Petition for Writ of Certiorari — Columbia MHC East, LLC, et al., Petitioners v. Melody Stewart, et al.

NO. 20-_____

In the

Supreme Court of the United States

COLUMBIA MHC EAST, LLC, ET AL.,

Petitioners,

v.

MELODY STEWART, ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

HAROLD E. LUCAS

COUNSEL OF RECORD

3512 KAPALUA WAY

RALEIGH, NC 27610

(984) 242-0982

LUKELUCASIS@GMAIL.COM

COUNSEL FOR PETITIONERS

JANUARY 4, 2021

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

The Northern District of Ohio Trial Court dismissed

with prejudice, prior to the issuance of summons, the

complaint seeking redress against official state acts

of state court judges for the definitional taking of

Petitioners’ property without just compensation. The

Petitioners argue that state judges are state actors

under the Fourteenth Amendment of the U.S. Constitution for the purposes of violations of the Fifth

Amendment of the U.S. Constitution Takings and Just

Compensation Clauses.

The Sixth Circuit dismissed the case as moot

because Petitioners voluntarily dismissed the nongovernmental defendants.

THE QUESTIONS PRESENTED ARE:

1. Can the official actions of state judges violate

the Takings and Just Compensation Clauses of the

Fifth Amendment to the US Constitution?

2. Does the voluntary dismissal under Fed. R.

App. P. 42(b) of non-state defendants during the appeal

create a mootness that prevents the Sixth Circuit Court

from deciding whether the official acts of state court

judges violate the Fifth Amendment Takings and Just

Compensation Clauses of the US Constitution?

ii

PARTIES TO THE PROCEEDINGS

Petitioners

●

Columbia MHC East, LLC

●

Kenneth Burnham

Respondents

●

Judge Melody J. Stewart

●

Judge Tim McCormack

●

Judge Patricia Blackmon

●

Public Utilities Commission of Ohio

iii

CORPORATE DISCLOSURE STATEMENT

Columbia MHC East, LLC has no parent company

and no public company owns 10% or more of its

outstanding stock.

iv

LIST OF PROCEEDINGS

United States Court Of Appeals for the Sixth Circuit

No. 19-3748

Columbia MHC East, LLC, et al., Plaintiffs-Appellants,

Melody Stewart, et al., Defendants-Appellees.

Opinion: May 29, 2020

Amended Opinion: September 1, 2020

Rehearing Denial: October 7, 2020

_________________

United States District Court Northern District of

Ohio, Eastern Division

No. 1:19-cv-01613

Columbia MHC East, LLC, et al., Plaintiffs,

v. Melody Stewart, et al., Defendants.

Opinion: July 17, 2019

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDINGS ......................... ii

CORPORATE DISCLOSURE STATEMENT ........... iii

LIST OF PROCEEDINGS ......................................... iv

TABLE OF AUTHORITIES .................................... viii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND PROCEDURAL

PROVISIONS INVOLVED .................................. 2

STATEMENT OF THE CASE .................................... 3

REASONS FOR GRANTING THE PETITION ......... 5

I.

THE COURT SHOULD GRANT THE WRIT TO

DECIDE WHETHER A STATE JUDGE IS A

STATE ACTOR FOR PURPOSES OF THE TAKING

AND JUST COMPENSATION CLAUSES OF THE

FIFTH AMENDMENT OF THE U.S. CONSTITUTION.... 5

II. THE COURT SHOULD GRANT THE WRIT TO

RESOLVE WHETHER THE DISMISSAL OF N ON STATE DEFENDANTS UNDER FEDERAL RULE OF

APPELLATE PROCEDURE 42(B) AUTOMATICALLY MOOTS THE CASE AGAINST REMAINING

STATE ACTORS FOR FIFTH AMENDMENT

VIOLATIONS ..................................................... 11

CONCLUSION.......................................................... 16

vi

APPENDIX TABLE OF CONTENTS

Page

OPINIONS AND ORDERS

Opinion and Order of the United States District

Court for the Northern District of Ohio

(July 17, 2019) .................................................... 1a

Order of the United States Court of Appeals

for the Sixth Circuit Granting Voluntary

Dismissal (January 9, 2020) .............................. 3a

Opinion of the United States Court of Appeals

for the Sixth Circuit (May 29, 2020) ................. 5a

Amended Opinion of the United States Court of

Appeals for the Sixth Circuit

(September 1, 2020).......................................... 14a

Journal Entry by the Cuyahoga County Court,

Relevant Excerpt (January 10, 2020) ............. 21a

REHEARING ORDER

Order of the United States Court of the Appeals

for the Sixth Circuit Denying Petition for

Rehearing (October 7, 2020) ........................... 24a

vii

APPENDIX TABLE OF CONTENTS – Continued

Page

OTHER DOCUMENTS

Plaintiffs’ Complaint

(July 15, 2019) .................................................. 26a

Appellants’ Corrected Brief

(September 18, 2019)........................................ 46a

Appellants’ Petition for En Banc

(June 16, 2020) ................................................. 61a

Appellants’ Memorandum of Law En Banc

(September 15, 2020)........................................ 75a

viii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Brinkerhoff-Faris Trust & Sav. Co. v. Hill,

281 U.S. 673 (1930) ............................................. 5

Byrd v. U.S.,

138 S.Ct. 1618 (2018) .......................................... 8

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles,

482 U.S. 304 (1987) ........................................... 13

Genesis HealthCare Corp. v. Symczyk,

569 U.S. 66 (2013) ............................................. 15

Hughes v. Washington,

389 U.S. 290 (1967) ............................................ 10

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ......................................... 10

McDonnell v. U.S.,

136 S.Ct. 2355 (2016) .......................................... 9

Murr v. Wisconsin,

137 S.Ct. 1933 (2017) ........................................... 8

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................. 9

Stevens v. Cannon Beach,

510 U.S. 1207 (1994) ........................................ 6, 9

Stop the Beach Renourishment, Inc. v. Florida

Dept. of Environmental Protection,

560 U.S. 712 (2010) ......................................... 5, 6

ix

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ......................................... passim

U.S. Const. amend. XIV ................................. i, 2, 6, 15

STATUTES

28 U.S.C. § 1254(1)...................................................... 1

JUDICIAL RULES

Fed. R. App. P. 42(b) .................................. i, 2, 4, 11, 13

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners Columbia MHC East, LLC d/b/a

Columbia Park Water and Sewer System and Kenneth

Burnham respectfully pray that a writ of certiorari

issue to review the judgment below.

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Sixth Circuit, dated May 29, 2020, is reproduced

in the Appendix at App.5a. An Amended Opinion was

issued by the United States Court of Appeals for the

Sixth Circuit on September 1, 2020, and is included

at App.14a. The Opinion and Order of the United

States District Court for the Northern District of Ohio,

dated July 17, 2019, is included at App.1a.

JURISDICTION

The Court of Appeals issued its denial of a petition

for rehearing en banc on October 7, 2020. App.24a.

Jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

2

CONSTITUTIONAL AND PROCEDURAL

PROVISIONS INVOLVED

U.S. Const. amend. V

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in

the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be

taken for public use, without just compensation.

U.S. Const. amend. XIV, § 1

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Fed. R. App. P. 42(b)

DISMISSAL IN THE COURT OF APPEALS. An

appeal may be dismissed on the appellant’s

motion on terms agreed to by the parties or

fixed by the court.

3

STATEMENT OF THE CASE

U.S. Bank filed suit in state court against two

Tenants-in-Common (not parties to this case) on a

defaulted mortgage for a mobile home park in

Cuyahoga County Ohio. The county court appointed

a Receiver to liquidate the property. Petitioners were

not a party to the mortgage, were not borrowers, did

not owe any money to U.S. Bank and did not default

on any contract with U.S. Bank.

Petitioners solely operated an adjacent comprehensive state-licensed water and sewer system, Columbia

MHC East, LLC d/b/a the Columbia Park Water and

Sewer System (“CPWSS”), under the purview of the

Public Utilities Commission (PUCO) of Ohio, that

served persons and businesses both outside and inside

of the mobile home park and was not owned by the

mortgagors or mortgagees of the park. Petitioners

purchased CPWSS for approximately $2.3 Million

Dollars in 2002. The state appellate judges (Ohio Court

of Appeals), during arguments defining “Receivership

Property” determined that the entire water system

was a “fixture” to the mobile home park in the state

suit and redefined it as Receivership Property giving

all title, revenue and the rights of operation to the

Receiver, who was not licensed to operate a public

utility. The Ohio Supreme Court refused jurisdiction.

Petitioners sued U.S. Bank, the Receiver, PUCO,

and three state judges of the Ohio Court of Appeals

in the Northern District of Ohio alleging a “definitional” taking and that, as state actors, they violated

the Takings and Just Compensation Clauses of the

4

Fifth Amendment to the U.S. Constitution. A copy of

the Complaint is attached. App.26a.

Two days after the Complaint was filed in the

Northern District of Ohio, and prior to the issuance

of summons, the trial judge dismissed the complaint

with prejudice, stating that there was no cognizable

claim because judges are “absolutely immune” for

acts undertaken in their official capacity. A copy of

that judgment is attached. App.1a.

Petitioners appealed to the Sixth Circuit and

during the appeal voluntarily dismissed the non-governmental defendants pursuant to Fed. R. App. P. 42(b).

The Brief on appeal is attached. App.46a. The order

of Voluntary Dismissal with the court-fixed terms

is attached. App.3a. The Sixth Circuit ignored the

allegations regarding the unconstitutional taking and

initially determined that the case was moot and

dismissed for lack of jurisdiction. The Court stated

that “Plaintiffs agreed to sell WWTP as part of its

settlement . . . .” This assertion was in error. The Decision of the Sixth Circuit Court of Appeals is attached.

App.5a.

Petitioners requested a rehearing en banc. The

Petition for Rehearing is attached. App.61a. The

Circuit Court issued an “Amended Opinion” which is

attached. App.14a.

The Court in the Amended Opinion again dismissed the case as moot but this time stated that

because of the voluntary request for dismissal of the

private parties “all remaining matters became moot

after that dismissal.” The Court then offered to accept

a memorandum from Petitioners. Petitioners filed a

Memorandum of Law supplementing the initial Peti-

5

tion for Re-Hearing which is attached. App.75a. The

Circuit Court filed its Final Order on October 7, 2020

which is attached. App.24a. In that Order, the Court

stated that “ . . . the issues raised in the petition were

fully considered upon the original submission and

decision of the case” and denied the rehearing.

REASONS FOR GRANTING THE PETITION

I.

THE COURT SHOULD GRANT THE WRIT TO DECIDE

WHETHER A STATE JUDGE IS A STATE ACTOR FOR

PURPOSES OF THE TAKING AND JUST COMPENSATION

CLAUSES OF THE FIFTH AMENDMENT OF THE U.S.

CONSTITUTION.

This Court has not yet determined whether the

actions of a state court may give rise to a taking. The

viability and dimensions of the judicial takings doctrine

remains unresolved. Yet the federal guaranty of due

process extends to state action through its judicial,

as well as through its legislative, executive or administrative, branch of government. See Brinkerhoff-Faris

Trust & Sav. Co. v. Hill, 281 U.S. 673-679 (1930).

Although the Circuit Court refused to address the

constitutional claims of the Petitioners, this Court may

still review those claims. Where the state court decision itself is claimed to constitute a violation of federal

law, the state court’s refusal to address that claim put

forward in a petition for rehearing will not bar this

Court’s review. See Stop the Beach Renourishment, Inc.

v. Florida Dept. of Environmental Protection, 560 U.S.

at 712 & n.4.

6

In Stop the Beach Renourishment, Inc., Justice

Scalia, joined by the Chief Justice, Justice Thomas and

Justice Alito, recognized that a court could effect a

taking through a decision that contravened established

property law. 560 U.S. 702, No. 08–1151, slip op.

(2010). A strict reading of the text of the Fifth Amendment indicates that “takings” are done by the State as

opposed to a particular branch or agency of government and judicial acts should not be immunized from

taking liability.

The Takings Clause is not addressed to the action

of a specific branch or branches or persons. It is

concerned simply with the act, and not with the governmental actor (“nor shall private property be taken”).

Justice Scalia opined that there is no textual justification for saying that the existence or the scope of a

State’s power to expropriate private property without

just compensation varies according to the branch of

government effecting the expropriation. He suggested

that it was against common sense to recommend such

a principle. “It would be absurd to allow a State to

do by judicial decree what the Takings Clause forbids

it to do by legislative fiat.” 130 S.Ct. at 2601 (Citing

Stevens v. Cannon Beach , 510 U.S. 1207, 1211-12

(1994) (Scalia, J., dissenting from denial of certiorari).

In Stop the Beach Renourishment, Inc, the Petitioner sought rehearing on the ground that the Florida

Supreme Court’s decision itself effected a taking of

the Members’ littoral rights contrary to the Fifth and

Fourteenth Amendments to the Federal Constitution.

There, as here, the request for rehearing was denied.

This Court granted certiorari. Though all eight participating Justices agreed on the result, Justice Kennedy

and Justice Breyer, each joined by one other Justice,

7

wrote concurring opinions finding that the case did not

require the Court to determine whether, or when, a

judicial decision on the rights of a property owner can

violate the Takings Clause. But Justice Scalia weighed

in heavily, joined by the Chief Justice, Justice Thomas

and Justice Alito, who concluded in Parts II and III

that if a court declares that what was once an established right of private property no longer exists, it

has taken that property in violation of the Takings

Clause.

A. Petitioners’ Established Right to the Property

Taken.

This Court can make its own determination, without deference to state judges, whether the challenged

decision deprives the claimant of an established property right because it is what this Court does when

determining state-court compliance with all constitutional imperatives. It makes no difference if the source

of a property right is the common law or a statute.

What counts is not whether there is precedent for the

allegedly confiscatory decision, but whether the property right allegedly taken was established.

Petitioners purchased the water and sewer system

in 2002 for approximately $2.3 Million and applied

to the Ohio Public Utilities Commission (PUCO) for

a public utility license. As part of that application

process, and as owners of the facility, CPWSS submitted

a required “tariff” document setting out the rates,

regulations, operating rules and structure of its operations activity as required by PUCO’s state statutory

scheme. In its General Statement of Purpose, accepted

by PUCO, the Petitioners stated, “The Columbia Park

Water and Sewer System was established to provide

8

adequate, healthy and efficient water and wastewater

service to a mobile home park, including 1138 units,

a farmhouse, shopping center, a medical building in

Olmstead Township, Cuyahoga County, Ohio.”

PUCO issued a Certificate of Need, annually

licensed the operations of CPWSS and levied and

collected state-mandated fees from the Petitioners. The

state of Ohio levied and collected taxes. The Petitioners

alone paid all costs of maintenance, improvements and

operations for the next 15 years. The operation of

CPWSS required a vigorous licensing process and strict

adherence to the rules and regulations governing the

utility. The Petitioners had an established right to the

property including the right to exclude others from the

property. See Byrd v. U.S., 138 S.Ct. 1618, 1627-1628

(2018) (One of the main rights attaching to property

is the right to exclude others).

The question of establishment of Petitioners’ property rights is objective and should determine whether

reasonable expectations about the property ownership

would lead the Petitioners to anticipate that their

holdings would be treated as their property. See Murr

v. Wisconsin, 137 S.Ct. 1933, 1938 (2017). Petitioners’

belief in their rights to the property was reasonable.

Even U.S. Bank showed no signs that it believed the

property belonged to no others than the Petitioners.

Petitioners respectfully submit that the trial judge

should not have dismissed the Complaint out-of-hand,

with prejudice, but rather held argument on whether

a taking occurred, whether an established property

right existed for purposes of just compensation and

how much compensation would be just. The district

court’s position that no claim can be brought against

a state judge destroys constitutional accountability

9

upon that state court and chills the ability of the

Petitioners’ attorneys to zealously and vigorously argue

for their clients’ constitutional rights to injunctive or

declaratory relief. It is to state the impossibility of the

federal judiciary to protect the constitutional rights

of Americans. Contrary to the district court’s Opinion,

the Petitioners’ claims were not frivolous and therefore

were cognizable.

B. The Occurrence of the Taking.

Petitioners respectfully submits that the Ohio

Court of Appeals conducted an “official act” by determining that the Petitioners’ property was a fixture to

the property of U.S. Bank and thereupon committed a

definitional taking of the Petitioners’ property. McDonnell v. U.S., 136 S.Ct. 2355, 2358 (2016) (Opinion by

Chief Justice Roberts explaining what is an “official

act”). That ruling by the Ohio Court of Appeals affected

Petitioners’ property rights and might be legitimate

under state law but it nevertheless constituted a

compensable taking under the Fifth Amendment to

the U.S. Constitution. Implicitly recognizing concerns

about “definitional takings,” this Court has stated

that a State cannot define existing property rights out

of existence. See Palazzolo v. Rhode Island, 533 U.S.

606 (2001). While the determination of state takings

law by state courts is conclusive, their determination

of the Federal Constitution’s Takings Clause is not.

“No more by judicial decree than by legislative fiat

may a State transform private property into public

property without compensation . . . ” See Stevens v. City

of Cannon Beach, 114 S.Ct. at 1334 (1994) (Scalia, J.)

(dissenting from denial of cert.).

10

The Ohio Court of Appeals ignored the established

state of Petitioners’ property and, by defining the

property as a fixture, determined that the property

rights of Petitioners never existed at all. This it cannot

do without just compensation. See, Hughes v. Washington, 389 U.S. 290, 296 (1967) (Stewart, J. concurring).

A state cannot be permitted to defeat the constitutional prohibition against taking property without due

process of law by the simple device of asserting retroactively that the property it has taken never existed

at all. The Ohio court’s ruling deprived Petitioners

of any economic use of the system, eliminated their

unrestricted right of use and rendered the entire property valueless to the Petitioners. It was a taking by

the state that deprived Petitioners of all economically

beneficial use of their property. See, Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1019 (1992).

In sum, the Takings Clause bars the State of Ohio

from taking private property without paying for it, no

matter which branch is the instrument of the taking.

Condemnation by eminent domain, for example, is

always a taking. A legislative, executive, or judicial

restriction of property use may or may not be, depending on its nature and extent. But the particular state

actor is irrelevant. If a legislature or a court declares

that what was once an established right of private

property no longer exists, it has taken that property.

If the State had physically appropriated it or destroyed

its value by regulation or judicial decree, it has taken

the property.

11

II.

THE COURT SHOULD GRANT THE WRIT TO RESOLVE

W HETHER THE D ISMISSAL OF N ON -S TATE

DEFENDANTS UNDER FEDERAL RULE OF APPELLATE

PROCEDURE 42(B) AUTOMATICALLY MOOTS THE

CASE AGAINST REMAINING STATE ACTORS FOR FIFTH

AMENDMENT VIOLATIONS.

Fed. R. App. P. 42(b) states:

DISMISSAL IN THE COURT OF APPEALS. An

appeal may be dismissed on the appellant’s

motion on terms agreed to by the parties or

fixed by the court.

After Petitioners’ initial appeal the Petitioners

filed a Voluntary Dismissal of the case against only

Shapiro (the Receiver) and U.S. Bank. The Court

granted the dismissal on terms fixed by the Court.

App.3a. The terms were fixed by the Court exactly as

written in the Order, dismissal applicable only to

Shapiro and U.S. Bank pursuant to Rule 42(b) of the

Federal Rules of Appellate Procedure. “It is ORDERED

that the motion is GRANTED and the parties are

dismissed from this appeal.” The Petitioners did not

request and the Circuit Court did not grant dismissal

as to all parties to the suit. Further, the Order did not

state that the parties were dismissed with prejudice.

Five months after the order of dismissal under

Rule 42(b), and without mentioning the dismissal the

Circuit Court issued its first Opinion stating, “Plaintiffs’ settlement agreement with PUCO and Shapiro

mooted this case. For that reason, we DISMISS for lack

of jurisdiction.” App.13a. There was no mention of the

voluntary dismissal. The error is that Petitioners never

entered into, nor entertained entering into, a settlement agreement with anyone, particularly not with

12

PUCO. The Ohio Court of Appeals had extinguished

all rights that Petitioners had to the property over a

year and one-half earlier and therefore Petitioners were

unable to enter into any settlement agreement with

anyone. Why would U.S. Bank, the Receiver and their

attorneys entertain any “settlement” for property that

the Bank already owned as a “fixture” according to

the Ohio Court of Appeals? The Circuit Court erroneously interpreted a document wherein the Petitioners

merely made it known that the Petitioners would retain

the case against the state actors. App.22a-23a. The

Court’s entire Opinion revolved around its mistaken

assumption regarding a so-called “settlement agreement.” The Ohio Attorney General in its brief was not

accurate in its description to the Court as to the exact

content of the document. It is clear and explicit. The

document actually represented court-approved terms

upon which a state-mandated auction could be conducted by the Receiver pursuant to state foreclosure law. It

was not a settlement regarding the Petitioners because

Petitioners, according to the Ohio courts, had no

property rights to settle. The document stated, “The

6th Circuit case will remain pending against Melody

J. Stewart, Tim McCormack, Patricia Ann Blackmon

and Public Utilities Commission of Ohio.” App.21a.

More importantly, the document was never executed

by all of the parties and the contingent deadline came

and went before the final order of the Circuit Court.

The auction eventually took place prior to the Circuit

Court’s final Order in this case, no bids were forthcoming, the Petitioners received no monies and the

document expired by its own terms.

Since the Respondents still deny liability for just

compensation and the Petitioners still retain their

13

5th Amendment property rights to just compensation,

adversity and therefore jurisdiction remains. There

is a cognizable claim. No interim event has completely

and irrevocably eradicated the effects of the taking.

The state took Petitioners property rights through an

official state act and the transfer of Petitioners’ property rights is still without compensation. The taking

was effective at the moment of the Ohio court’s decision.

Even if this Court decides that the case was moot as

of May 29, 2020, the deprivation of use since the

December 2018 taking decision of the Ohio Court of

Appeals is compensable under the Takings Clause. See

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304 (1987) (holding that temporary deprivations of use are compensable

under the Takings Clause).

A. Petitioners then filed a Petition for Re-Hearing

En Banc.

This time the Circuit Court (the same panel) utilized

a completely different reasoning for the rationale of

issuing another (amended) Opinion dismissing the

case. Apparently realizing that its previous Opinion

characterizing the county Journal Entry as a “settlement”

agreement releasing the state actors was mistaken,

the Circuit Court now opined that because the private

parties were dismissed with prejudice, “all remaining

matters became moot after that dismissal.” App.20a.

In fact the Petitioners did not move to dismiss the

entire appeal and the Dismissal Order, upon terms

fixed by the Court pursuant to Rule 42(b), dismissed

only the nonstate actors. App.3a. The Court stated,

“ . . . we dismissed the private parties with prejudice.

. . .” although the Dismissal Order expressed no such

fixed term of prejudice. App.3a.

14

Without providing any legal analysis whatsoever,

the Circuit Court determined that the very thing that

the Petitioners were suing for was prohibited because

the only remaining parties were the very state actors

that the Petitioners were suing for constitutional violations. It is tantamount to saying that because (if)

the Petitioners (only) sued the state judges, the case

is automatically moot. It is the exact same position

that Petitioners found themselves at the trial level.

The appeal itself was for the Circuit Court to determine whether a cognizable claim could be brought

against the state actors, not whether the suit was

moot. The Circuit Court avoided the issue that this

case is predicated upon, provided no relief to the

Petitioners and failed to deliver any legal analysis to

the judgment of the trial court on the constitutional

issues raised by the Complaint in general.

The Order Approving Sale was not an agreement

to sale based upon the authority of the Petitioners

(the Petitioners were not clothed with any authority

whatsoever), and it was not a “settlement.” Contrary

to the Circuit Court’s first Opinion, it was a Court-required Order of terms under which an auction had to

be conducted by the Receiver under state court foreclosure rules in a case where the Petitioners were not

a party to the mortgage. It did not involve a “settlement”

with PUCO.

Regardless, any sale by the Receiver would not

make the Petitioners whole and payment by some

unknown third party of some speculative amount to

U.S. Bank does not operate to legally extinguish the

constitutional responsibility of the state to justly

compensate the Petitioners for property taken by the

state actors.

15

This case was never moot. There still remains

an actual and concrete dispute, the resolutions of

which has direct consequences on the Petitioners and

the state actors. See Genesis HealthCare Corp. v.

Symczyk, 569 U.S. 66, 71. (2013).

The Circuit Court has a constitutional duty to

litigate constitutional issues brought before it on appeal

but in its first Opinion the Circuit Court disclosed its

predisposition and stated, “ . . . we question whether

a dissatisfied litigant may ever sue an individual

state judge in federal court over a decision the state

judge rendered after proper adjudication and under

their official duties.” App.13a. Further, the panel

stated, “ . . . we doubt Plaintiffs’ ability to bring the

claims they did against the state judges in federal

court.” App.13a. The mere fact that state actors were

sued does not make the case moot. It is a continuing

case or controversy. The panel was clearly predisposed

against Petitioners and did not recognize what this

Court has effectively admitted . . . that state judges

are state actors and any taking by state judicial decisions that deprives the Citizens of a clearly established

property right requires just compensation under the

Fifth and Fourteenth Amendments to the U.S. Constitution.

If the trial court refuses to litigate the constitutional issues and the Circuit Court refuses to litigate the

constitutional issues, then how are the constitutional

issues to ever be litigated by the Citizens?

16

CONCLUSION

The Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

HAROLD E. LUCAS

COUNSEL OF RECORD

3512 KAPALUA WAY

RALEIGH, NC 27610

(984) 242-0982

LUKELUCASIS@GMAIL.COM

COUNSEL FOR PETITIONERS

JANUARY 4, 2021