732
Opinion of Scalia, J.
teres[t]." Ante, at 701. I concur in the Court's assessment that the "economically viable use" issue presents primarily a question of fact appropriate for consideration by a jury. Ante, at 720-721. The second question—whether the taking "substantially advance[s] [a] legitimate public interes[t]" 2—
seems to me to break down (insofar as is relevant to the instructions here) into two subquestions: (1) Whether the government's asserted basis for its challenged action represents a legitimate state interest. That was a question of law for the court. (2) Whether that legitimate state interest is substantially furthered by the challenged government action. I agree with the Court that at least in the highly particularized context of the present case, involving the denial of a single application for stated reasons, that was a question of fact for the jury. As the matter was put to the jury in the present case, the first subquestion was properly removed from the jury's cognizance: the court instructed that "legiti-mate public interest[s] can include protecting the environment, preserving open space agriculture, protecting the health and safety of its citizens, and regulating the quality of the community by looking at development." App. 304. These included the only public interests asserted in the case. The second subquestion, on the other hand, was properly left to the jury: "[O]ne of your jobs as jurors is to decide if the city's decision here substantially advanced any such legitimate public purpose." Ibid.; see ante, at 721.
* * *
I conclude that the Seventh Amendment provides respondents with a right to a jury trial on their § 1983 claim, and that the trial court properly submitted the particular issues raised by that § 1983 claim to the jury. For these reasons, I concur in the judgment and join all but Part IV-A-2 of Justice Kennedy's opinion.
2 As the Court explains, petitioner forfeited any objection to this standard, see ante, at 704, and I express no view as to its propriety.
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