The Massachusetts Appeals Court recently issued a regulatory takings decision with relevance to us in Maine given our State’s unique relationship to the Commonwealth. Smyth v. Conservation Commission of Falmouth, 94 Mass. App. Ct. 790. Kudos to Pierce Atwood’s Michelle O’Brien and Nicholas Brown for prevailing in this appeal.
Among other things, in Smyth, the Massachusetts Appeals Court held that there is no right to a jury in a regulatory takings case. This matters to us in Maine because the rule in Massachusetts is there is a right to a jury if that right existed in 1780 (see p. 6). If a new cause of action was created thereafter, there is no right to a jury unless that new cause of action is analogous to a common law claim entitled to trial by jury in 1780. See Smyth, pp. 6-7.
In Maine, you have a right to a jury unless there was no right to a jury for the action in Massachusetts in 1820, when Maine was carved from Massachusetts to become a state in 1820. See Me. Const. art. I, s. 20. When a new cause of action, unknown at the time the Maine Constitution was adopted, is created by the Legislature or recognized by the court, the right to a jury depends upon the nature of that new cause of action. If its pre-1820 analog was not tried to a jury, the new cause of action has no such right. Thermos Co. v. Spence, 1999 ME 129, ¶ 8, 735 A.2d 484.
Got that? Both jurisdictions look to what was happening early on in analog common law claims, and Maine’s early common law comes from Massachusetts. Hence, what Massachusetts says about its early common law claims can matter in figuring out early Maine common law, although in Maine when there is no analog you get a jury, while in Massachusetts, it’s the opposite.
In Smyth, the Appeals Court said that a regulatory taking claim did not exist until 1922, when the U.S. Supreme Court issued Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). Ruling there was no pre-1780 common law analog to such a claim, and it was a wholly new cause of action, the court in Smyth held that under Massachusetts law, there was no right to a jury.
Following the reasoning in Smyth, does it follow that there is a right to a jury for a regulatory taking claim in Maine? That’s what Superior Justice Fritzche held in Fichter v. BEP, 2000 WL 33676710, *2 (Super. Ct. Me 2000): “Since inverse condemnation cases did not exist when Maine became a state and since eminent domain cases are not the ‘pre-1820 analogue’ a right to a jury trial exists under the Maine Constitution there was no analog to a regulatory takings claim in 1820, and therefore the plaintiff was entitled to a jury.”
Not so fast.
The Law Court has found on multiple occasions that there is no constitutional right to a jury trial to assess damages for property taken by eminent domain, concluding that such proceedings are not civil suits at law. See Gustavus Adolphus College v. MDOT, 1998 ME 173, 714 A.2d 802, superseded by statute as stated in Morrill v. Maine Turnpike Authority, 2009 ME 116, 983 A.2d 1065; Portland Pipe Line Cop. V. Environmental Imp. Comm’n, 307 A.2d 1, 28 (1973); Bean v. Central Maine Power Co., 133 Me. 9 (1934); Ingram v. Maine Water Co., 98 Me. 566, 57 A. 893 (1904).
Neither the Smyth Court nor Justice Fritzche found regulatory takings claims analogous to eminent domain claims. (Interestingly, the Smyth Court also said that if regulatory claims were deemed analogous to eminent domain, it was not clear whether a right to a jury would attach, citing a Province Law from 1756-57 referencing a jury).
The Law Court, however, appears to have taken a broad view of eminent domain claims, at least for the purposes of concluding whether a right to a jury attaches. See Ingram, 57 A. at 894, noting that property could be deemed taken “if it deprives him of its ordinary use” – the linchpin of the regulatory taking test.
To complicate things further, in Maine, you can assert a civil rights claim for a taking under 42 U.S.C. § 1983 simultaneously with a state law regulatory takings claim, also called an inverse condemnation claim, MC Associates v. Town of Cape Elizabeth, 2001 ME 89, and you get a right to a jury under the civil rights statute. Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 711-17 (1999).
The Law Court presumably so ruled because it saw the estoppel problem with asserting a civil rights action sequentially to an inverse condemnation action. As the Supreme Court later confirmed in San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005), since all the facts and conclusions made in the state inverse condemnation claim are the same as the federal civil rights claim, the state court decision estops and kills the federal claim.
A lot of people are not happy about this result, basically denying constitutional review of takings claims in federal court, and the Supreme Court this session is re-visiting whether it should stick with this estoppel rule. We blogged on this a while ago Takings law – exhausted or just exhausting? . This issue has twisted the Supreme Court up so much they re-argued it, with a decision hopefully coming by June. Knick v. Township of Scott, PA, US S.C. Docket No. 17-647
In sum, it appears that in Maine there are arguments for and against the right to a jury in a regulatory takings case, or at least for a jury for the civil rights part of an action simultaneously asserting inverse condemnation. The ripeness rule for the federal claim might get tweaked in Knick, so stay tuned on that.
But finally, in the end, all of this discussion about a right to a jury may be academic. As the decision on the merits in Smyth shows, it’s darn hard to win a regulatory takings case. In Maine, it’s nearly impossible. The Law Court had no trouble reversing a jury finding in favor of a taking (apparently no one argued there was no right to a jury), even when the record included expert opinion that the property as regulated was worthless. Hall v. BEP, 528 A.2d 453 (Me. 1987); see also Wyre v. BEP, 2000 ME 45.
Hence, in Maine, the odds a plaintiff can ever get past a summary judgment motion to assert a right to a jury is at best remote.