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t. at 1486. 691 505 U.S. at 1029 n.16. 692 344 U.S. 149 (1952). In dissent, Justices Black and Douglas advocated the applicability of a test formulated by Justice Brandeis in Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 429 (1935), a regulation case, to the effect that ‘‘when particular individuals are singled out to bear the cost of advancing the public convenience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured.’’ 693 357 U.S. 155 (1958). plementary power to abate [public] nuisances . . . , or otherwise.’’ 687 Thus, while there is no broad ‘‘noxious use’’ exception separating police power regulations from takings, there is a narrower ‘‘background principles’’ exception based on the law of nuisance and unspecified ‘‘property law’’ principles. Together with the investment-backed expectations factor of Penn Central, background principles were viewed by many lower courts as supporting a ‘‘notice rule’’ under which a taking claim was absolutely barred if based on a restriction imposed under a regulatory regime predating plaintiff’s acquisition of the property. In Palazzolo v. Rhode Island, 688 the Court forcefully rejected the absolute version of the notice rule, regardless of rationale. Under such a rule, it said, ‘‘[a] State would be allowed, in effect, to put an expiration date on the Takings Clause.’’ 689 Whether any role is left for preacquisition regulation in the takings analysis, however, the Court’s majority opinion did not say, leaving the issue to dueling concurrences from Justice O’Connor (prior regulation remains a factor) and Justice Scalia (prior regulation is irrelevant). Less than a year later, Justice O’Connor’s concurrence carried the day in extended dicta in Tahoe-Sierra, 690 though the decision failed to elucidate the factors affecting the weighting to be accorded the pre-existing regime. The ‘‘or otherwise’’ reference, the Court explained in Lucas, 691 was principally directed to cases holding that in times of great public peril, such as war, spreading municipal fires, and the like, property may be taken and destroyed without necessitating compensation. Thus, in United States v. Caltex, 692 the owners of property destroyed by retreating United States armies in Manila during World War II were held not entitled to compensation, and in United States v. Central Eureka Mining Co., 693 the Court held that a federal order suspending the operations of a nonessential gold mine for the duration of the war in order to redistribute the miners, unaccompanied by governmental possession and use or a forced sale of the facility, was not a taking entitling the owner to compensa- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00124 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1485 694 National Bd. of YMCA v. United States, 395 U.S. 85 (1969). ‘‘An undertaking by the Government to reduce the menace from flood damages which were inevitable but for the Government’s work does not constitute the Government a taker of all lands not fully and wholly protected. When undertaking to safeguard a large area from existing flood hazards, the Government does not owe compensation under the Fifth Amendment to every landowner which it fails to or cannot protect.’’ United States v. Sponenbarger, 308 U.S. 256, 265 (1939). 695 Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). 696 483 U.S. 825 (1987). 697 483 U.S. at 837. 698 483 U.S. at 842. 699 Justice Scalia, author of the Court’s opinion in Nollan, amplified his views in a concurring and dissenting opinion in Pennell v. City of San Jose, 485 U.S. 1 (1988), explaining that ‘‘common zoning regulations requiring subdividers to observe lot-size and set-back restrictions, and to dedicate certain areas to public streets, are in accord with [constitutional requirements] because the proposed property use would otherwise be the cause of’’ the social evil (e.g., congestion) that the regulation seeks to remedy. By contrast, the Justice asserted, a rent control restriction pegged to individual tenant hardship lacks such cause-and-effect relationship and is in reality an attempt to impose on a few individuals public burdens that ‘‘should be borne by the public as a whole.’’ 485 U.S. at 20, 22. 700 512 U.S. 374 (1994). tion for loss of profits. Finally, the Court held that when federal troops occupied several buildings during a riot in order to dislodge rioters and looters who had already invaded the buildings, the action was taken as much for the owners’ benefit as for the general public benefit and the owners must bear the costs of the damage inflicted on the buildings subsequent to the occupation. 694 The first prong of the Agins test, 695 asking whether land use controls ‘‘substantially advance legitimate governmental interests,’’ has been applied by the Court only in Nollan v. California Coastal Commission. 696 There the Court held that extraction of a public access easement across a strip of beach as a condition for a permit to enlarge a beachfront home did not ‘‘substantially advance’’ the state’s legitimate interest in preserving public view of the beach from the street in front of the lot. The easement instead was designed to allow the public to walk back and forth along the beach between two public beaches. ‘‘[U]nless the permit condition serves the same governmental purpose as the development ban,’’ the Court concluded, ‘‘the building restriction is not a valid regulation of land use but ‘an out-and-out plan of extortion.’’’ 697 ‘‘If [the government] wants an easement across the Nollans’ property, it must pay for it.’’ 698 Because the Nollan Court found no essential nexus between the permit condition and the asserted government interest, it did not address whether there is any additional requirement when such a nexus does exist. 699 Seven years later, however, the Court announced in Dolan v. City of Tigard 700 that conditions attached to development permits must be related to the impact of the proposed development not only in nature but also in degree. Gov- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00125 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1486 AMENDMENT 5—RIGHTS OF PERSONS 701 526 U.S. 687 (1999). 702 City of Monterey also appears to give a lax interpretation to the ‘‘substantially advances a legitimate government interest’’ test of Agins, by endorsing jury instructions interpreting ‘‘substantially advance’’ to require only a ‘‘reasonable relationship.’’ 526 U.S. at 704. Such a reading of City of Monterey, however, puts it squarely at odds with Nollan, 483 U.S. at 834 n.3, where the Court earlier stressed that ‘‘substantially advance’’ imposes a stricter standard than the due process one of rational basis. 703 See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) (issue not reached because property owners challenging development density restrictions had not submitted a development plan); Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 293–97 (1981), and Hodel v. Indiana, 452 U.S. 314, 333–36 (1981) (rejecting facial taking challenges to federal strip mining law). 704 482 U.S. 304 (1987). The decision was 6–3, Chief Justice Rehnquist’s opinion of the Court being joined by Justices Brennan, White, Marshall, Powell, and Scalia, ernment must establish a ‘‘rough proportionality’’ between the burden imposed by such conditions on the property owner, and the impact of the property owner’s proposed development on the community— at least in the context of adjudicated (rather than legislated) conditions. Nollan and Dolan occasioned considerable debate over the breadth of what became known as the ‘‘heightened scrutiny’’ test. The stakes were plainly high in that the test, where it applies, lessens the traditional judicial deference to local police power and places the burden of proof as to rough proportionality on the government. In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 701 the Court unanimously confined the Dolan rough proportionality test, and, by implication, the Nollan nexus test, to the exaction context that gave rise to those cases. For certain, then, is that City of Monterey bars application of rough proportionality to outright denials of development. Still unclear, however, is whether the Court meant to place outside Dolan exactions of a purely monetary nature, in contrast with the dedication conditions involved in Nollan and Dolan. 702 Following the Penn Central decision, the Court grappled with the issue of the appropriate remedy property owners should pursue in objecting to land use regulations. 703 The remedy question arises because there are two possible constitutional objections to be made to regulations that go ‘‘too far’’ in reducing the value of property or which do not substantially advance a legitimate governmental interest. The regulation may be invalidated as a denial of due process, or may be deemed a taking requiring compensation, at least for the period in which the regulation was in effect. The Court finally resolved the issue in First English Evangelical Lutheran Church v. County of Los Angeles, holding that when land use regulation is held to be a taking, compensation is due for the period of implementation prior to the holding. 704 The Court recognized that, VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00126 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1487 and Justice Stevens’ dissent being joined in part by Justices Blackmun and O’Connor. The position the Court adopted had been advocated by Justice Brennan in a dissenting opinion in San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 636 (1981) (dissenting from Court’s holding that state court decision was not ‘‘final judgment’’ under 28 U.S.C. § 1257). 705 482 U.S. at 321. 706 Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (statute imposing generalized monetary liability); Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory requirement that small fractional interests in allotted Indian lands escheat to tribe, rather than pass on to heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment version of escheat statute). 707 Armstrong v. United States, 364 U.S. 40, 49 (1960). For other incantations of this fairness principle, see Penn Central, 438 U.S. at 123–24; and Tahoe-Sierra Pres. Council v. Tahoe Regional Planning Agency, 122 S. Ct. 1465, 1478, 1484-89 (2002). 708 Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 155 (1980) (government retained the interest derived from funds it required to be deposited with the clerk of the county court as a precondition to certain suits; the interest earned was not reasonably related to the costs of using the courts, since a separate statute required payment for the clerk’s services). By contrast, a charge for governmental services ‘‘not so clearly excessive as to belie [its] purported character as [a] user fee’’ does not qualify as a taking. United States v. Sperry Corp., 493 U.S. 52, 62 (1989). 709 Penn Central Transp. Co. v. New York City, 438 U.S. 104, 128 (1978). In addition to the cases cited there, see also Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979) (viewed as governmental effort to turn private pond into ‘‘public aquatic even though government may elect in such circumstances to discontinue regulation and thereby avoid compensation for a permanent property deprivation, ‘‘no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.’’ 705 Outside the landuse context, however, the Court has now recognized a limited number of situations where invalidation, rather than compensation, remains the appropriate takings remedy. 706 The process of describing general criteria to guide resolution of regulatory taking claims, begun in Penn Central, has reduced to some extent the ad hoc character of takings law. It is nonetheless true that not all cases fit neatly into the categories delimited to date, and that still other cases that might be so categorized are explained in different terms by the Court. The overriding objective, the Court frequently reminds us, is to vitalize the Takings Clause’s protection against government ‘‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’’ 707 Thus a taking may be found if the effect of regulation is enrichment of the government itself rather than adjustment of the benefits and burdens of economic life in promotion of the public good. 708 Similarly, the Court looks askance at governmental efforts to secure public benefits at a landowner’s expense— ‘‘government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions.’’ 709 VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00127 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1488 AMENDMENT 5—RIGHTS OF PERSONS park’’); Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (‘‘extortion’’ of beachfront easement for public as permit condition unrelated to purpose of permit). 710 Nollan v. California Coastal Comm’n, 483 U.S. 825, 831–32 (1987) (physical occupation occurs with public easement that eliminates right to exclude others); Kaiser Aetna v. United States, 444 U.S. 164 (1979) (imposition of navigation servitude requiring public access to a privately-owned pond was a taking under the circumstances; owner’s commercially valuable right to exclude others was taken, and requirement amounted to ‘‘an actual physical invasion’’). But see PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980) (requiring shopping center to permit individuals to exercise free expression rights on property onto which public had been invited was not destructive of right to exclude others or ‘‘so essential to the use or economic value of [the] property’’ as to constitute a taking). 711 Hodel v. Irving, 481 U.S. 704 (1987) (complete abrogation of the right to pass on to heirs fractionated interests in lands constitutes a taking), Babbitt v. Youpee, 519 U.S. 234 (1997) (same result based on ‘‘severe’’ restriction of the right). 712 Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) (interest on client funds in state Interest on Lawyers Trust Account program is property of client within meaning of Takings Clause, though funds could not generate net interest in absence of program). 713 First English, Nollan, Lucas, Dolan, and City of Monterey. 714 Lucas spoke of the total taking situation to which its rule applied as ‘‘extraordinary’’ and ‘‘relatively rare.’’ 505 U.S. at 1017-18. Quite recently, Tahoe-Sierra reiterated the ‘‘extraordinary’’ reference. 122 S. Ct. at 1483. On the other side of the coin, the nature as well as the extent of property interests affected by governmental regulation sometimes takes on importance. Some strands are more important than others. The right to exclude others from one’s land is so basic to ownership that extinguishment of this right ordinarily constitutes a taking. 710 Similarly valued is the right to pass on property to one’s heirs. 711 Nor must property have realizable net value to fall under the Takings Clause. 712 Even though takings were found or assumed in several decisions since 1987, 713 considerable obstacles remain for future litigants challenging regulatory restrictions on land use. As suggested above, regulatory takings will most likely remain difficult to establish in spite of Nollan. The Lucas fact situation, in which government regulation renders land entirely without economic use, will doubtless prove rare, as the Court itself envisioned on more than one occasion. 714 Buttressing this point is Tahoe-Sierra’s strong implication that the Lucas per se rule is triggered only by complete elimination of use and value, something that occurs exceedingly infrequently in the real world in light of the lingering value even undevelopable land may have as open space or for speculation. More broadly, Tahoe-Sierra is suffused with a general distaste for the use of per se rules in takings analysis, leading observers to argue that in the ordinary regulatory situation, the ad hoc Penn Central standard will often be ‘‘the only game in town.’’. Failure to incur administrative (and judicial) delays can result in dismissal of an as-applied taking claim based on ripeness doc- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00128 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1489 715 473 U.S. 172 (1985). 716 477 U.S. 340 (1986). 717 Pennell v. City of San Jose, 485 U.S. 1 (1988). 718 533 U.S. 606 (2001). 719 533 U.S. at 620. See also Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997) (taking claim ripe despite plaintiff’s not having applied for sale of her transferrable development rights, since no discretion remains to agency and value of such rights is simple issue of fact). trine, an area of takings law that the Court has developed extensively since Penn Central. In the leading decision of Williamson County Regional Planning Commission v. Hamilton Bank, 715 the Court announced the canonical two-part ripeness test for takings actions brought in federal court. First, for an as-applied challenge, the property owner must obtain from the regulating agency a ‘‘final, definitive position’’ regarding how it will apply its regulation to the owner’s land. Second, when suing a state or municipality, the owner must exhaust any possibilities for obtaining compensation from the state or its courts before coming to federal court. Thus, the claim in Williamson County was found unripe because the plaintiff had failed to seek a variance (first prong of test), and had not sought compensation from the state courts in question even though they recognized inverse condemnation claims (second prong). Similarly, in MacDonald, Sommer & Frates v. County of Yolo, 716 a final decision was found lacking where the landowner had been denied approval for one subdivision plan calling for intense development, but that denial had not foreclosed the possibility that a scaled-down (though still economic) version would be approved. In a somewhat different context, a taking challenge to a municipal rent control ordinance was considered ‘‘premature’’ in the absence of evidence that a tenant hardship provision had ever been applied to reduce what would otherwise be considered a reasonable rent increase. 717 Beginning with Lucas in 1992, however, the Court’s ripeness determinations have displayed an impatience with formalistic reliance on the ‘‘final decision’’ rule, while nonetheless explicitly reaffirming it. In Palazzolo v. Rhode Island, 718 for example, the Court saw no point in requiring the landowner to apply for approval of a scaled-down development of his wetland, since the regulations at issue made plain that no development at all would be permitted there. ‘‘[O]nce it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened.’’ 719 Facial challenges dispense with the Williamson County final decision prerequisite, though at great risk to the plaintiff in that without pursuing administrative remedies, a claimant often lacks VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00129 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1490 AMENDMENT 5—RIGHTS OF PERSONS 720 See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 295–97 (1981) (facial challenge to surface mining law rejected); United States v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985) (mere permit requirement does not itself take property); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493–502 (1987) (facial challenge to anti-subsidence mining law rejected). evidence that a statute has the requisite economic impact on his or her property. 720 VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00130 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1545 SEVENTH AMENDMENT CIVIL TRIALS CONTENTS Page Trial by Jury in Civil Cases ...................................................................................................... 1547 The Right and the Characteristics of the Civil Jury ....................................................... 1547 History .......................................................................................................................... 1547 Composition and Functions of Civil Jury .................................................................. 1548 Courts in Which the Guarantee Applies ................................................................... 1549 Waiver of the Right ..................................................................................................... 1550 Application of the Amendment .......................................................................................... 1550 Cases ‘‘at Common Law’’ ............................................................................................. 1550 The Continuing Law-Equity Distinction ................................................................... 1554 Procedures Limiting Jury’s Role ................................................................................ 1557 Directed Verdicts ......................................................................................................... 1558 Jury Trial Under the Federal Employers’ Liability Act ........................................... 1559 Appeals from State Courts to the Supreme Court ........................................................... 1560 VerDate Apr 15 2004 12:01 May 10, 2004 Jkt 077500 PO 00000 Frm 00001 Fmt 8221 Sfmt 8221 C:\CONAN\CON033.XXX PRFM99 PsN: CON033 VerDate Apr 14 2004 11:04 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00002 Fmt 8221 Sfmt 8221 C:\CONAN\CON033.XXX PRFM99 PsN: CON033 1547 1 2 M. FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787, at 587 (rev. ed. 1937). 2 Id. at 628. 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1757 (1833). ‘‘[I]t is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty.’’ Id. at 1762. 4 J. ELLIOTT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 326 (2d ed. 1836) (New Hampshire); 2 id. at 399–414 (New York); 3 id. at 658 (Virginia). 5 1 ANNALS OF CONGRESS 436 (1789). ‘‘In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.’’ CIVIL TRIALS SEVENTH AMENDMENT In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. TRIAL BY JURY IN CIVIL CASES The Right and the Characteristics of the Civil Jury History.—On September 12, 1787, as the Convention was in its final stages, Mr. Williamson of North Carolina ‘‘observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it.’’ The comment elicited some support and the further observation that because of the diversity of practice in civil trials in the States it would be impossible to draft a suitable provision. 1 When on September 15 it was moved that a clause be inserted in Article III, § 2, to guarantee that ‘‘a trial by jury shall be preserved as usual in civil cases,’’ this objection seems to have been the only one urged in opposition and the motion was defeated. 2 The omission, however, was cited by many opponents of ratification and ‘‘was pressed with an urgency and zeal . . . wellnigh preventing its ratification.’’ 3 A guarantee of right to jury in civil cases was one of the amendments urged on Congress by the ratifying conventions 4 and it was included from the first among Madison’s proposals to the House. 5 It does not appear that the text VerDate Apr<15>2004 11:57 May 10, 2004 Jkt 077500 PO 00000 Frm 00001 Fmt 8222 Sfmt 8222 C:\CONAN\CON034.SGM PRFM99 PsN: CON034 1548 AMENDMENT 7—CIVIL TRIALS 6 It is simply noted in 1 ANNALS OF CONGRESS 760 (1789), that on August 18 the House ‘‘considered and adopted’’ the committee version: ‘‘In suits at common law, the right of trial by jury shall be preserved.’’ On September 7, the SENATE JOURNAL states that this provision was adopted after insertion of ‘‘where the consideration exceeds twenty dollars.’’ 2 B. SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1150 (1971). 7 Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1913); Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446–48 (1830). 8 Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899). 9 Maxwell v. Dow, 176 U.S. 581 (1900); American Publishing Co. v. Fisher, 166 U.S. 464 (1897); Springville v. Thomas, 166 U.S. 707 (1897). 10 413 U.S. 149 (1973). Justices Marshall and Stewart dissented on constitutional and statutory grounds, id. at 166, while Justices Douglas and Powell relied only on statutory grounds without reaching the constitutional issue. Id. at 165, 188. 11 Id. at 155–56. The Court did not consider what number less than six, if any, would fail to satisfy the Amendment’s requirements. ‘‘What is required for a ‘jury’ is a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross section of the community. . . . It is undoubtedly true that at some point the number becomes too small to accomplish these goals . . .’’ Id. at 160 n.16. Application of similar reasoning has led the Court to uphold elimination of the unanimity as well as the 12-person requirement for criminal

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