Opposition Brief — Roth v. Stussie

No. 90-950

IN THE

Supreme Court of the Anited States

Ocroser TERM, 1990

STATE OF Missouri Ex REL. PAUL BEHLE, et al.

EXCEPTIONS OF DONALD E. RoTH

Petitioner,

vs.

THE HONORABLE Harry STUSSIE

Respondent.

BRIEF IN OPPOSITION TO

WRIT OF CERTIORARI

JouN L. OLIver, Jr. COMMISSIONER

Attorney at Law

329 S. Kirkwood Road

St. Louis, Missouri 63122

(314) 966-3800

RICH TIEMEYER, CHIEF COUNSEL

Missouri ) @hway and

Transportation Commission

Joun H. GLADDEN

Assistant Chief Counsel

LYNN ANN WHALEY

Assistant Counsel

13307 ManchesterRd. St Louis,MO 63131 314-231-4477

St. Louis Law Printing, Inc.

QUESTION PRESENTED

“May the Supreme Court of Missouri legislatively change substantive

Statutory rights under its rule making authority?”

This is the question posed by Petitioner which is effectively asking

the Federal Court to interpret the relationship of a state court and the

state legislature based on that state’s constitution. Respondent would

suggest that such an issue is beyond the scope of this Court and that the

appropriate arena for interpretation of a state’s constitution is only by

that state’s judiciary.

The issue as it should be presented is:

Has the Supreme Court of Missouri legislatively changed sub-

Stantive statutory rights under its rule making authority?

The Missouri Supreme Court Rule 86.06 provides in pertinent part:

... upon failure to pay the assessment aforesaid, within ten (10)

days after it becomes final, . . . the court may, upon motion and

notice by the party entitled to such damages, enforce the payment

of the same by execution, ... [emphasis added].

The Missouri Revised Statute Section 523.040 provides in part:

... and upon failure to pay the assessment, aforesaid, the court

may, upon motion and notice by the part entitled to such dam-

ages, enforce the payment of the same by execution.

The Missouri Supreme Court has taken the position based on the

rule that it is not within its judicial authority to interfere and enforce

payment through execution on the condemning authority until the

assessment is final. In reality, if the courts acted within the manner

suggested by Petitioner, such actions would constitute a breach in the

separation of powers doctrine. Petitioner suggests that courts should

enforce payment of the commissioner’s award before the trial on the

exceptions even if there has been no taking. Such an action by the

courts would be equal to committing a legislative function as payment

of the award by the condemning authority would effect a taking and the

ee

courts would be making a legislative decision. It is clear that the

Supreme Court of Missouri was well aware of its limitations and the

scope of its judicial authority when Rule 86.06 was drafted.

Petitioner has presented no factual basis before any court upon

which they could find a taking, de jure or de facto, has occurred which

violates his rights under either the Sth or 14th Amendments to the

Constitution of the United States. There are several issues which

remain and are yet to be litigated in the state courts. The allegations

as they have been presented to this Court in the Petition are not ripe for

review and Petitioner should be directed to exhaust the state remedies

available.

— iii—

TABLE OF CONTENTS

Page

EE EE a i

EER a iii

EE eS iv

daar acenadiierniadiinsanecacbudibientinnansnctonte 1

ana couiobnbhinspmsingnasonenteines |

Reasons for Denying the Petition ....................cccccsceesceseeeeeeeee 3

SB. AVERIADES SIMS ROMCAY ........00..cccccccocccescescceccceseessoee 4

b. No Constitutional Taking 20.00.0000... cceeeeceseeeeeees 5

c. Missouri Supreme Court Rule 86.06 is Within the

Scope of the Judiciaries Authority ....................:ccceecee0 8

i a sstenasucedenedunsiooncniinen 11

—_ ee

TABLE OF AUTHORITIES

Cases

U.S. Supreme Court

Danforth v. United States, 308 U.S. 271, 184-285, 60 S.Ct.

Bh Ree Fe Be cccncicicrnceomnesaconensonsenecssncenveces

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles Califomia, 482 U.S. 304, 311,

107 S.Ct. 2378, 96 L.Ed.2d 250 (1987).........:cccesceeeeeee

J. Paul Presault, et ux. v. Interstate Commerce Commission et

al., 494 U.S. __, 110 S.Ct. 914, 108 L.Ed.2d 1

Regional Rail Reorganization Act Cases, 419 U.S. 102,

124-125, 95 S.Ct. 335, 42 L.Ed.2d 3201 (1974) ..........

San Diego Gas and Electric Company v. City of San Diego,

450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981)

Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. 172, 194, 105

fem) Fem bb Ty.) enn

U.S. District Court

Government of Virgin Islands v. 50.05 Acres of Land, 185

I crc scscnichcistiinindiamidaiebeassuasabions

Trager v. Peabody Redevelopment Authority, 367 F.Supp.

a asiccihniahniescaeinnainiatinineieiigediiebpiatiahiniiiansecentteanis

United States v. Certain Lands in the Town of Highlands,

Orange County, N.Y., 46 F.Supp. 386 (1942)..............

Woodland Market Realty Company v. City of Cleveland, 426

Be TEE Sictiiciacnheiiicinuaidenbinsaanetnsiindedinivaneseobieoanes

Page

4,10

10

10

State of Missouri

Harris v. Missouri Department of Conservation, 755 S.W.2d

Fs TO eicenrentnenccsiveciomncacnaniiniicsnpnenes 4

North Kansas City School District v. J.A. Peterson-Renner,

ee | oe 8,11

Roth v. State Highway Commission of Missouri, 688 S.W.2d

TF aie FUR ee ED cebeciicninencbiibinthinasiniesnnidiieinnen 4

State ex rel. Behle, et al. Exceptions of Donald Roth v. Stussie,

TIS S.FeRE SOT RD. FD. TIF wicssvcvinccscesivscsscsseveses 8,9

State ex rel. Highway Commission v. Deutschman, 346 Mo.

Fas Ge ae FE CD vo rscssorttserientinivartnintineans 8

State ex rel. Hilleman v. Fort, 180 Mo. 97, 79 S.W. 167

Washington University Medical Center Redevelop-

ment Corporation v. See, 654 S.W.2d 192 (Mo.

ie TIED chiaiscsasstieiicicaioeintiaitaleeneseinniipinenianmsiandannidaniiaplini 8

Other States

Howell Plaza, Inc. v. State Highway Commission, 226 N.W.2d

Ps TOE ctsikashcisiineceanisepsoenimniencsepcseinbeniabenaiiiaiaanias 9

Constitution

Missouri Constitution, Article IV, Section 29 ...........:.cccee 10

Missouri Constitution, Article IV, Section 30 ...............00006. 10

Statutes

Revised Missouri Statutes, Section 523.040, 1986 ............... i-ii,

1-12

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Court Rules

Missouri Supreme Court Rule 86.06

Missouri Supreme Court Rule 41.02

SOOO E EEE EEE EERE HEED

PORE EERE EEE HEHEHE EEE EEE EE HE EES

No. 90-950

IN THE

Supreme Court of the United States

OcroBER TERM, 1990

STATE OF Missouri Ex REL. PAUL BEHLE, et al.

EXCEPTIONS OF DONALD E. ROTH

Petitioner,

VS.

THE HONORABLE HARRY STUSSIE

Respondent.

BRIEF IN OPPOSITION TO

WRIT OF CERTIORARI

On behalf of the Honorable Harry Stussie, Respondent, the Mis-

souri Highway and Transportation Commission respectfully responds

with its Brief in Opposition to Petitioner’s Writ of Certiorari.

STATEMENT OF THE CASE

Respondent agrees with the facts of the case and the chronology of

the case as set forth in the Petition for Writ of Certiorari. However,

exception is taken to any legal conclusions presented therein.

The basic steps in condemnation proceedings under Missouri law as

provided in Section 523.040 RSMo. 1986 and Missouri Supreme

Court Rule 86.06 [Pet. App. D] are as follows:

pe

1. |Condemning authority files a petition;

2. Court enters an order condemning the land;

3. | Court appoints three disinterested frecholders to assess the

damages;

4. Commissioners’ awards are recorded with Recorder of

Deeds;

5. Either or both parties request a trial by filing exceptions;

6. |Condemning authority may or may not pay the award into

the Court at its election;

7. Prior to jury trial, condemning authority may not take

possession until Commissioners’ Award is paid into Court;

8. Ultimate jury trial on amount of damages and

all appeals therefrom exhausted;

9. Amount of final judgment on verdict paid.

Respondent would direct the Court’s attention to the facts wherein

any and all action by the condemning authority has only been in the

condemnation suit up to the point of filing exceptions. The Missouri

Highway and Transportation Commission has not restricted the

Petitioner’s use of his property, nor is the Petitioner restrained in any

manner from selling his property, therefore, no taking has been

effected.

Additionally, Petitioner colors Rule 86.06 as an “amendment” to

Section 523.040 RSMo. [Petition p. 5]. The Court of Appeals did not

apply the rule to the statute. What they did was to find that the rule

supersedes the statute and sets forth the correct procedures for the

court’s actions [Pet. App. A].

=

REASONS FOR DENYING THE PETITION

Before proceeding to the points raised by Petitioner, Respondent

requests the Petition for Writ of Certiorari be denied as the case as it

stands in the state courts has not achieved finality in any of the aspects

required by the United States Supreme Court in order to review state

condemnation proceedings.

In San Diego Gas and Electric Company v. City of San Diego, 450

U.S.621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981), this Court, reaffirming

earlier decisions held state court actions are not reviewable until there

has been litigation not only on whether there is a taking, but addition-

ally on the payment of just compensation.

Ever since this court’s decision in Grays Harbor Co. v.

Coats-Fordney Co., 243 U.S. 251, 37 S.Ct. 295, 61 L.Ed. 702

(1917), a state court’s holding that private property has been

taken in violation of the Fifth and Fourteenth Amendments and

that further proceedings are necessary to determine the com-

pensation that must be paid has been regarded as a classic

example of a decision not reviewable in this Court because it is

not “final.” In such a case, “the remaining litigation may raise

other federal questions that may later come here.” Radio Station

WOW, Inc. v. Johnson, 326 U.S. 120, 127, 65 S.Ct. 1480, 89

L.Ed. 2092 (1945). This is because “the federal constitutional

question embraces not only a taking, but a taking on payment of

just compensation. A state judgment is not final unless it covers

both aspects of that integral problem.” North Dakota Board of

Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 163, 94

S.Ct. 407, 412, 38 L.Ed.2d 379 (1973).

Id. at 632, 633

In a more recent decision, the U.S. Supreme Count, following the San

Diego case and other prior decisions held that no finality existed in earlier

cases where the “factual disputes yet to be resolved by State authorities

might still lead to the conclusion that no taking has occurred .. .

consideration of the remedial question in those circumstances, ... would

be premature.” First English Evangelical Lutheran Church of Glendale

a a

v. County of Los Angeles, California, 482 U.S. 304, 311, 107 S.Ct.

2378, 96 L.Ed.2d 250 (1987). Although the Supreme Court of

Missouri did not expressly determine through the decision of the Court

of Appeals that no taking has occurred, it was implied in the decision

denying payment of the Commissioners’ Award. [Pet. App. A p. A-2]

Such denial implied that no taking has occurred which deserves just

compensation and they expressly held that there was no final assess-

ment upon which they could force execution. There are still issues to

be resolved in the state courts which may yield additional Federal

questions.

a. AVAILABLE STATE REMEDY

Petitioner is requesting the U.S. Supreme Court to determine that

there has been a temporary taking or damaging of his property for

which he deserves compensation under the guidelines of First English

Evangelical Lutheran Church of Glendale v. County of Los Angeles

California, 482 U.S. 304, 311, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987).

Respondent recognizes that under certain situations this Court may

consider appropriate the payment of compensation for temporary

takings. See First English Evangelical, supra. This issue however, is

not before the Court in this appeal. Such an argument is only

appropriate in a separate action of inverse condemnation as any

payment required of the condemning authority in the present suit

would effectuate a permanent taking.

In Missouri, an action in inverse condemnation is not specifically

provided as a remedy by statute. Missouri courts however, have long

recognized that the right to bring such a suit is inherent by virtue of the

constitutional prohibition of taking property without just compensa-

tion. Roth v. State Highway Commission of Missouri, 688 S.W.24775,

777 (Mo. App. 1984); Harris v. Missouri Department of Conserva-

tion, 755 S.W.2d 726, 729 (Mo. App. 1988). Petitioner has never

presented any facts before the state courts of Missouri which would

allow those courts to determine factually and legally if Petitioner has

such aclaim. Therefore, this issue is not properly before this Court and

Respondent suggests that accepting the Petition for Writ of Certiorari

would not be appropriate as Petitioner has not yet exhausted his

available state remedies.

a

b. NO CONSTITUTIONAL TAKING

At present, this case has exceptions pending a jury trial on the

amount of just compensation. These are the statutory and court

procedures set forth which ensure the landowner compensation for

land taken. Chapter 523 RSMo. and Supreme Court Rule 86. [Pet.

App. D p. D-3 - D-5] In Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 194, 105

S.Ct. 3108, 87 L.Ed.2d 126 (1985) the U.S. Supreme Court held that

the Fifth Amendment does not require “that just compensation be paid

in advance of, or contemporaneously with, the taking; all that is

required is that a ‘reasonable, certain and adequate provision for

obtaining compensation’ ” exist at the time of the taking. Id. at 194,

quoting from Regional Rail Reorganization Act Cases, 419 U.S. 102,

124-125, 95 S.Ct. 335, 42 L.Ed.2d 3201 (1974), quoting Cherokee

Nation v. Southern Kansas Railroad Co., 135 U.S. 641, 659, 10 S.Ct.

965, 34 L.Ed. 295 (1890). The U.S. Supreme Court continued by

holding the following:

If a State provides an adequate procedure for seeking just

compensation, the property owner cannot claim a violation of the

Just Compensation Clause until it has used the procedure and

been denied just compensation .... The Constitution is satisfied

by the provision of meaningful postdeprivation process. Thus,

the State’s action is not “complete” in the sense of causing a

constitutional injury “unless or until the State fails to provide an

adequate postdeprevation remedy forthe property loss.”” Hudson

v. Palmer, 468 U.S. 517, 532, n. 12, 104 S.Ct. 3194, 3203, n. 12,

82 L.Ed.2d 393 (1984). Likewise, because the Constitution does

not require pretaking compensation, and is instead satisfied by a

reasonable and adequate provision for obtaining compensation

after the taking, the State’s action here is not “complete” until the

State fails to provide adequate compensation for the taking.

Id. at 195. This language was very recently affirmed by the U.S.

Supreme Court in J. Paul Presault, et ux. v. Interstate Commerce

Commission et al., 494 U.S. __, 110 S.Ct. 914, 108 L.Ed.2d 1

(1990).

— a

The Petition for Writ of Certiorari is premised on the Constitutional

right of the property owner to receive just compensation for property

that is taken or damaged by the government. (Missouri Constitution,

Article 1, Section 26.) [Pet. App. D] Respondent does not argue with

this basic premise; however, Petitioner fails to present factual allega-

tions sufficient to find that his property has been taken or damaged.

Petitioner argues that the institution of condemnation proceedings which

are to the point where exceptions to the Commissioners’ Award have

been filed is equal to a taking. The argument is that the notice of such

proceedings filed with the Recorder of Deeds rises to the level of a

taking as it places potential purchasers of the property on notice of the

proceedings. This same argument was presented in Government of

Virgin Islands v. 50.05 Acres of Land, 185 F.Supp. 495 (1960), where

the defendants claimed an uncompensated taking.

“The reasoning seems to be that the very filing of this suit

interferes with the normal freedom of an owner to use and

dispose of his property. But such interference is inherent in all

condemnation proceedings. No case has been cited or found

which supports the view that the condemnation itself constitutes

a taking. The Court finds no merit in it.”

Id. at 498.

Such a recording with the Recorder of Deeds does not render

petitioners property inalienable. Petitioner claims he has no “practical

ability” to dispose of his property [Petition p. 7], but in fact, there has

been no evidence presented wherein Petitioner has exhibited any

inability or deterrence in selling his property because of the con-

demnation suit. Legally he may sell his entire property and the new

owner may be substituted as a party to the condemnation suit. Also,

Missouri Highway and Transportation Commission and the Court

through its Order of Condemnation and the subsequent recording of

the Commissioners’ Award have placed no restrictions on Petitioners

use of the land- He may improve it or use it in any manner which

merely subjects the condemnor to the potential of paying more

damages as the date of value under Missouri law will be the date of the

trial unless the property is taken prior to trial. This is a risk the

aia ela ieee

=

condemnor may wish to take and the United States Supreme Court has

found this to be a legitimate interest enjoyed by condemning authorities.

Unless a taking has occurred previously in actuality or by a

Statutory provision, which fixes the time of taking by an event

such as the filing of an action, we are of the view that the taking

in a condemnation suit under this statute takes place upon the

payment of the money award by the condemnor... Until taking,

the condemnor may discontinue or abandon his effort. The

determination of the award is an offer subject to the acceptance

by the condemnor and thus gives to the user of the sovereign

power of eminent domain an opportunity to determine whether

the valuations leave the cost of completion within his resources.

Condemnation is a means by which the sovereign may find out

what any piece of property will cost. ““The owner is protected by

the rule that title does not pass until compensation has been

ascertained and paid ....” A reduction or increase in the value

of property may occur by reason oflegislation fororthe beginning

or completion of a project. Such changes in value are incidents

of ownership. They cannot be considered as a “taking”’ in the

constitutional sense.

Danforth v. United States, 308 U.S. 271, 184 - 285, 60 S.Ct. 231, 84

L.Ed. 240, quoting from Hanson Lumber Co. v. United States,261 U.S.

581, 587, 43 S.Ct. 442, 67 L.Ed. 809.

The State of Missouri has taken no overt actions which rise to the

level of a taking including any physical invasion or possession of said

property. The particular parcel in question has not been made part of

any contract for the project in question for the very reasons pronounced

in Danforth, supra, nor has Roth alleged that any such action have been

taken by the State. “Whether property has been taken for a public use

SO as tO require just compensation is determined by the character of the

invasion, not by the amount of damage suffered.” Woodland Market

Realty Company v. City of Cleveland, 426 F.2d 955 (1970); citing

United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746

(1917).

waeiia

Again, Petitioner has not presented any facts upon which a Court

could find a taking at this time. Petitioner cannot contest the adequacy

of the State’s condemnation proceedings as to whether they fail to

provide just compensation for a taking. Missouri law provides the

right to atrial by jury forthe landowneron the issue of just compensation

and all other procedural steps enumerated in the statutes and rules have

remained unchallenged and unchanged. The Missouri Supreme Court

Rule 86.06 does not deny landowners right of just compensation. It

merely limits the Court’s authority to enforce the payment of compen-

sation until such time as the Court can find an actual taking has

occurred. In Missouri a taking is not until the Commissioners’ Award

is paid or until such time as the verdict becomes final which is not until

all available procedures have been exhausted. North Kansas City School

District v. JA. Peterson-Renner, Inc., 369 S.W.2d 159 (Mo. 1963),

citing State ex rel. Hilleman v. Fort, 180 Mo. 97,79 S.W. 167 (1904),

State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755,

142 S.W.2d 1025 (1940), Washington University Medical Center

Redevelopment Corporation v. See,654 S.W.2d 192 (Mo. App. 1983).

c. MISSOURI SUPREME COURT RULE 86.06 IS

WITHIN THE SCOPE OF THE JUDICIARIES AU-

THORITY

The Missouri Court of Appeals, Eastern District, directly decided in

the opinion of State ex rel. Behle, et al. Exceptions of Donald Roth v.

Stussie, 793 S.W.2d 567 (Mo. App. 1990), [Pet. App. A] that Missouri

Supreme Court Rule 86.06 supersedes Section 523.040 Missouri

Revised Statute by virtue of Rule 41.02 which directs that when the

rules and statutes are in conflict, the rules are controlling [Pet. App. D}.

This decision was appealed to the Missouri Supreme Court which

denied transfer [Pet. App. A]. The pertinent difference between Rule

86.06 and Section 523.020 RSMo. is additional language in the Rule:

In Missouri Supreme Court Rule 86.06:

... upon failure to pay the assessment foresaid, within 10 days

after it becomes final, . .. the Court may, upon motion and notice

by the party entitled to such damages, enforce the payment of the

same by execution, . . . (emphasis added)

RR nnenee ne

= en

In Section 523.040 Revised Missouri Statutes:

... and upon failure to pay the assessment, aforesaid, the court

may, upon motion and notice by the part entitled to such dam-

ages, enforce the payment of the same by execution.

Petitioner’s contention is that the language requiring finality of the

assessed value is an attempt by the Supreme Court to alter a substantive

right and to change the legislative intent of the statutory condemnation

scheme.

There are two key phrases Petitioner chooses to gloss over which

are identical in both Rule 86.06 and Section 523.040 RSMo. First is

that “the Court may upon motion” which specifically implies that the

motion is subject to judicial review and is discretionary based on the

facts presented. Petitioner misrepresents to this Court that there is case

law in Missouri which holds that the word “may” in this statute must

read as “shall” State ex rel. Holladay v. Withrow, 24 S.W. 638 (Mo.

1891). Respondent would note that factually Holladay varied greatly

from the present case and State ex rel. Behle, supra, held that the lan-

guage in Holladay was not controlling case law in Missouri [Pet. App.

A].

Additionally the remedy found in the Rule and the statute is for the

courts to enforce payment by “execution.” Execution is not an

available remedy until there is a final judgment on which such remedy

may be invoked. It was clearly then the intent of the legislature that

finality exist before the Court enforce payment by the condemning

authonty. The language of Rule 86.06 is not an attempt to fill an

omission, but is redundant of the original language of the statute.

Itis exactly through the phrase in contention that the Supreme Court

of Missouri acknowledges its limitations based on the separation of

powers doctrine. Enforcing payment of the award, if there is no prior

taking and before the assessment is final, would in effect be a judicial

taking and such actions would be commensurate to enacting a legisla-

tive function by the courts. Howell Plaza, Inc. v. State Highway

Commission, 226 N.W.2d 185 (Wi. 1975). Payment of the award

constitutes a permanent taking by the condemning authority and the

courts cannot force such actions.

— =

If Petitioner’s suggestion that the Court should enforce payment of

the Commissioners’ Award as per Section 523.040 RSMo. were

accepted, that would truly be a breach of the separation of powers

doctrine as such actions by the Court would force the government to

take the property, a function which belongs solely to the legislature.

The government or condemning authority must be allowed to control

the decision making process in condemnation actions. This does not

mean that its actions are not subject to judicial review, but without a

factual basis which constitutes a prior taking, the courts cannot force

payment of the award.

The taking in this process [condemnation] is accomplished when

payment of the award is made, and until then, the government

may discontinue or abandon its effort. The award is no more than

an offer subject to acceptance by the government, and gives it the

Opportunity to determine whether the valuation fixed is within its

resources or acceptable. In other words, condemnation is a

means by which the government may find out what any piece of

property will cost. No title passes until the compensation is paid.

United States v. Certain Lands in the Town of Highlands, Orange

County, N.Y.,46 F.Supp. 386 (1942) citing Danforth v. United States,

308 U.S. 271, 284, 60 S.Ct. 231, 84 L.Ed. 240; Barnidge v. United

States, 8 Cir., 101 F.2d 295, 298.

The decision of whether private property should be taken for public

benefits is clearly a function of the legislative, its agent, or as in this

Case, an agency deriving the authority from Article IV, Section 29 and

Section 30 of the Constitution of Missouri; Missouri Supreme Court

Rule 86; and Chapter 523, Revised Missouri Statutes, 1986. This was

recently reaffirmed by the U.S. Supreme Court in First English

Evangelical Lutheran Church of Glendale v. County of Los Angeles

California, 482 U.S. 304, 311, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987).

In Trager v. Peabody Redevelopment Authority, 367 F.Supp. 1000

(1973), the District Court held that

Due process for individuals is provided in the determination of

how much each individual should be compensated for his par-

— |

ticular piece of property. This determination is adjudicatory and

each owner is entitled to his day in court.

Id. at 1002, citing United States v. Cormack, 329 U.S. 230, 247, 67

S.Ct. 252, 91 L.Ed. 209 (1946).

Courts are clearly an integral part of the condemnation process. The

amount of just compensation to be paid is within the discretion of the

judiciary. It is also the function of the Courts to determine from the

facts, whether a taking has occurred for which compensation is due.

Rule 86.06 is despositive of the fact that the Supreme Court of

Missouri knows the Court may not interfere until a taking has occurred,

which is either when the money is paid or a trial on the exceptions and

all available processes after a verdict have beenexhausted. North Kansas

City School District v. JA. Peterson-Renner, Inc., 369 S.W.2d 159

(Mo. 1963), citing State ex rel. Hilleman v. Fort, 180 Mo. 97,79 S.W.

167 (1904). Then, and only then, may the Court force the government

or condemning authority to pay for the land because a taking has

occurred.

CONCLUSION

The Supreme Court of Missouri was cognizant of the boundaries of

their authority when they drafted Rule 86.06. It is the limitations of

their authority that necessitated the finality language. The actions by

the Missouri Highway and Transportation Commission are not com-

mensurate to a taking. Petitioner has failed to demonstrate any actions

which rise to the level of a taking which would then allow the courts

to step in to enforce compensation. The Petition for Writ of Certiorari

is without merit in all aspects. There has been no taking, the Supreme

Court of Missouri cannot force such a taking and therefore, Rule 86.06

promulgated by that Court has not exceeded that Court’s Constitu-

tional authority.

Petitioner has not presented a claim to this Court which rises to the

level of a taking sufficient to invoke the Due Process clause of the Fifth

and Fourteenth Amendments. The condemning authority cannot be

forced by the Courts to take possession of property by paying an

aii i eae

— ae

assessment that is equal only to an offer is not the final assessment

upon which the Court can enforce execution as prescribed by both the

statutory provision of Section 523.040 RSMo. ‘1986), and the Su-

preme Court Rule 86.06. Such premature action and intervention by

the Courts would be tantamount to a legislative function and certainly

in derogation to the separation of powers doctrine. Respondent

respectfully requests that for the above stated reasons the Petition for

Writ of Certiorari should be denied and Petitioner should be directed

to make his claim, should he have one, to the appropriate state court.

Respectfully submitted,

JOHN L. OLIVER, JR. Commissioner,

Attomey at Law

329 S. Kirkwood Road

St. Louis, Missouri 63122

314/966-3800

RICH TIEMEYER, Chief Counsel

MISSOURI HIGHWAY AND

TRANSPORTATION COMMISSION

JOHN H. GLADDEN

Assistant Chief Counsel

LYNN ANN WHALEY

Assistant Counsel