Concurrence Opinion
concurring in part and concurring in the judgment.
I join all except Part IV-A-2 of Justice Kennedy’s opinion. In my view, all §1983 actions must be treated alike insofar as the Seventh Amendment right to jury trial is concerned; that right exists when monetary damages are sought; and the issues submitted to the jury in the present case were properly sent there.
1 — i
Revised Stat. § 1979, 42 U. S. C. § 1983, creates a duty to refrain from interference with, the federal rights of others, and provides money damages and injunctive relief for violation of that duty. Since the statute itself confers no right to jury trial, such a right is to be found, if at all, in the application to § 1983 of the Seventh Amendment, which guarantees a jury “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars.” In determining whether a particular cause of action is a “[s]ui[t] at common law” within the meaning of this provision, we must examine whether it was tried at law in 1791 or is analogous to such a cause, see, e. g., Granfinanciera,, S. A. v. Nordberg,
The fundamental difference between my view of this case and Justice Souter’s is that I believe § 1983 establishes a unique, or at least distinctive, cause of action, in that the legal duty which is the basis for relief is ultimately defined not by the claim-creating statute itself, but by an extrinsic body of law to which the statute refers, namely, “federal
The Seventh Amendment inquiry of the statutory action. ” Feltner v. Columbia Pictures Television, Inc.,
This is exactly the approach we took in Wilson v. Garcia,
“Almost every § 1983 claim can be favorably analogized to more than one of the ancient common-law forms of action, each of which may be governed by a different statute of limitations....
“A catalog of... constitutional claims that have been alleged under § 1983 would encompass numerous and diverse topics and subtopics: discrimination in public employment on the basis of race or the exercise of First Amendment rights, discharge or demotion without procedural due process, mistreatment of schoolchildren, deliberate indifference to the medical needs of prison inmates, the seizure of chattels without advance notice or sufficient opportunity to be heard — to identify only a few.” Id., at 272-273 (footnotes omitted).
For these reasons the Court concluded that all § 1983 actions should be characterized as “tort action[s] for the recovery of damages for personal injuries.” Id., at 276.
sure, entirely possible to analogize § 1983 to the “common law” in one fashion for purposes of that statute, and in another fashion for purposes of the constitutional guarantee. But I cannot imagine why one would want to do that. For both purposes k is a “unique federal remedy5’ whose character is determined by the federal cause of action, and not by the innumerable constitutional and statutory violations upon which that cause of action is dependent. And for both purposes the search for (often nonexistent) common-law analogues to remedies for those particular violations is a major headache. Surely, the burden should be upon Justice Sou-ter to explain why a different approach is appropriate in the present context. I adhere to the approach of Wilson, reaffirmed and refined in Owens v. Okure,
To apply this methodology to the present case: There is no doubt that the cause of action created by § 1983 is, and was always regarded as, a tort claim. Thomas Cooley’s treatise on tort law, which was published roughly contemporaneously with the enactment of § 1983, tracked Blackstone’s view, see 3 W. Blackstone, Commentaries on the Laws of England 115-119 (1768), that torts are remedies for invasions of certain rights, such as the rights to personal security, personal liberty, and property. T. Cooley, Law of Torts 2-3 (1880). Section 1983 assuredly fits that description. Like other tort causes of action, it is designed to provide compensation for injuries arising from the violation of legal duties, see Carey v. Piphus,
This Court has confirmed in countless cases that a § 1983 cause of action sounds in tort. We have stated repeatedly that §1983 “creates a species of tort liability,” Imbler v. Pachtman,
As described earlier, in Wilson, supra, and Okure, supra, we used § 1983’s identity as a personal-injury tort to determine the relevant statute of limitations under 42 U. S. C. § 1988(a). We have also used §1983’s character as a tort cause of action to determine the scope of immunity, Kalina v. Fletcher,
The Seventh Amendment’s right to jury trial attaches to a statutory cause of action that, although unknown at common law, is analogous to common-law causes that were tried before juries. See, e. g., Feltner v. Columbia Pictures Television, Inc.,
A number of lower courts have held that a § action — without reference to what might have been the most analogous common-law remedy for violation of the particular federal right at issue — must be tried to a jury. See, e. g., Caban-Wheeler v. Elsea,
In sum, it seems to me entirely a action for damages is a tort action for which jury trial would have been provided at common law. The right of jury trial is not eliminated, of course, by virtue of the fact that, under our modern unified system, the equitable relief of an injunction is also sought. See, e. g., Dairy Queen, Inc. v. Wood,
HH
To say that respondents had the right to a jury trial on their § 1983 claim is not to say that they were entitled to have the jury decide every issue. The precise scope of the jury’s function is the second Seventh Amendment issue before us here — and there again, as we stated in Markman v. Westview Instruments, Inc., 517 U. S. 370, 377 (1996), history is our guide. I agree with the Court’s methodology, see ante, at 718-719, 720, which, in the absence of a precise historical analogue, recognizes the historical preference for juries to make primarily factual determinations and for judges to resolve legal questions. See Baltimore & Carolina Line, Inc. v. Redman,
case, liability for a Takings Clause violation was given to the jury to determine by answering two questions: (1) whether respondents were deprived of "all economically viable use” of their property, and (2) whether petitioner’s 1986 rejection of respondents’ building plans "substantially advanee[d] [a] legitimate public in-
* *
1 conclude that the Seventh Amendment provides respondents with a right to a jury trial on their § 1983 claim, and that the trial court properly submitted the particular issues raised by that § 1983 claim to the jury. For these reasons, I concur in the judgment and join all but Part IV-A-2 of Justice Kennedy’s opinion.
Notes
Justice Souter properly notes that “trial by jury is not a uniform feature of § 1983 actions.” Post, at 751. This does not lead, however, to his desired conclusion that all § 1983 actions can therefore not properly be analogized to tort claims. Post, at 740, 750-752. Before the merger of law and equity, a contested right would have to be established at law before relief could be obtained in equity. Thus, a suit in equity to enjoin an alleged nuisance could not be brought until a tort action at law established the right to relief See 1 J. High, Law of Injunctions 476-477 (2d ed. 1880). Since the merger of law and equity, any type of relief, including purely equitable relief, can be sought in a tort suit — so that I can file a tort action seeking only an injunction against a nuisance. If I should do so, the fact that I seek only equitable relief would disentitle me to a jury, see. e. g., Curtis v. Loether,
As the Court explains, petitioner forfeited any objection to this standard, see ante, at 704, and I express no view as to its propriety.
Lead Opinion
delivered the opinion of the Court, except as to Part IV-A-2.
This ease began with attempts by respondent Del Monte Dunes and its predecessor in interest to develop a parcel of land within the jurisdiction of the petitioner, the
The petitioner should not have been decided by the jury and that the Court of Appeals adopted an erroneous standard for regulatory takings liability. We need not decide all of the questions presented by the petitioner, nor need we examine each of the points given by the Court of Appeals in its decision to affirm. The controlling question is whether, given the city’s apparent concession that the instructions were a correct statement of the law, the matter was properly submitted to the jury. We conclude that it was, and that the judgment of the Court of Appeals should be affirmed.
H-Í
A
The property which Del Monte Dunes and its predecessor in interest (landowners) sought to develop was a 37.6-acre ocean-front parcel located in the city of Monterey, at or near the city’s boundary to the north, where Highway 1 enters. With the exception of the ocean and a state park located to the northeast, the parcel was virtually surrounded by a railroad right-of-way and properties devoted to industrial, commercial, and multifamily residential uses. The parcel itself was zoned for multifamily residential use under the city’s general zoning ordinance.
ice plant encroached upon included buckwheat, the natural habitat of the endangered Smith’s Blue Butterfly. The butterfly lives for one week, travels a maximum of 200 feet, and must land on a mature, flowering buckwheat plant to survive. Searches for the butterfly from 1981 through 1985 yielded but a single larva, discovered in 1984. No other specimens had been found on the property, and the parcel was quite isolated from other possible habitats of the butterfly.
B
In 1981 the landowners submitted an application to develop the property in conformance with the city’s zoning and general plan requirements. Although the zoning requirements permitted the development of up to 29 housing units per acre, or more than 1,000 units for the entire parcel, the landowners’ proposal was limited to 344 residential units. In 1982 the city’s planning commission denied the application
The landowners once again reduced the scope of velopment proposal to comply with the city’s request, and submitted four specific, detailed site plans, each for a total of 190 units for the whole parcel. Even so, the planning commission rejected the landowners’ proposal later in 1984. Once more the landowners appealed to the city council. The council again overruled the commission, finding the proposal conceptually satisfactory and in conformance with the city’s previous decisions regarding, inter alia, density, number of units, location on the property, and access. The council then approved one of the site plans, subject to various specific conditions, and granted an 18-month conditional use permit for the proposed development.
The landowners spent proposal and taking other steps to fulfill the city’s conditions. Their final plan, submitted in 1985, devoted 17.9 of the 37.6 acres to public open space (including a public beach and areas for the restoration and preservation of the buckwheat habitat), 7.9 acres to open, landscaped areas, and 6.7 acres to public and private streets (including public parking and access to the beach). Only 5.1 acres were allocated to buildings and patios. The plan was designed, in accordance with
After detailed review of the proposed buildings, roads, and parking facilities, the city’s architectural review committee approved the plan. Following hearings before the planning commission, the commission’s professional staff found the final plan addressed and substantially satisfied the city’s conditions. It proposed the planning commission make specific findings to this effect and recommended the plan be approved.
In January/1986, less than two months before the landowners’ conditional use permit was to expire, the planning commission rejected the recommendation of its staff and denied the development plan. The landowners appealed to the city council, also requesting a 12-month extension of their permit to allow them time to attempt to comply with any additional requirements the council might impose. The permit was extended until a hearing could be held before the city council in June 1986. After the hearing, the city council denied the final plan, not only declining to specify measures the landowners could take to satisfy the concerns raised by the council but also refusing to extend the conditional use permit to allow time to address those concerns. The council’s decision, moreover, came at a time when a sewer moratorium issued by another agency would have prevented or at least delayed development based on'a new plan.
The council did not base its decision on the landowners’ failure to meet any of the specific conditions earlier prescribed by the city. Rather, the council made general findings that the landowners had not provided adequate aecess for the development (even though the landowners had twice
C
After five years, five formal decisions, and 19 different site plans, 10 Tr. 1294-1295 (Feb. 9, 1994), Del Monte Dunes decided the city would not permit development of the property under any circumstances. Del Monte Dunes commenced suit against the city in the United States District Court for the Northern District of California under 42 U. S. C. § 1983, alleging, inter alia, that denial of the final development proposal was a violation of the due process and equal protection provisions of the Fourteenth Amendment and an uncompensated, and so unconstitutional, regulatory taking.
The District Court dismissed as Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City,
On remand, the District Court determined, over the city’s objections, to submit Del Monte Dunes’ takings and equal protection claims to a jury but to reserve the substantive due process claim for decision by the court. Del Monte Dunes argued to the jury that, although the city had a right to regulate its property, the combined effect of the city’s various demands — that the development be invisible from the highway, that a buffer be provided between the development and the state park, and that the public be provided with a beach — was to force development into the “bowl” area of the parcel. As a result, Del Monte Dunes argued, the city’s subsequent decision that the bowl contained sensitive buckwheat habitat which could not be disturbed blocked the development of any portion of the property. See 10 Tr. 1288-1294, 1299-1302, 1317 (Feb. 9,1994). While conceding the legitimacy of the city’s stated regulatory purposes, Del Monte Dunes emphasized the tortuous and protracted history of attempts to develop the property, as well as the shifting and sometimes inconsistent positions taken by the city throughout the process, and argued that it had been treated in an unfair and irrational manner. Del Monte Dunes also submitted evidence designed to undermine the validity of the asserted factual premises for the city’s denial of the final proposal and to suggest that the city had considered buying, or inducing the State to buy, the property for
At the close of argument, the District Court jury it should find for Del Monte Dunes if it found either that Del Monte Dunes had been denied all economically viable use of its property or that “the city’s decision to reject the plaintiffs 190 unit development proposal did not substantially advance a legitimate public purpose.” App. 303. With respect to the first inquiry, the jury was instructed, in relevant part, as follows:
“For the purpose of a taking claim, you will find that the plaintiff has been denied all economically viable use of its property, if, as the result of the city’s regulatory decision there remains no permissible or beneficial use for that property. In proving whether the plaintiff has been denied all economically viable use of its property, it is not enough that the plaintiff show that after the challenged action by the city the property diminished in value or that it would suffer a serious economic loss as the result of the city’s actions.” Ibid.
With respect to the second inquiry, the jury received the following instruction:
“Public bodies, such as the city, have the authority to take actions which substantially advance legitimate public interest[s] and legitimate public interest[s] can include protecting the environment, preserving open space agriculture, protecting the health and safety of its citizens, and regulating the quality of the community by looking at development. So one of your jobs as jurors is to decide if the city’s decision here substantially advanced any such legitimate public purpose.
“The regulatory actions of the city or any agency substantially advane[e] a legitimate public purpose if the action bears a reasonable relationship to that objective.
establishes that there was no reasonable relationship between the city’s denial of the . . . proposal and legitimate public purpose, you should find in favor of the plaintiff. If you find that there existed a reasonable relationship between the city’s decision and a legitimate public purpose, you should find in favor of the city. As long as the regulatory action by the city substantially advances their legitimate public purpose, ... its underlying motives and reasons are not to be inquired into.” Id., at 304.
The essence of these instructions was proposed by the city. See Tr. 11 (June 17,1994).
jury delivered a general verdict for Del Monte Dunes on its takings claim, a separate verdict for Del Monte Dunes on its equal protection claim, and a damages award of $1.45 million. Tr. 2 (Feb. 17,1994). After the jury’s verdict, the District Court ruled for the city on the substantive due process claim, stating that its ruling was not inconsistent with the jury’s verdict on the equal protection or the takings claim. App. to Pet. for Cert. A-39. The court later denied the city’s motions for a new trial or for judgment as a matter of law.
The Court of Appeals affirmed.
The questions presented were (1) whether issues of liability were properly submitted to the jury on Del Monte Dunes’ regulatory takings claim, (2) whether the Court of Appeals impermissibly based its decision on a standard that allowed the jury to reweigh the reasonableness of the city’s land-use decision, and (3) whether the Court of Appeals erred in assuming that the rough-proportionality standard of Dolan v. City of Tigard,
II
In the course of holding a reasonable jury could have found the city’s denial of the final proposal not substantially related to legitimate public interests, the Court of Appeals stated: “Even if the City had a legitimate interest in denying Del Monte’s development application, its action must be ‘roughly proportional’ to furthering that interest. . . . That is, the City’s denial must be related ‘both in nature and extent to the impact of the proposed development.’ ”
a animate the Takings Clause, see Armstrong v. United States,
to jury, however, did not mention proportionality, let alone require it to find for Del Monte Dunes unless the city’s actions were roughly proportional to its asserted interests. The Court of Appeals’ discussion of rough proportionality, we conclude, was unnecessary to its decision to sustain the jury’s verdict. Although the court stated that “[significant evidence supports Del Monte’s claim that the City’s actions were disproportional to both the nature and extent of the impact of the proposed development,”
“Del Monte provided evidence sufficient to rebut each of these reasons [for denying the final proposal]. Taken together, Del Monte argued that the City’s reasons for denying their application were invalid and that it unfairly intended to forestall any reasonable development of the Dunes. In light of the evidence proffered by Del Monte, the City has incorrectly argued that no rational juror could conclude that the City’s denial of Del Monte’s application lacked a sufficient nexus with its stated objectives.” Id., at 1431-1432.
Given this holding, it was unnecessary for the Court of Appeals to discuss rough proportionality. That it did so is irrelevant to our disposition of the case.
I — I H — <
'The city challenges the Court of Appeals’ holding that the jury could have found the city’s denial of the final develop
As the city given to the jury, it cannot now contend that the instructions did not provide an accurate statement of the law. In any event, although this Court has provided neither a definitive statement of the elements of a claim for a temporary regulatory taking nor a thorough explanation of the nature or applicability of the requirement that a regulation substantially advance legitimate public interests outside the context of required dedications or exactions, ef., e. g., Nollan, supra, at 834-885, n. 3, we note that the trial court’s instructions are consistent with our previous general discussions of regulatory takings liability. See Dolan, supra, at 385; Lucas v. South Carolina Coastal Council,
To the extent the city contends the Court of Appeals was based upon a jury determination of the reasonableness of its general zoning laws or land-use policies, its argument can be squared with neither the instructions given to the jury nor the theory on which the case was tried. The instructions did not ask the jury whether the city’s zoning ordinances or policies were unreasonable
The instructions regarding the city’s decision also did not allow the jury to consider the reasonableness, per se, of the customized, ad hoc conditions imposed on the property’s development, and Del Monte Dunes did not suggest otherwise. On the contrary, Del Monte Dunes disclaimed this theory of the case in express terms: “Del Monte Dunes partnership did not file this lawsuit because they were complaining about giving the public the beach, keeping it [the development] out of the view shed, devoting and [giving] to the State all this habitat area. One-third [of the] property is going to be given away for the public use forever. That’s not what we filed the lawsuit about.” Id., at 1288; see also id., at 1288-
Rather, the jury was city’s denial of the final proposal was reasonably related to a legitimate public purpose. Even with regard to this issue, however, the jury was not given free rein to second-guess the city’s land-use policies. Rather, the jury was instructed, in unmistakable terms, that the various purposes asserted by the city were legitimate public interests. See App. 304.
The jury, furthermore, was decision in isolation but rather in context, and, in particular, in light of the tortuous and protracted history of attempts to develop the property. See, e. g., 10 Tr. 1294-1295 (Feb. 9, 1994). Although Del Monte Dunes was allowed to introduce evidence challenging the asserted factual bases for the city's decision, it also highlighted the shifting nature of the city’s demands and the inconsistency of its decision with the recommendation of its professional staff, as well as with its previous decisions. See, e. g., id., at 1300. Del Monte Dunes also introduced evidence of the city’s longstanding interest in acquiring the property for public use. See, e. g., id., at 1303-1306.
In short, the question submitted to the jury on was confined to whether, in light of all the history and the context of the case, the city’s particular decision to deny Del Monte Dunes’ final development proposal was reasonably related to the city’s proffered justifications. This question was couched, moreover, in an instruction that had been proposed in essence by the city, and as to which the city made no objection.
Thus, despite clear that the Court of Appeals did not adopt a rule of takings law allowing wholesale interference by judge or jury with municipal land-use policies, laws, or routine regulatory
> l — (
We next address whether it was proper for the District Court to submit the question of liability on Del Monte Dunes’ regulatory takings claim to the jury. (Before the District Court, the city agreed it was proper for the jury to assess damages. See Supplemental Memorandum of Petitioner Re: Court/Jury Trial Issues in No. C86-5042 (ND Cal.), p. 2, Record, Doc. No. 111.) As the Court of Appeals recognized, the answer depends on whether Del Monte Dunes had a statutory or constitutional right to a jury trial, and, if it did, the nature and extent of the right. Del Monte Dunes asserts the right to a jury trial is conferred by § 1983 and by the Seventh Amendment.
Under our precedents, “[b]efore inquiring into the applicability of the Seventh Amendment, we must ‘first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.’ ” Feltner v. Columbia Pictures Television, Inc.,
The character of § 1983 is vital to our Seventh Amendment analysis, but the statute does not itself confer the jury right. See Feltner, supra, at 345 (“[W]e cannot discern ‘any congressional intent to grant... the right to a jury trial’ ” (quoting Tull, supra, at 417, n. 3)). Section 1983 authorizes a party who has been deprived of a federal right under the color of state law to seek relief through “an action at law, suit in equity, or other proper proceeding for redress.” Del Monte Dunes contends that the phrase “action at law” is a
In Lorillard v. Pons,
As a consequence, we must tion. The Seventh Amendment provides that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ....” Consistent with the textual mandate that the jury right be preserved, our interpretation of the Amendment has been guided by historical analysis comprising two principal inquiries. “[W]e ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was.” Markman v. Westview Instruments, Inc.,
A
With respect to the first inquiry, we have recognized that “suits at common law” include “not merely suits, which the common law recognized among its old and settled proceedings, but [also] suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered.” Parsons v. Bedford,
1
Del Monte Dunes brought this suit pursuant to § 1983 to vindicate its constitutional rights. We hold that a § 1983 suit seeking legal relief is an action at law within the meaning of the Seventh Amendment. Justice Scalia’s opinion concurring in part and concurring in the judgment presents a comprehensive and convincing analysis of the historical and constitutional reasons for this conclusion. We agree with his analysis and conclusion.
It is undisputed that when the Seventh Amendment was adopted there was no action equivalent to § 1983, framed in specific terms for vindicating constitutional rights. It is settled law, however, that the Seventh Amendment jury guarantee extends to statutory claims unknown to the common law, so long as the claims can be said to “soun[d] basically in tort,” and seek legal relief. Curtis, supra, at 195-196.
there can be no doubt that claims brought pursuant to § 1983 sound in tort. Just as common-law tort actions provide redress for interference with protected personal or property interests, § 1983 provides relief for invasions of rights protected under federal law. Recognizing the essential character of the statute, “ ‘[w]e have repeatedly noted that 42 U. S. C. § 1983 creates a species of tort liability,’ ” Heck v. Humphrey,
Here to proceed in federal court under § 1983 because, at the time of the city’s actions, the State of California did not provide a compensatory remedy for temporary regulatory takings. See First English,
Even when viewed as a we believe Del Monte Dunes’ action sought essentially legal relief. “We have recognized the ‘general rule’ that monetary relief is legal.” Feltner,
2
In an attempt to avoid the force of this conclusion, the city urges us to look not to the statutory basis of Del Monte Dunes’ claim but rather to the underlying constitutional right asserted. At the very least, the city asks us to create an exception to the general Seventh Amendment rule governing §1983 actions for claims alleging violations of the Takings Clause of the Fifth Amendment. See New Port Largo, Inc. v. Monroe County,
Scalia notes, see post, at 724-726, we have declined in other contexts to classify §1983 actions based on the nature of the underlying right asserted, and the city provides no persuasive justification for adopting a different rule for Seventh Amendment purposes. Even when analyzed not as a § 1983 action simpliciter, however, but as a § 1983 action seeking redress for an uncompensated taking, Del Monte Dunes’ suit remains an action at law.
Although condemnation proceedings spring from the same Fifth Amendment right to compensation which, as incorporated by the Fourteenth Amendment, is applicable here, see First English, supra, at 315 (citing Jacobs v. United States,
This difference ceedings not only unhelpful but also inapposite. When the government takes property without initiating condemnation proceedings, it “shifts to the landowner the burden to discover the encroachment and to take affirmative action to recover just compensation.” United States v. Clarke,
Our conclusion is confirmed by ity finding no jury right in a condemnation proceeding did so
“We are therefore of opinion that the trial by jury is preserved inviolate in the sense of the constitution, when in all criminal cases, and in civil cases when a right is in controversy in a court of law, it is secured to each party. In cases of this description [condemnation proceedings], the right to take, and the right to compensation, are admitted; the only question is the amount, which may be submitted to any impartial tribunal the legislature may designate.” Bonaparte v. Camden & Amboy R. Co.,3 F. Cas. 821 , 829 (No. 1,617) (CC NJ 1830) (Baldwin, Circuit Justice).
(Although Justice Souter’s opinion concurring in part and dissenting in part takes issue with this distinction, its arguments are unpersuasive. First, it correctly notes that when the government initiates formal condemnation procedures, a landowner may question whether the proposed taking is for public use. The landowner who raises this issue, however, seeks not to establish the government’s liability for damages, but to prevent the government from taking his property at all. As the dissent recognizes, the relief desired by a landowner making this contention is analogous not to damages but to an injunction; it should be no surprise, then, that the landowner is not entitled to a jury trial on his entitlement to a remedy that sounds not in law but in equity. Second, the dissent refers to “the diversity of rationales underlying early state cases in which the right of a direct con-demnee to a jury trial was considered and denied.” Post, at 742. The dissent mentions only the rationale that because the government is immune from suit for damages, it can qualify any remedy it provides by dispensing with the right to a jury trial. The cases cited for this proposition — two state-court cases antedating the adoption of the Fourteenth Amendment and an off-point federal case — do not implicate
Condemnation proceedings action in another fundamental respect as well. When the government condemns property for public use, it provides the landowner a forum for seeking just compensation, as is required by the Constitution. See First English, supra, at 316. If the condemnation proceedings do not, in fact, deny the landowner just compensation, the government’s actions are neither unconstitutional nor unlawful. See Williamson,
In these circumstances, we conclude the cause of action sounds in tort and is most analogous to the various actions that lay at common law to recover damages for interference with property interests. Our conclusion is consistent with the original understanding of the Takings Clause and with historical practice.
Early opinions, nearly contemporaneous with the adoption of the Bill of Rights, suggested that when the government took property but failed to provide a means for obtaining just compensation, an action to recover damages for the government’s actions would sound in tort. See, e. g., Lindsay v. Commissioners,
as a matter of historical practice, when the government has taken property without providing an adequate means for obtaining redress, suits to recover just compensation have been framed as common-law tort actions. See, e. g., Richards v. Washington Terminal Co.,
(Justice Souter’s criticism our authorities misses the point of our analysis. We do not contend that the landowners were always successful. As the dissent makes clear, prior to the adoption of the Fourteenth Amendment and the concomitant incorporation of the Takings Clause against the States, a variety of obstacles — including various traditional immunities, the lack of a constitutional right, and the resulting possibility of legislative justification — stood in the way of the landowner who sought redress for an uncompensated taking. Rather, our point is that the suits were attempted and were understood to sound in tort. It is therefore ironic that the dissent invokes a law review article discussing such suits entitled “The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law.” Post, at 746-747 (citing Brauneis, 52 Vand. L. Rev. 57 (1999)). It is true, as the dissenting opinion observes, that claims for just compensation were sometimes brought in quasi contract rather than tort. See, e. g., United States v. Lynah,
The city argues that because the Constitution allows the government to take property for public use, a taking for that purpose cannot be tortious or unlawful. We reject this conclusion. Although the government acts lawfully when, pursuant to proper authorization, it takes property and provides just compensation, the government’s action is lawful solely because it assumes a duty, imposed by the Constitution, to provide just compensation. See First English,
B
Having decided Del Monte Dunes’ § 1983 suit was an action at law, we must determine whether the particular issues of liability were proper for determination by the jury. See Markview v. Westview Instruments, Inc.,
1
Just as no exact analogue of Del Monte Dunes’ § 1983 suit can be identified at common law, so also can we find no precise analogue for the specific test of liability submitted to the jury in this case. We do know that in suits sounding in tort for money damages, questions of liability were decided by the jury, rather than the judge, in most cases. This allocation preserved the jury’s role in resolving what was often
2
We look next to our existing precedents. Although this Court has decided many regulatory takings cases, none of our decisions has addressed the proper allocation of liability determinations between judge and jury in explicit terms. This is not surprising. Most of our regulatory takings decisions have reviewed suits against the United States, see, e. g., United States v. Riverside Bayview Homes, Inc.,
we review a regulatory takings case in which the plaintiff landowner sued a county planning commission in federal court for money damages under §1983.
Williamson is not a direct holding, however, we look for further guidance. We turn next to considerations of process and function.
3
In actions at law predominantly factual issues are in most cases allocated to the jury. See Baltimore & Carolina Line, Inc. v. Redman,
Almost from the inception our trine, we have held that whether a regulation of property goes so far that “there must be an exercise of eminent domain and compensation to sustain the act... depends upon the particular facts.” Pennsylvania Coal Co. v. Mahon,
In accordance the issue whether a landowner has been deprived of all economically viable use of his property is a predominantly factual question. As our implied acknowledgment of the procedure in Williamson, supra, suggests, in actions at law
jury’s role in determining whether a land-use decision substantially advances legitimate public interests within the meaning of our regulatory takings doctrine presents a more difficult question. Although our cases make clear that this inquiry involves an essential factual component, see Yee, supra, at 523, it no doubt has a legal aspect as well, and is probably best understood as a mixed question of fact and law.
to the jury was whether, when viewed in light of the context and protracted history of the development application process, the city’s decision to reject a particular development plan bore a reasonable relationship to its proffered justifications. See Part III, supra. As the Court of Appeals recognized, this question was “essentially fact-bound [in] nature.”
C
We note the limitations of our Seventh Amendment holding. We do not address the jury’s role in an ordinary inverse condemnation suit. The action here was brought under § 1983, a context in which the jury’s role in vindicating constitutional rights has long been recognized by the federal courts. A federal court, moreover, cannot entertain a takings claim under § 1983 unless or until the complaining landowner has been denied an adequate postdeprivation remedy. Even the State of California, where this suit arose, now provides a facially adequate procedure for obtaining just compensation for temporary takings such as this one. Our decision is also circumscribed in its conceptual reach. The posture of the case does not present an appropriate occasion to define with precision the elements of a temporary regulatory takings claim; although the city objected to submitting
tion of the respective provinces of judge and jury in determining whether a zoning decision substantially advances legitimate governmental interests. The city and its amici suggest that sustaining the judgment here will undermine the uniformity of the law and eviscerate state and local zoning authority by subjecting all land-use decisions to plenary, and potentially inconsistent, jury review. Our decision raises no such specter. Del Monte Dunes did not bring a broad challenge to the constitutionality of the city’s general land-use ordinances or policies, and our holding does not extend to a challenge of that sort. In such a context, the determination whether the statutory purposes were legitimate, or whether the purposes, though legitimate, were furthered by the law or general policy, might well fall within the province of the judge. Nor was the gravamen of Del Monte Dunes’ complaint even that the city’s general regulations were unreasonable as applied to Del Monte Dimes’ property; we do hot address the proper trial allocation of the various questions that might arise in that context. Rather, to the extent Del Monte Dunes’ challenge was premised on unreasonable governmental action, the theory argued and tried to the jury was that the city’s denial of the final development permit was inconsistent not only with the city’s general ordinances and policies but even with the shifting ad hoc restrictions previously imposed by the city. Del Monte Dunes’ argument, in short, was not that the city had followed its zoning ordinances and policies but rather that it had not done so. As is often true in § 1983 actions, the disputed questions were whether the government had denied a constitutional right in acting outside the bounds of its authority, and, if so, the extent of any resulting damages. These were questions for the jury.
For the reasons stated, the judgment of the Court of Appeals is affirmed.
It is so ordered.
See n. 1, supra. Moreover, if presence of a liability issue were crucial, then the jury right presumably would be lost in every tort ease with liability conceded, which goes to trial on damages alone. Such, of course, is not the practice. See, e. g., Blazar v. Perkins,
Concurrence Opinion
with whom Justice O’Connor, Justice Ginsburg, and Justice Breyer join, concurring in part and dissenting in part.
A federal court commits error by submitting an issue to a jury over objection, unless the party seeking the jury determination has a right to a jury trial on the issue. Fed. Rule Civ. Proc. 39(a)(2). In this action under Rev. Stat. § 1979,42 U. S. C. § 1983, the city unsuccessfully objected to submitting respondents’ regulatory takings (or inverse condemnation) claim to a jury. Respondents had no right to a jury trial either by statute or under the Constitution; the District Court thus erred in submitting their claim to a jury. In holding to the contrary, that such a right does exist under the Seventh Amendment, the Court misconceives a takings claim under § 1983 and draws a false analogy between such claim and a tort action. I respectfully dissent from this error.
I
I see eye to eye with the Court on some of the preliminary issues. I agree in rejecting extension of “rough proportionality” as a standard for reviewing land-use regulations generally and so join Parts I and II of the majority opinion. I also join the Court in thinking the statutory language “an action at law” insufficient to provide a jury right under 42 U. S. C. § 1983, ante, at 707-708, with the consequence that Markman v. Westview Instruments, Inc.,
II
The city’s proposed analogy of inverse condemnation proceedings to direct ones is intuitively sensible, given their common Fifth Amendment constitutional source and link to the sovereign’s power of eminent domain. Accord, e. g., New Port Largo, Inc. v. Monroe County,
The intuition is borne out by closer respective proceedings. The ultimate issue is identical in both direct and inverse condemnation actions: a determination of “the fair market value of the property [taken] on the date it is appropriated,” as the measure of compensation required by the Fifth Amendment. Kirby Forest Industries, Inc. v. United States,
“ ‘The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners d[oes] not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment.’ ” Id., at 315 (quoting Jacobs v. United States,290 U. S. 13 , 16 (1933)).
Accord, Boom Co. v. Patterson,
The strength of to a jury trial as a matter of right. Reaffirming what was already a well-established principle, the Court explained over a century ago that “the estimate of the just compensation for property taken for the public use, under the right of eminent domain, is not required to be made by a jury,” Bauman v. Ross,
The reason that direct condemnation proceedings carry no jury right is not that they fail to qualify as “Suits at common law” within the meaning of the Seventh Amendment’s guarantee, for we may assume that they are indeed common law proceedings,
The Court in Reynolds was on while the general practice of Parliament was to provide for the payment of compensation, parliamentary supremacy enabled it to take private property for public use without compensation. See, e.g., Randolph, The Eminent Domain, 3 L. Q. Rev. 314, 323 (1887) (“That there is no eminent domain
In sum, at the time of the framing the notion of regulatory taking or inverse condemnation was yet to be derived, the closest analogue to the then-unborn claim was that of direct condemnation, and the right to compensation for such direct takings carried with it no right to a jury trial, just as the jury right is foreign to it in the modern era. On accepted Seventh Amendment analysis, then, there is no reason to find a jury right either by direct analogy or for the sake of preserving the substance of any jury practice known to the law
Ill
The plurality avoids this obvious conclusion in two alternative ways. One way is to disparage the comparison of inverse to direct taking, on the grounds that litigation of the former involves proof of liability that the latter does not and is generally more onerous to the landowner. The disparagement is joined with adoption of a different analogy, between inverse condemnation proceedings and actions for tortious interference with property interests, the latter of which do implicate a right to jury trial. The plurality’s stated grounds for avoiding the direct condemnation analogy, however, simply break down, and so does the purported comparison to the tort actions. The other way the plurality avoids my conclusion is by endorsing the course followed by Justice Scalía in his separate opinion, by selecting an analogy not to tort actions as such, but to tort-like §1988 actions. This alternative, however, is ultimately found wanting, for it prefers a statutory analogy to a constitutional one.
A
1
The plurality’s argument that no jury is required in a direct condemnation proceeding because the government’s liability is conceded, leaving only the issue of damages to be assessed, rests on a premise that is only partially true. The part that is true, of course, is that the overwhelming number of direct condemnation eases join issue solely on the amount of damages, that is, on the just compensation -due the landowner. But that is not true always. Now and then a landowner will fight back by denying the government’s right to condemn, claiming that the object of the taking was not a public purpose or was otherwise unauthorized by statute.
second reason for doubting the comparability of direct and inverse condemnation is that the landowner has a heavier burden to shoulder in the latter ease, beginning with a need to initiate legal action, see United States v. Clarke,
2
Just as the plurality’s efforts to separate direct from inverse condemnation actions thus break down, so does its proposal to analogize inverse condemnation to property damage torts. Whereas the plurality posits an early practice of litigating inverse condemnation as a common law tort, there was in fact a variety of treatments, some of them consistent with the plurality’s argument, some of them not. None of those treatments turned on the plurality’s analysis that a State’s withholding of some recovery process is essential to the cause of action. In the end, the plurality’s citations simply do not point to any early practice both consistently followed and consistent with the concepts underlying today’s inverse condemnation law.
a
The plurality introduces its claimed analogue of tort actions for property damage by emphasizing what it sees as a real difference between the action of the government in direct condemnations, and those inverse condemnations, at least, that qualify for litigation under §1983. Whereas in eminent domain proceedings the government admits its liability for the value of the taking, in the inverse condemnation cases litigated under § 1983, it refuses to do so inasmuch as it denies the landowner any state process (or effective process) for litigating his claim. See Williamson County Re
“[although the government acts lawfully when, pursuant to proper authorization, it takes property and provides just compensation, the government’s action is lawful solely because it assumes a duty, imposed by the Constitution, to provide just compensation. See First English,482 U. S., at 315 (citing Jacobs,290 U. S., at 16 ). When the government repudiates this duty, either by denying just compensation in fact or by refusing to provide procedures through which compensation may be sought, it violates the Constitution. In those circumstances the government’s actions are not only unconstitutional but unlawful and tortious as well.” Ante, at 717.
According to the plurality, it is the taking of property without providing compensation or a mechanism to obtain it that is tortious and subject to litigation under § 1983. See ante, at 714-715, 717. By this reasoning, the plurality seeks to distinguish such a § 1983 action from a direct condemnation action and possibly from “an ordinary inverse condemnation suit,” as well, ante, at 721, by which the plurality presumably means a suit under a state law providing a mechanism for redress of regulatory takings claims.
authority for this view in some early state and federal cases seeing regulatory interference with land use as akin to nuisance, trespass, or trespass on the case, ante, at 715-716, and I agree that two of the plurality’s cited cases,
Beyond these cases, tort treatment disappears. One of the plurality’s cited cases, Bradshaw v. Rodgers,
collection of tort and authorization cases, one must add those that are so far from reflecting any early understanding of inverse condemnation as conventionally
After a canvass of these materials, seems reasonable to me is that prior to the emergence of the modern inverse condemnation action a spectrum of legal theories was employed to respond to the problem of inverse taking. No one of these experiments can be accepted as a definitive analogue of the contemporary action, and each of them is inconsistent in some way with the contemporary view that inverse condemnation enforces payment for the owner’s value in property lawfully taken.
b
If the chosen tort analogy were not already too weak to sustain the plurality’s position, it would be rendered so by the plurality’s inability to identify any tort recovery under the old cases for the government’s sin of omission in failing to provide a process of compensation (which the plurality finds at the heart of the § 1983 claim), as distinct from the acts of interfering with use or enjoyment of land. The plurality simply fails to find any analogue on this element, and its failure is in fact matched by the failure of its § 1983 theory to fit the reality of §1983 litigation for inverse takings. When an inverse condemnation claim is brought under §1983, the “provision” of law that is thereby enforced,
c
Finally, it must be said that even if the tort analogue were not a failure, it would prove too much. For if the comparison to inverse condemnation were sound, it would be equally
“The taking of property by power of eminent domain is compulsory. The party is deprived of his property against his will.. .. The analogy to a suit at common law for trespass is close and complete, and it is for that reason presumably the Supreme Court of the United States, acting on the definition of a suit at common law previously indicated by it, has decided that a proceeding by the United States to condemn lands for public purposes is a suit at common law. If so it be, then it would follow that the defendant, if he claims it, is entitled at some stage in the proceeding to have his damages assessed by a jury.”203 F., at 626 .
The plurality’s analogy, if accepted, simply cannot be confined to inverse condemnation actions alone, and if it is not so confined it runs squarely against the settled law in the field of direct condemnation.
B
In addition to the plurality’s direct tort analogy, the Court pursues a different analytical approach in adopting Justice Scalia’s analogy to § 1983 actions seeking legal relief, see ante, at 709. Justice Scalia begins with a more sweeping
1
First, the analogy to all § 1983 actions does not serve any unified field theory of jury rights under § 1983. While the statute is indeed a prism through which rights originating elsewhere may pass on their way to a federal jury trial, trial by jury is not a uniform feature of § 1983 actions. The statute provides not only for actions at law with damages remedies where appropriate, but for “suit[s] in equity, or other proper proceeding^] for redress.” 42 U. S. C. § 1983. Accordingly, rights passing through the §1983 prism may in proper cases be vindicated by injunction, see, e. g., Mitchum v. Foster,
Nor, as I have already is there a sound basis for treating inverse condemnation as providing damages for a tort. A State's untoward refusal to provide an adequate remedy to obtain compensation, the sine qua non of an inverse condemnation remedy under § 1983, is not itself the independent subject of an award of damages (and respondents do not claim otherwise); the remedy is not damages for tortious behavior, but just compensation for the value of the property taken.
2
Even if an argument for § 1983 simplicity and uniformity were sustainable, however, it would necessarily be weaker than the analogy with direct condemnation actions. That analogy rests on two elements that are present in each of the two varieties of condemnation actions: a Fifth Amendment constitutional right and a remedy specifically mandated by that same amendment. Because constitutional values are superior to statutory values, uniformity as between different applications of a given constitutional guarantee is more important than uniformity as between different applications of a given statute. If one accepts that proposition as I do, a close analogy between direct and inverse condemnation proceedings is necessarily stronger than even a comparably close resemblance between two statutory actions.
Were the results of the analysis to this point uncertain, one final anomaly of the Court’s position would point up its error. The inconsistency of recognizing a jury trial right in inverse condemnation, notwithstanding its absence in condemnation actions, appears the more pronounced on recalling that under Agins one theory of recovery in inverse condemnation cases is that the taking makes no substantial contribution to a legitimate governmental purpose.
The usual practice makes perfect sense. not customarily called upon to assume the subtleties of deferential review, courts apply this sort of limited scrutiny in all sorts of contexts and are routinely accorded institutional competence to do it. See, e. g., Pearson v. Grand Blanc,
Perhaps this is the reason that the Court apparently seeks to distance itself from the ramifications of today’s determination. The Court disclaims any attempt to set a “precise demarcation of the respective provinces of judge and jury in determining whether a zoning decision substantially advances legitimate governmental interests.” Ante, at 722. It denies that today’s holding would extend to “a broad challenge to the constitutionality of the city’s general land-use ordinances or policies,” in which ease, “the determination whether the statutory purposes were legitimate, or whether the purposes, though legitimate, were furthered by the law or general policy, might well fall within the province of the judge.” Ibid. (And the plurality presumably does not mean to address any Seventh Amendment issue that someone might raise when the government has provided an adequate remedy, for example, by recognizing a compensatory action for inverse condemnation, see ante, at 714-715, 717.) But the Court’s reticence is cold comfort simply because it rests upon distinctions that withstand analysis no better than the tort-law analogies on which the Court’s conclusion purports to rest. The narrowness of the Court’s intentions cannot, therefore, be accepted as an effective limit on the consequences on its reasoning, from which I respectfully dissent.
In Bauman, the Court upheld a statute (providing for condemnation of land for streets) that contemplated a form of jury "differing from an ordinary jury in consisting of less than twelve persons, and in not being required to act with unanimity,” and stated that the just compensation determination “may be entrusted by Congress to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury.”
Similarly, the Due Process Clause of the Fourteenth Amendment does not require a jury trial in state condemnation proceedings. See, e. g., Long Island Water Supply Co. v. Brooklyn,
that a condemnation proceeding is not an action at law, but rather is either some sort of special proceeding, or else an equitable proceeding. See, e. g., H. Mills & A. Abbott, Mills on Law of Eminent Domain §84, p. 225 (2d ed. 1888); id., §91, at 239 (“Condemnation is not an action at law, but an inquisition on the part of the state for the ascertainment of a particular fact, and may be conducted without the intervention of a jury”); 1A J. Sackman, Nichols on Eminent Domain §4.105113, p. 4-137 (rev. 3d ed. 1998) (“Condemnation proceedings are not suits at common law’’). There is some accumulated support for the idea that condemnation proceedings derive from the writ ad quod damnum, which was issued by the courts of equity to the sheriff to conduct an inquest into the amount of damages incurred by a landowner as a result of the taking. Nonetheless, since Kohl v. United States, supra, at 376, the first case involving the Federal Government’s exercise of its power of eminent domain, this Court has classified condemnation proceedings as suits at common law.
See, e.g., J. Laitos, Law of Property Rights Protection §12.04[A], pp. 12-12 to 12-13 (1999) (“The police power takings standard also means that the taking prohibition becomes more like a due process check on the police power”; describing two claims as “an identical test”).
Two of the cases cited by the plurality offer at most tangential support. Plaintiff’s claim in Barron ex rel. Tiernan v. Mayor of Baltimore,
When an inverse condemnee seeks an injunction (as when a direct con-demnee challenges the taking, or a plaintiff claims a substantive due process violation), there is a claim of wrong in the sense of lack of authority. But this is not so in the usual ease where damages are sought.
See 1 R. Lord, Williston on Contracts §1.6, pp. 27-28 (4th ed. 1990) (restitution not limited by theory of unjust enrichment).
Of course, §1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan,
in this case sought damages for the fair market value of the property, interim damages for a temporary taking, holding costs, interest, attorney’s fees, costs, and other consequential damages. Complaint pp. 14-15; First Amended Complaint pp. 16-17. The jury was instructed that in calculating damages: “[Ijt’s up to you to decide the difference in value, the fair market value as a result of the City’s decision. Multiply it by an interest rate you think is appropriate, for a length of time you think is appropriate. So those are the three elements of computing the damages claimed if you determine the plaintiff is entitled to recover.” 11 Record 1426. Respondents thus sought no incremental “damages” (beyond just compensation) for denial of state compensation procedures. Indeed, the only “damages” available in inverse condemnation cases is the just compensation measured by the value of the land. See supra, at 734. See, e. g., Eide v. Sarasota County,
The jury’s inverse condemnation verdict did not indicate which of the theories formed the basis of its liability finding: (1) .whether the city’s action did not substantially advance a legitimate purpose; or (2) whether the city’s denial of the permit deprived the subject property of all economically viable use.
I offer no opinion here on whether Agins was correct in assuming that this prong of liability was properly cognizable as flowing from the Just Compensation Clause of the Fifth Amendment, as distinct from the Due Process Clauses of the Fifth and Fourteenth Amendments.
The substantive due process takings claim concentrates on whether the government’s aims are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Village of Euclid, v. Ambler Realty Co.,
I would 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. Proe. 52(a).