Petition for Writ of Certiorari — Abigail Ladd, et al., Petitioners v. Jack Marchbanks

No. ________

IN THE

SUPREME COURT OF THE UNITED STATES

ABIGAIL LADD, et al.,

Petitioners,

v.

JACK MARCHBANKS,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

ZACHARY J. MURRY

BARKAN & ROBON, LTD

1701 Woodlands Drive,

Suite 100

Maumee, Ohio 43537

(419) 897-6500

Ohio Bar No. 0087421

Email: zmurry@barkanrobon.com

KATHLEEN R. HARRIS*

CHARLES E. BOYK LAW

OFFICES, LLC

1500 Timberwolf Drive

Holland, Ohio 43528

(419)241-1395

Ohio Bar No. 88079

Email:

kharris@charlesboyklaw.com

*Counsel of Record

Attorneys for Petitioners

i

QUESTIONS PRESENTED

Following commencement of a $114 million

widening and improvement project for Interstate 75,

construction activity and/or the design of the project

itself has caused storm and groundwater to flood and

inundate the Petitioners’ respective properties on no

fewer than three (3) occasions: July 13, 2017; April 26,

2019; and June 2, 2019. The flooding caused damage

to the Petitioners’ respective real estate as well as loss

of their personal property.

The Interstate 75

improvement project was designed and undertaken

under the supervision of the Ohio Department of

Transportation (“ODOT”).

The flooding of Petitioners’ respective

properties constitutes a physical taking for which just

compensation must be paid pursuant to the Fifth

Amendment to the United States Constitution.

However, Ohio law does not provide any mechanism

by which the Petitioners may assert a legal claim for

“inverse condemnation” arising from the State’s

uncompensated taking of their respective properties.

Instead, an Ohio property owner must petition the

court of general jurisdiction where the property is

located for an equitable remedy, i.e. the issuance of a

writ of mandamus compelling the State to initiate

condemnation proceedings against the property

owner. See Knick v. Twp. of Scott, Pennsylvania, 139

S. Ct. 2162, 2168 n.1, 204 L. Ed. 2d 558 (2019).

The questions for which Petitioners seek

certiorari are as follows:

1.

Whether Ohio’s mandamus scheme

provides its citizens with a reasonable, certain, and/or

adequate procedure or process sufficient to meet the

ii

guarantees enshrined within the Fifth Amendment’s

takings clause.

2.

Whether this Court’s Decision in Knick,

supra, permits Ohio citizens to maintain a federal

cause of action against the State for an

uncompensated physical taking.

3.

Whether the Eleventh Amendment

immunizes the State of Ohio from a federal lawsuit by

its own citizens when Ohio law does not provide a

legal remedy for a violation of its citizens’ Fifth

Amendment right to just compensation.

iii

LIST OF PARTIES

The Petitioner Abigail Ladd is a natural person

whom, at all relevant times, was the record owner of

certain real property located in Hancock County, Ohio

with a permanent parcel no. of 600001008706.

The Petitioner Christina Gonzales is a natural

person whom, at all relevant times, was the record

owner of certain real property located in Hancock

County, Ohio with a permanent parcel no. of

270001000637

The Petitioner Ida Duenke is a natural person

whom, at all relevant times, was the record owner of

certain real property located in Hancock County, Ohio

with a permanent parcel no. of 270001000637.

The Petitioner Gerardo Saldaña is a natural

person whom, at all relevant times, was the record

owner of certain real property located in Hancock

County, Ohio with a permanent parcel no. of

270001000637.

The Petitioner David Saldaña is a natural

person whom, at all relevant times, was the record

owner of certain real property located in Hancock

County, Ohio with a permanent parcel no. of

270001000637.

The Petitioner Marcelino Saldaña is a natural

person whom, at all relevant times, was the record

owner of certain real property located in Hancock

County, Ohio with a permanent parcel no. of

270001000637.

The Petitioner Alicia Roberts is a natural

person whom, at all relevant times, was the record

owner of certain real property located in Hancock

iv

County, Ohio with

of270001000637.

a

permanent

parcel

no.

The Petitioner Melinda Addenbrock is a

natural person whom, at all relevant times, was the

record owner of certain real property located in

Hancock County, Ohio with a permanent parcel no. of

270001000637.

The Petitioner Deanna McCrate is a natural

person whom, at all relevant times, was the record

owner of certain real property located in Hancock

County, Ohio with a permanent parcel no. of

270001000637.

The Respondent Jack Marchbanks is, and at all

relevant times was, the Director of the Ohio

Department of Transportation.

CORPORATE DISCLOSURE

STATEMENT

Counsel for Petitioners hereby states and

affirms that none of the Petitioners are a subsidiary

and/or affiliate of a publicly owned corporation.

Counsel for Petitioners further states that Petitioners

are not aware of any publicly owned corporation that

has a financial interest in the outcome of this appeal.

v

LIST OF RELATED CASES

Ladd, et al., v. Ohio Department of Transportation v.

The Beaver Excavating Company, No. 2019-00783JD

(Ohio Ct. of Claims) (Proceedings stayed pursuant to

August 26, 2020, Entry)

vi

TABLE OF CONTENTS

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

LIST OF PARTIES .................................................... iii

CORPORATE DISCLOSURE STATEMENT ........... iv

LIST OF RELATED CASES ..................................... v

TABLE OF CONTENTS............................................ vi

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

OPINION BELOW...................................................... 1

STATEMENT OF JURISDICTION ........................... 1

CONSTITUTIONAL AND STATUTORY

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

INTRODUCTION ....................................................... 4

STATEMENT OF THE CASE .................................... 7

I. Factual Background .............................................. 7

II. Procedural History ............................................... 9

REASONS FOR GRANTING THE WRIT ................ 12

I. The Fifth Amendment’s Self-Executing Guarantee

of Just Compensation is a Foundational

Constitutional Right and that Right May

Not be Qualified or Abridged ............................. 12

vii

II. Ohio’s Mandamus Scheme Does Not Provide

Reasonable, Certain, and/or Adequate

Procedures to Provide its Citizens with a

Complete Remedy for the State’s Violation of

their Constitutional Rights ................................ 17

III. The Holding of Knick v. Twp. of

Scott, Pennsylvania Necessarily Abrogates

the Eleventh Amendment Immunity

Claims Advanced by Ohio and the Sixth

Circuit’s Conclusion to the Contrary

Arbitrarily Circumscribes the Scope of

this Court’s Decision in that Case. ................... 24

CONCLUSION ......................................................... 32

APPENDIX:

APPENDIX A: Order, United States Court of

Appeals for the Sixth Circuit, October 6, 2020........ 1a

APPENDIX B: Opinion, United States Court of

Appeals for the Sixth Circuit, August 6, 2020......... 3a

APPENDIX C: Dismissal Order, United States

District Court for the Northern District of

Ohio, October 31, 2019 ........................................... 18a

viii

TABLE OF AUTHORITIES

CASES

PAGE(S)

Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240,

144 L.Ed.2d 636 (1999) ............................................. 32

Armendariz v. Penman, 75 F.3d 1311

(9th Cir.1996) ............................................................ 27

Arnsberg v. United States, 757 F.2d 971

(9th Cir.1984) ............................................................ 15

Banks v. City of Whitehall, 344 F.3d 550

(6th Cir.2003) ............................................................ 26

Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524,

29 L.Ed. 746 (1886) ................................................... 33

Buckles v. Columbus Mun. Airport Auth.,

90 F. App'x 927 (6th Cir. 2004) ................................ 27

First English Evangelical Lutheran Church of

Glendale v. Los Angeles Cty., Cal.,

482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250

(1987)............................................................. 16, 17, 28

Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666,

49 L.Ed.2d 614 (1976)............................................... 27

Flynn, 973 F.3d 74 (D.C. Cir. 2020) ........................... 6

Garrett v. Illinois, 612 F.2d 1038 (7th Cir. 1980) .... 30

ix

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244

(11th Cir.2012) .......................................................... 13

Gibbons v. Ogden, 22 U.S. 1, 223, 6 L. Ed. 23

(1824)......................................................................... 12

Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364,

129 L.Ed.2d 383 (1994) ............................................. 24

Horne v. Dept. of Agriculture, 576 U.S. 350,

135 S.Ct. 2419, 192 L.Ed.2d 388 (2015)............. 10, 18

Hurley v. Kincaid, 285 U.S. 95, 52 S. Ct. 267,

76 L. Ed. 637 (1932) .................................................... 5

Hutto v. S.C. Ret. Sys., 773 F.3d 536

(4th Cir. 2014) ........................................................... 30

Jachetta v. United States, 653 F.3d 898

(9th Cir. 2011) ........................................................... 30

Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26,

78 L.Ed. 142 (1933) ............................................... 5, 15

John G. & Marie Stella Kenedy Mem’l Found. v.

Mauro, 21 F.3d 667 (5th Cir. 1994).......................... 30

Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162,

2168 n.1, 204 L. Ed. 2d 558 (2019) ...................passim

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868

(1982)........................................................................... 4

Masheter v. Boehm, 37 Ohio St.2d 68, 307 N.E.2d

533 (Ohio 1974) ........................................................... 6

x

Montgomery v. Carter County, Tennessee,

226 F.3d 758 (6th Cir.2000)................................ 26, 27

Nw. Ohio Properties, Ltd. v. Lucas Cty., Ohio,

634 F. App’x 579 (6th Cir. 2016) .............................. 26

Patsy v. Board of Regents of Fla., 457 U.S. 496,

102 S.Ct. 2557, 73 L.Ed.2d 172 (1982)..................... 25

Rhodes v. U.S. I.R.S., No. CV10–1074–PHX–DGC,

2011 WL 1771034 (D. Ariz. May 10, 2011) .............. 15

Robinson v. Ga. Dep’t of Transp., 966 F.2d 637

(11th Cir. 1992) ......................................................... 30

Rockies Exp. Pipeline, LLC v. 4.895 Acres of Land,

More or Less, in Butler Cty., Ohio (Pipeline Right-ofWay Servitude), 2011 WL 4337054 (S.D. Ohio Sept.

5, 2011), affirmed, 734 F.3d 424 (6th Cir. 2013) ..... 19

Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620,

134 L.Ed.2d 855 (1996) ............................................... 7

San Remo Hotel, L.P. v. City & Cty. of San Francisco,

545 U.S. 323 (2005)................................................... 30

Schafer v. RMS Realty, 138 Ohio App.3d 244,

741 N.E.2d 155 (2nd Dist.2000) ............................... 20

State ex rel. Love v. O'Donnell, 150 Ohio St.3d 378,

2017-Ohio-5659, 81 N.E.3d 1250 (Ohio 2017) ..... 6, 21

State ex rel. Wasserman v. Fremont, 140 Ohio

St.3d 471, 2014-Ohio-2962, 20 N.E.3d 664

(Ohio 2014) ...................................................... 6, 18, 19

xi

Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207

(1981)......................................................................... 22

United States v. Clarke, 445 U.S. 253, 100 S.Ct.

1127, 63 L.Ed.2d 373 (1980) ..................................... 28

Williamson Cty. Reg'l Planning Comm'n v. Hamilton

Bank of Johnson City, 473 U.S. 172, 105 S. Ct. 3108,

87 L. Ed. 2d 126 (1985)......................................passim

Windsor v. Eaves, 318 F.R.D. 153 (N.D.Fla.2016)... 22

Statutes

Ohio Rev. C. § 163.21................................................ 20

Ohio Rev. C. §§ 163.01-163.62.................................. 18

Ohio Rev. Code § 2743.16 ......................................... 10

Constitutional Provisions

The Civil Rights Act of 1871..................................... 24

Federal Statutes

28 U.S. Code §2201 ................................................... 31

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

28 U.S.C. §1331........................................................... 9

42 U.S.C. § 1983.............................................. 9, 24, 31

42 U.S.C. § 1988........................................................ 22

xii

Secondary Sources

129 Harv. L. Rev. 1068 ............................................. 28

6 P. Nichols, Eminent Domain § 25.41

(3d rev. ed. 1972)....................................................... 28

Baldwin's Oh. Prac. Tort L. § 29:6 (2d ed.) .............. 20

Reconciling State Sovereign Immunity with the

Fourteenth Amendment, Feb. 10, 2016 .................... 27

Richard H. Fallon et al., Hart & Wechsler’s The

Federal Courts and the Federal System 1002

(4th ed. 1996) ............................................................ 29

The Collision of the Takings and State Sovereign

Immunity Doctrines, 63 Wash. & Lee L. Rev.

493 (2006).................................................................. 29

The Works of John Adams, 3, 9 (Charles Francis

Adams ed., 1851)....................................................... 13

The Writings of James Madison 101, 102 (Gaillard

Hunt ed., 1906) ......................................................... 13

Thomas Paine, The Crisis 8 (2009 ed.) (1776) ......... 14

1

PETITION FOR A WRIT OF

CERTIORARI

__________

Landowners Abigail Ladd, Christina Gonzales,

Ida Duenke, Gerardo Saldaña, David Saldaña,

Marcelino Saldaña, Alicia Roberts, Melinda

Addenbrock, and Deanna McCrate respectfully

petition for a writ of certiorari to review the August

20, 2020, Opinion and Judgment of the United States

Court of Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The Sixth Circuit Court of Appeals’ October 6,

2020, Order denying Petitioners’ petition for

rehearing en banc is reproduced at Pet.App.1a. The

Sixth Circuit Court of Appeals’ August 20, 2020,

Opinion affirming the dismissal of Petitioners’

Complaint is published at Ladd v. Marchbanks, 971

F.3d 574 (6th Cir.2020), and is reproduced at

Pet.App.3a. The District Court’s October 31, 2019,

Dismissal Order is reproduced at Pet.App.18a.

STATEMENT OF JURISDICTION

The Opinion and Judgment of the court of

appeals was entered on August 20, 2020. A timely

petition for rehearing en banc was denied on October

6, 2020. (Pet.App.1a). This Court’s jurisdiction rests

on 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution states:

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.

The Eleventh Amendment to the United States

Constitution provides:

The Judicial power of the United States

shall not be construed to extend to any

suit in law or equity, commenced or

prosecuted against one of the United

States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

The Fourteenth Amendment to the United

States Constitution states, in relevant part:

3

Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. 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.

4

INTRODUCTION

It has long been recognized that a government’s

physical occupation of one’s private property is “the

most serious form of invasion of an owner’s property

interests,” slicing every strand of the owner’s “bundle”

of property rights. Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 435, 102 S. Ct. 3164, 3176,

73 L. Ed. 2d 868 (1982). Such an occupation occurred

on July 13, 2017, April 26, 2019, and June 2, 2019,

when Petitioners’ properties were flooded as a

consequence of ODOT’s construction activity on its

Interstate 75 (I-75) project.

In addition, these

properties are the homes of Petitioners’ Abigail Ladd

and Ida Duenke, respectively. Thus, in the aftermath

of each flooding event, Ms. Ladd and Ms. Duenke were

left with destroyed personal property and an arduous

remediation effort.

ODOT did not have an easement to flood the

Petitioners’ properties and no condemnation

proceeding has ever been initiated against the

Petitioners, either prior to or after the initial flood in

July 2017. Nonetheless, and no different than if

ODOT had had driven a bulldozer into Petitioners’

living rooms, there can be little disagreement that a

physical taking of their respective property occurred

in this case. There is also no dispute that no

compensation, just or otherwise, has ever been paid by

ODOT. As such, ODOT and the State of Ohio’s actions

run afoul of the guarantees enshrined in the Fifth

Amendment’s takings clause. However, under Ohio

law, Petitioners are unable to assert a legal claim

against the State for its violation of their rights---both

under the Fifth Amendment as well as Article 1,

Section 19 of the Ohio Constitution.

Instead,

Petitioners are forced to avail themselves of equitable

5

remedies and navigate a labyrinthian morass of

multi-forum litigation to obtain even a partial remedy

for the loss of their property.

This Court has consistently held that the “just

compensation” guarantee of the takings clause

mandates that a complainant be provided “a plain,

adequate, and complete remedy at law.” Hurley v.

Kincaid, 285 U.S. 95, 105, 52 S. Ct. 267, 269, 76 L. Ed.

637 (1932). In Knick this Court further explained that

the Fifth Amendment’s irrevocable right to just

compensation is self-executing, entitling the property

owner to “compensation as if it had been “paid

contemporaneously with the taking.”” Knick, 139 S.

Ct. at 2170 (quoting Jacobs v. United States, 290 U.S.

13, 54 S.Ct. 26, 78 L.Ed. 142 (1933)).

In adherence to these principles, the federal

government and every State in the Union---save Ohio--permit citizens to assert a legal cause of action for

inverse condemnation. Knick, 139 S. Ct. at 2168 n.1.

Ohio’s condemnation statute, codified at Ohio Rev.

Code Chapter 163 does not afford victims of

uncompensated takings any legal remedy. Instead, an

injured landowner must petition the Common Pleas

Court where the property is situated to issue a writ of

mandamus, forcing the government actor to initiate

appropriation proceedings. Id., see also Coles v.

Granville, 448 F.3d 853, 861 (6th Cir.2006)

This means that the individual must first

initiate legal action as a petitioner. If the petitioner

is successful---and is able to prove the taking by “clear

and convincing evidence”---his or her “reward” is to

then be sued by the State and act as a defendant in an

eminent domain proceeding, culminating in a

compensation award by a jury. State ex rel. Love v.

6

O’Donnell, 81 N.E.3d 1250, 1251 (Ohio 2017) (“To

obtain a writ of mandamus, [relator] must establish

by clear and convincing evidence that (1) he has a

clear legal right to the requested relief, (2) [the court]

has a clear legal duty to provide it, and (3) [relator]

lacks an adequate remedy in the ordinary course of

the law.”).

In addition, Ohio law does not have a

mechanism whereby an individual can obtain just

compensation for the taking of personal property in

the same proceeding as where the compensation for

the real property is determined. Indeed, Ohio does not

provide any mechanism whatsoever by which a citizen

can assert a claim for the taking of his or her chattel.

Instead, litigants are required to assert a potpourri of

artfully-pled tort claims against the State in the Ohio

Court of Claims. State ex rel. Wasserman v. Fremont,

140 Ohio St.3d 471, 2014-Ohio-2962, 20 N.E.3d 664,

671-72 (Ohio 2014) (citing Masheter v. Boehm, 37 Ohio

St.2d 68, 307 N.E.2d 533 (Ohio 1974)).

The U.S Court of Appeals for the D.C. Circuit,

sitting en banc, recently noted that the issuance of a

writ of mandamus was an extraordinary remedy, and

one strictly confined to those circumstances where a

litigant has no other remedy at law. In re Flynn, 973

F.3d 74, 78 (D.C. Cir. 2020). The Sixth Circuit’s

endorsement of Ohio’s mandamus scheme---an

extraordinary, equitable, and partial remedy---as a

constitutionally appropriate means of vindicating the

Petitioners’ rights under the Fifth Amendment is in

conflict with the holdings articulated by this Court in

Knick as well as contrary to the plain language of the

Amendment itself.

7

Petitioners, solely by virtue of the location of

their property in Ohio, have been constitutionally

wronged, but denied a complete remedy for the

violations. “A law declaring that in general it shall be

more difficult for one group of citizens than for all

others to seek aid from the government is itself a

denial of equal protection of the laws in the most

literal sense.” Romer v. Evans, 517 U.S. 620, 633, 116

S.Ct. 1620, 1628, 134 L.Ed.2d 855 (1996).

The State of Ohio---through its adoption and

perpetuation of its deficient and untenable mandamus

scheme which precludes a complete remedy for

victims of uncompensated takings by the State---has

failed to provide for the protection of its citizens’

constitutional rights. Such conduct precludes the

State from availing itself of its Eleventh Amendment

Immunity from suit in this case. These issues are of

vital constitutional importance and the Opinion of the

Sixth Circuit, if allowed to stand, will perpetuate the

profound truncation of Ohioans’ rights under the

Fifth---and also the Fourteenth---Amendments.

Petitioners pray the Court grant certiorari.

STATEMENT OF THE CASE

I.

Factual Background

The Petitioners in this case own two (2) parcels

of residential property located in Hancock County,

Ohio. One parcel of property, identified as parcel

number 600001008706 and having an address of 1426

Morrical Boulevard, Findlay, Ohio is owned by

Petitioners Abigail Ladd. (Compl., RE 1, PageID # 3,

8

at ¶ 6). The property serves as Ms. Ladd’s home and

personal residence.

The other parcel, identified as parcel number

270001000637 with an address of 1421 Morrical

Boulevard, Findlay, Ohio, is owned collectively by the

members of the Saldaña family: Petitioners Christina

Gonzales; Ida Duenke; Gerardo Saldaña; David

Saldaña; Marcelino Saldaña; Alicia Roberts; Melinda

Addenbrock; and Deanna McCrate. The property was

built by the Petitioners’ father more than 60 years

ago1 and is the home and residence of Ida Duenke.

(Id., PageID # 3, at ¶¶ 4-5; Pet.App.4a).

Beginning in 2017, ODOT commenced a portion

of its $114 million Interstate 75 widening project on

land near and adjacent to the Petitioners’ respective

properties. On July 13, 2017, Defendant’s

construction activity caused massive flooding on the

Petitioners’ respective properties, causing significant

property damage and rendering the residences

uninhabitable by the Petitioners Ladd and Duenke,

respectively, for a prolonged period of time.

(Pet.App.5a; RE 1, PageID # 5-6, at ¶¶ 18-19, 24-25).

Since this initial flooding, Petitioners’ have

endured at least two (2) additional subsequent

flooding events---causing water intrusion into the

Petitioners’ residences and further damaging their

respective properties---on or about April 26, 2019, and

June 2, 2019. (Id., PageID # 6, at ¶¶ 20, 26). As a

direct result of the activities of the Defendant, and the

flooding on Petitioners’ properties resulting

therefrom, Petitioners’ respective properties are now

prone to flooding and may no longer be utilized

1 Hence the interest of each sibling in the property.

9

according to their highest and best use. (Id.). Indeed,

as any such flooding events/damage would need to be

disclosed to any potential purchaser of the properties

prior to a sale, and given the magnitude of the

damage, the homes built on the Petitioners’ respective

properties have essentially no market value following

Defendant’s taking. (Id.).

Petitioners’ respective properties were never

subject to flooding prior to July 2017, and the

Gonzalez Petitioners’---in particular---had no flooding

on their property since the house was first built by

their father more than 60 years ago. (Id., PageID # 56, at ¶¶ 17, 20).

On the basis of the facts alleged in the

Complaint, there can be no legitimate dispute that the

Petitioners have suffered an uncompensated taking

and a violation of their fundamental constitutional

rights at the hands of the State of Ohio.

II.

Procedural History

Petitioners initiated this action with the filing

of their Complaint on July 15, 2019. (RE 1). The

District Court’s jurisdiction over the subject matter of

Plaintiff’s claims was premised upon 28 U.S.C. §1331

as Petitioners’ alleged that the State of Ohio, through

Director Marchbanks and the Ohio Department of

Transportation, had taken their property without

payment of just compensation. Petitioners’ Complaint

contained two counts. The first was asserted directly

under the Fifth Amendment seeking, inter alia,

declaratory judgment that a taking had occurred. The

second count was brought pursuant to “42 U.S.C. §

1983 seeking damages for the alleged taking.”

(Pet.App.5a).

10

Petitioners’ decision to initiate this federal

proceeding was based upon the Knick’s confirmation

of the self-executing nature of the Fifth Amendment’s

takings clause and its overruling of its prior holding

in Williamson Cty. Reg’l Planning Comm’n v.

Hamilton Bank of Johnson City, 473 U.S. 172, 105

S.Ct. 3108, 87 L.Ed.2d 126 (1985). In addition, the

holding in Knick exposed the mandamus scheme

employed by the State of Ohio for uncompensated

taking claims as constitutionally inadequate.

The necessity of a federal forum for this

litigation was further emphasized by the fact that

Ohio does not currently provide any procedure

whatsoever for a litigant to pursue claims for the

taking of personal property/chattel. Indeed, the State

subsequently admitted this fact in its appellate

briefing by acknowledging that it has not made any

changes to its procedure following the Supreme

Court’s holding in Horne v. Dept. of Agriculture, 576

U.S. 350, 352, 135 S.Ct. 2419, 2422, 192 L.Ed.2d 388

(2015), that “[t]he Fifth Amendment requires that the

Government pay just compensation when it takes

personal property, just as when it takes real

property.” (Appellee Br., R. 24, at PAGEID 34).

In addition to their federal claims, Petitioners

also filed a separate, state-court action in the Ohio

Court of Claims at Case No. 2019-00783JD. Ohio Rev.

Code § 2743.16 establishes a two (2) year statute of

limitations for claims against the State. As such,

Petitioners were forced to duel-file in order to protect

the availability of all potential claims. Petitioners’

pleading in the state court action arises from the same

factual nexus as the federal case, but asserts claims

for negligence and trespass as opposed to a takings

claim. The State of Ohio subsequently filed a third-

11

party Complaint against its general contractor on the

project. Proceedings in the state court litigation have

been largely held in stayed, with the exception of fact

discovery, pending the resolution of this appeal.

Respondent, following service of the Complaint

in the federal proceeding, first moved to transfer

venue of the case to the U.S. District Court for the

Southern District of Ohio on August 16, 2019. (RE 7).

The Court denied Defendant’s Motion on August 21,

2019. (RE 9). Defendant then sought leave to file a

Motion to Dismiss Petitioners’ Complaint on

September 12, 2019.

(RE 12).

The basis for

Defendant’s Motion was that the Eleventh

Amendment to the U.S. Constitution rendered the

State of Ohio immune from suit and barred

Petitioners’ claims. (Def. Mot. Dismiss, RE 12-1,

PageID # 57).

The District Court accepted

Defendant’s Motion and established a briefing and

oral argument schedule in its Order of September 13,

2019. (RE 13).

Petitioners filed their Memorandum in

Opposition to the Defendant’s Motion on October 7,

2019. (RE 15). Oral argument was held before the

District Court on October 11, 2019, and on October 31,

2019, the District Court issued its Dismissal Order

and Judgment Entry, dismissing Petitioners’ claims

on the basis of Eleventh Amendment Sovereign

Immunity. (Pet.App.18a-20a).

Petitioners timely filed their Notice of Appeal

to the United States Court of Appeals for the Sixth

Circuit on November 21, 2019. (RE 19). Oral

argument was held on August 6, 2020. On August 20,

2020, the Sixth Circuit issue its Opinion affirming the

12

dismissal of Petitioners’ Complaint on the basis of

Eleventh Amendment Immunity. (Pet.App. 4a).

Petitioners’ timely petitioned the Court of

Appeals for rehearing en banc on September 15, 2020.

The petition for rehearing was denied on October 6,

2020. (Pet.App.1a).

REASONS FOR GRANTING THE WRIT

I.

The Fifth Amendment’s Self-Executing

Guarantee of Just Compensation is a

Foundational Constitutional Right and

that Right May Not be Qualified or

Abridged.

Given that this appeal involves analysis of the

Fifth Amendment’s takings clause, it may seem selfevident to note the fundamental right of the

Petitioners in this case to own and control their own

property.

However, in affirming the dismissal

Petitioners’ claims, the Court of Appeals appeared to

lose sight of the magnitude of the violation of

Petitioners’ rights at the hands of the State of Ohio.

In so doing the Court of Appeals also lost sight of a

foundational tenet of the Republic “to be the last great

experiment for promoting human happiness.” George

Washington, Jan. 9, 1790.

Indeed, and as

subsequently explained by Justice Johnson “[t]he

great and paramount purpose [of the constitution],

was to unite this mass of wealth and power, for the

protection of the humblest individual; his rights, civil

and political, his interests and prosperity, are the

sole end; the rest are nothing but the means. Gibbons

v. Ogden, 22 U.S. 1, 223, 6 L. Ed. 23 (1824) (Johnson,

J. dissenting) (emphasis in original).

13

This view as to inviolate nature of individual

liberty, and particularly of private property rights,

was universally held at the founding of the Republic.

As explained by the U.S. Court of Appeals for the

Eleventh Circuit, “the Founding Fathers placed the

right to private property upon the highest of

pedestals,” ensuring our country’s commitment to

protecting the ‘three-legged stool’ of individual

liberties---“personal security, personal liberty, and

private property.” GeorgiaCarry.Org, Inc. v. Georgia,

687 F.3d 1244, 1265 (11th Cir.2012). In exploring the

role of protecting private property rights in the

founding of the Republic, the Court provided the

additional historical context:

It is simply beyond rational dispute that

the Founding Fathers, through the

Constitution and the Bill of Rights,

sought to protect the fundamental right

of private property, not to eviscerate

it. See John Adams, Defense of the

Constitutions of Government of the

United States (1787), reprinted in 6 John

Adams, The Works of John Adams, 3, 9

(Charles Francis Adams ed., 1851) (“The

moment the idea is admitted into society

that property is not as sacred as the laws

of God, and that there is not a force of law

and public justice to protect it, anarchy

and tyranny commence.”); James

Madison, Property (1792), reprinted

in 6 The Writings of James Madison 101,

102

(Gaillard

Hunt

ed.,

1906)

(“Government is instituted to protect

property of every sort; as well that which

lies in the various rights of individuals,

14

as that which the term particularly

expresses. This being the end of

government,

that

alone

is

a just government

which impartially secures to every man

whatever is his own.” (emphasis in

original)); Thomas Paine, Essay dated

December 23, 1776, reprinted in Thomas

Paine, The Crisis 8 (2009 ed.) (1776)

(“[I]f a thief breaks into my house, burns

and destroys my property, and kills or

threatens to kill me, or those that are in

it, and to ‘bind me in all cases

whatsoever’ to his absolute will, am I to

suffer it? What signifies it to me,

whether he who does it is a king or a

common man; my countryman or not my

countryman; whether it be done by an

individual villain, or an army of them? If

we reason to the root of things we shall

find no difference; neither can any just

cause be assigned why we should punish

in the one case and pardon in the

other.”).

Id. at 1265-66 (emphasis in original).

The paramount importance of private property

ownership, and the United States’ commitment to its

protection, is laid bare in the plain language of the

Fifth Amendment’s takings clause, which states that

“nor shall private property be taken for public use,

without

just

compensation.”

This

language

constitutes a two-fold guarantee on the part of the

United States: (1) that private property will only be

taken for a public purpose; and (2) that just

compensation will be paid for any taking. This

15

guarantee extends to the States, not only by the

ratification of the Fourteenth Amendment, but also by

virtue of their ratification of the Federal Constitution

and Bill of Rights as a condition of their admission

into the Union.

In reviewing the guarantees of the takings

clause, lower courts previously concluded that the

Fifth Amendment’s guarantee is “self-executing”,

meaning “that the United States has waived sovereign

immunity for properly-pled takings claims when the

Fifth Amendment was ratified, and no statute is

required to waive sovereign immunity.” Rhodes v.

U.S. I.R.S., No. CV10–1074–PHX–DGC, 2011 WL

1771034, *1 (D. Ariz. May 10, 2011) (citing Jacobs v.

United States, 290 U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed.

142 (1933) (“The form of the remedy ... rested upon the

Fifth Amendment. Statutory recognition was not

necessary.”); and Arnsberg v. United States, 757 F.2d

971, 980 n. 7 (9th Cir.1984) (“Actions brought under

the taking clause of the fifth amendment are, of

course, an exception to the rule that sovereign

immunity is a bar to damages against the United

States for direct constitutional violations.” (citation

omitted)).

The consequences of the self-executing

guarantee of the Fifth Amendment were fully

explained by the this Court in Knick, which explicitly

held that “no matter what sort of procedures the

government puts in place to remedy a taking, a

property owner has a Fifth Amendment entitlement

to compensation as soon as the government takes his

property without paying for it.” Knick, 139 S.Ct. at

2170. In essence, the Fifth Amendment creates a

legal cause of action---and remedy---for a taking: “in

the event of a taking, the compensation remedy is

16

required by the Constitution.” Id. at 2172 (emphasis

added) (quoting First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S.

304, 316, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987).

Most importantly, Knick unequivocally held

that the Fifth Amendment’s guarantee of payment

and its creation of a constitutional cause of action and

remedy for uncompensated takings applied with equal

force to takings by the State of Ohio:

the same reasoning applies to takings by

the States. The availability of any

particular compensation remedy, such as

an inverse condemnation claim under

state law, cannot infringe or restrict the

property owner’s federal constitutional

claim.

Id. at 2171. This holding is critical because it confirms

that Ohio’s obligation to provide a compensation

procedure that affords a complete remedy under the

Fifth Amendment is constitutionally mandated.

Thus, a complete remedy under the Fifth Amendment

is not discretionary based upon the whims and

“legislative grace” of Ohio, but is in fact a requirement

of the State by virtue of its inclusion in the Republic.

Current Ohio law fails to meet the mandate

established by the Fifth Amendment.

Ohio’s

mandamus scheme provides an incomplete remedy

that qualifies, restricts, and infringes upon the

Plaintiff’s federal constitutional rights---in direct

conflict with Knick. In the post-Knick landscape,

Ohio’s mandamus and uncompensated takings

procedure utterly fails to protect the inviolate Fifth

Amendment rights of the Petitioners. Accordingly,

Ohio may not prevent Petitioners from seeking

17

redress for their injuries in federal court where the

procedures available through state court proceedings

leave the Petitioners constitutionally wronged, but

without a complete remedy. Ubi jus ibi remedium.

II.

Ohio’s Mandamus Scheme Does Not

Provide Reasonable, Certain, and/or

Adequate Procedures to Provide its

Citizens with a Complete Remedy for the

State’s Violation of their Constitutional

Rights.

Given the magnitude of property rights in the

founding and organization of our Country, it has long

been required that States provide “reasonable,

certain, and adequate procedures” for seeking just

compensation to individuals who have suffered an

uncompensated taking, or risk running afoul of the

guarantees enshrined in the Fifth Amendment. See,

Williamson Cty., 473 U.S. at 194. Accord, Knick:

As long as an adequate provision for

obtaining just compensation exists, there

is no basis to enjoin the government’s

action effecting a taking. But that is

because, as the Court explained in [First

English Evangelical Lutheran Church of

Glendale v. Los Angeles Cty., Cal., 482

U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250

(1987)], such a procedure is a remedy for

a taking that violated the Constitution,

not because the availability of the

procedure somehow prevented the

violation from occurring in the first

place.

139 S.Ct. at 2176-77.

18

As noted above, every State but Ohio provides

for inverse condemnation proceedings to be initiated

against the state by individuals who allege an

uncompensated taking. Knick, 139 S.Ct. at 2168; see

also, Coles, 448 F.3d at 861. Under Ohio law, citizens

whose land has been taken must petition the Common

Pleas Court where the property is situated to issue a

writ of mandamus, forcing the government actor to

initiate appropriation proceedings. Id.

In addition, Ohio law currently allows for

mandamus actions and eminent domain proceedings

for takings of real property only. There is no dispute

that Ohio does not currently have any procedure to

address takings of personal property---in violation of

the U.S. Supreme Court’s mandate in Horne. See,

State ex rel. Wasserman v. City of Fremont, 140 Ohio

St. 3d 471, 20 N.E.3d 664 (Ohio 2014). Instead, the

type of compensation to which a landowner is entitled

in an eminent domain proceeding is strictly proscribed

by Ohio law. Under Ohio law:

the landowner in an eminent domain

action is entitled both to the value of the

taken land and to “damages” to the

“residue” of the property. Damages to

the residue compensate for any injury

that may result to the remaining lands

by reason of the construction of the

proposed improvement, measured by the

difference in the residue’s fair market

value before and after the taking. In

determining fair market value, the [trier

of fact] should take into consideration

every element that can fairly enter into

the question of value.

19

Rockies Exp. Pipeline, LLC v. 4.895 Acres of Land,

More or Less, in Butler Cty., Ohio (Pipeline Right-ofWay Servitude), 2011 WL 4337054, at *6 (S.D. Ohio

Sept. 15, 2011), affirmed, 734 F.3d 424 (6th Cir. 2013).

Thus, the sole measure of compensation available to

plaintiffs in a state appropriation proceeding is the

fair market value of the land taken plus severance

damages on the remainder.

Thus, Ohio’s current procedures and processes

affirmatively preclude any recovery by the Petitioners

in an eminent domain proceeding for any of the

damage sustained by their respective personal

property. As explained by the Ohio Supreme Court:

When real property is appropriated by

eminent domain, damages for loss of

personal property may be recoverable in

an appropriation proceeding if the

personal property is so affixed to the real

property as to be considered a part

thereof.

See State ex rel. Wasserman v. Fremont, 140 Ohio

St.3d 471, 2014-Ohio-2962, 20 N.E.3d 664, ¶ 42 (Ohio

2014). Ohio law also does not permit landowners in

an appropriation proceeding to claim non-economic

damages, such as damages for pain and suffering,

associated with or arising from the unconstitutional

taking of their property.

As the above makes clear, Ohio’s current

procedures for obtaining compensation for an

uncompensated taking fail to provide a complete

remedy to the Petitioners in this case. Petitioners

have suffered damages to their real property as a

result of the State’s taking. The taking in violation of

their respective constitutional rights has also caused

20

the Petitioners to incur damages associated with the

loss of their personal property and to experience

tremendous pain and suffering associated with the

circumstances surrounding the take---i.e. being forced

to flee their homes while flood water rose and

destroyed their property in front of their eyes. Finally,

given that the taking by the State was associated with

the construction of a roadway, Petitioners are not

entitled to an award of any of their attorney fees or

costs at the conclusion of any state court eminent

domain proceedings. Ohio Rev. C. § 163.21(C)(2).2

Indeed, in order for Petitioners to obtain

anything approaching a complete remedy under

existing Ohio procedures, they would have to litigate

multiple claims in multiple forums. Specifically, in

addition to the mandamus proceedings and

subsequent eminent domain action, Petitioners will

need to maintain a separate action against the State

in the Ohio Court of Claims, asserting causes of action

for conversion/trespass to chattels---for which

Petitioners would be entitled to either the diminished

value of the chattel or the value of the property at the

time of its conversion3---and for pain, suffering, and

non-economic

damages

associated

with

the

destruction of their respective properties.

While the two (2) separate proceedings would

deal with the same factual nexus, the inquiry by the

2 The Plaintiffs may be able to recover some of their attorney fees

and costs incurred in the maintenance of the mandamus action

itself, but not the subsequent appropriation proceeding.

3 Schafer v. RMS Realty, 138 Ohio App.3d 244, 285, 741 N.E.2d

155, 185 (2nd Dist.2000); see also Baldwin’s Oh. Prac. Tort L. §

29:6 (2d ed.)

21

court in each proceeding, as well as the proofs

required of Petitioners therein, would be markedly

different. In the mandamus proceeding, Petitioners

would potentially be required to show only that an

uncompensated taking occurred on their respective

properties. See State ex rel. Love, supra. In the Court

of Claims proceeding, Petitioners would be required to

prove specific causation of the State’s flooding of their

property. Such proofs would likely require the

engagement of engineering and other experts, costing

Defendants thousands of dollars which, as with the

attorney fees expended in the course of the Court of

Claims proceeding, there is no guarantee of recovery

under Ohio law. In addition, Petitioners have no right

to a jury trial in the Court of Claims.

Thus, the compensation procedures currently

available under Ohio law are, at best, a jumbled

quagmire that precludes a complete remedy and

recovery by the Petitioners. Moreover, the fact that

Petitioners will be required to litigate claims arising

from the same factual nexus in at least 4 two (2)

different forums and proceedings raises a significant

risk of uncertainty and contradictory results.

The inadequate, unreasonable, and uncertain

nature of Ohio’s compensation procedures is cast in

even starker relief when compared to the process that

would be undertaken by Petitioners if allowed to

proceed with their claims in the federal system.

Under the federal case, Petitioners would need to

prove---by a preponderance of the evidence---that

an uncompensated taking, in violation of their Fifth

Amendment rights, occurred.

Texas Dept. of

4 Potentially Three (3) proceedings if the Plaintiffs are forced to

initiate a separate action against the general contractor.

22

Community Affairs v. Burdine, 450 U.S. 248, 253, 101

S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981) (Plaintiff

must prove its claims by preponderance of evidence in

1983 claims). Once proven, Petitioners would then

prove their respective damages and the jury would

render a verdict on all aspects of the Petitioners’

claims. Such a verdict would include compensation

for the Defendants’ illegal taking as well as

compensation for damaged personal property and

Petitioners’ non-economic damages.

Windsor v.

Eaves, 318 F.R.D. 153, 157-58 (N.D.Fla.2016) (noneconomic damages recoverable in action brought

pursuant to 42 U.S.C. § 1983). Finally, in the federal

system the Petitioners would be entitled to an

additional recovery of their attorney fees and costs

pursuant to 42 U.S.C. § 1988.

The above bluntly evidences the deficient

nature of Ohio’s inverse condemnation procedure, or

lack thereof.

Mandamus is an extraordinary

equitable remedy that may only issue when the

petitioner has no remedy at law. Accordingly, on its

face, Ohio does not provide a legal remedy for an

uncompensated taking, only an equitable one---and

only a partial equitable remedy at that. The Fifth

Amendment’s taking clause, in contrast, establishes a

self-executing: legal right; cause of action; and remedy

for an uncompensated taking.

Thus, if the Sixth Circuit’s Opinion is allowed

to stand, the Petitioners in this case--- solely by virtue

of the presence of their property within the geographic

confines of the State of Ohio---will be foreclosed from

pursuing their legal remedy under the Fifth

Amendment and forced to avail themselves of a

deficient equitable remedy under Ohio law. Moreover,

as there is no means by which Petitioners’ can litigate

23

their claims for the taking of their personal property

in the same proceeding as their claims for an

uncompensated taking of the real estate. Thus, Ohio’s

existing procedures do not even provide an equitable

remedy as Petitioners will have to initiate and/or

defend against no fewer than three (3) separate

lawsuits in order to obtain only a partial remedy for

the State’s infringement of their inviolate property

rights.

Viewed in contrast to the streamlined

procedure available through federal litigation---i.e. a

procedure and process that also permits a complete

remedy for the harms suffered---the deficiencies,

inadequacies, and uncertainties “baked-in” to Ohio’s

procedures could not be more stark. Indeed, Ohio’s

current procedures constitute both the labyrinth and

the minotaur, splitting and limiting a litigant’s

claims, and requiring a party who has had its land

taken to bear all the costs associated with vindicating

its federal constitutional rights.

To allow Ohio’s current mandamus scheme to

continue imperils the constitutionally protected

property rights of all Ohio citizens. The Fifth

Amendment creates a guarantee, at law, of just

compensation for property taken. As citizens of the

United States and owners of private property located

therein, Petitioners are absolutely entitled to the

benefit of their bargain. The Court must grant

certiorari and reverse the August 20, 2020, Opinion of

the Sixth Circuit Court of Appeals.

24

III.

The Holding of Knick v. Twp. of Scott,

Pennsylvania Necessarily Abrogates the

Eleventh Amendment Immunity Claims

Advanced by Ohio and the Sixth Circuit’s

Conclusion to the Contrary Arbitrarily

Circumscribes the Scope of this Court’s

Decision in that Case.

In Knick v. Twp. of Scott, Pennsylvania, this

Court unequivocally held that:

1. A government violates the Takings

Clause when it takes property without

compensation, and a property owner may

bring a Fifth Amendment claim under §

1983 at that time.

Id. at syllabus (emphasis added). The Court’s holding--which as noted above, overruled its prior Opinion

Williamson Cty. Reg’l Planning Comm’n v. Hamilton

Bank of Johnson City, supra---concluded that persons

whom have suffered a taking of their property in

violation of the Fifth Amendment need no longer

exhaust all available state court compensation

proceedings as a prerequisite to filing a federal claim.

Explaining the basis for its ruling, the Court noted the

following:

The Civil Rights Act of 1871, after all,

guarantees “a federal forum for claims of

unconstitutional treatment at the hands

of state officials,” and the settled rule is

that “exhaustion of state remedies ‘is not

a prerequisite to an action under [42

U.S.C.] § 1983.’ “ Heck v. Humphrey, 512

U.S. 477, 480, 114 S.Ct. 2364, 129

L.Ed.2d 383 (1994) (quoting Patsy v.

Board of Regents of Fla., 457 U.S. 496,

25

501, 102 S.Ct. 2557, 73 L.Ed.2d 172

(1982)). But the guarantee of a federal

forum rings hollow for takings plaintiffs,

who are forced to litigate their claims in

state court.

We now conclude that the state-litigation

requirement imposes an unjustifiable

burden on takings plaintiffs, conflicts

with the rest

of our takings

jurisprudence, and must be overruled. A

property owner has an actionable Fifth

Amendment takings claim when the

government takes his property without

paying for it. That does not mean that

the

government

must

provide

compensation in advance of a taking or

risk having its action invalidated: So

long as the property owner has some way

to obtain compensation after the fact,

governments need not fear that courts

will enjoin their activities. But it does

mean that the property owner has

suffered a violation of his Fifth

Amendment

rights

when

the

government takes his property without

just compensation, and therefore may

bring his claim in federal court under §

1983 at that time.

Id. at 2167–68 (emphasis added).

As Knick dealt with the actions of a

Pennsylvania township and not a State government,

as is the case here, the Court was not forced to directly

address the interplay between the Fifth Amendment’s

takings clause and the state sovereign immunity of

26

the Eleventh Amendment. However, as the plain

language of its Opinion makes clear, the Court did not

define or limit its expansion of a claimant’s ability to

bring Fifth Amendment suits to merely cases where a

taking occurred as a result of the actions of a

municipal corporation. The Court’s holding speaks to

the activity of “a government”, “the government”, and

“state officials”.

These terms connote a broad

application and an implicit, if not explicit, recognition

that the fact of the taking should be the critical

component of this Court’s inquiry, with little regard

for the entity conducting the take. Accordingly, the

Court’s Opinion in Knick should, and indeed must, be

read to permit the federal litigation of Fifth

Amendment taking claims without regard for state

sovereign immunity expressed in the Eleventh

Amendment.

This reading of Knick is further supported by

the jurisprudence regarding the application of the

Fourteenth Amendment to state action. “The Fifth

Amendment’s Takings Clause prohibits the federal

government from taking private property for public

use without just compensation . . . [t]he Clause applies

to state governments through the Fourteenth

Amendment.” Nw. Ohio Properties, Ltd. v. Lucas Cty.,

Ohio, 634 F. App’x 579, 580 (6th Cir. 2016). Lower

courts, including the Sixth Circuit, have previously

held that, in a physical taking case, a plaintiff’s

Fourteenth Amendment claims are subsumed by its

Fifth Amendment takings claim. See Banks v. City of

Whitehall, 344 F.3d 550 (6th Cir.2003); Montgomery

v. Carter County, Tennessee, 226 F.3d 758 (6th

Cir.2000). This holding was previously deployed by

governmental entities to preclude litigants from

reclassifying

takings

claims

as

Fourteenth

27

Amendment claims in order to avoid Williamson’s

ripeness requirement on the basis that “a substantive

due process claim that merely restates the more

specific claim will not lie.” Buckles v. Columbus Mun.

Airport Auth., 90 F. App’x 927, 931 (6th Cir.

2004)(citing Montgomery, 226 F.3d at 769,

Armendariz v. Penman, 75 F.3d 1311, 1323-27 (9th

Cir.1996) (en banc)).

In 1976, U.S. Supreme Court held in

Fitzpatrick v. Bitzer, 427 U.S. 445, 452 56, 96 S.Ct.

2666, 49 L.Ed.2d 614 (1976), that the U.S. Congress

has the power to abrogate the Eleventh Amendment

sovereign immunity of the states, if this is done

pursuant to its Fourteenth Amendment power to

enforce upon the states the guarantees of the

Fourteenth Amendment. If a substantive due process

violation for an uncompensated taking is subsumed

under the Fifth Amendment then logic requires that,

in Knick’s aftermath, Eleventh Amendment immunity

has been abrogated by the application of the

Fourteenth Amendment. Several law review articles,

published prior Knick, foreshadow such a conclusion--i.e. that the passage of the Fourteenth Amendment

means that a state’s immunity under the Eleventh

Amendment must yield to the Fifth Amendment right

to just compensation.

For example, a February 10, 2016, Note

entitled Reconciling State Sovereign Immunity with

the Fourteenth Amendment, appearing in the Harvard

Law Review stated:

In Fitzpatrick v. Bitzer, the Court

recognized

that

the

Fourteenth

Amendment marked a fundamental shift

in the federal-state relationship. As a

28

result of that shift, state sovereign

immunity must give way in the face of

congressional action under section 5 of

the Fourteenth Amendment.

and

Fitzpatrick reveals that the Fourteenth

Amendment

reshuffled

the

constitutional

deck,

subjugating

sovereign immunity to those rights that

spring from the Fourteenth Amendment.

129 Harv. L. Rev. 1068.

The Note, while

acknowledging that this Court has not directly

addressed the conflict between sovereign immunity

and the takings clause, suggested that the Court

“showed its hand” in its holding in First English

Evangelical Lutheran Church of Glendale v. Los

Angeles Cty., Cal. that:

We have recognized that a landowner is

entitled to bring an action in inverse

condemnation as a result of “‘the selfexecuting character of the constitutional

provision with respect to compensation. .

. .’

Id. at 315 (quoting United States v. Clarke, 445 U.S.

253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980),

and 6 P. Nichols, Eminent Domain § 25.41 (3d rev. ed.

1972)).

Other aspects of the Court’s Opinion in First

English provide additional support for the contention

that Eleventh Amendment Immunity may not be

deployed to defeat uncompensated taking claims

29

violative of the Fifth Amendment. In particular,

footnote nine (9) of the Court’s Opinion specifically

rejects arguments made by the Solicitor General “that

the prohibitory nature of the Fifth Amendment,

combined with principles of sovereign immunity,

establishes that the Amendment itself is only a

limitation on the power of the Government to act, not

a remedial provision.” Id. at 315, n9. (internal

citations omitted). Commentators and academics

have viewed this footnote as an implicit

acknowledgement by this Court that sovereign

immunity appears to, and must, play a more limited

role in ‘takings’ cases. See, Richard H. Fallon et al.,

Hart & Wechsler’s The Federal Courts and the

Federal System 1002 (4th ed. 1996).

The necessary limitation on the application of

Eleventh Amendment Immunity with respect to

physical taking claims was also previously advocated

in The Collision of the Takings and State Sovereign

Immunity Doctrines, 63 Wash. & Lee L. Rev. 493

(2006), which opines:

that the Takings Clause does trump

state

sovereign

immunity

by

automatically abrogating-or strippingthe immunity that states usually enjoy

in actions at law. An action to recover

damages for a temporary taking

therefore arises directly out of the

Constitution and requires no statutory

authorization, either to provide a cause

of action or to abrogate state sovereign

immunity.

Id.

30

This nuanced application of Eleventh

Amendment immunity in takings cases is further

supported by the fact that the cases cited by the State

of Ohio and the Sixth Circuit to support the imposition

of Eleventh Amendment Immunity are all premised

on the fact that a litigant must have a state court

remedy before the Eleventh Amendment may be

invoked. See Hutto v. S.C. Ret. Sys., 773 F.3d 536, 552

(4th Cir. 2014) (concluding “that the Eleventh

Amendment bars Fifth Amendment taking claims

against States in federal court when the State’s courts

remain open to adjudicate such claims”); Jachetta v.

United States, 653 F.3d 898, 909-10 (9th Cir. 2011)

(holding the Eleventh Amendment bars claims

brought against the state in federal court under the

federal Takings Clause, but state courts must be

available to adjudicate such claims); DLX, Inc.

381 F.3d at 526-28 (holding Eleventh Amendment

Immunity barred federal takings claim; stating state

court “would have had to hear that federal claim”),

overruled on other grounds by San Remo Hotel, L.P. v.

City & Cty. of San Francisco, 545 U.S. 323 (2005); see

also John G. & Marie Stella Kenedy Mem’l Found. v.

Mauro, 21 F.3d 667, 674 (5th Cir. 1994) (holding “Fifth

Amendment inverse condemnation claim brought

directly against the State of Texas [was] barred by the

Eleventh Amendment”); Robinson v. Ga. Dep’t of

Transp., 966 F.2d 637, 638, 640-41 (11th Cir. 1992)

(holding Eleventh Amendment barred plaintiffs’ claim

“for violation of the Fifth and Fourteenth

Amendments for a taking of their property”); Garrett

v. Illinois, 612 F.2d 1038, 1039-40 (7th Cir. 1980)

(holding Fifth Amendment takings claim against the

state based on plaintiff’s inability to earn income

while incarcerated was barred by the Eleventh

Amendment).

31

The logic employed in each of the above-cited

cases parallels the “ripeness” reasoning of the Opinion

in Williamson Cty. that this Court has unequivocally

rejected.

Simply stated, if a violation of an

individual’s Fifth Amendment Rights has occurred as

a result of a taking, the individual has an absolute

right, pursuant to Knick, to bring claims for relief

under 42 USC §1983 and 28 U.S. Code §2201. It is the

constitutional violation caused by the act of the taking

that matters, not the entity that allegedly did the

taking. The Eleventh Amendment may not shield a

state from violating an individual’s Fifth Amendment

property right. To hold otherwise would artificially

narrow Knick’s holding and render the principles

articulated therein hollow and unenforceable.

Furthermore, such a holding fails to acknowledge the

fact, discussed at length infra, that the State of Ohio

does not have adequate, reasonable, or certain

compensation procedures of which the Plaintiffs could

avail themselves in this case.

Finally, the post-Knick cases cited by Sixth

Circuit are distinguishable from the present case as

neither Opinion by its Sister Circuits addresses Ohio

law or its lack of an adequate inverse condemnation

process or procedure. As Ohio is the only State

without a formalized inverse condemnation process or

procedure, the Decisions of the Tenth and Fifth

Circuits have little probative value in the present

dispute.

This Court should use the present case to

directly address the tension between the State of

Ohio’s right to immunity under the Eleventh

Amendment with the Petitioners’ rights to just

compensation under the Fifth Amendment and,

further, find that the Eleventh Amendment immunity

32

of Ohio must yield to the right of a landowner to obtain

just compensation guaranteed under the selfexecuting Fifth Amendment.5

Certiorari is warranted in this case and

Petitioners pray the Court grant their Petition.

CONCLUSION

The August 20, 2020, Opinion of the Sixth

Circuit Court of Appeals has closed and locked the

doors to the Courthouse on federal takings claims that

this Court had only recently reopened by virtue of its

overruling of Williamson Cty. Petitioners presented

well-pleaded and valid claims that the District Court

was vested with subject matter jurisdiction to

entertain. The antiquated interpretation of the Fifth

Amendment’s

takings

clause

and

Eleventh

Amendment Immunity adopted by the Court of

Appeals, is simply incompatible with the post-Knick

landscape. The Sixth Circuit also erred in failing to

appropriately consider the inability of the Petitioners

5 Petitioners would also note that Justice Souter’s Dissenting

Opinion in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144

L.Ed.2d 636 (1999), which carefully tracks the historical basis

and origins of state sovereign immunity from federal suit under

the 11th Amendment to show that the scope of the that

amendment is not so expansive as to preclude citizens of a state

from seeking to enforce their federal constitutional rights against

the state in which they reside has been borne out to be the better

position, and one that more fully comports with the Court’s

holding in Knick. To conclude otherwise would be to perpetuate

the same catch-22 that so offended the majority in Knick--barring the doors of the federal courts to plaintiffs whom have

suffered a violation of their federal constitutional property

rights.

33

in this case to obtain adequate, certain, and

reasonable relief for their injures through Ohio’s

deficient mandamus process.

Finally, the Opinion of the Sixth Circuit, in its

focus on the immunity of Ohio at the expense of the

Petitioners’ fundamental constitutional rights, failed

to adhere “to the rule that constitutional provisions for

the security of person and property should be liberally

construed.” Boyd v. United States, 116 U.S. 616, 635,

6 S.Ct. 524, 535, 29 L.Ed. 746 (1886). As this Court

has long recognized:

It is the duty of courts to be watchful for

the constitutional rights of the citizen,

and against any stealthy encroachments

thereon. Their motto should be obsta

principiis. We have no doubt that the

legislative body is actuated by the same

motives; but the vast accumulation of

public business brought before it

sometimes prevents it, on a first

presentation, from noticing objections

which become developed by time and the

practical application of the objectionable

law.

Id.

Accordingly, Petitioners respectfully request

that this Court train its vigilant eye upon the

constitutional injury that they have suffered in this

case and grant certiorari on all questions presented by

and through this Petition.

34

Dated: January 4, 2021

Respectfully Submitted:

ZACHARY J. MURRY

BARKAN & ROBON, LTD

1701 Woodlands Drive

Suite 100

Maumee, Ohio 43537

(419) 897-6500

Ohio Bar No. 0087421

Email: zmurry@barkanrobon.com

KATHLEEN R. HARRIS*

CHARLES E. BOYK LAW

OFFICES, LLC

1500 Timberwolf Drive

Holland, Ohio 43528

(419)241-1395

Ohio Bar No. 88079

Email:

kharris@charlesboyklaw.com

*Counsel of Record

Attorneys for Petitioners