Trial by Jury. What Happened to It?

What does Trial by Jury Have to do With Inverse Condemnation? goes the heading to a recent post on www.inversecondemnation.com. Answer: a lot, even if courts won’t admit it.

For a change, here is our loud attaboy (and attagirl, no sexists here) on our colleagues’ current post on www.inversecondemnation.com regarding the film “Twelve Angry Men” — a classic story of the virtues and pitfalls of trial by jury. If you haven’t seen it, do. We agree with our colleagues that trial by jury, imperfect though it may be (see People v. O.J. Simpson) is a wonderful institution that shields the rights of individuals from government abuse.

So why isn’t there a constitutional right to trial by jury in eminent domain, direct or inverse, unless a local state jurisdiction has opted by its state constitution or statute to provide one? Why no such federal right? The conventional wisdom answer to this question is that the Seventh Amendment does not create this right; it only preserves it. So, goes the shibboleth, if there was no right to trial by jury in England when the Bill of Rights was adopted over here, it can’t be “preserved” so there ain’t any. In the federal court system you don’t even get a trial by jury by statute — only by Federaal Rule of Civil Procedure 71A, which a district court can disregard and either appoint commissioners instead, or try the matter itself.

The problem with the notion is  that except for equity cases (and possibly bills of exchequer — we are not sure), trial by jury was the only form of trial known to the common law until around 1845. But don’t take our word for it. Check out the opinion of the British Court of Appeal in De Keyser’s Royal Hotel v. The King, 2 Ch. at p. 222 (1919)  decided in 1919 by the British Court of Appeal, which reviewed the history of the use of juries in eminent domain (or compulsory purchase as the Brits call it) and concluded with the unanimous consent of the parties, including the Attorney General, that in the 18th century  compulsory purchase valuation cases were tried to juries in Britain.

You don’t believe us? Then check out the highly regarded treatise, Orgel’s Valuation Under Eminent Domain, Vol. 2, Sec. 25, pp. 268-271 (Michie Co. 1953) for the straight story on that subject, which informs us that juries tried compulsory purchase cases in England until after World War I, when trial by jury in compulsory purchase cases was abolished by the Acquisition of Land (Assessment of Compensation) Act of  1919.

Be that as it may,  if you are reluctant to take our (and Orgel’s) word for it, tell us: What do you suppose happened in Merry Old England when the promoter and the property owner could not agree on a price? Did they go out in the public square and duke it out, thereby disturbing the Kin’s peace? We don’t think so.

But it’s worse than that. In the City of Monterey v. Del Monte Dunes case, SCOTUS solemnly informed us that in an action for an uncompensated taking under 42 U.S.C. Section 1983, the owner is entitled to a trial by jury as to fact-bound issues. So how come, there aren’t any reported post-Del Monte Dunes cases in which a property owners were actually afforded a trial by jury? We don’t know of any? Do you?

So to go back to the beginning of this post, we join our colleagues in holding a highly favorable view of trial by jury, including in eminent domain cases. The only problem is that a funny thing happened to this cherished right on the way through the federal forum: It plumb vanished without a trace.

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