 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 (CA2 1998), cert. denied, 525 U. S. 1146 (1999).
In 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 in-
732
732 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SCALIA, J.
teres[t]."
Ante, at 701. 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 720-721. The second question-whether the
taking "substantially advance[s] [a] legitimate public interes[t]"
2_ 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 development." App. 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 721.
***
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.
2 As the Court explains, petitioner forfeited any objection to
this standard, see
ante, at 704, and I express no view as to
its propriety.
733
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 takings (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 takings
claim under § 1983 and draws a false analogy between such a claim
and a tort action. I respectfully dissent from this error.
I
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
707-708, with the consequence that
Markman v.
Westview
Instruments, Inc., 517 U. S. 370 (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-law right as it
existed in 1791.'"
Ante, at 708 (quoting
Markman,
supra, at 376). The Court soundly concedes that at the adoption
of the Seventh Amendment there was no action like the modern
in-
734
734 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
verse 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.
II
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 (CAll 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
(1984). It follows, as Justice Brandeis said in
Hurley v.
Kincaid, 285 U.
S. 95 (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. 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 (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 (quoting Jacobs v. United States,
290 U. S. 13, 16
(1933)).
Accord,
Boom Co. v.
Patterson, 98 U. S. 403, 407 (1879)
("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 (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
(1980)). See also
Armstrong v.
United States,
364 U. S. 40, 49
(1960); Grant,
supra, at 192-193 ("The difference between
condemnation and inverse condemnation inheres precisely in the
'character' of
736
736 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
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 (1897)
(citing,
inter alia, Custiss v.
Georgetown &
Alexandria Turnpike Co., 6 Cranch 233
(1810); United
States v.
Jones, 109 U. S. 513, 519
(1883); and
Shoemaker v.
United States, 147 U. S. 282, 300, 301
(1893)),1
1 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. 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 (upholding statute
providing for ascertainment of the value of condemned land by three
presidentially appointed commissioners);
Jones, 109 U. S.,
at 519 ("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
actual 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 (1876)
("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 (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
737
and we have since then thought it "long ... settled that there
is no constitutional right to a jury in eminent domain
proceedings,"
United States v.
Reynolds, 397 U. S. 14, 18 (1970).2
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").
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,3 see
Kohl v.
United States, 91 U. S. 367, 376 (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 (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
Constitution that it has been held repeatedly that it is a form
of procedure within the power of the State to provide").
2 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 (1897);
Crane, supra, at 147;
Dohany v.
Rogers, 281 U. S. 362, 369
(1930).
3 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[1], 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 common law.
738
738 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
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., Arndt. 7 ("In Suits at common law ... the right of trial by
jury shall be preserved"). See also 5 J. Moore, J. Lucas, & J.
Wicker, Moore's Federal Practice ~ 38.32[1], 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 (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 (quoting 5 J. Moore, Federal
Practice ~ 38.32[1], p. 239 (2d ed. 1969) (internal quotation marks
omitted)).
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 (1928); 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[1], 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
740 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
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
right.
III
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 my 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.
A 1
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 (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. 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, and raised in this case: the
failure of the regulation to contribute substantially to the
realization of a legitimate governmental purpose.4 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 747, n. 7, 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, Nichols on
Eminent Domain § 7.03[1l][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.
4 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
742 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
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 713 (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 (1866) ("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
(1880). Just as significantly, the plurality's new rationale is
absent from any of our precedents, including those underlying the
Reynolds decision.5
5 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. 1. 1983) ("The
fact that prior to trial, defendants admitted liability, thereby
removing one issue from the consideration of the jury, does not
alter the
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 720-721), 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. 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
payor be enjoined because its regulation fails to contribute
substantially to its allegedly public object. See,
e. g., 2A
Sackman,
supra, § 7.03[12], 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 difficult ones
application of thEe] principle [that plaintiffs cannot waive a
jury trial on the issue of damage when defendants have demanded a
jury trial]").
744
744 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
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 (CAS 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
sovereign").
2
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.
a
The plurality 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 Re-
745
gional Planning Comm'n v. Hamilton Bank of Johnson City,
473 U. S. 172,
194-195 (1985). 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 (citing
Jacobs, 290 U. S., at 16). 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 717.
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
714-715, 717. 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 721, by which the plurality presumably means a suit under a
state law providing a mechanism for redress of regulatory takings
claims.
The 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 715-716, and I agree that two of the plurality's
cited cases,6 decided under state law, are
6 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 (1833), was dismissed for lack of
jurisdiction, on the ground that the Fifth Amendment was not
applicable to the States. In
Lindsay v.
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 grant-
746
746 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
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 (1872). One
other is arguably such authority;
Richards v.
Washington
Terminal Co., 233
U. S. 546 (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.
Beyond 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. 1822), 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
ing 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.
747
could recover retrospective damages under common law action of
trespass or trespass on the case only after defendant was "stripped
of his [legislative] justification"). Cf.
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.7 See
First English
Evangelical Lutheran, 482 U. S., at 314-315 (citing
Williamson County Regional Planning Comm'n v.
Hamilton
Bank of Johnson City, 473 U. S., at 194;
Hodel v.
Virginia Surface Mining &
Reclamation Assn.,
Inc., 452 U. S.
264, 297, n. 40
(1981); Hurley v.
Kincaid, 285 U.
S., at 104;
Monongahela Nav. Co. v.
United States,
148 U. S. 312,
336 (1893);
United States v.
Jones, 109 U. S., at
518). 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 incurred.
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
7When 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 sought.
748
748 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
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. 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 8 theory holding that
the defendant must pay for what he has received to avoid unjust
enrichment, see E. Farnsworth, Contracts § 2.20, p. 101 (3d ed.
1999), 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 (1943).
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. Noone 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.
b
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,
8See 1 R. Lord, Williston on Contracts § 1.6, pp. 27-28 (4th ed.
1990) (restitution not limited by theory of unjust enrichment).
749
Golden State Transit Corp. v.
Los Angeles,
493 U. S. 103,
106 (1989), is the Fifth Amendment Just Compensation Clause and no
other.9 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.10
c
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
9 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 (1979). Accord,
Johnson v.
University of Wisconsin-Eau Claire, 70
F.3d 469, 481
(CA7 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").
10 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 734. See,
e. g.,
Eide v.
Sarasota County, 908 F.2d
716 (CAll 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).
750
750 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
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 (CA9 1996). The Court of Appeals, indeed, cited
Beatty v. United States,
203 F.6d
0 (CA4 1913), as does the plurality, ante, at 717, 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.
B
In addition to the plurality's direct tort analogy, the Court
pursues a different analytical approach in adopting JUSTICE
SCALIA'S analogy to § 1983 actions seeking legal relief, see ante,
at 709. JUSTICE SCALIA begins with a more sweeping
751
claim: "The central question remains whether a § 1983
suit is entitled to a jury."
Ante, at 724 (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 727, 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 729. 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
inadequate.
1
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 injunction, see,
e.
g., Mitchum v.
Foster, 407 U. S. 225, 242-243
(1972) (§ 1983 falls within "expressly authorized" exception of
Anti-Injunction Act and thus authorizes injunctions staying
state-court proceedings), by orders of restitution, see,
e. g.,
Samuel v.
University of Pittsburgh, 538 F.2d
991, 994-995
(CA3 1976) (restitution of university fees
collected pursuant to rule held to violate Equal Protection
Clause), and by declaratory judgments, see,
752
752 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
e. g., Steffel v.
Thompson, 415 U. S. 452, 454, 475
(1974) (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 748-750,
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.
2
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.
753
IV
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.ll 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 (citing
Nectow v.
Cambridge, 277
U. S. 183, 188 (1928)).12 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
(1998); Washington v.
Glucksberg, 521 U. S. 702, 722-723
(1997); FM Properties Operating Co. v.
Austin,
93 F.3d
167, 172, n. 6 (CA5 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
(CA3 1998) (same as to city
11 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.
12 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.
754
754 MONTEREY
v. DEL MONTE DUNES AT MONTEREY, LTD.
Opinion of SOUTER, J.
historical commission action)Y 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.
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 (CA6 1992) (deferential substantive due process review a
matter of law for the court). Scrutinizing the legal basis for
governmental action is "one of those things that judges often do
and are likely to do better than jurors unburdened by training in
exegesis."
Markman, 517 U. S., at 388. It therefore should
bring no surprise to find that in the takings 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 (CAll 1996) (whether regulatory taking occurred is
an issue for the court);
Mid Gulf, Inc. v.
Bishop,
792 F. Supp. 1205, 1213-1214, 1215 (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, 427 S. E. 2d 899 (S. C. App. 1992) (whether no
taking because closing of intersection was needed to prevent
serious public harm is jury issue). These practices point up
13 The substantive due process takings 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
(1926).
755
the great gulf between the practical realities of takings
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 718.
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 722. It denies that to day's holding
would extend to "a broad challenge to the constitutionality of the
city's general landuse 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 714-715, 717.) 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.14
14 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 Civ. Proc. 52(a).
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