Professor Gideon Kanner, once again, focused the law profession’s attention to the right to a jury in an eminent domain trial. In an article published on August 19, 2016, in the Daily Journal, a California legal publication, Professor Kanner wrote, “Our eminent right to a jury….” In his article, Kanner, one of America’s leading eminent domain scholars, states that the notion that there should be trial by the court and not a jury because “no such jury right existed in England and the colonies in 1791” is a myth. The quote comes from a recent California Supreme Court decision, City of Perris v Stamper, 2016 DJDAR 8382 (Aug. 15, 2016). Professor Kanner continues:
“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.”
He further wrote:
“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.”
The article cites Professor Keith Davis, a leading authority on British eminent domain law and the author of the foremost treatise on the subject. I was present at the annual ALI-ABA course on Eminent Domain in 2001 when Professor Davis discussed Baron de Bode’s (1845). The case held that sovereign immunity does not apply to a taking in eminent domain and concluded that a jury be convened.
Professor Kanner concludes that it is a bedrock constitutional principle and part of the civic ethos of our country, that trial by jury is enshrined in the Bill of Rights because it is treasured as a fundamental guarantee. He asks, “when it comes to eminent domain, trial by jury is suddenly disfavored by judges as of 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….”
New York does not provide for jury trials in eminent domain claims. Maybe, the time has come to challenge the limitation.