# Rice v. The Village of Johnstown

> District Court, S.D. Ohio · October 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10381156

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10381156

## How later opinions describe it (automated extraction)

- concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the non-moving party
- explaining that owners of real property have a protected “interest in a discretionary benefit, such as a re-zoning ordinance” only “after it is conferred”
- explaining that Amtrak’s “naked self-interest compromised their neutrality”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ANDREW L. RICE, et al.,

Plaintiffs, :

Case No. 2:19-cv-504
v.
Judge Sarah D. Morrison

Magistrate Judge Chelsey M.

Vascura
VILLAGE OF JOHNSTOWN,
OHIO, :

Defendant.

OPINION AND ORDER
This matter is before the Court on remand from the Sixth Circuit Court of
Appeals. (Sixth Circuit Opinion, ECF No. 41, reported as Rice v. Vill. of Johnstown,
Ohio, 30 F.4th 584 (6th Cir. 2022). See also ECF No. 42.) The Court once again
considers the parties’ cross-motions for summary judgment (Def.’s Mot., ECF No.
27; Pls.’ Mot., ECF No. 29)—this time, in a manner consistent with the Circuit
Court’s mandate. (ECF No. 43 (stating that the Court would “consider the
motions . . . previously filed by the parties”).) Because the Rice family1 has shown no
interest protected by the Fourteenth Amendment, Defendant Village of Johnstown’s
Motion for Summary Judgment (ECF No. 27) is GRANTED and Plaintiffs the Rice
family’s (ECF No. 29) is DENIED.

1 The Court adopts the naming conventions used in the Sixth Circuit Opinion.
(See Sixth Circuit Opinion, 2, n.1.)
I. BACKGROUND
On February 18, 2021, this Court issued an Opinion and Order granting
summary judgment for Johnstown and finding that the Rice family lacked Article
III standing to bring this suit. (Opinion and Order, ECF No. 37.) The Rice family

appealed. (ECF No. 39.) The Sixth Circuit issued its decision on April 8, 2022.
(Sixth Circuit Opinion.) A majority of the three-judge panel found that the Rice
family has Article III standing to bring its claim for money damages. (Id., 13.) The
panel unanimously found that the Rice family’s claims for declaratory and
injunctive relief are moot. (Id., 14, 15.) The Circuit Court remanded the matter for
further proceedings consistent with its decision. (Id., 14.)

The undisputed facts are set out in the Court’s February 18, 2021 Opinion
and Order and the Circuit Court’s April 8, 2022 Opinion. They will not be repeated
here.
II. STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The movant has the burden of establishing there are no genuine

issues of material fact, which may be achieved by demonstrating the nonmoving
party lacks evidence to support an essential element of its claim. Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co.,
12 F.3d 1382, 1388–89 (6th Cir. 1993). The burden then shifts to the nonmoving
party to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P.
56). When evaluating a motion for summary judgment, the evidence must be viewed
in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970).

A genuine issue exists if the nonmoving party can present “significant
probative evidence” to show that “there is [more than] some metaphysical doubt as
to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir.
1993). In other words, “the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Anderson, 477 U.S. at 248; see also Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (concluding that
summary judgment is appropriate when the evidence could not lead the trier of fact

to find for the non-moving party).
III. ANALYSIS
The Rice family brings two claims—one under the United States Constitution
and another under the Ohio Constitution—for an alleged deprivation of their due
process rights.2 (See Compl., ECF No. 1.) Specifically, the Rice family alleges that
the manner in which Johnstown delegated authority to the P&Z Commission is
constitutionally deficient. (Id. See also ECF No. 8, 10.) The Sixth Circuit “clarif[ied]

the nature of the Rice family’s claim” as follows:

2 The Ohio Supreme Court treats Article 1, Section 16 of the Ohio
Constitution as “equivalent to the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.” Stolz v. J&B Steel Erectors, Inc.,
122 N.E.3d 1228, 1232 (Ohio 2018). See also State v. Anderson, 68 N.E.3d 790, 794
(Ohio 2016) (“We interpret the Ohio Due Course of Law Clause, Article 1, Section
16, as coextensive with the Due Process Clause of the Fourteenth Amendment to
the United States Constitution[.]”). Accordingly, though two claims are pled, they
are addressed as one.
Glancing back to the early twentieth century, we find the roots of . . . a
third nondelegation doctrine. This one originated with a pair of little-
known Supreme Court cases, Eubank v. Richmond, 226 U.S. 139
(1912), and Washington ex rel. Seattle Title Trust Co. v. Roberge, 278
U.S. 116 (1928). We recently acknowledged the “vital[ity]” of this
obscure doctrine and treated it as a species of procedural due process,
though we found no violation. See Kiser v. Kamdar, 831 F.3d 784, 791
(6th Cir. 2016). This is the doctrine that best fits the Rice family’s
description of its claim and the facts of this case.
(Sixth Circuit Opinion, 6–7.) The court went on to identify the four “key features” of
a claim under the Eubank doctrine:
First, as a due process doctrine, its protection extends only to alleged
deprivations of “life, liberty, or property.” U.S. Const. amend XIV, § 1;
see also Board of Regents v. Roth, 408 U.S. 564, 569 (1972) (“The
requirements of procedural due process apply only to the deprivation of
interests encompassed by the Fourteenth Amendment’s protection of
liberty and property.”).
Second, nearly all cases invoking this doctrine have involved a
delegation of legislative authority to a private party. . . . Only the D.C.
Circuit has applied the doctrine (or its close cousin) to a “government
entity” (Amtrak), and, even then, the court emphasized Amtrak’s
“unique” status “as a for-profit corporation.” See Ass’n of Am. R.R. v.
U.S. Dep’t of Transp., 821 F.3d 19, 23, 31 (D.C. Cir. 2016).
Third, the cases have often emphasized that the delegee acted with
little or no guidance. In both Eubank and Roberge, the Court noted
that the regulation by private parties was final and that there were no
standards by “which the power thus given [was] to be exercised.”
Eubank, 226 U.S. at 143–44; accord Roberge, 278 U.S. at 122.
[Fourth], the cases have shown particular concern abut the delegee’s
self-interest. A delegee whose own interests may be affected by the
proceedings might act for “selfish” or “arbitrary” reasons. Roberge, 278
U.S. at 122–23; Eubank, 226 U.S. at 144; see also [Carter v. Carter
Coal Co., 298 U.S. 238, 311 (1936)] (finding that a delegation of
regulatory power to “private persons whose interests may be and often
are adverse to the interests of others in the same business” violates
due process); [Gen. Elec. Co. v. N.Y. State Dep’t of Labor, 936 F.2d
1448, 1455 (2d Cir. 1991)] (noting that when a legislative body
delegates to private parties “without supplying standards,”
administrative decision-making becomes subject to “the whims of local
taste” (quoting [Geo-Tech Reclamation Indus., Inc., v. Hamrick, 886
F.2d 662, 666 (4th Cir. 1989)])); Ass’n of Am. R.R., 821 F.3d at 29
(explaining that Amtrak’s “naked self-interest compromised their
neutrality”).
(Id., 8–9.) With the claim’s contours now clearly established and forming the law of
the case3, the Court proceeds to the merits.
Johnstown argues that it is entitled to judgment as a matter of law because
the Rice family does not have a property or liberty interest protected by the Due
Process Clause. The Court agrees. “Governmental action may be challenged as a
violation of due process only when it may be shown that it deprives a litigant of a
property or a liberty interest.” Gen. Elec. Co., 936 F.2d at 1453. That showing is
therefore a “constitutional threshold[.]” Id. See also U.S. CONST. amend. XIV § 1
(“[N]or shall any State deprive any person of life, liberty, or property, without due
process of law[.]”).
“‘Liberty’ and ‘property’ are broad and majestic terms.” Roth, 408 U.S. at 571.

But for the terms to have “some meaning[,]” they must be subject to “certain
boundaries.” Id. There is no allegation or argument that the Rice family’s liberty
interests are implicated in the present action. In Roth, the Supreme Court traced
the boundaries of property interests protected by the Fourteenth Amendment:

3 This Court previously denied Johnstown’s motion to dismiss. (ECF No. 18.)
The Rice family now argues that certain findings and statements within the Court’s
order are “the law of the case.” (See ECF No. 30, 2.) Not so. “[T]he law-of-the-case
doctrine is confined to circumstances in which the district court is evaluating issues
already decided by an appellate court, and does not bind district courts in
reevaluating its own determinations.” U.S. ex rel. Holbrook v. Brink’s Co., 336 F.
Supp. 3d 860, 867 (S.D. Ohio 2018) (Marbley, J.) (citing McKenzie v. BellSouth
Telecomms., Inc., 219 F.3d 508, 513 (6th Cir. 2000)).
To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a legitimate claim
of entitlement to it. . . .
Property interests, of course, are not created by the Constitution.
Rather they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as
state law—rules or understandings that secure certain benefits and
that support claims of entitlement to those benefits.
Id. at 577. So, to determine whether the Rice family has a protected property
interest in re-zoning its farm as a Johnstown PUD, the Court asks whether they
had a legitimate claim of entitlement to that outcome. The answer is no.
The Sixth Circuit has held that “a party cannot possess a property interest in
the receipt of a benefit when the state’s decision to award or withhold the benefit is
wholly discretionary.” Med Corp., Inc. v. City of Lima, 296 F.3d 404, 409 (6th Cir.
2002) (citation omitted). In other words, if the government “has unconstrained
discretion to deny the benefit, a prospective recipient of that benefit can establish
no more than a ‘unilateral expectation’ to it.” Id. at 410 (quoting Roth, 408 U.S. at
577). For a re-zoning applicant “to establish a property right in a future, rezoned
land use, [he] must point to some policy, law, or mutually explicit understanding
that both confers the benefit and limits the discretion of the [government] to rescind
the benefit.” Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir. 2008)
(internal quotation, citation, and alteration omitted). Cf. EJS Props., LLC v. City of
Toledo, 698 F.3d 845, 856 (6th Cir. 2012) (explaining that owners of real property
have a protected “interest in a discretionary benefit, such as a re-zoning ordinance”
only “after it is conferred”) (emphasis added).
The record before the Court reflects that the Rice family had, at best, a
unilateral expectation for their farm to be rezoned as a Johnstown PUD. As Judge
Batchelder pointed out,

[n]othing in Johnstown’s Planning and Zoning Code requires approval
of the plan and application as a matter of course. [(See ECF No. 29-5.)]
Furthermore, nothing in the record suggests that Johnstown promised
[the Rice family] success in getting their property rezoned. In fact, a
letter from Johnstown to [the Rice family] made it clear that
Johnstown cannot guarantee approval of their rezoning application or
their annexation petition. [(See ECF No. 28-2.)]
(Sixth Circuit Opinion, 18 (footnote omitted).) Accordingly, the Rice family fails to
succeed on the threshold question. The Court’s analysis stops there.
IV. CONCLUSION
For the reasons set forth above, the Village of Johnstown’s Motion for
Summary Judgment (ECF No. 27) is GRANTED. The Rice family’s Partial Motion
for Summary Judgment (ECF No. 29) is, accordingly, DENIED. The Clerk is
DIRECTED to TERMINATE this case.

IT IS SO ORDERED.

/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10381156. Public record. Not legal advice.