Petition for Writ of Certiorari — Richard Duncan, Petitioner v. City of Mentor, Ohio
Supreme Court briefJan 11, 2024
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JAN V' 2021'
CASE NO.
23-402
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER 2023-2024 TERM
RICHARD DUNCAN
Petitioner,
vs. CITY OF MENTOR, OHIO
Respondent
On Petition for a Writ of Certiorari
To the Supreme Court of Ohio
PETITION FOR A WRIT OF CERTIORARI
Richard Duncan
1101 East Blvd
Aurora, Ohio 44202
330-968-7749
Pro Se
1
QUESTIONS PRESENTED
INTRODUCTION
Richard Duncan owns a 3-acre parcel in the City of
Mentor, Ohio, where he proposed a houseboat to be
placed on the pond which covers a large part of the area.
A building permit and variances were denied by the
City, so he filed an original writ of mandamus action
claiming a taking of his property in the Ohio Appeals
court. In addition to the Federal 5th amendment
action he asserted Ohio’s Article I Section 19 taking
clause. After a motion to dismiss was granted, the Ohio
Supreme Court affirmed, ruling that Duncan failed to
exhaust his administrative remedy under ORC 2506.
The justification set forth was that “If the court of
common pleas had reversed the denial of permit, “no
taking would have occurred”.
I.
Whether the Ohio Supreme Courts newly established
exhaustion of administrative remedy and ruling that
“if the court of common pleas had reversed the denial
of the permit no taking would have occurred” directly
conflicts with the relevant decision(s) of this Court
in First English Lutheran Church v. Los Angeles
482 U.S. 304, where this Court ha.s mandated just
compensation for temporary takings?
II.
Whether the Ohio Supreme Courts ruling establishing
a new exhaustion of administrative remedy and its
justification thereof, is erroneous because it conflicts
with the case of Negin v. City of Mentor 601 F. Supp
1502 which ruled “Section 2506.01 does not empower
state courts to award damages for injuries suffered
as a result of erroneous administrative decisions”;
11
therefore that common pleas court did not provide an
adequate remedy at law which could have provided
“complete, beneficial, and speedy relief’, therefore,
Duncan properly filed his original mandamus in the
Ohio 11th District Court of Appeal?
III.
Whether the Ohio Supreme Courts ruling establishing
a new exhaustion of administrative remedy and its
justification thereof, is erroneous because it creates
a situation analogous to the flawed reasoning as
in Williamson County v. Hamilton Bank 473 U.S.
172 which was corrected by this Court in Knick v.
Township of Scott PA, No 17-647 Docket no. 17-647?
IV.
Whether the Ohio Supreme Courts ruling establishing
a new exhaustion of administrative remedy and its
justification thereof, is erroneous because it apparently
was adopted solely for policy considerations which
potentially leads to costly remedy and court burdening
litigation inconsistent with the constitutions intent of
the 5th Amendment?
V.
Whether the Ohio Supreme Courts ruling establishing
a new exhaustion of administrative remedy and its
justification thereof, is erroneous because it results
in undesirable results in that it forces Ohio litigants
to forgo their concurrent jurisdiction choice of either
Federal or state courts because filing in state courts
results in a dead end path?
INTERESTED PARTIES
There are no parties to the proceeding other than
those named in the caption of the case.
Ill
TABLE OF CONTENTS
QUESTIONS PRESENTED
1
INTERESTED PARTIES
11
TABLE OF CONTENTS
111
TABLE OF AUTHORITIES
vi
PETITION FOR A WRIT OF CERTIORARI
1
OPINIONS BELOW
1
JURISDICTION
1
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS ................
1
STATEMENT OF THE CASE
3
REASONS FOR GRANTING THE WRIT
7
I. The Ohio Supreme Courts newly established
exhaustion of administrative remedy and ruling that
“if the court of common pleas had reversed the denial of
the permit no taking would have occurred” (in a ORC
2506 administrative review) directly conflicts with
the relevant decisions of this court in First English
Lutheran Church v. Los Angeles County 482 U.S. 304;
where this court has mandated just compensation for
temporary takings
7
II. The Ohio Supreme Court ruling establishing a
new exhaustion of administrative remedy and its
justification thereof, is erroneous because it conflicts
IV
with the case of Negin v. City of Mentor, Ohio 601 Supp.
1502 which ruled “Section 2506.01 does not empower
state courts to award damages for injuries suffered
as a result of erroneous administrative decisions”,
therefore that common pleas court didn’t provide an
adequate remedy at law which could have provided
complete, beneficial and speedy relief’; therefore
Duncan properly filed his original mandamus in
10
Ohio’s 11th District Court of Appeals
III. The Ohio Supreme Courts ruling establishing a
new exhaustion of administrative remedy and its
justification thereof, is erroneous because it creates
a situation analogous to the flawed reasoning as in
Williamson County v. Hamilton Bank 473 U.S. 172
which was corrected by this court in Knick v. Township
12
of Scott PA docket no 17-647.
IV. The Ohio Supreme Courts ruling establishing a
new exhaustion of administrative remedy and its
justification thereof, is erroneous because it apparently
was adopted solely for policy considerations which
potentially leads to costly remedy and court burdening
litigation inconsistent with the Constitutions intent of
the 5th Amendment
15
V. The Ohio Supreme Courts ruling establishing a
new exhaustion of administrative remedy and its
justification thereof, is erroneous because it results
in undesirable results in that it forces Ohio litigants
to forgo their concurrent jurisdiction choice of either
Federal or state courts because filing in state courts
results in a dead end path.
16
**•*
V
CONCLUSION
19
APPENDIX
A-l
Ohio Supreme Court Decision
A-l
Court of Appeals of Ohio Decision
A-8
City of Mentor’s November 22, 2021,
Permit Denial.....................................
A-17
f
y
. !*-
VI
TABLE OF AUTHORITIES
CASES
Doner v. Zody, 130 Ohio State 3d 446............
5, 17
First English Evangelical Church vs.
Los Angeles County, 482 U.S. 304 (1987)......
4,7
Knick v. Township of Scott (6/21/2019)
Docket No, 17-647..............................................
5, 6, 10
Lucas vs South Carolina Coastal Council
505 U.S. 1003(1992)..........................................
3
Mac Donald, Sommer and Frates v.
Yolo County 477 U.S. 340 (1986)...................... 3, 9, 17
Negin v. City of Mentor, Ohio,
601 Fed. Supp. 1502............................................
10
North Dakota Board of Pharmacy v. Snyders
Drug Stores, Inc. 414 U.S. 156.....................
19
Patsy vs. Board of Regents of the State
of Florida, 457 U.S. 496 (1982).................... 5,6,9,15,18
San Diego Gas and Electric v. San Diego
450 U.S. 621(1981).........................................
4,8
San Remo Hotel L.P. v. City of and County
of San Francisco 545 U.S. 323......................
13
State ex rel Fenske v. McGovern (1984)
11 Ohio State 3d, 129................................
12
State ex rel Kerns v. Simmers 153 Ohio
State 3d 103 (2018)...................................
7
United States v. General Motors Corp.
323 U.S. 373(1945)...................................
7
Vll
Williamson County Regional Planning Comm,
v. Hamilton Bank 473 U.S. 172 (1985)
6, 12,18
STATUTES
Ohio Revised Code 2506.01-
2
CONSTITUTIONAL PROVISIONS
U.S. Constitution Fifth Amendment
Taking Clause...................................
1
Ohio Constitution Article I Section 19
Eminent Domain................. ................
2
1
PETITION FOR WRIT OF CERTIORARI
Petitioner Richard Duncan petitions for a writ
of certiorari to review the judgment of the Supreme
Court of Ohio.
OPINIONS BELOW
The Ohio Supreme Court decision for which
Richard Duncan seeks issuance of the writ appears
at Duncan v. City of Mentor Case 2023-0336 decided
Sept 7, 2023. The Court of Appeals 11th District of
Ohio is Duncan v. City of Mentor Case No 2022-L-106
decided 2/13 2023. Mentor’s Zoning Board of Appeals
issued a ruling on January 11th ,2022 denying any
variance from Duncan’s Nov 8th, 2021, submitted
building permit application denial.
JURISDICTION
The time for filing Petitioner’s petition for a writ
of certiorari was extended by Justice Kavanaugh
until January 15th, 2024. The Jurisdiction of this
Court is invoked under the5th Amendment of the U.S.
Constitution and many U.S. Supreme Court Cases
which are in conflict with the Ohio Supreme Court’s
ruling.
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISION
U.S. Constitution 5th Amendment, which in pertinent
part, provides;
“nor shall private property be taken for public
use without just compensation”
2
Ohio Eminent domain Constitution Article I Section
19;
“where private property shall be taken for public
use, a compensation therefore shall first be
made in money, or first secured by a deposit of
money”
Ohio Revised Code 2506.04;
“If an appeal is taken in relation to the final
order, adjudication or decision covered by
Division A of Section 2506.01 of the revised
code, the court may find that the order,
adjudication, or decision is unconstitutional,
illegal arbitrary, capricious, unreasonable,
or unsupported by the preponderance of
substantial, reliable, and probative evidence on
the whole record. Consistent with its findings,
the court may affirm, reverse or vacate or
modify the order, adjudication or decision, or
remand the cause to the officer or body appealed
from with instruction to enter an order,
adjudication or decision consistent with the
findings or opinion of the court”.
3
STATEMENT OF THE CASE
Richard Duncan (hereinafter called Duncan)
owns a 3 plus acre parcel of property in the City of
Mentor, Ohio (hereinafter called Mentor) which is to a
large degree covered by a pond. Duncan applied for a
permit to allow a houseboat to be placed on the pond
and Mentor denied his proposal. A timely appeal to the
zoning board of appeals was taken in January of 2022
by Duncan in order to satisfy his finality requirement
in accordance with McDonald v. County of Yolo et al.
477 U.S. at 340.This Court has made it clear that “Our
cases uniformly reflect an insistence on knowing the
nature and extent of permitted development before
adjudicating the constitutionality of the regulations
that purport to limit it”(see page 351).
Furthermore, the McDonald Court at page 349
and 350 stated as follows; “until a property owner has
obtained a final decision
it is impossible to tell
whether the land retains any reasonable beneficial
use or whether existing expectation interests
have been destroyed:”(p. 349);and a court cannot
determine” whether a municipality has failed to
provide ‘just compensation’ until it knows what, if any
compensation the responsible administrative body
intends to provide” (p. 350).The Mentor zoning board
flatly denied his variance and offered no other options
as a compromise!
Due to Mentors’ denials of Duncans’ proposed
usage of his property, Duncan felt as was stated by
Lucas v. South Carolina Coastal Council 505 U.S.
1003 that Mentor or the “state, by ipse dixit, may
not transform private property into public property
without compensation” (see page 1031).Similarly,
Duncan felt as Lucas stated that Mentor “required
4
his land to be left substantially in its natural state
carrying the heightened risk that his private property
was being pressed into some form of public service
under the guise of mitigating serious public harm”(see
page 1018). Also, see Justice Brennans dissent in San
Diego Gas and Electric v. San Diego 450 U.S. 621
(1981) at page 652 where the City’s objective was to
have the property remain undisturbed to preserve
scenic vistas.
Duncan was aware he could have had the
variance denial administratively reviewed in an Ohio
Revised Code action 2506.01 but he did not as he felt
if he was successful in reversing the decision that
damages or just compensation could not be awarded
in such common pleas court action. This was because
of a District Courts ruling in Negin v. City of Mentor,
Ohio 601 F. Supp. 1502, which is fully discussed later
herein.
Duncan believed he was entitled just
compensation because this Court in First English
Evangelical Lutheran Church v. Los Angeles County
482 U.S. 304 (1987) at p. 321 held that
“where the regulation has already worked a taking
of all use of property, no subsequent action by the
government can relieve it of the duty to provide
compensation for the period during which the
taking was effective”.
Duncan felt the period commenced when the
City of Mentor denied his houseboat permit and
ended if and when the permit denial was revoked. See
also Justice Brennans dissent in San Diego Gas and
Electric(supra)) at page 654;
“As soon as private property has been taken,
5
whether through formal condemnation
proceedings, occupancy, physical invasion
or regulation, the landowner has already
suffered a constitutionality violation, and the
self-executing character of the constitutional
provision with respect to compensation
is
triggered.
Duncan did not resort to the ORC 2506 action
also because of the holding in Patsy v. Board of
Regents of the State of Florida 457 U.S.496 which
stated, “exhaustion of state administrative remedies
is not a pre-requisite to an action under Section 1983”.
Thus, Duncan believed his constitutional rights under
the takings clause needn’t wait on an Ohio court of
common pleas review; to see if they agreed with
Mentor’s application of their building and zoning
regulations to Duncan’s property.
Therefore, Duncan filed an original mandamus
action in Ohio’s 11th District Court of Appeals basing
such on this Courts ruling in Knick v. Township of
Scott, Docket 17-647 (2019) where footnotel stated
“A property owner in Ohio who has suffered a taking
without compensation must seek a writ of mandamus
to compel the government to initiate condemnation
proceedings. See Doner v. Zody 130 Ohio State 3d 446”,
Ohio is the only state without an inverse condemnation
action.
The 11th District dismissed the case stating that
Duncan was required to seek the ORC 2506 action
that Duncan chose not to pursue.
Upon appeal the Ohio Supreme Court affirmed
stating “to be entitled to a writ of mandamus, Duncan
must establish 1. a clear legal right to the requested
6
relief 2. a clear legal duty on the part of Mentor to
provide it, and 3. the lack of an adequate remedy
in the ordinary course of the law”. The Ohio court
claimed that Duncan had an adequate remedy in
the ORC 2506 action ruling “if the court of common
pleas had reversed the denial of the permit no taking
would have occurred, (citing 2 earlier cases decided
similarly). The Supreme Court failed to address any
of Duncan’s arguments as to why the appeals court
was wrong!
Duncan argues herein in this writ that the Ohio
Supreme Courts ruling is in error for the following 5
reasons;
1. a possible reversal of Duncan’s permit denial in
such an action does not erase that a taking ever
occurred;
2. such a ORC 2506.01 action is not an adequate
remedy in the ordinary course of the law because
just compensation cannot be awarded therein;
3. such unnecessary judicial procedure of a ORC 2506
action is a similar violation like was committed in
Williamson County RPC v. Hamilton Bank 473
U.S. 172 and overturned in Knick v. Township of
Scott, docket No. 17 -647 (2019).”
4. Duncan feels the Ohio Supreme Court has
erroneously adopted this procedure in Ohio for
policy reasons only; as was similarly stated in
Patsy v. Board of Regents 457 U.S. 496 contrary to
the intent of the 5th Amendment.
5. Duncan feels the Ohio Supreme Court’s ruling
limits a litigants free choice to file its case in either
Federal or State Court; thus they have concocted a
7
scheme which violates all of Ohio litigants rights
who want to challenge a 5th amendment taking
imposed by a government regulation. As noted
above, Duncan’s case was the 3rd case decided in
such a way.
REASONS FOR GRANTING THE WRIT
I. THE OHIO SUPREME COURTS NEWLY
ESTABLISHED EXHAUSTION OF
ADMINISTRATIVE REMEDY AND RULING
THAT ‘IF THE COURT OF COMMON PLEAS HAD
REVERSED THE DENIAL OF THE PERMIT NO
TAKING WOULD HAVE OCCURRED” (IN A ORC
2506 ADMINISTRATIVE REVIEW) DIRECTLY
CONFLICTS WITH THE RELEVANT DECISIONS
OF THIS COURT IN FIRST ENGLISH LUTHERAN
EVANGELICAL CHURCH V. LOS ANGELES
COUNTY 482 U.S. 304; WHERE THIS COURT
HAS MANDATED JUST COMPENSATION FOR
TEMPORARY TAKINGS.
Duncan disagrees with Ohio Supreme Court (in
which they cited Kerns v. Simmers 1530hio State 3d
103 (2018) because he believes even if the ORC 2506
court did reverse the denial of his permit, a temporary
taking could have still occurred and is not nullified
under the First English case(supra). Duncan will set
forth several reasons why a taking cannot be erased
by any court. For years under the traditional taking
circumstances this Court has ruled that a government
can take a private property on a temporary basis upon
which just compensation is due(see U.S. v. General
Motors Corp. 323 U.S. 373(1945)) However, when the
case involves a more recent vintage regulatory case(as
opposed to the physical or fee title taking), the First
English case(supra) in 1987determined that takings
8
temporary in length can also occur necessitating just
compensation.
The First English Court finally after 4 earlier
attempts held “where a governments activities have
already worked a taking of all use of the property,
no subsequent action by the government can relieve
it of the duty to provide compensation for the period
during which the taking was effective”. Invalidation
of the ordinance without payment of fair value for
the use of the property during such period would be
a constitutionally insufficient remedy (see syllabus
and page 314-322). Thus, under the precedent of First
English (in that case the County burdened the church
for over 6 years with regulations) the Ohio Courts
have no legal authority or power to make a potential
taking disappear, or as in the case herein to relieve
Mentors’ government of its harmful and wrongful act.
Clearly, Duncan may be entitled to substantial just
compensation from the time period the variance was
denied by the Mentor zoning board of appeals until
when a Court rules a taking has occurred. Duncan
believes the Ohio Supreme Court’s undisclosed true
motive herein is to allow only invalidation (vs just
compensation) as the remedy in a regulatory taking
case in Ohio. This may be for convenience reasons or to
lighten its load of original writ of mandamus actions.
However, Justice Brennans dissent in the San Diego
Gas and Electric case(supra) at page655-656 stated as
follows;
Invalidation unaccompanied by payment of
damages would hardly compensate the landowner
for any economic loss suffered during the time his
property was taken. Moreover, mere invalidation
would fall far short of fulfilling the fundamental
purpose of the Just Compensation Clause”.
9
Thus while the common pleas courts ruling
in a ORC 2506 action may lead to Mentor ceasing
to enforce its regulations, the courts role is not
complete as it needs to address both stages of taking
litigation; 1. whether a taking did occur? and 2.does
just compensation need be awarded for a temporary
taking?
Perhaps the Ohio Supreme Court is erroneously
thinking that the ORC 2506.01 action is a continuation
of the governments finality procedure as mandated
by the case of McDonald v. Yolo County(supra) which
needs to be addressed first prior to a taking action
being filed. They may liken this court to being a super
zoning board of appeals of Mentor! Such reasoning
would be erroneous as the ORC 2506 action is judicial
in nature and not administrative and it has limited
powers as specified in its language. For example, that
court could not give back rights to Duncan in return
or make conditions on the allowance of his houseboat.
Mentor was given plenty of chances to compromise
with Duncan but flatly refused to do so! Mentor was
the only body empowered to decide what was best for
their city and neighborhood.
Even assuming the Ohio common pleas court
somehow had the authority to wipe out a potential
taking finding, this Supreme Court has stated that
State Courts should be restrained from interfering
with individuals’ basic constitutional rights. In Patsy
v. Board of Regents (supra) this Court on page 5023 emphasized that exhaustion of administrative
remedies by States should not be judicially imposed
as follows;
“During that time the Federal Government was
clearly established as a guarantor of the basic
10
federal rights of individuals against incursions
by state power. As we recognized in Mitchum the
very purpose of Section 1983 was to interpose the
federal courts between the states and the people,
as guardians of the people’s federal rights- to
protect the people from unconstitutional action
under color of state law, whether that action be
executive, legislative, or judicial.
The Ohio Supreme Courts specific ruling that if
the court “had reversed the denial of the permit no
taking would have occurred” can also be seen to be
erroneous from examining the recent Supreme Court
case of Knick v. Township of Scott, Docket 17-647. On
page 11 of its ruling, it stated;
“A later payment of compensation may remedy
the constitutional violation that occurred at the
time of the taking, but that does not mean the
violation never took place. The violation is the
only reason compensation was owed in the first
place. A bank robber might give the loot back,
but he still robbed the bank.”
Likewise, as herein in Duncan’s case, the Ohio
Supreme Court cannot nullify that a taking ever took
place by merely reversing the denial of the permit.
II. THE OHIO SUPREME COURT RULING
ESTABLISHING A NEW EXHAUSTION
OF ADMINISTRATIVE REMEDY AND ITS
JUSTIFICATION THEREOF, IS ERRONEOUS
BECAUSE IT CONFLICTS WITH THE CASE OF
NEGIN V. CITY OF MENTOR, OHIO 601 F. SUPP
1502 WHICH RULED “SECTION 2506.01 DOES
NOT EMPOWER STATE COURTS TO AWARD
DAMAGES FOR INJURIES SUFFERED AS A
11
RESULT OF ERRONEOUS ADMINISTRATIVE
DECISIONS”, THEREFORE THAT COMMON
PLEAS COURT DIDN’T PROVIDE AN ADEQUATE
REMEDY AT LAW WHICH COULD HAVE
PROVIDED “COMPLETE, BENEFICIAL, AND
SPEEDY RELIEF; THEREFORE DUNCAN
PROPERLY FILED HIS ORIGINAL MANDAMUS
IN OHIO’S 11TH DISTRICT COURT OF APPEALS.
The language of ORC 2506.01 states that it can
be utilized to decide whether an administrative bodies
decision was “unconstitutional, illegal, arbitrary,
capricious, unreasonable or unsupported by the
preponderance of substantial, reliable and probative
evidence on the whole record (ORC 2506.04).” Thus,
the common pleas court could make any of the above
findings and reverse the administrative order being
reviewed as a remedial measure or remedy.
However, nowhere in the language of ORC 2506
does it specify what the Ohio Supreme Court ruled
that; “if the court of common pleas had reversed
Mentor’s denial of the permit” that a taking would be
erased as if it never happened. Furthermore, the case
of Negin vs. City of Mentor Ohio 601 F. Supp 1502
ruled that;
“Section 2506.01 does not empower state courts
to award damages for injuries as a result of
erroneous administrative decisions”.
So even assuming that the Ohio Supreme Court
did rule a taking could have occurred in a ORC2506
action, such a procedure has no authority to complete
the just compensation stage of the5th Amendment
clause.
Therefore, contrary to what the Ohio Supreme
12
Court ruled in its 11th paragraph in its order, Duncan
did not have “an adequate legal remedy” in the ordinary
course of law which precluded his writ of mandamus
action. If there is a taking herein, Duncan must be
awarded some compensation by a court empowered
to grant it. The most the common pleas court could
do is to persuade Mentor’s to stop enforcing its ruling
which would constitute the period end date that
Duncan would be entitled to just compensation for his
temporary taking under First English. Thus, the most
the common pleas court can do under ORC 2506 is to
prevent a permanent taking by Mentor and to turn it
into a temporary taking. Thus, the third element of
Ohio’s writ of mandamus law was met by Duncan as the
Ohio court of common pleas cannot provide “complete,
beneficial and speedy relief’. A subsequent judicial
action would have to be filed in order for Duncan to
recover his due just compensation (also see State, ex
rel. Fenske v. McGovern (1984), 11 Ohio St. 3d 129,
paragraph 2 of the syllabus “writ should not be denied
due to the availability of a declaratory judgment action
where the action would require ancillary relief in the
nature of a mandatory injunction to be complete”.
III. THE OHIO SUPREME COURTS RULING
ESTABLISHING A NEW EXHAUSTION
OF ADMINISTRATIVE REMEDY AND ITS
JUSTIFICATION THEREOF, IS ERRONEOUS
BECAUSE IT CREATES A SITUATION
ANALOGOUS TO THE FLAWED REASONING AS
IN WILLIAMSON COUNTY V. HAMILTON BANK
473 U.S. 172 WHICH WAS CORRECTED BY THIS
COURT IN KNICK V. TOWNSHIP OF SCOTT PA
DOCKET NO. 17-647.
In this case the Ohio Supreme Court has
13
erroneously established an extra administrative
remedy requirement that Duncan needed to
pursue prior to or in lieu of his “taking without just
compensation cause of action” being heard in the
typical inverse condemnation action(Ohio is the only
state that demands such must be done in a writ of
mandamus). Duncan believes this concocted scheme
potentially leads to multiple issues as discussed
herein and in the next or 4th question for review.
Duncan believes this invented erroneous procedure
can lead to similar problems which arose in the case of
Williamson County(supra) which this Court overruled
itself in Knick v. Township of Scott(supra). At page
12 of Knick v. Township of Scott this Court stated as
follows;
“Williamson County effectively established an
exhaustion requirement for Section 1983 takings
claims when it held that a property owner
must pursue state procedures for obtaining
compensation before bringing a federal suit”.
However, this Court found after many years that
such requirement resulted in an unanticipated bar or
preclusion trap of San Remo Hotel L.P. v. City and
County of San Francisco 545 U.S. 323.
Likewise, Duncan believes in this case similar
problems exist. The Ohio Supreme Court stated
“Duncan could have appealed the zoning board’s
decision to the court of common pleas
if the court
of common pleas had reversed the denial of the permit
“no taking would have occurred” (page 5 paragraph
11). Thus, the logic of this court is that Duncan’s taking
claim is premature and is capable of being mooted or
nullified. However, in the case of Knick v. Township
of Scott(supra) this Court stated that a taking claim
14
cannot be premature until the litigant has availed of
the exhaustion procedure. This Court stated;
“Williamson County also relied on Monsanto when
it analogized its new state litigation requirement
to federal takings practice, stating that ‘takings
claims against the Federal Government are
premature until the property owner has availed
itself of the process provided by the Tucker
Act’. 473 U.S. at 195. But the court was simply
confused. A claim for just compensation brought
under the Tucker Act is not a prerequisite to a
Fifth Amendment takings claim- it is a Fifth
Amendment takings claim. A party who loses a
Tucker Act suit has nowhere else to go to seek
compensation for an alleged taking” (at page 13).
The Ohio Supreme Court herein is similarly
confused as was in the Monsanto Court, because
Duncan’s taking claim for just compensation which
he filed in the Ohio Appellate Court need not be first
addressed in a ORC 2506 action, IT IS A FIFTH
AMENDMENT TAKINGS CLAIM! The City of
Mentor has already decided the crucial issue that
they will not give back anything to Duncan in just
compensation when they denied the permit and the
variances in January of 2022. Duncan doesn’t deny
that Mentor has the police power and eminent domain
power to interfere with Duncan’s private property,
but if and when they do so, the Constitution of the
U.S. and the State of Ohio demand that Mentor must
contemporaneously provide just compensation and it
is due at that time. The Constitutions do not say to
first ask the common pleas court to perhaps review
and modify it! It also doesn’t say to ask Mentor to
reconsider its decision. The Fifth Amendment clause
was designed to protect individuals from government
15
interference by triggering a direct judicial filing to
seek compensation which is just. Duncan fears getting
any type of ruling in an ORC 2506 action will lead to
res judicata or collateral estoppel issues or bars (like
in San Remo), if he thereafter tries to file his writ
of mandamus for a taking in Ohio or a Federal USC
Section 1983 action.
IV. THE OHIO SUPREME COURTS RULING
ESTABLISHING A NEW EXHAUSTION
OF ADMINISTRATIVE REMEDY AND ITS
JUSTIFICATION THEREOF, IS ERRONEOUS
BECAUSE IT APPARENTLY WAS ADOPTED
SOLELY FOR POLICY CONSIDERATIONS
WHICH POTENTIALLY LEADS TO COSTLY
REMEDY AND COURT BURDENING LITIGATION
INCONSISTENT WITH THE CONSTITUTIONS
INTENT OF THE 5TH AMENDMENT.
Duncan believes the Ohio Supreme Court
adopted the procedure for solely policy considerations.
Specifically, Duncan believes the Court does not
wish to entertain in Ohio the issue of awarding just
compensation for regulatory takings. However, in
Patsy vs Board of Regents 457 U.S. 496, this Court
stated on page 513 as follows; “As we noted earlier,
policy considerations alone cannot justify judicially
imposed exhaustion unless exhaustion is consistent
with congressional intent”. This Court on page 514
listed several issues which could arise such as tolling
requirements or time limitations or res judicata or
collateral estoppel as follows;
“These and similar questions might be answered
swiftly and surely by legislation, but would create
costly, remedy-delaying, and court burdening
litigation if answered incrementally by the
16
judiciary in the context of diverse constitutional
claims relating to thousands of different state
agencies.”
The error committed by the Ohio Supreme Court
here is that if the zoning board of appeals committed
a taking in its final decision, they hope the ORC
2506 court will reverse Duncan’s permit denial and
dissipate that the taking ever happened and eliminate
any need for just compensation. However, such reason
is clearly inconsistent with the constitutions intent,
that which is to restore litigants of the value of their
property which was lost during the period from the
enforcement of the wrongful interference until it is
rescindedfas described in First English).Furthermore,
as was argued in the earlier question, even if Duncan
was able to get a ruling stating there was a taking by
the court of common pleas court in a ORC 2506 action,
he would not be able to get just compensation from
that court as stated by the Negin v. City of Mentor
case. That is also inconsistent with the constitutional
intent of the 5th amendment. As argued in the 3rd
question for review, if Duncan then had to refile his
writ of mandamus all sorts of preclusion and res
judicata issues could arise such as did in the San
Remo Hotel Case(supra).
In conclusion, the Ohio Supreme Courts ruling
based on policy considerations directly violates
the 5th Amendments constitutional intent as it
precludes a taking trial and the chance to obtain just
compensation. It is clear that the writ of mandamus
action like Duncan did file is the proper procedure to
eliminate multiple issues.
V. THE OHIO SUPREME COURTS RULING
ESTABLISHING A NEW EXHAUSTION
17
OF ADMINISTRATIVE REMEDY AND ITS
JUSTIFICATION THEREOF, IS ERRONEOUS
BECAUSE IT RESULTS IN UNDESIRABLE
RESULTS IN THAT IT FORCES OHIO
LITIGANTS TO FOR GO THEIR CONCURRENT
JURISDICTION CHOICE OF EITHER FEDERAL
OR STATE COURTS BECAUSE FILING IN STATE
COURTS RESULTS IN A DEAD-END PATH.
It is clear law that Federal and State 5th
Amendments claims can be pursued in the Federal
or the State court systems. Due to the finality ruling
in McDonald v. Yolo County, regulatory takings cases
must first obtain a final decision from the government
agency that is enforcing an interference alleged by the
private property owner. Now due to the Ohio Supreme
Courts’ ruling in this case, prior to filing a takings
claim, after an adverse ruling from the government
agency; you must first of all file a ORC 2506 action
too see if the state common pleas Judge will reverse
the denial of the permit. If it does reverse the denial
in your favor, Ohio’s high court now says the taking
disappears as if it never occurred. As was discussed
earlier, because Ohio is the only state in the nation to
not have an inverse condemnation action (see Doner
vs Zody, supra) a writ of mandamus is thus needed to
seek an Ohio regulatory taking case. But now a catch
22 situation exists because as the Ohio Supreme Court
ruled, the 3rd element of a writ of mandamus can
never be met (due to the ORC2506 being wrongfully
ruled an adequate remedy)
Consequently, in Ohio future regulatory takings
litigants, after the finality decision, have no chance
to ever recover just compensation on a takings claim.
Therefore, they have no other option but to avoid the
18
state courts to avert this dead-end path. The only
chance now left is to file a Section 1983 case in Federal
Court and hope that the courts will not redirect the
case back to state court as occurred in Williamson
County v. Hamilton Bank 473 U.S. 172.
Such would clearly be wrong as this Court in the
case of Patsy v. Florida Board of Regents457 U.S. 496
detailed at length at page 503 to 506 that the “Federal
Government was clearly established as a guarantor
of the basic federal rights of individuals against
incursions by state power’”. Consequently, such an
Ohio Supreme Court ruling is wrong because it forces
litigants to forgo a free choice on what concurrent
court system they wish to file therein.
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CONCLUSION
In Justice Brennans dissent at page 660 in San
Diego Gas and Electric v. San Diego 450U.S. 621(1981)
he stated as follows;
“It should be noted that the Constitution does
not embody any specific procedure or form of
remedy that the States must adopt; The Fifth
Amendment expresses a principle of fairness
and not a technical rule of procedure enshrining
old or new niceties regarding-causes of actionswhen they are born, whether they proliferate,
and when they die
The States should
be free to experiment in the implementation of
this rule, provided that their chosen procedures
and remedies comport with the fundamental
constitutional command......................
The only constitutional requirement is that
the landowner must be able meaningfully to
challenge a regulation that allegedly effects a
taking and recover just compensation if it does
so. EMPHASIS ADDED. He may not be forced to
resort to piecemeal litigation or otherwise unfair
procedures in order to receive his due. See U.S.
vs. Dickinson, 331 U.S. at 748.
From reviewing Duncan’s (5) questions for review
herein, it is clear the Ohio Supreme Court’s ruling in
Duncan’s case devises a method by which the just
compensation clause is circumvented and violated
and is fraught with potential issues.
Thus as was emphasized in this Courts decision
in North Dakota Board of Pharmacy v. Snyders Drug
Stores, Inc. 414 U.S. 156; is that a takings claim
20
involves a two stage process (2 steps). At page 163
this Court stated “the federal constitutional question
embraces not only a taking but a taking on payment
on payment of just compensation”.
Historically, despite this clear law, governments
have unsuccessfully tried to;-argue that a police
power regulation could not constitute a taking,
and that;-even if regulations have been held
to commit a taking, invalidation is the only
remedy and not the payment of money or just
compensation.
However, ultimately all of such arguments have
failed.
Now herein this case the Ohio Supreme Court
has cleverly and in an innovated fashion has chosen
to take another” bite at the apple” by devising a
scheme in order to continue governments’ attempt to
deny just compensation to private property owners.
From reviewing the 5 above presented questions it is
clear that the Ohio Supreme Court wishes to do this
by directing all potential regulatory takings claims in
Ohio to the ORC 2506 procedure; and if it appears a
reversal of the administrative boards’ is justified(if a
taking has or may have occurred),they (by way of this
Judge made law) nullify that a taking ever occurred in
order to avoid payment of the constitution’s required
just compensation. On page 5 paragraph 11 of the
Ohio Supreme Courts decision they erroneously claim
Duncan “had the ability to obtain complete relief,
ie. to avoid the alleged taking and any need for
appropriation proceedings”.
However, as this writ has proven such violates
this Courts interpretation of the Constitution and
21
needs to be overruled because takings committed
need to be remedied by compensation and not merely
an invalidation of the injurious regulation(s) under a
cleverly devised method.
Duncan respectfully requests this Honorable
Court to review this case and to reverse their ruling.
Respectfully submitted,
Richard Duncan
1101 East Blvd, Aurora, Ohio 44202
330-968-7749
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.