The constitutional injury alleged, therefore, is not that property was taken but that it was taken without just compensation. Had the city paid for the property or had an inadequate postdeprivation remedy been available, Del Monte Dunes would have suffered no constitutional injury from the taking alone. Some members of the plaintiffs' bar have suggested that Del Monte Dunes will compel certain state courts to read their state Constitutions in a similar fashion and find a jury trial right for regulatory takings claims filed in state court. This argument is based primarily on a portion of the opinion that suggests that regulatory takings claims are analogous to torts against property that were tried by juries when the Seventh Amendment was ratified. This discussion came in response to contentions by the city and the dissent that regulatory takings claims are analogous to eminent domain proceedings, and that because the latter carry no jury trial right, neither should the former.
Municipal attorneys have at least two responses.
Municipalities thus should argue that the plurality's analogy to common-law tort actions is inapplicable where state law provides a compensation remedy for regulatory takings, as is the case in virtually all cases. In one of the first extended discussions of Del Monte Dunes ' jury ruling by a federal appeals court, the Ninth Circuit rejected a claimant's argument that it was entitled to a jury trial. The claimants argued that the county's zoning of their 10-acre property for residential use failed to advance a legitimate county interest and demanded a jury trial on the issue. Because there were no genuine issues of material fact, summary judgment was appropriate. Because the property was zoned for residential use when the claimants bought it, and for other reasons, the Ninth Circuit affirmed the grant of summary judgment for the county.