City of Monterey v. Del Monte Dunes at Monterey, Ltd.

CITY OF MONTEREY v. DEL MONTE AT DUNES

MONTEREY, LTD., et al. No. 97-1285. Argued October May Decided delivered and Court of the judgment J., Kennedy, announced II, opinion and I to Parts respect with Court a unanimous for opinion V, in IV-C, and IV-B, IV-A-1, III, Parts respect with Court JJ., joined, Thomas, Scauia, and Stevens, J., and Rehnquist, C. which J., Rehnquist, C. which IV-A-2, in to Part respect opinion an and concur- opinion an J., filed Scaha, JJ., Thomas, joined. and Stevens and J., filed Souter, 723. p. post, judgment, concurring and in part ring O’Connor, part, dissenting and part concurring in opinion 733. p. post, JJ., Breyer, joined, Gxnsburg, and With for petitioner. cause Yuhas George A. argued E. V. Harris. Richard was briefs on him cause argued Kneedler General Deputy Solicitor With reversal. curiae urging amicus as States United Waxman, Assistant General Solicitor were brief him C. Stewart, David L. Malcolm Schijfer, Attorney General Mendelson. Nina Dowling, Timothy J. Shilton,. A. Jacobsen.* Frederik brief him on

With New State filed were reversal urging curiae of amici *Briefs Jersey, of New Stefanie Attorney General nievo, Ver by Peter al. et Jersey Attor- Jacobson, Assistant Mary C. General, Attorney Brand, Deputy A General Attorney Diaz, Acting F. Schweitzer, Chis General, Dan ney jurisdictions respective their General Attorneys Guam, Arizona, Winston Woods Alaska, Grant Botelho M. Bruce follows: Kennedy Justice delivered the opinion of the Court, as to except Part IV-A-2.

This ease began with attempts by respondent Del Monte Dunes and its predecessor in interest develop par- cel of land within the jurisdiction of the petitioner, Bryant of Arkansas, Richard Blumenthal of Connecticut, M. Jam Brady of Delaware, Robert A Butterworth of Florida, Margery S. Bronster Hawaii, Alan G.Lance of Idaho, Jim Ryan of Illinois, Jeffrey A Modisett Indiana, Thomas J. Miller Iowa, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Hum- phrey III of Minnesota, Joseph P. Mazurek of Montana, T. Philip Mc- Laughlin of New Hampshire, Tom Udall of New Mexico, Dennis C. Vaeco York, of New Michael F. Easley of North Carolina, Heidi Heitkamp North Dakota, Hardy Myers of Oregon, B. Jeffrey Pine of Rhode Island, John Knox Walkup of Tennessee, William H. Sorrell of Vermont, Mark L. Earley of Virginia, Christine 0. Gregoire of Washington, and Darrell V. McGraw, Jr., of West Virginia; for the City and County of San Francisco et al. by Louise H. Renm, Dennis Aftergut, Andrew W.Schwartz, Pamela Albers, Gary T.Ragghianti, Cowan, Zach Ball, Ronald R. John L. Cook, Joel D. Kuperberg, Edward J. Foley, Philip D. Kohn, Lois E. Jeffrey, John Todd, William Sanford W. Wynder, Steven Nord, F. Thomas B. Broten, GeorgeH. III, Eiser 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 Divight Herr; L. for the American Planning Association by Robert H. Freiiich and Terry D. Morgan; for the League for Coastal Protection et al. by John D. Echeverría; for the Municipal Art Society of New York, Inc., by Michael B. Gerrard, Michael S. Gruen, Dennis C. O'Donnell, John Kerr, J. 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, N. Nancy McDonough, and Carolyn S. Richardson; for the California Association of Realtors et al. by Roger J. Marzulla;

Defenders of Property Rights et al. by Nancie G.Marzulla; for the Insti- tute for Justice by William H. Mellor, Clint Bolick, Scott G.Bullock, 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 Washing- ton Legal Foundation et al. by J. Daniel Popeo and Paul D. Kamenar. rejec- repeated series city, in a Monterey. The city of time each property, develop the to proposals denied tions, Del developers. the demands rigorous more imposing District States United the in brought suit Dunes Monte Rev. under California, of District the Northern for Court litigation, protracted § After 1988. C. § S. 1979, U. Stat. the- Dunes’ Monte Del jury on the to submitted was ease the otherwise taking or regulatory a city effected ory the that com- paying without acts, by unlawful property the injured remedy postdeprivation adequate an providing or pensation the and Dunes, Monte Del for found jury The loss. the for affirmed. Appeals of Court petitioner The the Court that and by the decided been have

should regulatory standard erroneous adopted Appeals of questions of all decide need liability. We takings each examine we need nor petitioner, by the presented decision its Appeals by the Court given points city’s given whether, controlling question The affirm. correct were instructions concession apparent submitted properly was matter law, statement judgment and was, conclude We jury. affirmed. should Appeals Court H-Í

A predecessor its and Dunes Monte Del property The 37.6-acre develop was sought to (landowners) interest near Monterey, at city of located parcel ocean-front enters. Highway north, where boundary to the city’s located park a state and the ocean exception the With by rail- virtually surrounded was parcel northeast, com- industrial, devoted properties right-of-way road itself parcel The uses. multifamily residential mercial, city’s under use multifamily residential zoned zoning ordinance. general parcel The had not been by untouched its urban and indus- proximities.

trial A sewer line housed in 15-footman-made dunes covered jute matting surrounded snow fencing traversed the property. Trash, dumped in violation of the law, had accumulated premises. on the parcel had been used for many years by an oil company as a termi- nal and tank farm where large quantities of oil were deliv- ered, stored, and reshipped. When the company stopped using the site, it had removed its oil tanks but left behind pads, tank an industrial complex, pieces pipe, broken con- crete, and oil-soaked sand. The company had introduced nonnative plant ice prevent erosion and to control soil con- ditions around the oil tanks. plant Ice secretes a substance that forces out plants other and is not compatible with the parcel’s natural flora. By the time the sought landowners to develop the property, ice plant spread had percent some 25 parcel, the and, absent human intervention, would con- tinue to advance, endangering and perhaps eliminating the parcel’s remaining vegetation. natural plant ice 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 plant buckwheat to survive. Searches for the butterfly from 1981 through yielded 1985 but a single larva, discovered in 1984. No other specimens had been found on the property, and parcel the quite isolated from possible other habitats of the butterfly.

B In 1981 the landowners submitted an application to de- velop the property in conformance with city’s the zoning and general plan requirements. Although the zoning require- permitted ments the development upof to 29 housing units per acre, or more than 1,000units for the parcel, entire the landowners’ proposal was limited to 344 residential units. In 1982 city’s the planning commission denied the application favor- receive would units for proposal a stated but the suggestion, the with keeping In consideration. able In units. for proposal a revised submitted landowners the denied again commission planning however, the late reduc- a requested more once commission The application. plan a saying time this development, the scale in tion landowners The favor. with received would 224 units for for proposal prepared drawing board returned notwithstanding, statements previous which, its units, landowners The 1984. denied commission planning planning overruled council, city appealed com- to the back project referred denial commission’s for proposal consider instructions mission, with units. scope reduced again once landowners The request, city’s comply with proposal velopment total each plans, site detailed specific, four submitted com- planning so, Even parcel. whole units 1984. later proposal landowners’ rejected mission city council. to the appealed landowners more Once proposal finding the commission, again overruled council city’s conformance satisfactory and conceptually density, number alia, inter regarding, decisions previous then council The access. and property, the units, location specific various to subject plans, site the one approved permit use conditional 18-month granted conditions, and development. proposed the spent landowners The city’s conditions. the fulfill steps to taking other and proposal 37.6 the 17.9 devoted plan, submitted final Their areas and beach public (including space open public to acres habi- buckwheat preservation restoration to acres 6.7 areas, and landscaped open, tat), to 7.9 acres ac- parking public (including streets private public build- to allocated beach). were Only acres 5.1 cess with accordance designed, plan was The patios. ings and city’s provide demands, to 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 struc- ture and buckwheat possible habitat as consistent with de- velopment city’s and the requirements. After detailed review proposed buildings, roads, and parking city’s facilities, the architectural review committee approved plan. Following hearings before the planning commission, the professional commission’s staff found the final plan addressed and substantially satisfied city’s conditions. proposed It the planning commission spe- make cific findings to this effect and plan recommended the approved.

In January/1986, less than two months before the landown- ers’ conditional permit use expire, was to the planning com- rejected mission the recommendation of its staff and denied the development plan. The appealed landowners city to the council, also requesting a 12-month extension of permit their to allow them time attempt comply any additional requirements might council impose. permit was ex- tended until hearing could be held before city council in June 1986. After hearing, city council denied the plan, final only declining specify measures the land- owners could take to satisfy by concerns raised the coun- cil but also refusing to extend the conditional permit use allow time to address those concerns. The council’s deci- sion, moreover, came at a time when a sewer moratorium by issued agency another would prevented have or at least delayed development based plan. on'a new The council did not base its decision on the landowners’ failure to any meet of the specific conditions pre- earlier scribed city. Rather, the council general made find- ings that the landowners provided had not adequate aecess (even for the development though the landowners had twice 698 city’s the eomply plans access specific the

changed city’s new satisfy the they could maintained and demands layout plan’s extension), the that an granted if objections of location though the (even environment damage the would by the necessitated property the on development the and corridors, view beach, public city’s demands would plan the that and park), state the next zone buffer (even Butterfly Blue Smith’s the of habitat disrupt the and plant encroaching ice the remove plan would though the the of half almost on habitat buckwheat restore preserve been ever had larva only one though even and property, property). the cn found

C site different and decisions, formal five years, five After Dunes 1994), Monte Del (Feb. 9, 1294-1295 Tr. plans, prop- of development permit city would decided com- Dunes Monte Del any circumstances. erty under District States United city against suit menced under California District Northern Court final denial alia, inter alleging, §1983, C.S.U. process due violation awas proposal development Amendment Fourteenth provisions protection equal regulatory unconstitutional, so uncompensated, taking. as dismissed Court District The Hamil- v. Planning Comm’n Regional County Williamson (1985), S. U. City, 473 Johnson Bank ton a defin- obtained neither had Dunes Monte Del grounds nor allow city would development to decision itive Ap- Court court. state compensation just sought 1990). review- After (CA9 F. 2d reversed. peals develop the attempts to history length ing at some proposals require additional found court property, pro- and unfair repetitive about concerns implicate would Yolo Frates & Sommer MacDonald, expressed cedures County, 477 U. S. 340, (1986), 350, n. 7 and that city’s the

decision was sufficiently final to render Del Monte Dunes’ ripe claim for review. 920 F. 2d, at 1501-1506. The court also found that because the State of California had pro- vided a compensatory remedy for temporary regulatory tak- ings when city issued its final denial, see English First Evangelical Lutheran Church Glendale County Los Angeles, 482 U. S. (1987), Del Monte Dunes was not re- quired pursue relief in state court precondition as a federal relief. See 920 F. 2d, at 1506-1507. On remand, the District Court determined, city’s over the objections, to submit Del Monte Dunes’ takings equal and protection claims to jury but to reserve the substantive process due claim for by decision the court. Del Monte argued Dunes that, although city had a regulate property, its the combined effect of city’s var ious demands—that development be invisible from the highway, that a provided buffer be between the development and the park, state public that the provided with a beach—was to force development into the “bowl” area of parcel. As a Del result, Monte argued, Dunes city’s subsequent decision the bowl contained sensitive buckwheat habitat which could not be disturbed blocked the development any portion of the property. See 10 Tr. (Feb. 9,1994). 1288-1294, 1299-1302, 1317 While conced ing the legitimacy city’s of stated regulatory purposes, Del Monte emphasized Dunes protracted tortuous history attempts to develop property, as well as the shifting and sometimes positions inconsistent taken city throughout process, argued that it had been treated in an unfair and irrational manner. Del Monte Dunes also submitted designed evidence to undermine validity of the asserted premises factual for city’s denial of the final proposal and suggest city that the had consid ered buying, or inducing the buy, State to the property for money this reserving some early as public use financial plans abandoning its delaying or but purpose California’s State 1308-1306. id., See reasons. litiga- the of pendency during the property the purchase Dunes’ Monte Del credibility of the bolstered may have tion Court District the argument, close theAt that either found it if Dunes Monte Del find it should viable economically all denied been had Dunes Monte Del reject the city’s decision “the that or property itsof use substan- did proposal development unit plaintiffs 303. App. purpose.” public legitimate a tially advance instructed, jury was the inquiry, first the respect to With follows: as part, relevant the that find you will claim, taking aof purpose the

“For use economically viable all denied been has plaintiff deci- regulatory city’s theof result the as if, property, its use beneficial or permissible no remains there sion has plaintiff the whether proving In property. that property, itsof use economically viable all denied been the after show plaintiff the enough that it diminished property city the by the challenged action as loss economic serious suffer would or value Ibid. city’s actions.” the result jury received inquiry, second to the respect With following instruction: authority city, have such bodies, “Public legitimate substantially advance actions

to take interest[s] can public legitimate interest[s] and public open preserving environment, protecting include safety its health protecting agriculture, space by community quality regulating citizens, jurors jobs as your one So development. looking at substantially ad- here city’s decision if the decide tois purpose. public legitimate any such vanced “The regulatory actions of city any agency sub- stantially advane[e] legitimate public purpose if the action bears a reasonable relationship to objective. establishes that there was no reasonable relationship between the city’s denial of the . . . proposal legitimate public purpose, you should find in favor plaintiff. of the you If find that there existed a reasonable relationship be- tween city’s decision and legitimate public purpose, you should find in favor of city. As long as regu- latory city substantially advances their legitimate public purpose, ... its underlying motives and reasons are not to inquired into.” Id., at 304. The essence of these instructions proposed was city. the (June See Tr. 11 17,1994). jury general delivered a verdict for Del Monte Dunes on its takings separate claim, a verdict for Del Monte Dunes on equal its protection claim, and a damages award of $1.45 (Feb. million. Tr. 2 17,1994). After the jury’s verdict, the District Court ruled for city the on the proc- substantive due ess claim, stating that ruling its was not inconsistent with the jury’s verdict on equal the protection or the takings claim. App. to Pet. for Cert. A-39. The court later denied city’s the motions for a new trial or for judgment as a matter of law. The Court of Appeals affirmed. (CA9 95 F. 3d 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 jury to a trial under §1983, id., at 1426-1427, and whether Del Monte Dunes had been denied all economically viable use of the property and whether city’s the denial of the proposal final substantially legitimate advanced public interests were, on the facts of this questions case, suitable jury, the id., at 1430. The court ruled that sufficient evi- dence had presented been to jury the from which it reason- Monte Del in questions these of each decided have ably could the upholding Because 1430-1434. at Id., favor. Dunes' sup- to sufficient claim takings regulatory the verdict the address did court damages, of award port 1426. Id., claim. protection equal presented questions submitted properly liability were of issues (1) whether were claim, takings regulatory Dunes’ Del Monte jury on its based impermissibly Appeals of Court (2) whether reweigh the jury allowed standard aon decision (3) decision, land-use city’s reasonableness assuming that erred Appeals Court whether Tigard, City Dolan standard rough-proportionality certio- granted We ease. to this (1994),applied S.U. questions these address now (1998),and U. S. rari, order. reverse II found have could holding a reasonable course In substantially related proposal final city’sdenial stated: Appeals Court interests, public legitimate Del denying interest legitimate City had if “Even ‘roughly must its application, development Monte’s is, That . .. interest. furthering proportional’ extent nature ‘both related be must City’s denial ” 1430, 3d, at F. development.’ proposed theof impact at 391. supra, Dolan, quoting States, Armstrong United see Clause, Takings

animate guarantee Amendment’s (“The (1960) Fifth U. S. peo- forcing some from Government bar designed to ... fairness all which, burdens public to bear ple alone whole”), have we a public by the borne should justice, beyond Dolan test rough-proportionality extended condi- decisions exactions—land-use context special the tioning prop- dedication development approval v. Cali- 385;Nollan supra, Dolan, See use. erty public Coastal fornia Comm’n, 483 U. (1987). S. 825, 841 The rule applied in Dolan considers whether dedications demanded as conditions development proportional are to the develop ment’s anticipated impacts. It was designed to address, and is not readily applicable to, the much questions different 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 ease such as this one. jury, however, did not men-

tion proportionality, let require alone it to find for Del Monte Dunes city’s unless the actions were roughly proportional to its asserted interests. The of Appeals’ Court discussion of rough proportionality, we conclude, was unnecessary to its decision to sustain jury’s verdict. Although the court stated “[significant evidence supports Del Monte’s claim City’s actions were disproportional to both the na- ture and extent of impact proposed development,” 3d, F. at 1432,it did only so after holding that

“Del provided Monte evidence sufficient to rebut each of these [for reasons denying the proposal]. final Taken together, Del argued Monte City’s reasons for denying their application were invalid and that it un- fairly intended any forestall reasonable development of the Dunes. light In of the proffered evidence by Del Monte, City has incorrectly argued that no rational juror could concludethat City’s denial of Del Monte’s application lacked a sufficient nexus with its stated ob- jectives.” Id., at 1431-1432.

Given this holding, it was unnecessary for the Court of Appeals to rough discuss proportionality. That it did so irrelevant disposition our of the case. I—I H—<

'The city challenges the Court of Appeals’ holding that the jury could have found city’s the denial of the final develop- 704 inter- public legitimate to reasonably related not plan

ment argument city’s the obscure, Although somewhat ests. evidence; the sufficiency of the challenge to aas cast not adopted Appeals of Court the that city maintains the rather, allows liability that takings regulatory for legal standard a policy. land-use public second-guess juries city theAs instructions the contend now cannot jury, the given any In law. the of statement accurate provide not did definitive a neither provided has although this Court event, regula temporary a claimaof the elements of statement ap or nature the of explanation thorough taking nor tory substantially regulation requirement the of plicability context the outside interests public legitimate advance at supra, Nollan, g., e. ef., exactions, or dedications required are instructions court’s trial the note 3, we n. 834-885, regula discussions general previous our with consistent tory v. 385; Lucas supra, at Dolan, liability. See takings (1992); 1003, 1016 S.U. 505 Council, Coastal Carolina South supra, Nollan, (1992); U. S. Escondido, v.Yee DeBenedictis, v. Assn. Coal Bituminous Keystone 834; Bayview Riverside v. States (1987); United 470, S.U. Ti- City (1985);Agins 121, U. S. Inc., Homes, challenge city did (1980). The U. 447 S. buron, general viability of continued or applicability below authori by these liability recited takings regulatory test have appear instructions jury upon which ties us, we before case posture Given modeled. been precedents. these revisit amici suggestions decline city contends the extent To determination jury upon based was Appeals Court or land-use zoning laws general its reasonableness of the in- neither squared can argument its policies, case theory on nor jury given structions whether ask did instructions tried. unreasonable were policies zoning ordinances city’s but only whether city’s “the decision reject plaintiff’s 190unit development proposal did not substantially advance a legitimate public purpose,” App. 303, is, whether “there was no reasonable relationship between the city’s de- nial of the ... proposal and legitimate public purpose,” id., at 304. Furthermore, Del Monte lawyers Dunes’ were ex- plicit in conceding that “[t]his case is not about the right of a city, in this case the city of Monterey, regulate land.” (Feb. 10 Tr. 1286 1994). See also id., at 1287 (proposals were made “keeping in mind regulations various and re- quirements, heights, setbacks, and densities and all that. That’s not what this case about”); id., at 1287-1288(“They have the right to set height limits. They have talk about where they want access. That’s not what this ease is about. We all accept that in today’s society, cities and counties can tell a land owner what to do to some reason- able extent with their property”). Though presented not review, Del Monte equal Dunes’ 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 un- derstanding of and Del Monte Dunes that the com- plaint was general about laws or ordinances but about a particular zoning decision. The instructions regarding city’s decision also did allow the jury to consider the per reasonableness, se, of the customized, ad hoc conditions imposed on the property’s de- velopment, and Del Monte Dunes did not suggest otherwise. On the contrary, Del Monte Dunes disclaimed this theory the case in express terms: “Del Monte Dunes partnership did not file this lawsuit because they were complaining about giving public the beach, keeping [the development] out of the view shed, devoting and [giving] to the State all this habitat area. [of One-third the] property is going to be given away for public use forever. That’s not what we filed the lawsuit about.” Id., at 1288;see also id., at 1288- away give owner “ask may city (concedingthat compensa- dime getting without property a third habi- public for the lots parking providing it for tion boardwalks”). butterfly, and the for tats was jury the Rather, ato reasonably related was proposal final of the city’s denial issue, this regard to with Even purpose. public legitimate second-guess to rein free given jury was the however, instructed, jury was the Rather, policies. city’sland-use the asserted purposes various the terms, unmistakable in App. 304. See interests. public legitimate city were by the was furthermore, jury, particular, in and, context, in rather but isolation in decision to attempts history of protracted tortuous the light of in (Feb. 9, 1294-1295 Tr. g., 10 e. See, property. develop the introduce to allowed was Dunes Monte Although Del 1994). city's the for bases factual asserted challenging the evidence city’s the shifting nature the highlighted also decision, rec- with decision inconsistency itsof demands pre- its with aswell staff, as professional of its ommendation Dunes Monte Del 1300. id., g., See, e. decisions. vious interest longstanding city’s evidence introduced also id., at g., See, e. use. public property acquiring 1303-1306. on jury submitted question short, In history and of all light whether, in confined was deny Del decision particular city’s case, context reasonably re- was proposal development final Dunes’ Monte question This justifications. proffered city’s lated proposed been had instruction moreover, couched, no city made as to city, and by the essence objection. despite Thus, tak- a rule adopt did Appeals Court clear jury or judge interference allowing wholesale

ings law regulatory routine laws, policies, land-use municipal 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.

(l—> We next address whether it was proper for the District Court to submit the question of liability Del Monte Dunes’ regulatory takings claim to the (Before jury. the District Court, the city agreed it was proper assess damages. See Supplemental Memorandum of Petitioner Re: Court/Jury Trial Issues in No. (ND C86-5042 Cal.), p. 2, Rec- ord, Doc. 111.) No. As the Court of Appeals recognized, the answer depends on whether Del Monte Dunes had a statu- tory 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 applica bility 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.’ Felt ner v. Columbia Pictures Television, Inc., 528 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, at supra, (“[W]e cannot discern ‘any con- ” gressional intent to grant... the right ato jury trial’ (quot- supra, ing Tull, at 417, 3)). n. 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 redress.” Del Monte Dunes contends that the phrase “action at law” is a disagree, We trial. jury ato right implying art of term implication. necessary anot this we S.U. Pons, v. Lorillard In statute the because part in trial jury ato right statutory however, did decision, Our relief.” “legal... authorized relied but phrase the of use statute’s solely on rest procedures incorporation explicit statute’s onwell interpreted been had Act, Standards Labor Fair of the 580. Id., at actions. private in jury by trial guarantee under right jury statutory find accordingly, decline, We law.” at action “an authorization solely on § based must we consequence, aAs at “[i]n Suits that provides Amendment Seventh tion. exceed controversy shall value where law, common be shall jury by trial right dollars, twenty mandate textual Consistent ....” preserved interpretation our preserved, compris analysis historical guided been has Amendment arewe whether first, ask, “[W]e inquiries. principal ing two at lawat tried either action cause dealing with one analogous least founding or time S.U. Inc., Instruments, Westview Markman was.” law belongs question “If (1996). decision trial particular whether ask then we category, substance preserve order in fall must Ibid. 1791.” in existed itas common-law A recognized have we inquiry, first respect With suits, which merely “not include law” common “suits proceed- and settled old among its recognized law common ascer- were rights legal in suits [also] but ings, where those contradistinction determined, tained reme- equitable recognized, were alone rights equitable 433, Pet. 3 Bedford, Parsons administered.” were dies only applies thus Amendment Seventh (1830). The to common-law causes of action but also to statutory causes of action “'analogous to common-law causes of action ordi narily decided in English law courts in the late 18th century, as opposed to those customarily heard courts of equity or admiralty.’” Feltner, supra, at 848 (quoting Granfinan ciera, S. A v. Nordberg, 492 U. S. 33, 42 (1989));accord, Cur tis, supra, at 193. Del Monte Dunes brought this pursuant suit §to 1983 to

vindicate its rights. constitutional We § hold that a 1983suit seeking legal relief is an action at law within the meaning of the Seventh Amendment. opinion concur- Justice Scalia’s ring part and concurring in the judgment presents a com- prehensive and convincing analysis of the historical and con- stitutional reasons for this conclusion. We agree with his analysis and conclusion.

It is undisputed that when the Seventh Amendment was adopted there was no equivalent §to 1983,framed in specificterms for vindicating constitutional rights. It is set- tled law, however, that the Seventh Amendment jury guar- antee extends to statutory claims unknown to the common law, long so as the claims can be said to “soun[d] basically tort,” and seek legal relief. Curtis, supra, at 195-196. there can be no doubt that claims brought pursuant § to 1983 sound in tort. Just as common-law tort provide actions redress interference protected personal or property interests, § provides relief for invasions of rights protected under federal law. Recognizing the essential character of the stat “ ute, ‘[w]ehave repeatedly noted that 42 § U. S. C. 1983cre ” ates a species of tort liability,’ Heck v. Humphrey, 512 U. S. (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,” Mon roe v. Pape, 365 U. S. 167, (1961) (overruled on other grounds, Monell v. New York City Dept. Social Servs., 436 710 settled Our 488. at supra, Heck, accord, (1978)); 658

S.U. thus Amendment Seventh § 1988 understanding brought relief legal for suit a that conclusion compel law. at action anis statute under Here time at because, §1983 under court federal in proceed provide not did of California State actions, city’s takings. regulatory temporary remedy for compensatory constitutional The 308-311. atS.,U. English, First See but taken was property that not is therefore, alleged, injury city Had compensation. just without taken it was postdeprivation adequate had property paid for suf have would Dunes Monte Del available, remedy been See taking alone. from injury constitutional no fered statutory ac its Because 194-195. S., at U. Williamson, in compensation, just denied was until accrue not did tion compensation just sought Dunes Monte Del sense a strict denial unconstitutional for damages rather but se per violation constitutional Damages for compensation. such U. S. Terry, 494 v. g., Teamsters e. See, remedy. legal are damages money action (“Generally, an (1990) 558, 570 ”) law5 courts offered relief form traditional ‘the 196). at S.,U. Curtis, (quoting aas viewed when Even legal essentially sought Dunes’ Monte Del believe we mone- rule’ ‘general recognized have “We relief. (quoting at S.,U. Feltner, legal.” tary relief compensation, 570). Just supra, Terry, v. Teamsters mone- other restitution equitable from differs moreover, just determining equity, available tary remedies lost, owner has what question “the compensation, Commerce Chamber Boston gained.” taker has what suggests, name (1910). itsAs S.U. Boston, damages, a money ordinary like is, compensation just then, com- recognized has Court remedy. compensatory legal “traditionally associated purpose is a pensation relief.” Feltner, supra, at 352. Because Del Monte Dunes’ statutory suit sounded in tort sought legal relief, it was an action at law.

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, city asks us to create an exception to general Seventh Amendment gov rule §1983 erning actions for claims alleging violations of the Takings Clause of the Fifth Amendment. See New Port Largo, Inc. v. Monroe County, 95 (CA11 F. 3d 1084 1996) (finding, in tension with the Ninth Circuit’s decision in this case, that there is right no to jury trial on a takings claim brought §1988). under Because the jury’s role in estimating just compensation in condemnation proceedings was incon sistent and unclear at the time the Seventh Amendment was adopted, this Court has said “that there is no constitutional right to jury in eminent domain proceedings.” United States v. Reynolds, 397 U. S. (1970); 14, 18 accord, Bauman v. Ross, 167 U. S. (1897). city submits that the analogy to formal condemnation proceedings is controlling, so that thére is no right here. post, notes, see at 724-726, we have Scalia declined in other contexts §1983 classify actions based

on the nature of the underlying right asserted, and the city provides persuasive no justification for adopting a dif- ferent rule for Seventh Amendment purposes. Even when analyzed § not as a 1983 action simpliciter, however, but

§ 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 compensation which, as incorpo- rated the Fourteenth Amendment, is applicable here, see English, First supra, at (citing Jacobs v. United States, 290 U. S. (1933)),a condemnation action differs in im- uncom- redress § from respects portant government when important, Most taking. pensated landown- concedes proceedings, condemnation initiates de- mere seeks compensation just to receive right er’s Liability due. compensation the amount termination condemnation if even result, aAs issue. an is not simply analogy, condemnation appropriate an were proceedings ques- specific the guidance little provide would practice deter- jury ato entitled was Dunes Monte Del whether tion liability. mination difference This the When inapposite. also but unhelpful only

ceedings not initiating condemnation without property takes government dis- to burden the landowner the to it “shifts proceedings, re- to affirmative take to encroachment the cover Clarke, States United compensation.” just cover not does government the when (1980). Even U. S. pay obligation itsor property the seizure its dispute condemning the from initiative “shifting mere it, “at landowner place can condemnee” authority to (“There id., at cf. 258; Id., at disadvantage.” significant in- an between differences practical legal and important are proceeding”); condemnation suit condemnation verse at least (recognizing, §4654 C.S. U. §304, 42 Stat. at- recovery of providing by burden added implicitly, property seizes government where in cases fees torney’s ordi- but proceedings initiating condemnation without government here, cases). Where, nary condemnation post- adequate an provide fails liability but only denies question submit refusing to (thus remedy deprivation disadvantage arbiter), impartial liability circum- these least At greater. all becomes owner procedures ordinary condemnation analogy to stances, simply untenable. by confirmed conclusion Our so did proceeding condemnation ain right finding no

ity ground on the that condemnation did not involve the deter- mination legal rights liability because undisputed: “We are opinion therefore of that the trial jury is

preserved inviolate in the sense of the constitution, when in all criminal cases, and in civil cases right when a is in controversy in a court of law, it is secured to each party. In cases of description this [condemnation pro- ceedings], right to take, and the compensa- tion, are admitted; only question is the amount, may be submitted to any impartial tribunal the legislature may designate.” Bonaparte v. Camden & Amboy R. Co., 3 (No. F. Cas. 821, 1,617) (CC NJ 1830)(Baldwin, Justice). Circuit (Although Justice opinion concurring part in Souter’s and dissenting part in takes issue with this distinction, its arguments unpersuasive. are First, correctly it notes that government when the initiates formal proce- condemnation dures, a may landowner question whether the proposed tak- ing public is for use. The landowner who raises this issue, however, seeks not to government’s establish the liability for damages, prevent but to government the from taking his property at all. As the recognizes, dissent the relief desired by a making landowner this contention analogous is not damages but to an injunction; it should surprise, no then, that the landowner is not entitled to jury trial on his enti- tlement to remedy that sounds not in law but in equity. Second, the dissent refers to “the diversity of rationales un- derlying early state cases in which right the of a direct con- demnee jury to a trial was considered and denied.” Post, at 742. The dissent only mentions the rationale that because government the is immune from suit damages, it can qualify any remedy it provides by dispensing with the to a trial. The cases cited for this proposition—two state-court cases antedating the adoption of the Fourteenth Amendment and off-point an federal case—do implicate not immunity ra- sovereign if Even Amendment. Fifth is Amendment this where eases vitality in its retains tionale nei- isit9, n. at S., U. English, First ef. applicable, Rather, takings claims. coextensive to nor limited ther Federal against suits constitutional all apply would it suits constitutional but States, or Government Monte- city of like municipalities against one this as such we distinction that contends dissent Third, rey. Even cases. condemnation our from absent drawn have equally is— obvious it is true —and were this if principle analysis any decisions those from absent condemna- of direct context narrow beyond extend would apparent as Rather, one. this such actions suits tion at post, see dissent, by the quoted passages from even per- Court’s only on rely cases these 1,n. 736-739, direct practice colonial English historical ception from detracts cases Nothing in these cases. condemnation support do opinion this cited authorities condemnation direct between draw we distinction his- different of a Finally, existence one. this like suit from condemnation direct distinguishes practice torical liability. concedes defendant ordinary case tort 5.) n. 742-743, post, See proceedings Condemnation When well. respect fundamental another provides it use, public for property condemns government isas compensation, just seeking forum landowner at supra, English, First See Constitution. by the required deny fact, not, do proceedings condemnation If the 316. actions government’s compensation, just landowner Williamson, See unlawful. nor unconstitutional neither are proscribe does Amendment (“The Fifth S., U. com- just taking without proscribes property; taking of property takes government when Even pensation”). con- nois there proceedings, initiating condemnation without pro- “ fails state until ‘unless violation stitutional

vide adequate an ” postdeprivation remedy for the property loss.’ Id., at 195 (quoting Hudson v. Palmer, 468 U. S. 517, (1984)). 532, n. 12 In this ease, however, Del Monte Dunes was denied only property its just but also compensation or even adequate an forum for seeking it. That grava- is the § men of the 1983claim.

In these circumstances, we conclude the cause of action sounds in tort and is most analogous to the various actions 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 practice. historical

Early opinions, nearly contemporaneous with the adoption of the Bill Rights, suggested that when government took property but provide failed to a means for obtaining just compensation, an action to recover damages gov for the ernment’s actions would sound in tort. g., e. See, Lindsay v. (S. Commissioners, 2 Bay 1796) 38, 61 C. (opinion of Waties, J.) (“But suppose they sue, could 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 give would reparation in dam ages. Is not this acknowledging that the act legisla of the [in ture authorizing uncompensated takings] is a tortious (emphases act?” in original)); Gardner v. Village New burgh, 2 Johns. (N. Ch. 1816) 164, Y. (Kent, Ch.) (uncompensated governmental interference with property support would a tort action at nuisance). law as a matter of his- practice, torical when government has taken property without providing adequate means for obtaining redress, suits to just recover compensation have been framed as common-law tort g., actions. See, e. Richards v. Washing- ton Terminal Co., (1914) 233 U. S. 546 (nuisance); Pumpelly Bay Green Co., (1872) 13 Wall. 166 (trespass on case); the Barron ex rel. Tiernan Mayor v. Baltimore, 7 Pet. 243 of 716 103 20 Johns. Rodgers, v. tort); Bradshaw (unspecified

(1833) descriptions these of actions 1822) Tort (trespass). (N. Y. the on Commentaries Blaekstone, W. 3 law, lay common at the on trespass (trespass; (1768) 12 England, ch. Laws nuisance), in and for case the (trespass on 13 case); eh. id., awas there law, common at suits other in actions, as these (“Ac- 349 atS.,U. Feltner, 523 g., e. see, jury, trial right to be- tried were law, at actions other like case, the on tions juries”). fore our criticism Souter’s (Justice con doWe analysis. of our point the misses authorities theAs always successful. were landowners the that tend Fourteenth adoption prior clear, makes dissent Tak incorporation concomitant Amendment variety obstacles—in States, against ings Clause consti aof lack immunities, traditional cluding various legislative possibility resulting right, tutional sought who landowner way of in justification —stood is point our Rather, taking. uncompensated for redress sound understood were attempted and were suits lawa invokes dissent ironic therefore It tort. in Con First “The entitled discussing suits such article review Nineteenth- in Revolution Remedial The Tort: stitutional 746-747 Post, Law.” Compensation Just Century State true, (1999)). It Rev. L. Vand. Brauneis, (citing compen just for claims observes, opinion dissenting than rather contract quasi brought sometimes were sation 458- S. U. Lynah, States g., United e. See, tort. v. Chi States United grounds, (overruled other (1903) (comparing (1941)) S.U. Co., P. R. & P. St. M., cago, contract quasi brought compensation just claims tort). historical brought claims just-compensation does compensation just suits quasi-contract existence analysis, Amendment Seventh our undermine nothing to available frequently contract quasi since however, proceed tort waive elected who a tort victim quasi instead in contract. e.g., See, W. Prosser, Law of § Torts 110, pp. (1941). 1118-1127 any In quasi event, con- tract was itself an action at law. g., See, e. 1 G. Palmer, Res- §§

titution 1.2, (1978); 2.2-2.B F. Woodward, Quasi Contracts §6 (1913).) city argues that because the Constitution allows the government to take property public use, a taking for that purpose cannot be tortious or unlawful. reject We this con- clusion. Although the government acts lawfully pur- when, suant to proper authorization, it takes property provides just compensation, government’s action is solely lawful because it assumes a duty, imposed by the Constitution, to provide just compensation. See English, First 482 U. S., at 315 (citing Jacobs, 16). 290 U. S., at When government repudiates this duty, by either denying just compensation in fact or by refusing provide procedures through which compensation may sought, be it violates the Constitution. In those government’s circumstances the actions only are not unconstitutional but unlawful and tortious as well. See Gardner v. Village Newburgh, supra, (“[T]o 166, 168 render the exercise [eminent of the domain] power valid,” government provide must landowner “fair compensa- tion”; “[u]ntil, then, provision some be made for affording him compensation, it would be unjust, and contrary to the first principles of government,” to deprive plaintiff of prop- his erty rights; absent such a provision, plaintiff “would entitled to his action at law for the interruption right”); his Beatty v. United States, (CA4 203 F. 1913) (“The taking of property by condemnation power under the of emi- nent domain is compulsory. The party deprived of his property against his will. It is in effect a lawful trespass committed the sovereign, and lawful only on the condition that the damages inflicted by the trespass paid are to the injured party. The analogy to a suit at commonlaw for tres- pass is close and complete”). tor- taking uncompensated, (The argument rather compensation just seeks landowner because

tious remedy re- a deprivation damages additional than is no put, there Simply misunderstanding. same the veals denied is landowner the until injury tortious or constitutional land- the which to damages the That compensation. just just by the measured injury are this for entitled owner nor surprising neither denied been has he compensation significant.)

B anwas § suit 1983 Dunes’ Monte Del Having decided issues particular the whether determine must law, we at jury. See by the determination for proper liability were S.U. Inc., Instruments, Westview Markview jury the for proper are issues law, at (1996). actions In jury’s ato preserve “to submitted be must by the guaranteed dispute,” ultimate resolution whether determine We 377. at Id., Amendment. Seventh using the “by possible, jury, when for proper are issues suits characterizing the indo as we method, much historical 378. at Id., issues] arise.” [the within actions and is particular whether history determine look We jury in by judge or by decided ones, were analogous sues, Amendment Seventh time at law common at suits an clear provide history does Where adopted. was considerations. functional precedent look we swer, 384. at Id., § suit Dunes’ Monte of Del analogue exact noas Just pre- no find we can also so law, common identified can liability submitted test specific analogue cise tort sounding in suits know doWe case. this

jury in decided liability were questions damages, money alloca- This cases. most judge, than jury, rather often resolving what role jury’s preserved tion the heart of dispute plaintiff between and defendant. Although general these provide observations guidance some proper allocation judge between jury of the liabil- ity issues in this case, they do not establish a definitive answer.

We look next to our existing precedents. Although this Court has decided many regulatory takings cases, none of our decisions has addressed proper liability allocation of determinations judge between in explicit terms. This is not surprising. Most of our regulatory takings deci sions have reviewed against suits the United States, see, g.,e. United States v. Bayview Riverside Homes, Inc., 474 U. (1985); S. 121 Hodel v. Virginia Mining & Recla Surface mation Assn., Inc., 452 U. (1981), S. 264 suits decided state courts, g., see, e. Dolan v. City Tigard, 512 U. S. 374 (1994); Lucas v. South Carolina Coastal Council, 505 U. S. (1992); 1003 Nollan v. Coastal Comm’n, 488 California U. S. (1987); 825 English First Evangelical Lutheran Church of Glendale v. County Angeles, Los 482 U. (1987), S. suits seeking only injunctive relief, g., see, e. Keystone Bitu minous Coal Assn. v. DeBenedictis, (1987). 480 S.U. 470 It is settled law that the Seventh Amendment does apply in these contexts. Lehman v. Nakshian, 453 U. S. (1981)(suits against the States); United Curtis, 415 S., U. at (suits 192, n. 6 brought court); state Parsons, 3 Pet., at (suits seeking only equitable relief).

we review a regulatory takings case in plaintiff landowner sued a county planning com- mission in federal court for money damages §1983. under 473 U. S., at 182. Whether the commission had denied the plaintiff all economically viable use of the property had been submitted to jury. Id., at 191-192,and n. 12. Although the Court did not point, consider the it assumed propri- ety- of procedure. this g., (“It E. id., at 191 is not clear whether the jury would have found that the respondent had had property use beneficial reasonable all denied been grant of through met been objections eight any determines Commission until Accordingly, . variance... for the impossible isit granted, bewill variances no unable be ‘will respondent record, whether this find, on land”). from benefit’ economic derive we however, holding, direct not a Williamson considerations next turnWe guidance. further look function. process most are issues factual predominantly lawat actions In Line, Carolina & Baltimore jury. See to the allocated cases (1935). allocation 654, U. S. Redman, 295 Inc. Coke, e.g., E.1 see, foundation, historical firm on a rests respond- non (“ad quaestionem (1628) facti 155b Institutes jura- respondent juris non quaestionem ad judices; ent tores”), resolu- jury’s to a preserve “to serves 377. supra, Markman, dispute,” ultimate tion our inception from Almost property regulation whether held have we trine, do- of eminent exercise must “there far goes so upon depends act... sustain compensation main Mahon, 260 v. Co. Coal Pennsylvania facts.” particular Coal, Bituminous Keystone accord, (1922); U. S. understanding, we this Consistent 473-474. supra, at tak- regulatory liability in determinations described have ” Lucas, “ inquiries,’ factual hoc, ‘essentially ad ings cases New Transp. Co. Central Penn (quoting supra, “complex (1978)), requiring S. U. City, York effects economic purposes assessments factual 523. at S.,U. Yee, actions,” government accordance In eco- of all deprived has been a landowner whether issue fac- predominantly ais property his use nomically viable pro- acknowledgment implied ourAs question. tual lawat actions suggests, supra, Williamson, cedure otherwise within purview of the Seventh Amendment, question this is for the jury.

jury’s role in determining whether a land-use decision substantially legitimate advances public interests within the meaning of our regulatory takings presents doctrine a more question. difficult Although our cases make clear that this inquiry involves an essential factual component, see Yee, supra, at 523, it no doubt legal has a aspect as well, and is probably best understood as a question mixed of fact and law. was whether, when light viewed in of the context pro- history tracted of the development application process, the city’s decision reject particular development plan bore a reasonable relationship to proffered its justifications. See Part supra. III, As the Court of Appeals recognized, this question was “essentially [in] fact-bound nature.” 95 F. 3d, (internal quotation omitted) marks (alteration by Court of Appeals). Under these circumstances, we hold that

was proper to submit this narrow, question fact-bound jury.

C We note the limitations of our Seventh Amendment hold- ing. We do not address jury’s role in an ordinary inverse condemnation suit. The action here was brought under § 1983, a context in jury’s role in vindicating con- stitutional rights long has been recognized by the federal courts. A federal court, moreover, cannot entertain a tak- ings § claim under 1983unless or until the complaining land-

owner has been denied an adequate postdeprivation remedy. Even the State of California, where this suit arose, pro- now vides a facially adequate procedure for obtaining just com- pensation for temporary takings such as this one. Our de- cision is also circumscribed in its conceptual reach. The posture of the case does present an appropriate occasion to define precision the elements of a temporary regula- tory takings claim; although city objected to submitting instruc- the approved it all, jury the liability to of issues no has therefore and jury the to submitted were that tions them. challenge to basis deter- in jury and judge provinces respective the tion le- advances substantially zoning decision a whether mining amici its city and interests. governmental gitimate undermine will here judgment the sustaining that suggest zon- local and state eviscerate and law the uniformity of the plenary, decisions land-use all subjecting authority ing decision Our review. jury inconsistent, potentially and bring not did Dunes Monte Del specter. such no raises general city’s the constitutionality of the challenge broad ex- not holding does our and policies, or ordinances land-use de- context, the such In sort. that challenge of ato tend legitimate, were statutory purposes the whether termination furthered were legitimate, though purposes, the whether or prov- the within fall might well policy, general law by the Monte Del gravamen the was Nor judge. the ince regulations general city’s the that even complaint Dunes’ property; Dimes’ Monte Del applied unreasonable were various the allocation trial proper address hot dowe Rather, context. that in arise might that questions unrea- premised was challenge Dunes’ Monte Del extent tried argued theory action, governmental sonable development final city’s denial was ordi- general city’s only with not inconsistent was permit restric- hoc shifting ad even but policies nances ar- Dunes’ Monte city. Del by the imposed previously tions its followed city had short, gument, done had rather but policies zoning ordinances questions disputed actions, § true often is As so. constitutional denied had government whether were so, if authority, and, itsof bounds acting outside questions were These damages. resulting any extent jury. V For the reasons stated, the judgment of the Court of Appeals is affirmed.

It is so ordered. concurring part Justice and concurring in the Scalia, judgment. join I all except Part IV-A-2 of Justice opin- Kennedy’s ion. In my §1983 view, all actions must be treated alike insofar as the Seventh right Amendment jury trial is right concerned; that exists monetary when damages are sought; and the issues submitted jury to the present case were properly sent there. 1—i § Revised Stat. 1979, § 42 U. S. C. 1983, duty creates a with, refrain from interference the federal rights of others, provides money damages injunctive relief for viola tion of duty. Since the statute itself right confers no jury trial, such a is to be if found, at all, in the applica § tion to 1983 of the Seventh Amendment, guarantees “[i]n Suits at common law, where the value in con troversy shall exceed twenty dollars.” In determining particular whether a cause of action “[s]ui[t] is a at common law” within the meaning provision, this we must examine whether it was tried at law in 1791or is analogous to such a cause, g., see, e. Granfinanciera,, S. A. v. Nordberg, 492 U. S. (1989), and whether it seeks relief legal equi

table in g., nature, see, e. Tull v. United States, 481 S.U. (1987). The fundamental difference my between view of this case and Justice § is that I believe 1983 establishes Souter’s unique, or at least distinctive, cause of action, in that the legal duty which is the basis for relief ultimately defined by the claim-creating statute itself, but an extrinsic body of law to which the statute refers, namely, “federal S.U. McCollan, 443 Baker conferred.” elsewhere rights speak, § toso is, respect (1979). this In 3n. 137, 144, Un pass. may lights many different through which prism cause this analyzing that, I believe Souter, like Justice focus proper purposes, Amendment for Seventh action of happens ray that particular on not itself, prism onis case. present through in passing be to inquiry Amendment The Seventh ” Tele Pictures olumbia v. C Feltner statutory action. theof “statutory only (1998). The S.U. Inc., 523 vision, there us, before question The § suit. 1983 ais here action” analogous to most is action common-law not what is fore, Amend Fifth a compensation seeking suit generic some analogous is most action common-law what taking, but ment duty which of breach fact The §1983 claim. ato Fifth here—a issue § claim 1983 particular underlies another to rise give may takings violation— Amendment so-called namely, a §1983 claim, a besides action of cause IV Part (according to is which suit, condemnation inverse (according to or is opinion) Kennedy’s of A-2 Justice jury, before tried to entitled opinion) Souter’s Justice remains question central The irrelevant. to me seems fortuitous jury. ato §1983 is entitled suit whether action of cause inverse-condemnation of existence In § claim. existence to essential surely not constitutional arising out § claims all almost deed, for exist— does cause private alternative no violations, being theo addition useful, practically it makes re prism instead focus sound, to retically light. fracted Garcia, Wilson we took approach exactly the This pre- so analysis is whose (1985) opinion S. U. —an quality a distinct case gives this point cisely in § actions analogize tous required Wilson déjá vu. determine purpose: different suits common-law identify the rele- but right, jury-trial applicability vant statute of limitations. Since no federal limitations period provided, the Court had apply 42 U. S. C. § 1988(a), which stated that, in the event a federal civil rights statute is provisions “deficient necessary to furnish suitable punish remedies and against offenses law, the com- mon law, as changed modified and 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 the United States, shall be govern extended to and [federal] courts in the trial and disposition of the cause ....” applying In provision, this the Court identified as steps one of the neces- sary for analysis its resolution of precisely question I have been discussing “[W]e here: must. .. decide whether §all 1988claims should be characterized in way, the same or they whether should be evaluated differently depending upon the varying factual legal circumstances and theories presented in each individual ease.” 471 U. atS., 268. The (as here) Court concluded I § do that all 1983 claims should be characterized in way. (as same have) It said I that §1983 was uniquely “a federal remedy,” and that it is “the purest coincidence . . . when state statutes or the common provide law equivalent for any remedies; analogies to those causes of action are bound to imperfect.” be Id., at 271-272 (citations, footnotes, quotation and internal omitted). marks And (as the Court here) affected I am by practical difficulties of the other course, which it described as follows: § every “Almost 1983 claim can favorably be analogized

to more than one of the ancient common-law forms of action, each may of which governed be by a different statute of limitations....

“A catalog of... constitutional claims that have been alleged § under 1983would encompass numerous and di- topics verse subtopics: and public discrimination in em-

ployment on the basis of race or the exercise of First rights, Amendment discharge or pro- demotion without 726 de- schoolchildren, mistreatment process, due cedural in- prison needs medical to indifference

liberate notice advance without chattels seizure mates, only a identify heard —to be to opportunity sufficient omitted). (footnotes 272-273 Id., at few.” § actions all that concluded Court reasons these For recovery of action[s] for “tort be characterized should 276. Id., at injuries.” personal damages for sure, in law” “common § to analogize possible entirely fash another and statute, purposes for fashion one can IBut guarantee. constitutional purposes for ion pur both For that. do want would why one imagine is character remedy5’ whose federal “unique aisk poses action, cause federal by the determined upon violations statutory constitutional innumerable pur both for And dependent. of action cause ana nonexistent) common-law (often search poses major ais violations particular those remedies logues upon Sou- should Justice burden Surely, the headache. appropriate approach why a different explain ter Wilson, approach I adhere context. present U. S. Okure, Owens refined reaffirmed § action.1 ais § (1989), uniform a not “trial 1 that 728 cre it as described commonly haveWe authority”). state

of constitutional of violations tort,” since “constitutional ating See claims. litigated frequently most been have rights (1998); Jeffer 574, 600-601 Britton, 523 S.U. v. Crawford-El (1997); McMillian 75, 78-79 Tarrant, 522 U. S. City son v. of v. Richardson (1997); County, 781, 784 S. U. 520 v. Monroe Jones, 515 v. Johnson (1997); 401 McKnight, 399, S. 521 U. 269 Oliver, S. 510 U. Albright v. (1995); 304, 307 U. S. Louis St. (1991); 226, 231 Gilley, 500 S.U. Siegert v. (1994); Williams, Daniels v. (1988); 112, 121 Praprotnik, S. 485 U. v. Dist., Community School Memphis (1986); 327, 329 S.U. City York New v. Monell supra, 35; Smith, at supra, at 307; In. Wilson (1978). 658, 691 Servs., S.XJ. Social Dept. of personal-injury as a § 1983 identified Garcia, we explicitly v. injury 1983] [§of violation “[a] that tort, stating unques “Congress of person,” rights individual established remedies considered have would tionably tort analogous more to be 1871] [of Act Rights Civil claims example, than, for injury for personal claims S., at 471 U. contract.” breach to property damages 277. Okure, supra, supra, Wilson, earlier, As described deter tort aas personal-injury identity 1983’s § we used S. C. U. under limitations statute relevant mine a tort character §1983’s used also have 1988(a). We § Kalina immunity, scope to determine of action cause recoverable (1997), 118, 124-125 Fletcher, S.U. v. Community School Memphis supra, 483; at Heck, damages, Monroe v. liability, scope supra, 305-306, and Dish, Independence, In Owen (1961). Pape, 167, 187 U. S. attributes asserted (1980), we even U. S. developments modern up keep change could § 1983 changed have law tort “Doctrines torts: law of gov notions our century, the past over significantly evo- reflect should properly responsibility ernmental [T]he

lution. . .. principle equitable loss-spreading has joined fault aas factor in distributing the costs of official misconduct.”

The Seventh jury Amendment’s trial attaches to statutory cause of action although that, unknown at com analogous mon law, is to common-lawcauses that were tried juries. before g., e. See, Feltner v. Columbia Pictures Tele vision, Inc., 523 U. S., at 347-348. The initial Seventh question Amendment us, before therefore, is whether a tort seeking action money damages was a “suit at common law” jury for which a provided. trial was The answer is obvi ously yes. Common-law tort brought actions were under trespass writs of trespass on the gener ease. See ally S. Milsom, Historical Foundations of the Common Law (2d 1981). 283-313 Trespass ed. remedied direct, forcible injuries, tortious while the developed later trespass on the ease remedied consequential indirect or e.g., harms. See, Origins Dix, of the Trespass Action of on the Case, 46 Yale L. (1937); J. 1142, 1163 Krauss, Tort Law Private Order ing, 35 St. Louis U. (1991). 623, L. J. 637, and n. 66 Claims brought pursuant to these seeking writs money damages juries were triable to at common g., law. See, e. T. Pluck nett, A History Concise (4th of the Common 125, Law 1948); ed. J. Baker, An English Introduction Legal History (2d 1979). ed. It is clear from our cases that a tort action money damages for jury is entitled to trial under the Seventh Amendment. See Curtis v. Loether, 415 U. S. (1974) (according jury trial “[a] because damages [Title under VIII Rights of the Civil 1968] Act of sounds basically merely tort —the statute legal defines a new duty, and authorizes the compensate courts plaintiff injury caused wrongful breach”); defendant’s Per nell v. Realty, (1974)(“This Southall 416 U. S. 363, 370 Court long has assumed . that.. actions for damages person ato or property... are actions at law jury”); triable to a Ross v. Amend- (“The (1970) Seventh S.U. Bernhard, 396 actions trial to a parties entitle[s] the . . . ment property.. person ato damages §a held have courts lower number A most been have might to what reference action—without particular violation remedy for analogous common-law g., e. See, jury. to a tried be issue—must right at federal 1996); (CA11 837, 844 3dF. 71 Elsea, v. Caban-Wheeler (CA1 32-33 30, 2dF. DeLeon-Velez, 868 v. Perez-Serrano 1984); (CA3 260, 264 2dF. 733 Thornburgh, 1989); v. Laskaris 1983); (CA4 Dolence 1301, 1304 2d 706 F. McDade, Segarra v. Amburgey v. 1980); (CA10 1282 1280, 2dF. 628 Flynn, v. Miami 1974); v. (CA6 Brisk 730 728, 2d Cassady, F. 507 1989);Ruth (SD Fla. 1311-1312 1305, Supp. F. Beach, Supp. F. Dist., 532 School Independent Alvin v.M. Anne Supp. F. Melendez, 525 1982); v. (SD Mason Tex. 460, Supp. F. Cox, 1981); v. (WD Cook Wis. 270, 282 1973). (ED Va. 4n. 124-125, a entirely to me seems sum, it In would trial jury which for action a tort damages is for action trial jury of right The law. at common provided been have under that, fact of by virtue course, eliminated, of injunc anof relief equitable system, the unified modern our Wood, v. Inc. Dairy Queen, g., e. See, sought. also tion 106, 109-110 S.U. Neely, 140 (1962); Scott S.U. this I Part made point revert (1891). Nor—to its action, cause nature tort discussion—is another that fact by the altered trial, jury entitlement suit) (an inverse-condemnation available action was cause equitable were if Even relief. same obtain peculiar asserts, or, Souter cause Justice action— did trial jury right action legal cause trans be more no § suit would of the nature attach —the fraud common-law example, than, formed fact by the trial jury right to deprived would the defendant was a trustee who could, instead, have been sued equitable for an accounting.

HH say To respondents had the to jury trial on § their 1983 claim is say not to that they were entitled to have every decide issue. precise scope of the jury’s function is the second Seventh Amendment issue be fore us here—and again, there as we stated in Markman v. WestviewInstruments, Inc., 517 U. S. 370, 377(1996),history guide. is our agree I with the Court’s methodology, see ante, at 718-719, 720, which, in the absence precise of a analogue, historical recognizes the preference historical juries to make primarily factual determinations and for judges to legal resolve questions. See Baltimore & Caro lina Line, Inc. v. Redman, 295 (1935). U. S. 654, 657 That fact-law dichotomy is routinely applied by the lower courts § in deciding 1983cases. For instance, alleging cases re taliatory discharge public of a employee in violation of the First judges Amendment, determine whether speech the that motivated the termination was constitutionally pro speech, tected juries while find whether discharge the was by caused speech. that e.g., See, Horstkoetter Depart v. ment Public Safety, 159 (CA10 F. of 1998). 3d And in cases asserting municipal liability for harm caused by policies, unconstitutional judges determine whether the alleged policies were juries unconstitutional, while find whether policies the in fact existed they whether harmed plaintiff. the g., Myers See, e. County Orange, 157F. 3d of (CA2 66, 74-76 1998),cert. (1999). denied, 525 U. S. 1146 case, liability Takings for a Clause violation given was to the determine an- swering (1) questions: two respondents whether were de- prived of "all economically viable use” of their property, and (2) petitioner’s whether rejection respondents’ build- ing plans "substantially advanee[d] [a] legitimate public in- concur I 701. Ante, at teres[t].” primarily presents issue use” “economically viable the that jury. by a consideration for appropriate fact question taking the question second The —whether 720-721. at Ante, interest!]”2— public legitimate [a] advance[s] “substantially the relevant (insofar as down break tome seems (1) the Whether subquestions: here) two into instructions repre- challenged its for basis asserted government’s question awas That interest. state legitimate sents interest state legitimate (2) that Whether court. the for law ac- government challenged by the substantially furthered par- highly the least at Court the agree with I tion. involving denial the case, present the context ticularized question was a reasons, stated single application aof jury in the put to was matter the jury. As fact removed properly was subquestion first case, present “legiti- instructed court cognizance: jury’s from environ- protecting include can interests] public mate protecting agriculture, space open preserving ment, quality regulating citizens, safety itsof health 304. App. development.” looking at community by case. asserted interests only public included These left properly hand, other subquestion, second if decide tois jurors jobs your “[0]ne jury: legiti- any such substantially advanced here city’s decision 721. ante, Ibid.; see purpose.” public mate ^{[*] [*]} respond- provides Amendment Seventh conclude and claim, § their trial jury ato right a ents issues reasons, particular submitted properly court trial For jury. these § claim by that raised IV-A-2 Part but join all and judgment in concur I opinion. Kennedy’s Justice stand this objection any forfeited petitioner explains, Court theAs propriety. its toas no view express ante, I 704, and

ard, see Justice Souter, with whom Justice O’Connor, Justice Ginsburg, Breyer Justice join, concurring part dissenting part.

A federal court commits error by submitting an issue to a jury over objection, unless party seeking deter- mination right has a to a jury trial on the issue. Fed. Rule Civ. 39(a)(2). Proc. In this action § under Rev. Stat. 1979,42 § U. S. C. 1983, city unsuccessfully objected to submitting respondents’ regulatory (or takings inverse condemnation) claim to a jury. Respondents had no to a jury trial either statute or under the Constitution; the District Court thus erred in submitting their claim to a jury. In holding to the contrary, that such right does exist under the Seventh Amendment, the Court misconceives a takings § claim under 1983 and draws a false analogy between such

claim and a tort action. I respectfully dissent from this error.

I eye I see eye with the Court on some of the preliminary issues. agree I in rejecting extension of “rough proportion- ality” as a standard for reviewing regulations land-use gen- erally join so Parts I and II of the majority opinion. I join also the Court in thinking the statutory language “an action at law” insufficient 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), provide must the appropriate questions in passing on the issue of a guarantee constitutional 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 par- ticular trial decision must fall to the jury pre- order serve the substance of the common-law right as it existed ” in 1791.’ Ante, at 708 (quoting Markman, 376). supra, at The Court soundly concedes that at the adoption of the Sev- enth Amendment there was no action like the modern in- compensation just obtaining suit condemnation verse invoking formal without property took government when accordingly I am Court, Like procedures. condemnation and may exist that analogy any search ato remitted of substance going implication any consideration But may raise. enquiry that results right that ends. agreement our where is ground launching common this II pro condemnation inverse analogy proposed city’s The given their sensible, intuitively is ones direct ceedings to link source constitutional Amendment Fifth common g., New e. Accord, domain. eminent power of sovereign’s (CA11 3dF. County, 95 Monroe v. Largo, Inc. Port rule indication no (“We 1996) discovered have eminent general from differs takings cases regulatory 175, P. 2d Grynberg, v. Northglenn framework”); domain is condemnation (“Because inverse 1993) an (Colo. constitution, is it our clause ‘takings’ on based See proceeding”). domain eminent were if it as tried Amendment Seventh of the Revolutionary View A Grant, Rev. L. U. Nw. Clause, Compensation Just (1996). 191-205 respec- by closer out borne is The intuition di- in both identical issue ultimate proceedings. tive a determination actions: condemnation inverse rect date [taken] property value fair market “the required compensation measure as the appropriated,” Industries, Inc. Kirby Forest Amendment. Fifth by the Justice as follows, (1984). It 101,S. U. States, United (1932), 95 S.U. Kincaid, Hurley v. said Brandéis may owner] obtain [a property which compensation “[t]he the same bewill proceeding condemnation] [an inverse [govern- had awarded been might have he at 104. id., proceedings,” condemnation ... ment] instituted cases understanding, in settled our been indeed, has This, before Hurley and Kirby after Forest Industries, which have emphasized the common underlying nature of direct and in- verse condemnation cases; the commencement of inverse con- demnation actions by property owners, and direct condemna- tion proceedings by the government, does go to the substance of either. As we said in English First Evangeli- cal Lutheran Church Glendale v. County Angeles, Los (1987): U. S. 304

“ ‘The fact that condemnation proceedings were not in- stituted and that right was asserted in suits owners d[oes] not change the essential nature of the claim. The form of the remedy did not qualify the right. ” It upon rested the Fifth Amendment.’ Id., at 315 (quoting Jacobs v. United States, 290 U. S. 13, 16 (1933)). Accord, Boom Co.v. Patterson, 98 (1879) U. S. (“The 403, 407

point in [in issue 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 particular essential different had the State authorized the company by statute to appropriate the particular property question, and the owners to bring suit against the company in the courts value”). law for its It is presumably for this reason that this Court has described inverse condemnation actions as might speak of eminent domain proceedings brought by property owners instead the government. See Agins v. City Tiburon, 447 U. S. 255, (1980) (“Inverse n. 2 condemnation is ‘a shorthand description of the manner in which a landowner just recovers compensation for a taking of his property when condemna tion proceedings have not been ”) instituted’ (quoting United States v. Clarke, 445 U. S. (1980)). 253, 257 See also Arm strong v. United States, 364 U. S. (1960); Grant, supra, (“The at 192-193 difference between condemnation and in verse condemnation inheres precisely in the ‘character’ of latter Landowner States as United former between States”). analogy Thus, v. United Landowner we whether apparent condemnation inverse direct com- Amendment Fifth underlying focus compensation. just remedy mon strength was what Reaffirming right. of a matter as trial to a jury explained Court the principle, well-established a already compensa just the of estimate “the century ago a over of right the under use, the public for taken property for tion Bau jury,” aby made be to required not is domain, eminent alia, Cus inter (citing, (1897) 548, 593 Ross, 167 U. S. v. man 233 Co., 6 Cranch Turnpike Alexandria Georgetown & tiss v. and (1883); 513, 519 Jones, 109 S.U. States v. United (1810); (1893)),1 301 300, 282, S.U. States, 147 v. United Shoemaker condemnation for (providing statute a 1 upheld Bauman, Court In an from "differing jury of forma contemplated streets) that for land of being in and persons, twelve than less of consisting jury ordinary compensation just stated and unanimity,” act to required appointed commissioners to Congress by entrusted “may be determination fewer or more of consisting inquest an executive, toor byor a court by upon relied Court 593. S., at U. 167 jury.” ordinary an than men ato right constitutional a of absence assumed had eases prior S.,U. Shoemaker, 147 See, g., e. compensation. just of determination jury of ascertainment providing statute (upholding 301-302, 304-305 at commission appointed presidentially three land condemned value of the ascertainment (“The proceeding 519 S., at Jones, U. 109 ers); merely made, is compensation consequent property value the actual preliminary aas fact particular a to establish inquisition boards special or commissioners before prosecuted bemay it taking; legislative as jury, aof intervention or without courts, with U. S. States, 91 United v. Kohl also See designate”). may power through enforced was domain] of eminent right (“That [the (1876) proceed criminal as well as civil many immaterial; for is jury a agency 142, Hahlo, S. U. Crane jury”); without were law common ings at amount [determining question of such (“[T]he reference (1922) a commis proceedings, domain eminent especially compensation], com tribunal, sowas non-judicial or other jury, sheriff’s board, or sion, or Federal adoption country prior this England inmon and we have since then thought . . . “long settled that there is no constitutional right to a jury in eminent domain proceedings,” United States v. Reynolds, 397 U.S. 14, (1970).2 See 12 C. Wright, A. Miller, & R. Marcus, Federal Practice and Procedure §3051, (1997) p. (“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 right not that fail they qualify “Suits at common law” within the meaning of the Seventh Amendment’s guar antee, for we may assume that are they indeed common law see proceedings,3 Kohl v. United States, 91 U. S. (1876) (“The right eminent domain always common law”); Louisiana Power & Light Co. v. City Thb odaux, 360 U. S. 25, 28 (1959) (“[A]n eminent domain pro ceeding deemed for certain purposes of legal classification a ‘suit at common ”). law5 The reason there is no right Constitution that it has been held repeatedly that it ais form of procedure within the power of the State to provide”).

2Similarly,the Due Process Clause of the Fourteenth Amendment does not require a jury trial in state condemnation proceedings. See, g., e. Long Island Water Supply Co. v. Brooklyn, 166 U. 685, S. 694 (1897); Crane, supra, 147; at Dohany v. Rogers, 281 U. S. (1930). 3that a con demnation proceeding is not an action law, at 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, (2d p. 225 ed. 1888); id., §91, (“Condemnation at 239 is not an action at law, but an inqui sition 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 §4.105113, (rev. p. 4-137 3d 1998) (“Con ed. demnation proceedings are not suits at law’’). common 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, 376, at the first case involving the Federal Govern ment’s exercise of its power of eminent domain, this Court has classified condemnation proceedings as suits at common law. “pre- Amendment Seventh the rather, is trial,

jury time the at existed where right law common the serve[s]” ex- none where right create does but framing, the at common (“In Suits Arndt. Const., S.U. See then. isted See preserved”). be shall jury by trial right ... law Prac- Federal Wicker, Moore’s & J. Lucas, Moore, J. 5 J. also Seventh 1996) (“[T]he (2d ed. 38-268 ¶38.32[1], p. tice common all in trial a jury not guarantee does Amendment it preserves courts,* [instead] federal in the actions law no jury law”). There common at trial jury right “no carried proceedings condemnation then, because right, in trial law a common right established and uniform Amend- Seventh ... time at colonies England v. Co. Roofing Atlas g., e. See, Ibid. adopted.” was ment Comm’n, S.U. Review Health Safety and Occupational law common a suit (“Condemnation (1977) a jury”). without tried could constitutionally but con- on these rested Reynolds expressly indeed in statement Professor quotation Court’s in the shown siderations, as in and England in practice “[t]he statement Moore’s Amend- Seventh adoption to the prior colonies contemporaneously Congress taken ment, the position Amendment, adoption to, subsequent with, all nearly Court Supreme taken by the position there conclusion lead courts federal lower courts federal trial to jury constitutional no the power under of property condemnation 5 J. (quoting supra, Reynolds, domain.” of eminent (inter- 1969) (2d ed. 38.32[1], p. ¶ Practice Moore, Federal omitted)). marks quotation nal Reynolds was Court The to provide was Parliament practice the general while en- supremacy parliamentary of compensation, the payment com- without use public property take private it to abled Domain, Eminent The e.g., Randolph, See, pensation. domain eminent is no there (“That (1887) Rev. L. Q. sub nomine in England is power because the is included, and right to compensation lost, in the absolutism of Parlia ment. only technical term approximating eminent do main is ‘compulsory powers’ as used in statutes granting to companies and associations right private take prop erty use”). for their See also McNulty, The Power of “Com pulsory Purchase” Under the Law of England, 21 Yale L. J. (1912). 639, 644-646 Thus, when Parliament provision made for compensation, it was prescribe free to proce whatever dure it saw fit, and while the agency of a jury common law was sometimes chosen, very frequently other methods were adopted. See Blair, Federal Condemnation Proceedings and the Seventh Amendment, 41 Harv. L. Rev. (1928); 29, 32-36 (“[A]n id., at 36 ample basis exists in the parliamentary prec edents for the conclusion that the eommon law sanctioned such diverse methods of assessment that no one method can be said to have been imperative made by the Seventh Amendment”). See also 1A J. Saekman, Nichols on Eminent Domain §4.106[1], p. 4-115, and §4.107, pp. 4-136 to 4-137 (rev. 1998) (“It 3d ed. had become practice in almost all of the original thirteen states at the time when their consti tutions were adopted, to refer question of damages from the construction of [highjways... to a commissionof viewers or appraisers, generally three or five in number”); id., at (“[I]t 4-137 has been repeatedly held that when land is taken by authority of the United States, the damages may be ascer tained by any impartial tribunal”).

In sum, at the time of the framing the notion of regulatory taking or inverse yet condemnation to be derived, the analogue closest to the then-unborn claim was that of direct condemnation, and the right compensation for such direct takings carried with right no to jury just trial, as the jury right foreign init the modern era. accepted On Seventh Amendment analysis, then, there is no reason to find either direct analogy or for the pre- sake of serving the substance of any jury practice known to the law con- direct analogy with Indeed, the time. crucial the every reason is there strong that so is actions demnation no implicate should condemnation inverse that conclude to right. jury

Ill alterna- two conclusion obvious this avoids plurality The in- of comparison the disparage to way is ways. One tive the of litigation that grounds the taking, on direct to verse not and does latter liability that proof involves former disparage- The landowner. to onerous more generally is analogy, between a different adoption with joined isment tortious actions proceedings condemnation inverse latter interests, property interference stated plurality’s The trial. jury a implicate do analogy, how- condemnation avoiding direct grounds compari- purported does so down, simply break ever, avoids plurality way other The actions. tort son by Jus- followed course endorsing the by is conclusion my analogy selecting an by opinion, separate in his Scalía tice §1988 actions. tort-like but such, actions tort not wanting, for ultimately found is however, alternative, This one. a constitutional analogy statutory prefers A di- ain required is no that argument plurality’s The lia- government’s because proceeding condemnation rect damages to issue only the leaving conceded, bility is true. only partially is premise aon rests assessed, overwhelming number is that course, true, of part amount solely on join issue eases condemnation direct land- -due compensation just is, damages, that land- then always. Now true But owner. right to government’s denying the fight back will owner taking was object claiming that condemn, by statute. unauthorized otherwise purpose public g., See, e. Hawaii Housing Authority v. Midkiff, 467 U. S. (1984) (“There is ... a role for courts play reviewing legislature’s judgment of what pub constitutes a lic use, even... [if] it is an ‘extremely (citation narrow5 one” omitted)); Shoemaker, 147 S.,U. at 298. See also 2A Sack-

man, 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 upon relied by prop erty owners to attempts contest acquire their property private purposes); 2 J. Lewis, Law of Eminent Domain p. §417, (2d 923, and 1900). n. 51 ed. What is more, when such a direct condemnation does have more compensa than tion at stake, the defense public of no purpose or authority closely resembles, if indeed it does not duplicate, one of the grounds liability for inverse condemnation Agins, noted in S.,U. at 260-261, and raised in this case: the failure of regulation to contribute substantially to the realization legitimate of a governmental purpose.4 Indeed, the distinc tion between direct and inverse condemnation becomes murkier still when one considers that, though even most in verse plaintiffs condemnation accept the lawfulness of the taking just money, want see infra, at 747, n. 7, some plaintiffs such ask injunction for an against government’s action, in they event seek the same ultimate relief the direct condemnee who against defends taking as un authorized. If the direct condemnee has no jury, to see 2A Saekman, Nichols on Eminent Domain §7.03[ll][a], at (“The 7-90 question of whether a legislative determination public use really public has been declared the courts ultimately judicial to be a one”), the inverse condemnee should fare no differently. 4See, e.g., Laitos, J. Law of Property Rights Protection §12.04[A], pp. 12-12 to (“The (1999) 12-13 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 test”). identical plurality’s fact may underlie recognition This direct distinguishing reasoning for absence-of-liability-issue cases through resonate fails condemnation inverse and holding commenting right or carry no actions direct plurality While cases. such juries absence on the its Circuit, sitting on Baldwin, Justice opinion cites Amboy & Camden Bonaparte (citing ante, at position, 1830)), this (CC 1,617) NJ (No. 821, 829 Cas. 3 E Co., R. perspective skewed a rather with reader the leaves citation in cases early state underlying diversity of rationales the on jury trial ato eondemnee a direct of right the which fact the on rested courts Several denied. considered nature the in were compensation secure to proceedings could legislature the thus sovereign, and the against suits of least at suits, bring such to right the condition qualify a without conducted they be providing extent to 456, 460 Pa. Commonwealth, 19 Ligat v. e.g., See, jury. law, an to liable not (“A sovereign state (1852) there has, jury by of trial right consent; her against v.Co. R. Pennsylvania case”); such existence fore, no Pa. Pittsburgh, 53 Congregation Lutheran German First [the road its property ("In private taking (1866) 445, 449 power sovereign part exercises corporation] railroad never jury has by trial right of [and] .. . state of the by proceedings himself citizen belong to the held been domain”). also See eminent powers her under state (1880). Just S. U. States, United v. McElrath from absent rationale new plurality’s significantly, Reyn underlying including those precedents, any our decision.5 olds crucial, were issue liability of a Moreover, if presence 1, supra. n. See liabil ease every tort lost be would presumably the jury

then course, is Such, of alone. damages trial conceded, goes ity (R. I. Perkins, 468 A. 2d Blazar See, e.g., practice. thereby liability, admitted trial, defendants prior 1983) (“The fact alter the does jury, consideration from issue one removing 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 says cases nothing explain why jury no ought to pro- vided on question of damages that always is before the courts. The dollars-and-eents issue is about as “factual” as (to one can be invoice a criterion jury suitability empha- by sized the Court in another connection, ante, at 720-721), and no dispute about liability provokes more contention than price for allowing government put a landowner out of house and home. If emphasis on factual issues vigorously contested were a sufficient criterion for identify- ing something essential to preservation of the Seventh Amendment jury right, ought there to be right in direct condemnation eases as well as the inverse ones fa- vored the plurality. second reason for doubting the comparabil

ity of direct and inverse condemnation is that the landowner has a heavier burden to shoulder in the latter ease, beginning with a need to legal initiate action, see United States v. Clarke, 445 U. S., at 257. again, Once however, it appar is ent that the two varieties of condemnation are always not so distinguishable. The landowner who defends in a direct condemnation by denying government’s the right to take is in no significantly position different from the inverse condemnee who claims government the pay must or be en joined because regulation its fails to contribute substantially to its allegedly public object. g., See, e. 2A supra, Sackman, §7.03[12], at 7-105 to 7-106 (citing cases where “the chal lenger has the burden proof to show that the taking is not public for a purpose”). And again once one may why, ask even if the inverse condemnee’s burden always were the heavier, that should any make difference. plaintiffs’ Some cases are easy and some are difficult, but the difficult ones application of th[e] principle [that plaintiffs cannot waive a jury trial on the issue of damage when defendants have demanded a jury trial]”). assumption the on (except aof front different no are against advantage David give to apt more juries are that Nei- point). plurality’s believe not Goliath, doX been ever has Amendment Seventh nor Fifth ther United Cf. proof. ease with spring shift to thought Less, Situated orMore Land, Acres 101.88 States («The 1980) (CA5 2dF. La., 616 Parish, Mary St. be compensation guarantees it while Amendment, 5th way more ain out meted guarantee does just, sovereign”). to than landowner to convenient in- from direct separate efforts plurality’s as Just pro- its does so down, break thus actions condemnation verse damage property condemnation inverse analogize posal liti- early practice posits plurality Whereas torts. there tort, law common aas condemnation inverse gating consistent themof some treatments, variety of fact inwas None not. themof some argument, plurality’s with analysis plurality’s turned treatments those essential process recovery withholding some State’s sim- citations plurality’s end, In of action. cause consistently fol- both early practice any point do ply today’s underlying concepts consistent lowed law. condemnation inverse ac- tort analogue claimed its introduces plurality a it sees what emphasizing damage property

tions di- government between difference real at condemnations, inverse those condemnations, rect §1983. Whereas under litigation qualify least, lia- its admits government proceedings domain eminent condemnation inverse taking, value bility for inasmuch sodo § it refuses under litigated cases proc- (or effective process any state landowner denies County Re- Williamson See his claim. ess) litigating gional Planning Comm’n v. Hamilton Bank Johnson City, 473 U. S. 172, (1985). 194-195 Thus the plurality ex- plains “[although government acts lawfully pursu- when, ant proper authorization, it takes property pro- just

vides compensation, government’s action is law- solely ful because it assumes a duty, imposed by the Constitution, provide just compensation. See First English, 482 U. S., at 315 (citing Jacobs, 290 16). S.,U. When government repudiates duty, this by either just denying compensation in fact byor refusing pro- procedures vide through which compensation may be sought, it violates the Constitution. In those circum- government’s stances the actions are only unconstitu- tional but unlawful and tortious as well.” Ante, at 717. According to the plurality, it is the taking of property with- out providing compensation or a mechanism to obtain it that is tortious and subject litigation § under 1983. See ante, at 714-715, By 717. this reasoning, the plurality seeks to distinguish § such a 1983 action from a direct condemnation

action and possibly from “an ordinary inverse condemna- tion suit,” as well, ante, at by 721, which the plurality pre- sumably means a suit under a state law providing a mecha- nism for redress of regulatory takings claims. authority for this view in

some early state and federal cases seeing regulatory inter- ference with land use as akin to trespass, nuisance, or tres- pass on the case, ante, at 715-716, and I agree that two the plurality’s cited cases,6 decided under state law, are 6Two of the cases cited the plurality offer at most tangential support. Plaintiff’s claim in Barron ex rel. Tiernan v. Mayor Baltimore, 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 Commissioners, 2 Bay (S. 1796), C. the plaintiff sought a writ of prohibi tion restraining city commissioners from laying out a street, not damages. While the plurality relies on the opinion of one justice favoring the grant- 746 be claims plurality the treatment tort the

authority for New Village v. of Gardner See analogy. appropriate the v. Pumpelly Ch.); 1816)(Kent, (N. Y. 162 Ch. 2 Johns. burgh, arguably is other (1872). One Wall. 13Co., Bay Green Co., 233 Terminal Washington v. authority; Richards such the holding that ambiguous, (1914), somewhat is S.U. interference for compensation provide would nuisance of law the take not chose State the when land of enjoyment with damages of measure the condemnation; by direct interest Amend Fifth the what been have may well (not explained) taking. partial temporary a for provide would ment cases, these Beyond cited plurality’s of One disappears. treatment tort 1822),was (N. Y. 20 Johns. Rodgers, v. Bradshaw cases, 1823). (N. Y. 20 Johns. Bradshaw, Rogers reversed latter in explained liability was public concept of theAs law, variety tort garden issue anon not turned opinion, legal not absence total awas there whether but respect officer’s public defending authority for exceedingly, (“I doubt should id., See land. not property private that principle, general whether tois compensation, just without uses public taken be upon enters officer, who public a make toas far so carried specially authority, legislative by virtue property private before enters he if trespasser, purpose, public given find, Ido know, nor do I paid for. been has property carry- justice any court justify will precedents extent”). also See such principle general ing Rev- Remedial The Tort: Constitutional First Brauneis, Compensation Just Nineteenth-Century State olution (demonstrating (1999) 64-65 Rev. L. Vand. Law, plaintiffs compensation just owner-initiated War pre-Civil denial being result equally, actually divided court writ, the ing of statement quoted opinion, within Moreover, even writ. favor reasoning necessary to isit since dictum equivalent writ. granting could recover retrospective damages under common law ac tion of trespass or trespass on the only case after defendant was “stripped [legislative] his justification”). Cf. Leader v. Moxon, 2 Black. W. 924, 927, Eng. Rep. (C. P. 1773)(commissioners acted outside their statutory authority and were thus tort); liable in Boulton v. Crowther, 2 Barn. & Cress. 701, 707, 107Eng. Rep. (K. 544, 1824). B. Under these eases, there would be no recovery unless public officer interfering with the property right was acting wholly without authority. But as absence legal authorization be comes 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 eases like Bradshaw, is that very this assump tion that liability flows from wrongful or unauthorized con duct at odds with the modern view of acts effecting inverse condemnation as being entirely lawful.7 See First English Evangelical Lutheran, 482 U. atS., 314-315 (citing William son County Regional Planning Comm’n v. Hamilton Bank City, Johnson 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. (1893); United States v. Jones, 518). 109 U. S., at damages Unlike to re dress wrong as understood in Gardner or (or Bradshaw even in a modern tort action), damages award in an inverse condemnation action payment orders “just compensa tion” required by the Constitution for payment of an obliga tion lawfiilly incurred. 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 injunction an (as when a direct con- demnee challenges the taking, plaintiff or a claims a substantive due proc ess violation), there is a claim of wrong in the sense of lack of authority. But this is not so in the usual ease where damages are sought. grounding condemnation inverse they treat tortious States, v. United g., Jacobs e. see, contract, quasi action quasi-contractual Although 16. S., U. conception plurality’s cousin closest seems by that limited resemblance here, applied §1983 as defendant holding that theory quasi-contract8 strain enrich unjust avoid received has he what for pay must (3d ed. p. §2.20, Contracts Farnsworth, E. see ment, taking a for compensation just theory of the 1999),whereas United lost, has he what for paid be must owner the that is (1943). 369, 373-374 S.U. Miller, 317 v. States materials, these of a canvass After of emergence to prior isme to reasonable seems legal of spectrum condemnation inverse modern inverse of problem to respond to employed theories aas accepted be can experiments these of one taking. No of each action, contemporary analogue of the definitive contemporary way with some inconsistent is them for payment enforces condemnation inverse view lawfully taken. property value owner’s b weak too already were analogy tort chosen If by so rendered would it position, plurality’s sustain recovery under any tort identify inability plurality’s failing of omission sin government’s cases old plurality (which the compensation process provide from claim), distinct § 1983 heart at the finds plu- land. enjoyment use interfering with acts element, this on analogue any find fails simply rality theory § its failure by the matched in fact is failure its takings. inverse litigation §1983 reality of fit under brought is claim condemnation inverse When enforced, thereby lawof “provision” §1983, 1990) (4th ed. 27-28 §1.6, pp. Contracts Lord, Williston R.1 See enrichment). unjust theory by limited (restitution Golden State Transit Corp. Los Angeles, 498 U. S. 103, 106 (1989), the Fifth Amendment Just Compensation Clause and no other.9 There is no separate cause of action for with holding 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 liabil ity and damages awards.10

c Finally, must be said that even if the tort analogue were not a failure, it would prove too much. For if the compari- son to inverse condemnation were sound, it would be equally 9Of course, §1983 “is not itself a source of substantive rights, but method for vindicating federal rights elsewhere conferred parts those of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U. 137, S. 144, (1979). n. 3 Accord, Johnson v. University Claire, Wisconsin-Eau 70 F. (CA7 3d 1995) (“Be § cause 1983does not create-substantive rights, but rather provides a rem edy for violations of pre-existing rights, § 1983 claims must specifically allege a violation of the Constitution or ‘laws’ of the States”). United 10inthis sought case damages for the fair market value of the property, interim damages for a temporary taking, holding costs, inter est, attorney’s fees, costs, and other consequential damages. Complaint 14-15; pp. First Amended Complaint pp. 16-17. The jury was instructed that in calculating “[Ijt’s damages: up you to decide the difference in value, the fair market value as a result of City’s decision. Multiply it by an interest you rate think is appropriate, for a length of time you think is appropriate. So those are the three elements of computing the dam ages claimed you if determine plaintiff is entitled to recover.” 11 Record 1426. Respondents thus sought no incremental (be “damages” yond just compensation) for denial of compensation state procedures. In deed, the only “damages” in available inverse condemnation cases is the just compensation measured by the value of the land. supra, See at 734. See, g., e. Eide v. Sarasota County, 908 (CA11 2dF. 716 1990). The fact that no further element of damages is recognized rejection confirms of 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. 71, 2d (Wyo. 1993) (rejecting reliance on tort law in holding that emotional distress is not a proper element of damages in inverse condem actions). nation recognition require so and condemnation direct toas

sound This denied. previously have we right that very jury of case, this Appeals the Court apparent perception and domain eminent “both that (erroneously) wrote it when actions common-law resemble actions condemnation inverse personal conversion for damages recover trover for 1422, 8dF. replevin.” and detinue property, Beatty cited indeed, Appeals, 1996). Court (CA9 The plu- 1913), does (CA4 F. States, 203 United that held Circuit Fourth at ante, rality, had proceeding condemnation a direct landowner just determination ato Amendment Seventh compensation: by property taking of “The is party The compulsory. domain eminent

power anal- The .. will.. his against property his deprived close trespass is law common at suit ogy to Su- presumably reason is for it complete, and the defini- acting on States, United Court preme by it, indicated previously law common at suit aof tion States United proceeding decided has common at a suit purposes public lands condemn defendant, follow it would then be, If so law. proceeding stage in some entitled it, is claims he if 626. F., at jury.” by a assessed damages his to have con- simply cannot accepted, if analogy, plurality’s is not if it alone, actions condemnation inverse fined in law settled against squarely runs confined so condemnation. direct field

B Court analogy, the tort direct plurality’s addition In adopting in Justice approach analytical different pursues relief, see legal seeking § actions analogy to Scalia’s sweeping more awith begins 709. Scalia ante, Justice claim: “The question central §1983 remains whether a suit is entitled jury.” to a Ante, at (opinion concurring in part and concurring judgment). The analogy to the broad §1983 class of put actions is forward as serving the un- doubted virtues of simplicity and uniformity in treating vari- ous actions may brought single under a remedial statute. It only when “applying] this methodology to the present case,” ante, at 727, that Justice is careful Scalia not to claim too much: he no longer argues for drawing an analogy §1983 between inverse condemnation actions and §all 1983 only actions, § but those 1983 brought actions recover money damages, see ante, at 729. This subclass of §1983 quite actions, he correctly notes, has been treated as tortlike in character and thus as much jury entitled to trial as tort actions have been at common law. For two inde- pendent reasons, however, I think the § analogy with 1983 actions, either as a class or as a subclass of damages actions, inadequate. First, the analogy § to all 1983 actions does not any serve unified theory field jury rights § under 1983. While the statute is prism indeed through rights originating may elsewhere pass way on their to a federal trial, trial by jury is not a § uniform feature of actions. stat- provides ute only for actions at law damages reme- dies where appropriate, but for “suit[s] equity, or other proper proceeding^] for § redress.” 42 U. S. C. 1983. Ac- cordingly, rights passing §1983 through prism may proper cases be by injunction, vindicated g., see, e. Mitchum v. Foster, (1972) U. (§ S. 225, 242-243 1983 falls within “expressly authorized” exception Anti-Injunction Act and thus injunctions authorizes staying state-court proceedings), by orders of g., restitution, see, e. Samuel v. University of Pittsburgh, (CA3 538 F. 2d 1976) (restitution 994-995 university fees pursuant collected to rule held to violate Equal Clause), Protection declaratory judgments, see, 752 (de- (1974) 475 454, U. S. Thompson,

e.g., Steffel claiming state in suit § available claratory under relief im- invalid), of none constitutionally statute criminal Compar- jury trial. right to a implicate, always plicate, § ac- class actions condemnation ing inverse preserve therefore, not, does torts like treated are that tions other- § would that under practice uniformity a apt indeed, an metaphor is, lost. be Scalia’s wise Justice bed. procrustean anot prism, § ais one: already I have as Nor, as condemnation treating inverse for basis sound a there is refusal untoward State's A tort. a damages for providing compensation, remedy to obtain adequate provide remedy under condemnation inverse anof qua non sine award anof subject independent § itself 1983, is otherwise); rem- claim do (and respondents damages compensa- just but behavior, tortious damages for edy not taken. property value tion uniformity simplicity §1983 argument if an Even necessarily weaker would however, sustainable, were That actions. condemnation direct analogy than each present are elements two analogy rests Amendment a Fifth actions: condemnation varieties two mandated specifically remedy right and constitutional are values constitutional Because amendment. same different uniformity between as values, statutory superior im- more guarantee given constitutional a applications applications different uniformity between than portant a do, Ias proposition accepts If one statute. given pro- condemnation inverse direct analogy between close comparably even stronger than necessarily ceedings is statutory actions. two between resemblance close

IV Were the results of the analysis point this uncertain, one final anomaly of the position Court’s point would up its error. The inconsistency of recognizing a jury trial right in inverse condemnation, notwithstanding its absence in con- demnation appears actions, pronounced more on recalling Agins under theory one of recovery in inverse condem- nation cases is that the taking makes no substantial contribu- tion to legitimate governmental purpose.11 This issue in- cludes only a legal component that may be difficult to resolve, but one so closely related to similar issues in sub- stantive process due property claims, that this Court cited substantive process due case when recognizing theory under the rubric of inverse condemnation. Agins, See U. S., at 260 (citing Nectow v. Cambridge, 277 U. S. 183, 188 (1928)).12 process Substantive due claims are, of course, rou- tinely reserved question without for the court. e.g., See, County 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, (CA5 1996) 172, (rational n. 6 relationship legitimate gov- ernment interest for purposes of substantive process due question of law court); for the Sameric Corp. v. Philadel- phia, 142 F. 3d (CA3 1998) 590-591 (same city

11The jury’s inverse condemnation verdict did not indicate which of the theories formed the basis of its liability (1) finding: .whether city’s action did not substantially advance a legitimate purpose; (2) whether the city’s denial of the permit deprived the subject property of all economi cally viable use.

12 Ioffer 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. re- far would Thus, action).13 commission

historical duty a charge usual from practice moved government’s legitimacy constitutional to assess relationship itsof adequacy constitutional or the objective means. chosen government’s sense. makes perfect usual practice of defer subtleties to assume called upon customarily scrutiny limited of sort this review, apply courts ential institutional accorded routinely are and contexts of all sorts Blanc, 961 Grand g., Pearson v. See, e. do it. competence due substantive (deferential 1992) (CA6 1222 1211, 2d F. Scrutinizing court). for lawof a matter review process those of “one for governmental basis the legal than do better likely are do often judges things Markman, 517 in exegesis.” training by unburdened jurors find surprise no bring should therefore It 388. atS.,U. ac regulatory whether cases question takings more aim has public a legitimate advances substantially tion a legal courts federal by treated been than often County, Monroe Largo, Inc. v. Port g., New e. See, issue. taking 1996) (whether regulatory (CA11 1084, 1092 3dF. 95 Bishop, Inc. v. Gulf, Mid court); for issue is an occurred (whether 1992) city’s (Kan. 1205, 1213-1214, 1215 F. 792 Supp. for of law a question taking unreasonable regulations 470, Township, 2dW. N. 512 v. Kenmare court); Gissel for a question taking 1994) (necessity proposed (N. D. 474 (N. D. 2dW.N. Bismarck, Yegen v. court); use for public non vel of property private 1980) (taking Dept. Carolina Gray South v. see law). But question no 1992) (whether (S. C. App. Highways, 2d 899 E.S. to prevent needed of intersection closing because taking up issue). point These practices harm jury serious public whether concentrates claim takings process due substantive unreasonable, having no arbitrary and “clearly are aims government’s wel morals, general or health, safety, the public relation substantial (1926). Co., Euclid, S. U. Realty Ambler Village fare.” great gulf between practical realities takings liti- gation, and the Court’s reliance on the assertion that “in suits sounding in tort money damages, questions of liabil- ity were decided by the jury, rather than the judge, in most eases,” ante, at 718.

Perhaps this is the reason that the Court apparently seeks to distance itself from the ramifications today’s determi- nation. The Court any disclaims attempt to “precise set a demarcation of the respective provinces judge in determining whether a zoning decision substantially ad- vances legitimate governmental interests.” Ante, at 722. It denies that today’s holding would extend to “a broad challenge to the constitutionality of city’s general land- use ordinances or policies,” in which ease, “the determi- nation whether the statutory purposes legitimate, were whether the purposes, though legitimate, were furthered general law or policy,might well fall within province judge.” (And Ibid. the plurality presumably does not mean to any address Seventh Amendment issue that someone might raise when government provided has adequate remedy, for example, by recognizing compensa- tory action for inverse condemnation, see ante, at 714-715, 717.) But the Court’s reticence is cold comfort simply be- cause upon rests distinctions that withstand analysis no better than the tort-law analogies on which the Court’s con- clusion purports to rest. The narrowness of the Court’s intentions cannot, therefore, accepted as an effective limit on the consequences on its reasoning, from I respectfully dissent.14

14 Iwould therefore remand the ease. 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. 52(a). Proe. notes properly Souter Justice however, to lead, not does This Post, 751. at § actions.” 1983 feature be properly not therefore can § actions 1983 all that conclusion desired his merger Before 740, 750-752. Post, at claims. to tort analogized lawat established be have would right contested a equity, law en equity in suit Thus, a equity. obtained be could relief before at law action a tort until brought be could nuisance alleged an join 476-477 Injunctions Law High, 1 J. See relief established relief, type any equity, lawof merger 1880). Since (2d ed. can that I suit —so a tort sought relief, can equitable purely including should If I nuisance. against injunction seeking only tort file a atome disentitle would relief equitable only I seek fact so, the do Queen, Dairy (1974); S.U. Loether, 415 v. Curtis g., e. see. jury, 727 ( 1—1 1— To this apply to the methodology 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 W.3 Blackstone, Commentaries on the Laws of England 115- 119 (1768), that torts are remedies for invasions of certain rights, such as the rights to personal security, personal lib- erty, and T. property. Cooley, Law of Torts (1880). 2-3 Section 1983 assuredly fits that description. Like other tort causes of it is action, designed to provide compensation for injuries arising from the violation of legal duties, see Carey v. Piphus, U. S. 247, 254 (1978), and thereby, course, to deter future violations. This Court has confirmed countless cases that §a 1983 cause of action sounds in tort. We have stated repeatedly §1983 “creates species of tort liability,” Imbler v. Pachtman, 424 U. S. 409, 417 (1976); see also Heck v. Hum- phrey, U. S. 477, 483 (1994); Memphis Community School Dist. v. Stachura, 477 U. S. 299, 305 (1986); Smith v. Wade, S.U. 30, 34 (1983); Carey, supra, 253; Hague v. Committee Industrial Organization, 307 U. 496, S. (1939) (opinion J.) of Roberts, (describing claim brought under a predecessor §of 1983 as seeking relief for “tortious invasions of civil alleged rights by persons acting under color Wood, Inc. 469, U. S. (1962); Parsons v. Bedford, 3 Pet. (1830); 446-447 E. Re, Re & J. Cases and Materials (4th on Remedies 46 1996) ed. —but 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 require a jury only because equitable relief is sought. But they since 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 a consideration separate from the determination of the analogous common-law cause of action.

Case Details

Case Name: City of Monterey v. Del Monte Dunes at Monterey, Ltd.

Court Name: Supreme Court of the United States

Date Published: May 24, 1999

Citation: 526 U.S. 687

Docket Number: 97-1235

Court Abbreviation: SCOTUS