Judge or Jury? — Revisited

As promised in our recent post on the California Supreme Court’s Perris v. Stamper case, here is a copy of our recent article on that case’s ruling on the subject of judge vs. jury issues, from the Daily Journal, California’s foremost legal newspaper. It ran on August 19th.

It turns out that on the right to a trial by jury, Americans have had it wrong in understanding the British rule that governs the right to a trial by jury in eminent domain cases, which governs under the Seventh Amendment. But the unsung hero turns out to be the late Lewis Orgel, author of VALUATION UNDER EMINENT DOMAIN (1953) who had it right all along. Here it is:


Daily Journal


August, 19, 2016

Our eminent right to a jury

By Gideon Kanner

California’s late chief justice, Roger Traynor, once wrote that there are notions embedded in the law that have never been cleaned and pressed and might disintegrate if they were. A case in point is a holding embedded in the brand new California Supreme Court decision in City of Perris v. Stamper, 2016 DJDAR 8382 (Aug. 15, 2016). It was one of those complicated decisions with something for everybody that dealt with the issue of when, if at all, the existence of a future land dedication requirement as a condition to development must be considered now in valuing condemned land subject to such a dedication or exaction requirement in the future. This may sound like technical stuff, but it can have a profound impact on the value of the taken land, and is thus of interest to lawyers as well as appraisers.

Much has already been said about this difficult legal problem, and I leave to others the plumbing of its complexities. I focus instead on the court’s prefatory decision holding that this problem is not a jury issue, but must rather be decided by the trial judge because “no such jury right existed in England and the colonies in 1791.”

Unfortunately, this rule is mythical; eminent domain cases were triable to juries in Merry Old England in the 18th century, and therefore the American courts’ belief that they were not, is mistaken. This is important because the Seventh Amendment does not create a right to a trial by jury; it only preserves this right in cases where trial by jury was available at common law at the time the Bill of Rights was written. The Perris case cites a U.S. Supreme Court case as authority, but no British sources which, as it turns out, are to the contrary.

If you consult American eminent domain treatises, all you get is confusion. “Nichols on Eminent Domain,” Section 4.105 (Lexis/Nexis 2002) had it for years that there were no juries in British eminent domain cases. Its more recent editions contain a lengthy, confusing discussion that gets involved with sovereign immunity and such, but avoids a clear cut statement of the rule and its British basis. But the other authoritative eminent domain treatise, Orgel, “Valuation Under Eminent Domain,” Vol.2, Section 25, pp. 268-271 (Michie Co. 1953), states with no equivocation that that trial by jury was used in British eminent domain cases until 1919 when it was abolished by Parliament. Neither treatise cites any British sources supporting its position. Older editions of Nichols tried but failed. Nichols used to make a passing reference to Blackstone’s Commentaries, but cited the wrong part of Blackstone’s treatise (2 Blackstone 259), that says nothing that remotely bears on the subject. However, at 3 Blackstone 258-259, we learn that the “inquest of office” said by the old Nichols text to be the old British non-jury proceeding to acquire land, had nothing to do with eminent domain. It was a medieval procedure used to ascertain the king’s entitlement to land in cases of escheat, treason, intestacy, forfeiture and the like. More important, Blackstone makes clear that even these proceedings were triable to juries, except in cases of forfeiture for treason. “For it is a part of the liberties of England, and greatly for the safety of the subjects, that the king may not enter upon or seize any man’s possession upon bare surmises without the intervention of a jury.” (Emphasis added).

You need not take my word for any of this. You can skip the confusing ancient stuff that few people understand (as our courts have done) and consult the horse’s mouth in the form of the modern British Court of Appeal opinion in De Keyser’s Royal Hotel Ltd. v. The King (1919). There, their Lordships review pertinent legal history (1708 to 1798), and with the concurrence of all parties, including the British attorney general, conclude that “in default of agreement with the owners the true value [of the taken property] is to be ascertained by a jury.” So much for denying jury trials in English eminent domain cases.

British history also fails to support the belief that inverse condemnation cases were only the flip side of eminent domain, as American conventional wisdom has it. Indeed, if they were like British eminent domain cases, then on that logic alone they had to be triable to juries. But what about the notion that inverse condemnation is some newfangled American constitutional proceeding unknown to the common law, and that the government was shielded from it by sovereign immunity? Not really.

Until the mid-19th century most British eminent domain cases were filed by private “promoters” who, in each case, were authorized by Parliament to take private property for roads, railroads, canals, etc., upon payment of compensation to the taken land’s owners. But when promoters failed to pay or the parties could not agree on a price, British property owners could sue in tort using a writ of trespass, to recover damages. See the discussion in the De Keyser’s case. Like all other common law actions, these were triable to juries.

That is also the view of Professor Keith Davies, the leading authority on British eminent domain law (or “compulsory purchase” as the Brits put it), and the author of the foremost British treatise on the subject. Davies clarified things for us Colonials when he appeared as a guest lecturer and presented a paper titled “The Jury in Eminent Domain,” at the ALI-ABA Course on Eminent Domain and Land Valuation Litigation in 2001, relying inter alia on Baron de Bode’s Case (1845). This case dispenses with the sovereign immunity myth, by concluding with a court order that that a jury be convened and try Baron de Bode’s claim against the Queen of England wherever she then may be in the realm. In short, the notion that cases of determining compensation for takings of private property were not tried to juries in England is mistaken, and this is as true of direct as of inverse condemnation cases.

It is a bedrock constitutional principle and a part of the civic ethos of our country, that trial by jury is enshrined in the Bill of Rights for good reason: It is treasured as a fundamental guarantee of Americans’ freedoms that interposes the judgment of the community as a shield between the citizen and government excesses. Why then, when it comes to eminent domain, trial by jury is suddenly disfavored by judges as if some sort of pesky impediment to good governance, is obscure. The purpose of the Bill of Rights was to protect the people from the government, not the other way around, and juries provide that protection in eminent domain cases as well as in others, as correctly noted by Justice William Douglas in U.S. v. Reynolds, 397 U.S.14, 23-24 (1970).

Obviously, it is a tall order to ask the courts to reconsider a rule, even an erroneous one, that they have been repeating for over two centuries. But it seems to me that the intellectual integrity of the law, and a candid acknowledgment of historical truth are too important to let this legal dog lie. _____________________________________________________________

Gideon Kanner is Professor of Law Emeritus at the Loyola Law School in Los Angeles. He is former editor of Just Compensation, a monthly periodical on the law of eminent domain, and was a regular columnist on takings law for the National Law Journal. He was a visiting Professor at the University of Aberdeen, and a guest lecturer in several British universities, as well as a speaker and a recipient of a British Academy scholarship at the International Colloquium on Expropriation Law held in 1990 at Oxford University.