Judge or Jury? Here We Go Again

Big news of sorts from the California Supreme Court, in the form of the new (8/15/16) 31-page opinion of the California Supreme Court, in City of Perris v. Stamper, Docket No. S213468, opinion by Liu, J., dealing at length with the problem of how to value property now, when it is subject to a dedication requirement in the future, when the property is sought to be developed. The problem is that the dedication requirement is subject to constitutional limitations laid down by the U.S. Supreme Court in the Nollan and Dollan cases. So how can you tell now how the dedication requirement will be applied in the future? Not exactly everyday fare, even for condemnation lawyers and appraisers. Still, when the problem arises it has to be dealt with.

Condemnors have argued that the part of the subject property that is subject to dedication should not be valued for its highest and best use, because when attempted to be so used it would have to be dedicated. Property owners, on the other hand, argue that all that would be, if at all, in the sweet bye and bye, and should not be considered now, and there may be no clear way of deciding now whether the dedication requirement will meet the strictures of Nollan and Dolan in the future. If you want to get into all that, you should read Nollan and Dolan, as well as this judicial gem. In short, it’s a mess that in the hands of different judged is certain to lead to diverse  (and even contradictory opinions). But it is bound to keep condemnation lawyers and appraisers gainfully employed.

Ah, but not so fast. Who says that this is  a decision to be made by judges rather than juries? The California Supreme Court, says so, relying on U.S. v. Reynolds, 397 U.S. 14, 18 (1970) — Stamper Slip opinion at p. 12. So what’s the problem? The problem is that this judicial statement is wrong. It is based on the idea that the 7th Amendment does not create a right to trial by jury — it only preserves the right to such trials as they existed when the constitution was adopted. So no jury trial in the late 18th century common law, no right to a jury trial now. Makes a fellow want to ask why we fought the revolution if we are to continue being stuck with old British stuff.

But actually, it appears that our courts are wrong; eminent domain (or “compulsory purchase” cases over there) were tried to juries in Merry Old England. But our courts don’t cite British sources.

We will be posting presently a short piece that explains all that old stuff, and if you believe the British Court of Appeals rather that American Courts you will be enlightened. In the meantime, check out Lewis Orgel, VALUATION UNDER EMINENT DOMAIN, Vol. 2, Sec. 25, pp. 268-271 (1953) for the straight poop.

More to come. Stand by.