Petition for Writ of Certiorari — Village of Chagrin Falls v. Kruse

Supreme Court, Uvs,.

FILED

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9551971 MAY 3 11996

No. OFFIGE OF THE CLERK

In the Supreme Court of the United States

October Term, 1995

Village of Chagrin Falls, Ohio,

Petitioner,

U.

Ronald W. Kruse;

Sylvia A. Kruse,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SIXTH CIRCUIT COURT OF APPEALS

EDWIN J. HOLLERN Counsel of Record

ALEXANDER M. ANDREWS

Ulmer & Berne P.L.L.

Suite 1980

88 East Broad St.

Columbus, Ohio 43215-3506

Telephone 614-228-8400

Attorneys for Petitioner

THE GATES LEGAL PUBLISHING CO. CLEVELAND, OHIO 216-621-5647

Lf/Y Ow

QUESTIONS PRESENTED

May a United States Court of Appeals ignore the Rules of

Decision Act, 28 U.S.C.A. 91652, and hold that a state’s

inverse condemnation procedure is "unreasonable, unclear,

and inadequate" where the state constitution contains a

straightforward takings clause and the State court of last

resort has expressly recognized the remedy as adequate?

When a state constitution provides an express remedy for an

aggrieved landowner who has had property taken by a

governmerital entity, and the state court of last resort has

recognized the remedy as adequate, may a United States

Court of Appeals judicially circumvent the jurisdictional

requirement that an aggrieved landowner seek and be denied

compensation in state court before a Fifth Amendment claim

is ripe for federal review?

Must landowners seeking compensation for a completed,

physical taking first pursue such compensation under

established state procedures before a Fifth Amendment taking

claim is ripe for federal review?

In the absence of constitutional challenge to the procedure

itself, may a United States Court of Appeals hold that a

state’s inverse condemnation procedure is "unreasonable,

unclear, and inadequate?"

Pee

il

TABLE OF CONTENTS

Page

QUESTIONS PREGENIGD 26x05 ¥bhkd ode oes coe i

TABLE OF CONTERIS ©. 6465 kode celta tok il

TABLE OF AUTHORITIES 2... 5c css viecreccnn iv

OPH BELOW oot ee ee 2

FURISIIIC TION 6s i.9 0a eae ee te ee 2

CONSTITUTIONAL PROVISIONS .............. 3 |

STATEMENT OF ‘THE CARB so scckc bea vieee ee 3 |

REASONS FOR GRANTING THE WRIT .......... 5 .

I. Ohio recognizes inverse

condemnation actions as adequate )

provisions for obtaining compensation

for completed, physical takings............. 6

II. A United States Court must

defer to a state court of last

resort unless the state law offends

the Constitution or treaties of

the United Glebe os isos oa eek saa 9

A a il li nd AE

ili

III. The ripeness requirement

applies to completed, physical taking

claims in the same manner as it

applies to regulatory taking claims ......... 1]

IV. There is no requirement that

a state have a statutory cause of

action which is specifically

entitled "Inverse Condemnation" in

order to comply with this Court’s

pronouncement in First English ........... 13

ap 2S Geo ore a 17

REE er ce eC Al

Memorandum of Opinion Order

| A3

Sixth Circuit Court of Appeals Decision .... A8

Order Denying Petition for Rehearing ...... A22

iv

TABLE OF AUTHORITIES

Page

p BIE Tidy OU US | Ger ear eat 2

ee ae, ee Sos a ge ates. ae 2

28 U.S.C.A. Section 1652; Rules

of Desisiom Agt .. ccc cece 3, 6, 8, 9, 12, 16

28 U.S.C. Section ZIGHE) 2... cc cee sswecens 2

Oe ee Pe gob cho eer nee twas 2

SS ae See Wee 6s eee bk es eeeeeen 2

Fifth Amendment to the Constitution of

Gon Lie BO ok 6 KAS EROS 2, 3, 6, 11

Fourteenth Amendment to the Constitution

lt i a he eo ack eo 8 2

Article I, Section 19, Ohio Constitution 3, 6, 8, 15

Ohio Rev. Code Section 2744.02 ........... 4

General Code, Sections 1178-37 ........... 13

General Code, Sections 1178-38 ........... 13

Vv

In re Appropriation of Easement

Jor Hwy. Purposes, (1963) 175 Ohio St. 107 ... 7

Austin v. City of Honolulu , 840 F.2d 678

ae Se. Cee Fe Ee ee oe

Biddison v. City of Chicago, 921 F.2d

THORN

Bigelow v. Michigan Department of

Natural Resources, 970 F.2d

$56 TR ee Cn

Columbia Gas Transmission

Corporation v. An Exclusive Natural

Gas Storage Easement in the Clinton

Subterranean Geological Formation

Beneath 80 Acres, Worthington Twp.,

Richland County, Ohio, 747 F.Supp. 401

(1D. Cis HN hs ek:

Commissioner of Internal Revenue

v. Estate of Bosch, 387 U.S. 455 (1967)

Dodd v. Hood River County, 59

oP a, Fe a

Duncan v. Village of Middlefield,

951 F.2d 348 (6th Cir.1991) ........

Executive 100, Inc. v. Martin County,

922 F.2d 1536 (11th Cir. 1991) ......

vi

First English Evangelical Lutheran

Church of Glendale v. County of Los

Angeles, California, 482 U.S. 304,

FUG GED dae howe wes eee 6, 11, 15

Pawe. 2 OC ts aylebus . wc ccc cece cece 13

Hammond v. Baldwin, 866 F.2d 172

en Sa Se ca or eect esas 7

Harris v. City of Akron, 20 F.3d

Soe Cae Ss WOOD orn vs ca wees w Cee 10, 16

de ee EMS ORE Pa tae 15

Estate of Himelstein v. City of

Fort Wayne, Indiana, 898 F.2d 513

(AUR Cae, ROE 6 Se ea eee el 5

Hodel v. Virginia Surface Mining

and Reclamation Assn., Inc., 452 U.S.

O04, 297 M GO GIIED os oh boob 5e ke 15, ig

Hudson v. American Oil Company,

233 F260 27 (Gls Clr. 1958) os cok cc cin 9

Hurley v. Kincaid, 285 U.S. 95,

Wee CIMGEE <a she en eere e 12

Ladue v. Chevron, U.S.A., Inc.,

920 F.2d 272 (Ste Cie, 1991)... 5... kee )

Levald, Inc. v. City of Palm Desert, 998

F.2d 680 (9th Cir. 1993) ............ 5, 9, 10

Me OF 6k eRe ee rk ae 10

AP Nm sy

ae AOE TCC OLB 5 tech SN ak Sie AS EO oc Tse hime a ae habvdin

Vii

Levald, 998 F.2d at 688, cert.

denied, U.S. __, 114 S.Ct.'924,

cy Ae ne COD 6 66 WS wcss be bee es 10

Levin v. City of Sheffield Lake, 70

Ohio St.3d 104 (1994) .............. 6, 7,9

MS orci ca woe e cee 6 nvees 9

Monongahela Navigation Co. v.

United States, 148 U.S. 312, 336

CE ar dro ce EN y baa ees ee Ena 4s 12

City of Norwood v. Sheen, 126

ee es A I So's Wk Kbw eee ene een 15

Regional Rail Reorganization Act

Cases, 419 U.S. 102 (1974) ....... cc cence 7

Ruckelshaus v. Monsanto Co., 467

Shae Pe OP LAUD & aces bpblvccseoececes 7

The Shopco Group v. City of

Springfield, Ohio, 66 Ohio App.3d

Pee ON 654 bow 9 aw 8 0 oe 88 15

Silver v. Franklin Township, Board

of Zoning Appeals, 966 F.2d

EE 11

Supra, 966 F.2d at 1035 (6th Cir.1992) ...... 15

Solly v. City of Toledo, 7 Ohio St.2d

PR os Sa Ko eee eb es oe oe) 15, 16

Vili

State ex rel. McKay vy. Kauer, (1951)

sme oc ERO ei ee 4, 42

WINN ee a i eo 13

United Public Workers of America

v. Mitchell, 330 U.S. 75 (1947) ........... 12

United States v. Clarke, 445 U.S.

Re MO Cy Scars bie 13, 15

United States v. Jones, 109 U.S.

ne I ek ate se 12

Villager Pond, Inc. v. Town of

Darien, 56 F.3d 375 (2nd Cir. 2, PE eee 5

WE CO oe a 8

Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S.

ci eR Sess eee So 6, 7, 9, 10, 12

Wilson v. Cincinnati, (1961)

RR IS et es I try | 7

Yee v. City of Escondido, Call,

wise OC cog WER ee A IS: ss . 1]

£. kode 0a avian

In The

Supreme Court of the United States

October Term, 1995

VILLAGE OF CHAGRIN FALLS, OHIO,

Petitioner,

Vv.

RONALD W. KRUSE; SYLVIA A. KRUSE,

Respondents.

Petition for Writ of Certiorari To The

Sixth Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

| Petitioner, Village of Chagrin Falls, Ohio, respectfully

prays that a Writ of Certiorari issue to review the decision of

the United States Court of Appeals for the Sixth Circuit

entered on January 29, 1996, and the subsequent denial of the

Motion for Rehearing with Suggestion for Rehearing En Banc

on March 6, 1996.

2

OPINIONS BELOW

On March 18, 1994 Judge Paul Matia of the United

States District Court, Northern District of Ohio, granted

Petitioner’s Motion to Dismiss for lack of jurisdiction on the

grounds that Respondents had not sought compensation in an

inverse condemnation proceeding in state court and,

therefore, their Fifth Amendment taking claim was not ripe

for federal review. (App. 3-7). On January 29, 1996, the

Court of Appeals for the Sixth Circuit reversed the trial

court’s dismissal of Plaintiffs-Respondents’ complaint and

remanded the matter to the trial court with instructions, Kruse

v. Village of Chagrin Falls, Ohio, 74 F.3d 694 (1996),

holding that Ohio’s inverse condemnation procedure does not

afford a "reasonable, certain and adequate provision for

obtaining compensation" after the government takes private

property. (App. 8-21). The Sixth Circuit Court of Appeals

denied Petitioner’s Motion for Rehearing with Suggestion for

Rehearing En Banc on March 6, 1996. (App. 22-23).

JURISDICTION

Respondents’ taking claims were averred to have

arisen under the Fifth and Fourteenth Amendments to the

Constitution of the United States and 42 U.S.C. §§1983 and

1988 Jurisdiction was alleged to be conferred upon the

District Court by 28 U.S.C. §§1331 and 1343 and the self-

executing characteristics of the Fifth and Fourteenth

Amendments to the Constitution of the United States.

This Court’s jurisdiction to consider a decision or

decree of a United States Court of Appeals is invoked

pursuant to 28 U.S.C. 2101(c).

o ee a ee me

a aaienniaatemninntinntimatanamdantienttetl —-

3

CONSTITUTIONAL PROVISIONS

Fifth Amendment, United States Constitution:

. . » private property [shall not] be taken for

public use, without ' ist compensation.

Article I, Section 19, Ohio Constitution:

Private property shall ever be held inviolate,

but subservient to the public welfare. When

taken . . . for the purpose of making or

repairing roads, which shall be open to the

public, without charge, a compensation shall

be made to the owner, in money .. .

28 U.S.C.A. §1652:

The laws of the several states, except where |

the Constitution or treaties of the United |

States or Acts of Congress otherwise require |

or provide, shall be *egarded as rules of |

decision in civil actions in the courts of the

United States, in cases where they apply. |

STATEMENT OF THE CASE

On June 26, 1986, Petitioner Village of Chagrin Falls,

Ohio, commenced improvements to Cleveland Street, a public

roadway which is situated within the Village limits. The

planned improvements included the widening of Cleveland

Street and a widening of the section of State Street, between

Cleveland Street and Bell Street. During the widening

project, Chagrin Falls’ independent contractor allegedly

4

excavated a ten by one hundred seventy-five (10x175) foot

long section of the Kruse family’s back yard. Chagrin Falls

believed that the it owned the strip of land. The Kruses

subsequently claimed that said property had been vacated in

1863, and thus they ( Respondents) were the rightful owners.

Respondents *:led an action against Chagrin Falls in

December of 1987 in the Court of Common Pleas, Cuyahoga

County, Ohio, seeking money damages for Chagrin Falls’

trespass onto their property. Respondents also sought to quiet

title in their name and sought a preliminary and permanent

injunction resulting from Petitioner’s alleged trespass and

destruction of Respondents’ _ property. An inverse

condemnation proceeding was not filed, nor were any

allegations of a governmental taking set forth in the state

court action.

Both parties filed Motions for Summary Judgment.

The trial court granted Respondents’ Motion for Partial

Judgment to quiet title, finding that the Kruse’s were the

rightful owners of the property at the time of the excavation.

The court also denied Respondents’ Motion for Summary

Judgment on the issue of damages holding that Respondents

could not recover money damages from Chagrin Falls for the

trespass pursuant to the governmental immunity conferred by

Ohio Rev. Code §2744.02. The Court of Appeals affirmed

and the Ohio Supreme Court refused jurisdiction on

November 27, 1991. No further appellate review was sought.

No ruling was ever made in the state court action which

required that Petitioner compensate Respondents for the strip

of land.

Respondents did not file an action in state court

seeking money damages for Chagrin Falls’ taking of their

property without just compensation. Likewise, Respondents

never availed themselves of the established State court

procedure for obtaining compensation for governmental

ee a a ee me ns a

Ain BE tte ton tnt

AE LS at IEE i See Ne dR tk EE AD Bute, een tonne ns te

5

takings of property and they have never challenged the

adequacy of the established state procedure in a state court.

On November 2, 1993, Respondents filed an action in

the United States District Court, Northern District of Ohio,

seeking money damages for the alleged unlawful

governmental taking of their property. The position of the

Village of Chagrin Falls, Ohio was very simple: to wit, that

although compensation was appropriate, the District Court

lacked jurisdiction to consider the matter because the claim

was not ripe for federal review and the Kruse family should

have sought judicial relief in state court. The District Court,

following well established precedent, agreed and granted

Petitioner’s Motion to Dismiss on March 18, 1994.

Respondents’ timely filed their appeal and the Sixth

Circuit Court of Appeals entered its decision reversing the

court below on January 29, 1996 and denied the Motion for

Rehearing with Suggestion for Rehearing En Banc on March

6, 1996.

REASONS FOR GRANTING THE WRIT

It is respectfully contended that the Court of Appeals

for the Sixth Circuit has entered a decision in conflict with

decisions of the Second, Seventh, Ninth and Eleventh Circuit

Courts of Appeals, styled, Villager Pond, Inc. v. Town of

Darien, 56 F.3d 375 (2nd Cir. 1995); Estate of Himelstein v.

City of Fort Wayne, Indiana, 898 F.2d 513 (7th Cir. 1990);

Levald, Inc. v. City of Palm Desert, 998 F.2d 680 (9th Cir.

1993); and, Executive 100, Inc. v Martin County, 922 F.2d

1536 (11th Cir. 1991), respectively, concerning the adequacy

and reasonableness of a state’s inverse condemnation

procedure and the ripeness of a federal taking claim where

the aggrieved landowner has not first sought and been denied

compensation through the established state procedure.

6

Furthermore, the court below has entered a decision

concerning federal jurisdiction which directly conflicts with

a decision of the Ohio Supreme Court, Levin v. City of

Sheffield Lake, 70 Ohio St.3d 104 (1994), and the Ohio

Constitution, Article I, Section 19; and, which departs

markedly from the Supreme Court in Williamson County

Regional Planning Commission v. Hamilton Bank, 473 U.S.

172 (1985) and First English Evangelical Lutheran Church

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

304 (1987); and, which violates the deference required by the

Rules of Decision Act, 28 U.S.C.A. §1652 and departs from

the usual and accepted course of judicial proceedings so as to

call for an exercise of this Court’s supervisory powers.

Finally, in treating a completed physical taking claim

differently than a regulatory taking case, the court below has

decided an important federal question that has not been, but

should be, settled by this Court. If the decision below is

permitted to stand, an exception to the ripeness doctrine will

be created for physical taking cases occurring in Ohio despite

Ohio Constitutional law which contains a straightforward

takings clause and Ohio Supreme Court law which expressly

recognizes that "inverse condemnation” is the appropriate

remedy and, was the appropriate remedy, at the time of the

taking of the Respondents’ property.

I. Ohio recognizes inverse condemnation

actions as adequate provisions for obtaining

compensation for completed, physical

takings.

The Fifth Amendment does not require that just

compensation be paid in advance of, or contemporaneously

with, a taking of private property. All that is required is that

7

a reasonable, certain and adequate provision for obtaining

compensation exist at the time of the taking. Williamson

County Regional Planning Commission v. Hamilton Bank,

473 US. 172, 194 (1985), citing, Regional Rail

Reorganization Act Cases, 419 U.S. 102 (1974). See, also,

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984);

Hammond vy. Baldwin, 866 F.2d 172 (6th Cir. 1989).

A reasonable, certain and adequate provision for

obtaining such compensation existed in Ohio on the date that

Respondents’ property was taken. In Levin v. City of Sheffield

Lake, 70 Ohio St.3d 104, 108-109 (1994), the Ohio Supreme

Court revisited the viability of a landowner’s adequate

remedy under Ohio law for a governmental entity’s physical

taking of private property, stating:

Moreover, we have held that mandamus is the

vehicle for compelling appropriation

proceedings by public authorities where an

involuntary taking of private property is

alleged. State ex rel. McKay v. Kauer, (1951),

156 Ohio St. 347; Wilson v. Cincinnati,

(1961), 172 Ohio St. 303; Jn re Appropriation

of Easement for Hwy. Purposes, (1963) 175

Ohio St. 107.

** * *

Thus, . . . [the court] may issue a writ of

mandamus anc order the city to commence

appropriation proceedings.

Clearly, the Sheffield Lake decision demonstrates that

Ohio courts have recognized an inverse condemnation remedy

since the Kauer case was decided in 1951, some thirty-five

8

years before the accidental taking of the Kruse property.

Moreover, it goes without saying that the inverse

condemnation remedy was in existence for many years before

the Ohio Supreme Court was called upon to pass on its

reasonableness or adequacy. Looking back now with

unobstructed hindsight there can be no question that an

adequate post-deprivation remedy existed in Ohio at the time

of the widening of the street.

The Ohio Constitution contains a straightforward

takings clause which may be used as the basis of an inverse

condemnation action to recover compensation. Article I,

Section 19 of the Ohio Constitution contains the following

language:

Private property shall ever be held inviolate,

but subservient to the public welfare. When

taken . . . for the purpose of making or

repairing roads, which shall be open to the

public, without charge, a compensation shall

be made to the owner, in money...

Article I, Section 19 of the Ohio Constitution was adopted at

the 1851 constitutional convention, effective September 1,

1851, some one hundred thirty-five years before The Village

of Chagrin Falls, Ohio accidentally made use of the Kruse

property during public road repairs. At least one other

Circuit Court of Appeals has held that such straightforward

takings clauses may be used as the basis to recover

compensation. As the Second Circuit held in Villager Pond,

supra, at 380:

This [similar Connecticut] clause may be used

as the basis of an inverse condemnation action

to recover compensation for property taken

from private individuals, even in the absence

of a separate statutory remedy.

6 eee ee: Pinel é .

9

II. A United States Court must defer to a

state court of last resort unless the state law

offends the Constitution or treaties of the

United States.

A federal court must defer to a state court of last

resort unless the state law offends the Constitution or treaties

of the United States or Acts of Congress. See, 28 U.S.C.A.

§1652, commonly referred to as the Rules of Decision Act.

The language of the Act is unequivocal. A United States

Court of Appeals must defer to the rule of law announced by

a state court of last resort unless a Constitutional infirmity

exists, and the court below ignored the clear mandate of the

Act when it failed to recognize the Ohio Constitutional

provision which forms the basis for inverse condemnation

actions, and circumvented the Ohio Supreme Court decision

announced in Sheffield Lake, supra.

Furthermore, it has been held that on questions

involving local real estate law and construction of state

statutes, a United States Court of Appeals is bound by the

determination of a state court of last resort. Hudson v.

American Oil Company, 253 F.2d 27 (4th Cir. 1958). See,

also, Ladue v. Chevron, U.S.A., Inc., 920 F.2d 272 (Sth Cir.

1991), citing, Commissioner of Internal Revenue v. Estate of

Bosch, 387 U.S. 456 (1967) (holding that a court of appeals

is bound to apply law as interpreted by state’s highest court).

The court below certainly did not defer to the Ohio

Supreme Court when it held that Ohio’s statutory scheme for

seeking compensation for governmental takings was not

adequate or reasonable. Perhaps more troubling, however,

the court of appeals did not even consider the Ohio

Constitutional provision which succinctly provides the basis

for inverse condemnation actions. As such, the court's

decision affects the important federal question of ripeness in

10

a way that directly conflicts with the United States Supreme

Court in a long line of cases beginning with Williamson

County, supra, Ohio Constitutional law and decisions from

the Ohio Supreme Court. This Court’s supervisory powers

are necessary and proper in this matter.

The Ohio Supreme Court stated that its inverse

condemnation procedure ". . . is the vehicle for compelling

appropriation proceedings by public authorities where an

involuntary taking of private property is alleged." Sheffield

Lake, supra, at 108-109. Moreover, unlike the aggrieved

party in Levald v. City of Palm Desert, 998 F.2d 680 (9th

Cir. 1993), where it was held that the claim was ripe because

pursuit of state law remedies at the time of the taking would

have been futile, Ohio judicially recognized the inverse

condemnation proceeding at the time of the Kruse taking.

Kauer, supra. If a state has not rejected an aggrieved

party’s theory of recovery, it cannot with any degree of

intellectual honesty be said that the state remedies are not

adequate or amount to a "functional equivalent of the denial

of just compensation." Jd. at 687. Indeed, since 1851 the

Ohio Constitution has provided an adequate, reasonable and

certain remedy.

The Ninth Circuit recognized that Hawaii’s procedures

were adequate even though no case of that state had

specifically recognized inverse condemnation as a cause of

action. Austin v. City of Honolulu, 840 F.2d 678 (9th Cir.

1988). Additionally, the Ninth Circuit acknowledged that

federal courts of appeals have routinely "held that state

procedures are considered inadequate only when state law

provides no post-deprivation remedy for a taking." Dodd v.

Hood River County, 59 F.3d 852 (9th Cir. 1995), citing,

Austin, 840 F.2d at 681; Levald, 998 F.2d at 688, cert.

denied, __ U.S. __, 114 S.Ct. 924, 127 L.Ed.2d 217 (1994).

The holding of the court below directly conflicts with the

seit Crniied node Oi

11

Ninth Circuit in Dodd, supra, because Ohio law does provide

a post-deprivation remedy.

IIT. The ripeness requirement applies to

completed, physical taking claims in the same

manner _as it applies to regulatory taking

claims.

It is well established that property owners who

complain that physical invasions by the state have taken their

property must pursue compensation under state procedures.

Until an aggrieved landowner in Ohio seeks compensation

through the established Ohio procedures for the alleged

taking, and has been denied compensation, his Fifth

Amendment claim is not ripe for review at the Federal level

because no _ constitutional deprivation has occurred.

Williamson County, supra; Harris v. City of Akron, 20 F.3d

1396 (6th Cir. 1994); Bigelow v. Michigan Department of

Natural Resources, 970 F.2d 154 (6th Cir. 1992); Silver v.

Franklin Township, Board of Zoning Appeals, 966 F.2d 1031

(6th Cir.1992); Duncan v. Village of Middlefield, 951 F.2d

348 (6th Cir.1991). See, also, Biddison v. City of Chicago,

921 F.2d 724 (7th Cir. 1991). It is not the taking that is

unconstitutional, rather, it is the lack of compensation after

a governmental taking which offends the Just Compensation

Clause. Hodel v. Virginia Surface Mining and Reclamation

Assn., Inc., 452 U.S. 264, 297 n. 40 (1981).

Although this Court has recognized a distinction

between regulatory takings and per se takings, Yee v. City of

Escondido, Cal., ___. U.S. ___, 112 S.Ct. 1522 (1992), a

violation of the Compensation Clause has not been found to

have occurred until the state refuses to compensate, or pursuit

of state remedies would prove futile. Thus, despite the

suggestion by the court below that a physical taking claim

12

may be first brought in a federal tribunal, the Fifth

Amendment bears no such message.

The reasons for this limitation can be found in the

plain language of the Fifth Amendment to the United States

Constitution, which provides in relevant part that "private

property [shall not] be taken for public use, without just

compensation." The Constitution does not prohibit a state

from taking private property, rather it merely requires that

compensation be paid for such a taking. In First English

Evangelical Lutheran Church of Glendale v. County of Los

Angeles, California, 482 U.S. 304, 314 (1987) this Court

stated:

As its language indicates, and as the Court has

frequently noted, this provision alone does not

prohibit the taking of private property, but

instead places a condition on the exercise of

that power.

citing, Williamson County, supra; Hodel, supra; Hurley v.

Kincaid, 285 U.S. 95, 104 (1932); Monongahela Navigation

Co. v. United States, 148 U.S. 312, 336 (1893); United States

v. Jones, 109 U.S. 513, 518 (1883).

Despite an unbroken line of cases emanating from this

Court and all of the Circuits establishing that a taking claim

is not ripe for review until a party is denied compensation in

state court, the court below has ignored precedent; has failed

to defer to the Ohio Supreme Court and the Ohio

Constitution in violation of the Rules of Decision Act; and,

has expanded federal jurisdiction of taking claims. Although

it has long been the law of the land that "unless a claim is

ripe, a federal court has no jurisdiction to hear it," United

Public Workers of America v. Mitchell, 330 U.S. 75 (1947),

the court below apparently disagrees and has departed from

Williamson County, supra.

Sate at at fA

eo eS See ee ee ee

PE NN Se SN cat te

A

13

There was no constitutional challenge to Ohio’s

inverse condemnation procedure raised by Respondents at any

time, nor did the court below consider any such purported

constitutional infirmity. Rather, the court below suggested

that because Ohio does not have a specific statutory provision

entitled "Inverse Condemnation," the existing statutory

procedure might be confusing and, therefore, inadequate.

The Ohio Supreme Court has decided otherwise as illustrated

by its consistent line of decisions commencing with Kauer,

supra in 1951.

IV. There is no requirement that a state

have a statutory cause of action which is

specifically entitled "Inverse Condemnation"

in order _to comply with this Court’s

pronouncement in First English.

In reaching its conclusions, the court below placed

great weight on the fact that Ohio lacks a statutory cause of

action which is labelled Action for Inverse Condemnation.

Such logic emphasizes form over substance and does nothing

to further the federal jurisprudence in the Sixth Circuit or

elsewhere. There is nothing inadequate about an action in

mandamus seeking to compel a governmental official to

commence an appropriation proceeding, as recognized by the

Ohio Supreme Court on December 12, 1951, in Kauer, supra,

at 359 as follows:

It seems clear under the statutory provisions

above outlined that, if the highway director

had determined to take any physical part of

relator’s property for the prosecution of the

improvement in question, he could have done

so under the procedure provided by Sections

14

1178-37 and 1178-38, General Code; and it

likewise seems clear that if the highway

director had taken any part of the physical

property for such purpose without following

such procedure, the relator by action in

mandamus could have required him to do so.

In First English, the Supreme Court held at para. 2 of

its syllabus, the following:

A landowner is entitled to bring an action in

inverse condemnation as a result of the self-

executing character of the constitutional

provision with respect to compensation.

Citing, United States v. Clarke, 445 U.S. 253,

257 (1980) (Emphasis added).

Certainly, a state may not prohibit a person from

bringing an inverse condemnation action, and no Ohio law

precludes an aggrieved landowner from asserting his or her

rights. The Clarke decision at 257, cited by the Court in

First English, further provides the following:

The phrase "inverse condemnation" appears to

be one that was coined simply as a shorthand

description of the manner in which a

landowner recovers just compensation for a

taking of his property when condemnation

proceedings have not be instituted. As

defined by one land use planning expert,

"[iJnverse condemnation is ’a cause of action

against a governmental defendant to recover

the value of property which has been taken in

fact by the governmental defendant, even

noth Sh A ea.

Sli ete hi, a

ee tt ee es

15

though no formal exercise of the power of

eminent domain has been attempted by the

taking agency.

** * *

A landowner is entitled to bring such an

action as a result of the "self-executing

character of the constitutional provision with

respect to compensation. . ."

** * *

There are important practical differences

between condemnation proceedings and

actions by landowners to _ recover

compensation for "inverse condemnation."

Condemnation proceedings, depending on the

applicable statute, require various affirmative

action on the part of the condemning

authority. To accomplish a taking by seizure,

on the other hand, a condemning authority

need only occupy the land in question. Such

a taking thus shifts to the landowner the

burden to discover the encroachment and to

take affirmative action to recover just

compensation.

It was not mere dicta when the First English Court,

relying on Clarke, supra, held in its syllabus that a landowner

"is entitled to bring an action in inverse condemnation."

Thus, since 1987 any aggrieved landowner has had an

adequate remedy to seek compensation from the government

for takings, both physical and regulatory. In fact, it is no

surprise that Ohio decisions following First English have

16

expressly recognized that inverse condemnation actions exist

under Ohio law, and are adequate, certain and reasonable.

See, The Shopco Group v. City of Springfield, Ohio, 66 Ohio

App.3d 702 (1990); Harris, supra at 1405, ("plaintiff may

pursue his claim for damages in an inverse condemnation

proceeding as recognized by the Ohio Supreme Court ...");

Silver, supra, 966 F.2d at 1035 (6th Cir.1992) (Ohio law

provides procedure for obtaining just compensation for

governmental taking); Columbia Gas _ Transmission

Corporation v. An Exclusive Natural Gas Storage Easement

in the Clinton Subterranean Geological Formation Beneath

80 Acres, Worthington Twp., Richland County, Ohio, 747

F.Supp. 401 (N.D. Ohio 1990) (... inverse condemnation [in

Ohio] is a landowner’s remedy for uncompensated takings of

property). See, also, Duncan v. Village of Middlefield, supra,

("... there is a procedure under Ohio law to obtain

compensation for a taking").

Ohio long ago recognized a property owner’s right to

bring an action against a governmental entity to recover

damages for the taking of property. Article I, Section 19,

Ohio Constitution. Also, see, City of Norwood v. Sheen, 126

Ohio St. 482 (1933). Likewise, inverse condemnation was

specifically acknowledged by the Ohio Supreme Court as an

appropriate remedy in Solly v. City of Toledo, 7 Ohio St.2d

16 (1966) and continues as a viable remedy to this date.

Harris, supra, (wherein the Sixth Circuit expressly

recognized the viability of Ohio’s inverse condemnation

remedy). The court below exceeded the limits of its powers

when it usurped the Ohio Supreme Court and emasculated the

Rules of Decision Act by failing to defer to the Ohio

Constitution. The reasonableness of Ohio’s inverse

condemnation procedure should be left to the citizens and

courts of Ohio, not the federal judiciary. At the very least,

the Court of Appeals should have certified the question to the

17

Ohio Supreme Court rather than substituted its judgment for

Ohio’s court of last resort.

CONCLUSION

For the foregoing reasons, Petitioner, Village of

Chagrin Falls, Ohio, prays that this Court grant a writ of

Certiorari to review the Decision of the Sixth Circuit Court

of Appeals.

Respectfully submitted,

EDWIN J. HOLLERN

Counsel of Record

ALEXANDER M. ANDREWS

Attorneys for Petitioner

ULMER & BERNE P.L.L.

88 East Broad St.

Suite 1980

Columbus, Ohio 43215

(614) 228-8400

Se Se ee ee eee rare C “Pe.

a = Pe Re ey Ee ibe ot od Teese eee eee fae eee =. ‘

ae iv TE URINE Se REET TF ECMO T YG Ps eee

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APPENDIX

A3

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RONALD W. KRUSE, ) JUDGE PAUL R. MATIA

et al., )

) CASE NO. 1:93CV2351

Plaintiffs, )

)

VS. ) MEMORANDUM OF

) OPINION ORDER

VILLAGE OF CHAGRIN _)

FALLS, OHIO )

)

Defendant. )

Before the Court is Defendant’s Motion to Dismiss

Pursuant to Civil Rules 12(B)(1) and (B)(6) (Doc. #8) in the

above-captioned matter. For the reasons to follow, the Court

hereby grants Defendant’s Motion.

I.

On June 26, 1986, Plaintiffs, Ronald W. and Sylvia

A. Kruse, came home from work to find that Defendant had

excavated their backyard for the purpose of widening the

street. Defendant engaged in this conduct absent warning,

state appropriations proceedings, or just compensation.

In December of 1987, Plaintiffs filed an action against

Defendant in the Cuyahoga County Court of Common Pleas,

Case No. 121355, seeking to quiet title, money damages for

Defendant’s trespass, and a preliminary and permanent

injunction. While the Court ruled that the property properly

belonged to the Plaintiffs and that Defendant had in fact

trespassed, it also ruled that Defendant was immune from

money damages for trespass pursuant to O.R.C. §2744.02.

A4

This decision was affirmed by the Court of Appeals and the

Ohio Supreme Court refused jurisdiction on November 27,

1991.

Defendant avers, and Plaintiffs do not dispute, that

Plaintiffs did not file an action in state court seeking money

damages for Defendant’s alleged taking of their property

without just compensation. However, on November 2, 1993,

Plaintiffs commenced that instant action in this Court seeking

to recover for violations of Title 42, U.S.C. §1983 ("Section 4]

1983 claim"), and the Fifth and Fourteenth Amendments to

the United States Constitution ("procedural due process

claim"). Additionally, Plaintiffs seek mental distress damages |

as a result of Defendant’s conduct.

On December 22, 1993, Defendant filed the within

motion, contending that (1) Plaintiffs’ taking claims are not

ripe for federal court review pursuant to Williamson County

Regional Planning Commission v. Hamilton Bank, 473 U.S.

172 (1985) ("Williamson") and Hammond vy. Baldwin, 866

F.2d 172 (6th Cir. 1989), and (2) Plaintiffs’ Section 1983

claim is time-barred.

II.

A plaintiff alleging a Section 1983 claim against a

government defendant for deprivation of property without just

compensation must first avail himself of the state procedure

for recovery of compensation. Williamson, supra, at 197-

198. In lieu of resorting to that procedure, however, it is

sufficient if a plaintiff can show either that the procedure is

inadequate or unavailable before it can bring a Section 1983

claim. Id. The policy behind this requirement is sound.

The Fifth Amendment does not require that

just compensation be paid in advance of, or

contemporaneously with, the taking. If a State

provides an adequate procedure for seeking

just compensation, the property owner cannot

ee a

ain Pn a a sn as ra

ee ee -

A5

claim a violation of the Just Compensation

Clause until it has used the procedure and

been denied just compensation.

Id., Syllabus at 174.

Plaintiffs argue that Williamson is not dispositive

because it addresses a "regulatory taking" rather than an

actual "physical occupation" of land by the government. It

is true that the taking alleged by plaintiff in Williamson is a

regulatory taking. However, that part of the opinion which

addresses the requirement of seeking compensation through

state procedures is completely inadequate of whether the

taking claim is based on government regulation of land use

or actual physical occupation of the land. See Williamson,

supra, at 194.

Under Ohio law, inverse condemnation is a

landowner’s remedy for uncompensated takings of property

by the government for public use. Columbia Gas

Transmission Corporation v. An Exclusive Natural Gas

Storage Easement in the Clinton Subterranean Geological

Formation Beneath 80 Acres, Worthington Twp., Richland

County, Ohio, 747 F.Supp. 401, 405 (N.D. Ohio 1990).

Plaintiffs have failed to avail themselves of this procedure in

state court. Thus, suit under Section 1983 is premature

unless Plaintiffs can show that the state remedy is inadequate

or unavailable. Hammond, supra, at 179.

Plaintiffs have failed to show that the state cause of

action for recovering compensation in Ohio is either

inadequate or unavailable. Instead, Plaintiffs argue that they

need not resort to this state procedure because it relates only

to regulatory takings. See Plaintiffs’ Brief in Opposition to

Defendant’s Motion to Dismiss, at 5-10. However, Plaintiffs

fail to cite even one case which specifically supports their

argument.

Therefore, because Plaintiffs have failed to avail

AG

themselves of the state procedure for recovering just

compensation, and because they have failed to show that this

procedure is inadequate, the Court finds Plaintiffs’ Section

1983 claim premature. Because the claim is premature, the

Court has no jurisdiction over its subject matter.

Accordingly, the Court grants Defendant’s Motion to dismiss

the Section 1983 claim.

Il.

Defendant also contends that Plaintiffs’ Section 1983

claim is time-barred. The Court notes that this particular

type of Section 1983 claim poses special problems with

respect to the relevant statute of limitations.' However,

because the Court has an independent basis upon which to

dismiss the Section 1983 claim, the Court passes on the

statute-of-limitations issue at this time.

IV.

Plaintiffs argue that the Court should not dismiss their

procedural due process claim because it has not been

addressed by Defendant in its Motion to Dismiss. In support

of its argument, Plaintiffs direct the Court’s attention to the

procedures which governing bodies are to follow in

appropriating private property in Ohio. See, Complaint, ¥ 16,

' Because an aggrieved party’s Section 1983 claim does not ripen

until the final decision of a state court inverse condemnation proceeding,

there is a question as to when a Section 1983 action accrues under these

circumstances. If the cause of action accrues at the precise moment that

the government "Takes" a plaintiff's property, then it is quite possible

that the statute of limitations may expire before the case is ripe for

federal court review. However, if the court interprets limitations law in

such a way that the initial usurpation of the property by the government

and the continued use of the property by the government absent

compensation is a continuing violation, then a plaintiff would not be

precluded from bringing a Section 1983 suit merely on the basis that the

limitations period expired.

Ome nan tl

ve Faced Met lama ait hline S ASE,

A7

at 4 (referring to O.R.C. §§163.06, 163.04, 719.04, 719.05).

Plaintiffs allege that Defendant failed to follow the

appropriations procedures, which allegation is undisputed by

the Defendant. These facts, however, do not change the

basic result.

The Plaintiffs have failed to cite, and the Court cannot

find, any case law in Ohio which would support a cause of

action whose sole basis would be failure on the part of the

government to institute appropriations proceedings.

However, a landowner in Ohio does have a remedy for

uncompensated takings of property for public use--i.e.,

inverse condemnation. Again, Plaintiffs have failed to file

such an action; consequently, for the reasons provided in

Section II of this Memorandum, Plaintiffs’ procedural due

process claim is also dismissed.

V.

As to Plaintiffs’ request for mental distress damages,

the Court has discretion over whether to exercise its pendent

jurisdiction over state-law claims. United Mine Workers v.

Gibbs, 383 U.S. 715 (1966). One of the relevant

considerations in exercising its discretion to decline

jurisdiction is the dismissal of the federal claims in an action

including both state and federal law claims. Id. at 726.

Because of the Court’s ruling with respect to Plaintiffs’

federal claims the Court hereby exercises its discretion to

dismiss Plaintiffs’ state-law claim without prejudice to

refiling in state court.

VII.

Accordingly, for the above-noted reasons, the Court

hereby grants Defendant’s Motion to Dismiss pursuant to

Civil Rules 12(b)(1) and (B)(6) (Doc. #8).

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE

A8

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION:

1996 FED App. 0034P (6th Cir.)

File Name: 96a0034p.06

No. 94-3435

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Ronald W. Kruse and Sylvia A. Kruse,

Plaintiffs-Appellants,

Vv.

Village of Chagrin Falls, Ohio,

Defendant-Appellee.

On Appeal from the United States District Court for the

Northern District of Ohio

Decided and Filed January 29, 1996

A9

Before: MARTIN and BATCHELDER, Circuit Judges;

EDMUNDS, District Judge.

ALICE M. BATCHELDER, Circuit Judge. The Kruses

appeal the district court’s dismissal, for lack of jurisdiction,

of their lawsuit against the Village of Chagrin Falls.

Because, as we explain, the relevant facts are not in dispute

and we conclude that this action is indeed ripe, we reverse

the decision below and remand with instructions.

I.

One afternoon in June of 1986, the Kruse family of

Chagrin Falls returned home to discover, to their intense

amazement and dismay, that their backyard was missing.

The back of their property had been laid waste, and the

family’s house was hanging at the edge of a precipice where

thei, lawn, trees and other landscaping had been when they

left home that morning. Agents of the Village had been

busily at work that day, devastating the Kruses’ yard and

carting off tons of soil excavated from the property, as well

as the family’s trees, bushes, and other plantings.

The excavated land was, long ago, part of Old State

Street; however, the Village had formally vacated the street

in the mid-1800s. The vacated street was disused, and the

Village had permitted building on the property. When the

Kruses protested the destruction of their property, the

Village authorities responded that they presumed that the

Village owned the vacated street (even though it had granted

a building permit to the Kruses’ predecessors in title to build

an extension on what had been the street, and even though

the Village was aware of the Kruses’ occupancy). The

Village had determined to commence a little roadwork across

the Kruses’ backyard but had not given the owners any

*" The Honorable Nancy G. Edmunds, United States District Judge for

the Eastern District of Michigan, sitting by designation.

Al0

notice of its plan to consume their yard as part of a street-

widening program.

The Kruses filed a trespass action against the Village

in state court seeking to quiet title to the disputed property,

to recover monetary damages, and to obtain injunctive relief

from the Village’s destruction of and continuing trespass on

their property. The Village filed a counterclaim alleging that

the s had encroached upon and wrongfully taken the

property and seeking the removal of the family’s home from

the property. The Cuyahoga County Court of Common

Pleas granted partial summary judgment to the Kruses,

quieting title to the property in them. See Kruse v. Village

of Chagrin Falls, Case No. 121335 (Ct. Com. Pls.

(Cuyahoga Cty. Ohio) Nov. 3, 1989) (unreported). On

appeal, the state appellate court affirmed the grant of

summary judgment to the Kruses, holding that the Village

had clearly vacated the street in 1863 and that the Kruses, as

deed holders of record, were entitled to quiet title of the

property. See Kruse v. Village of Chagrin Falls, Case No.

58892 (Ohio Ct. App. (8th Dist.) July 11, 1991)

(unreported). However, the appellate court further held that,

because the Village was involved in road maintenance, a

governmental function, it was immune from liability from

any damage done to the Kruses’ property based upon their

trespass claim; the court declined to consider whether the

complaint raised a constitutional claim. See id. The record

indicates that the Ohio Supreme Court declined to accept the

case for review. The state courts thus left the matter after

quieting title in the Kruses to the property that the Village

continues to use, but granting the Kruses neither money

damages to compensate them for their loss nor injunctive

relief to prevent the Village’s continuing trespass on their

property.

Because the Village refused to pay compensation for

its appropriation of their property, the Kruses filed this

lawsuit, seeking relief under 42 U.S.C. §§ 1983 and 1988

for the Village’s violation of their rights under the Fifth and

Fourteenth Amendments to the United States Constitution.

Sc aie il EEO ah

dete ow ae ee Se NO 3 a

All

Count II of the Kruses’ oe sought monetary relief for

severe emotional and mental distress caused by the Village’s

taking and destroying their property without notice and an

Opportunity to be heard pursuant to the Ohio state statutes

relative to appropriation of private property for municipal

use. The Village filed its motion to dismiss the complaint

pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6), arguing that

the plaintiffs "did not file an action in state court seeking

money damages for Chagrin Falls’ alleged taking of their

property without just compensation,” that "[t]heir trespass

action did not constitute an inverse condemnation action” and

that "their ‘taking’ claim is not ripe for federal review."

The district court opined that landowners in Ohio have

a remedy for uncompensated takings of property for public

use through inverse condemnation proceedings. Relying on

Williamson County Regional Planning Comm’n v. Hamilton

Bank of Johnson City, 473 U.S. 172 (1985), the court held

that "because plaintiffs have failed to avail themselves of the

State procedure for recovering just compensation, and

because they have failed to show that this procedure is

inadequate," their constitutional due process and § 1983

claims were premature and, consequently, the court lacked

jurisdiction. Since it had dismissed the federal claims, the

court declined to exercise pendent jurisdiction over the state-

law claim for mental-distress damages, dismissing that claim

without prejudice to refiling in state court. This timely

appeal followed.

Il,

We review de novo the district court’s dismissal of

Claims for lack of subject-matter jurisdiction. Kroll v.

United States, 58 F.3d 1087, 1090 (6th Cir. 1995). The

Village argues, and the district court found, that Williamson

requires a plaintiff to avail himself of state procedures for -

obtaining compensation, or to demonstrate that those

procedures are inadequate, prior to bringing an action under

§ 1983, and that the Kruses’ claims are not ripe because they

did not pursue a state-law cause of action for inverse

Al2

condemnation. We think, however, that Williamson does not

require this result in the case at hand.

The issue in Williamson on which the Supreme Court

granted certiorari was “whether Federal, State, and Local

governments must pay money damages to a landowner whose

property allegedly has been ‘taken’ temporarily by the

application of government regulations." 473 U.S. at 185.

The Court ultimately held that the property owner’s 42

U.S.C. § 1983 action was not ripe because the property

owner had neither obtained a final decision regarding the

application of the zoning ordinance and subdivision

regulations to the property nor utilized the procedures

Tennessee provides for obtaining just compensation. As to

the first ground, the Court explained,

Our reluctance to examine taking claims until such a

final decision has been made is compelled by the very nature

of the inquiry required by the Just Compensation Clause. .

. . [T]his Court consistently has indicated that among the

factors of particular significance in the inquiry are the

economic impact of the challenged action and the extent to

which it interferes with reasonable investment-backed

expectations. Those factors simply cannot be evaluated until

the administrative agency has arrived at a final, definitive

position regarding how it will apply the regulations at issue

to the particular land in question.

Id. at 190-91 (internal citations omitted) (emphasis added).

Second, the Court held that because the Takings

Clause of the Fifth Amendment does not require pretaking

compensation, so long as the state has, at the time of the

taking, "a reasonable, certain and adequate provision for

obtaining compensation," id. at 194 (internal quotation marks

omitted) (quoting Blanchette v. Connecticut Gen. Ins.

Corps., 419 U.S. 102, 124-25 (1974)), the taking is not

complete until the state fails to provide adequate

compensation. Thus, the Court in Williamson held,

Under Tennessee law, a property owner may bring an

Al3

inverse condemnation action to obtain just compensation for

an alleged taking of property under certain circumstances.

Tenn. Code Ann. § 29-16-123 (1980). The Statutory scheme

for eminent domain proceedings outlines the procedures by

which government entities must exercise the right of eminent

domain. §§ 29-16-101 to 29-16-121. The State is prohibited

from "enter[ing] upon [condemned land]" until these

procedures have been utilized and compensation has been

paid the owner, § 29-16-122, but if a government entity does

take possession of the land without following the required

procedures,

"the owner of such land may petition for a jury of

inquest, in which case the same proceedings may be

had, as near as may be, as hereinbefore provided;

or he may sue for damages in the ordinary

way..." § 29-16-123.

Respondent has not shown that the inverse

condemnation procedure is unavailable or inadequate, and

until it has utilized that procedure, its taking claim is

premature.

Williamson, 473 U.S. at 196-97.

The case before us, however, is not a claim of taking

by application of governmental regulation; it is not a case in

which the property owner has failed to resort to the

administrative procedures which might obviate the need to

address the constitutional question; it is not a case in which

the state has provided a statutory procedure to obtain post-

deprivation compensation. The case before us is a

completed physical taking of the appellants’ property by the

Village, without notice and wholly in violation of the

Statutory requirements governing appropriation of property.

Of particular importance here, unlike Tennessee and a

number of other states which have explicit statutory

procedures governing inverse condemnation to compensate

landowners whose property has been taken in violation of the

Al4

Constitution and the state’s eminent-domain statutes,' Ohio

does not have such a statute. Ohio property owners who

find themselves in the Kruses’ position do not have available

to them "reasonable, certain and adequate" state procedures

to provide post-deprivation compensation.” In fact, in Ohio,

the availability of remedies and the procedure to obtain

compensation for property taken without regard for the

state’s appropriation statutes, are confusing and uncertain at

best.

Ohio Rev. Code §§ 163.01-163.62, APPROPRIATION OF

PROPERTY, which include provisions for appropriation

(§ 163.04) and petition for appropriation (§ 163.05), provide

‘Wyoming, for example, has a wonderfully clear inverse condemnation

statute:

When a person possessing the power of condemnation takes

possession of or damages land in which he has no interest, or

substantially diminishes the use or value of the land, due to

activities on adjoining land without the authorization of the

owner of the land or before filing an action of condemnation,

the owner of the land may file an action in district court seeking

damages for the taking or damage and shall be granted litigation

expenses if damages are awarded to the owner.

Wyo. Stat. § 1-26-516 (West 1995).

*The Village argues that after First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct.

2378 (1987), all states are required to provide an inverse condemnation

remedy. The Village is mistaken. First English was another case raising

a claim for compensation arising out of a regulatory taking. There, the

Supreme Court noted, in a footnote, that the claim was ripe for review

under Williamson because the plaintiffs had brought an inverse

condemnation action and the California courts had dismissed it. 482

U.S. at 312 n. 6. Further, the Court pointed out that it "ha[s] recognized

that a landowner is entitled to bring an action in inverse condemnation as

a result of ‘"the self-executing character of the constitutional provision

with respect to compensation. .. ."’" Jd. at 315 (internal citations

omitted). This does not amount to a mandate to the states to provide an

inverse condemnation procedure.

&

a

q

3

Al5

eminent-domain procedures for the government, prior to

taking property, to commence appropriation proceedings and

compensate the owner. The Ohio statutes iequire

municipalities to follow established procedures prior to

appropriating privately-owned property for municipal use.

These statutes are intended to assure that property owners

will receive notice of the government’s intent to appropriate

their property prior to the taking, to provide for proper

authorization of the government to do so, and to provide for

the deprived owners to be fairly compensated for the

appropriated property. See generally Ohio Rev. Code §§

163.01-163.62; 719.01-719.33.

The Ohio Supreme Court has very recently stated that

a landowner who has been deprived of his property may

bring an action in mandamus to require the government to

institute appropriation proceedings pursuant to Ohio’s

Appropriation of Property statute. See Levin v. City of

Sheffield Lake, 637 N.E.2d 319, 323-24 (Ohio 1994).

There, the court reviewed some of its prior decisions, which

indicated that appropriation proceedings may be compelled

through mandamus, but also reiterated the stringent

requirements for issuance of the extraordinary writ’ and

explained that prior to issuance of the writ to compel the

commencement of appropriation proceedings, the issue of

whether the petitioner’s property had been appropriated had

first to be determined by the court in which the writ was

requested. Id.

Levin, however, was not decided until 1994, well after

the Kruses had begun their heretofore fruitless attempt to

obtain compensation from the Village for its taking of their

property. And Levin’s cited cases which have held that

mandamus is the vehicle for compelling appropriation

°A mandamus petitioner must prove that he is entitled to the

performance of a clear legal duty and that he has no adequate remedy at

law. See, e.g., State ex rel. Citizens for Responsible Taxation v. Scioto

County Bd. of Elections, 616 N.E.2d 869, 871 (Ohio 1993).

Al6

proceedings by public authorities, are all cases in which the

court addressed a taking by the state, through the action of

the Director of Highways. In Wilson v. City of Cincinnati,

175 N.E.2d 725, 727 (Ohio i961), the court noted that

where the state took the property, the property owner’s

redress was an action in mandamus to require the Director

of Highways to begin appropriation proceedings, because the

state could not be sued without its consent.‘ State v. Kauer,

102 N.E.2d 703 (Ohio 1951), involved an involuntary taking

by the State through the actions of the Director of Highways,

and a mandamus action filed by the property owner after he

initially filed a damage action against the Director to which

the Director had demurred on the basis of sovereign

immunity. It is significant to note that in Kauer, the parties

conceded that the property owner had no adequate remedy at

law or equity, and, as Judge Taft pointed out in his separate

concurrence, since it is elementary that no writ of mandamus

will issue where the petitioner has an adequate remedy at law

Or equity, and since the court had not specifically decided

that issue, paragraph three of the syllabus may be interpreted

as deciding that issue. Jd. at 709.

The Levin court did not address at all its decision in

City of Worthington v. Carskadon, 249 N.E.2d 38 (Ohio

1969), a case which post-dates all of the decisions Levin

relied upon, in which the City of Worthington took

possession of property pursuant to a "quick take ordinance,"

prior to determination of value by a jury. There, the court

held that "[t}he proper remedies for illegal entry upon one’s

property are criminal trespass and civil damages against the

individuals entering, and injunction against the city and its

agents." Id. at 39.

“The Ohio Supreme Court specifically noted relative to the plaintiff's

claim against the City of Cincinnati in that case that the plaintiff was

proceeding on the authority of Lucas v. Carney, 149 N.E.2d 238 (Ohio

1958), in which the court had held that a property owner whose property

was taken for a public use by a county could institute an action against

such county to have his damages assessed by a jury.

Al7

None of these cases even mentions the remedy of

inverse condemnation. The claim by the Village that Solly

v. City of Toledo, 218 N.E.2d 463 (Ohio 1966) holds that

Ohio has such a remedy is simply incorrect. Nor does our

decision in Harris v. City of Akron, 20 F.3d 1396 (6th Cir.),

cert. denied, U.S. , 115 S. Ct. 512 (1994), hold that

an Ohio plaintiff in the position of the Kruses is required to

pursue an action in inverse condemnation before he may

bring an action under 42 U.S.C. § 1983, although we

concede that the reader might easily be misled on that score

if he read only the publisher’s headnotes. The issue of

whether the plaintiff’s § 1983 action was premature was

neither before us nor decided by us in Harris. Rather, we

explicitly stated that that issue was not before us,® but in

dicta, citing Williamson, we advised the plaintiff that he

could pursue "an inverse condemnation proceeding as

recognized by the Ohio Supreme Court in Solly . . ." as a

prerequisite to a § 1983 action. Jd. at 1405.

We hold that Ohio affords no "reasonable, certain and

adequate provision for obtaining compensation” after private

property is taken by public authorities without following the

mandatory pretaking appropriation procedures set out in

Ohio Rev. Code §§ 163.01-163.62. Ohio’s decisional law

*Solly held that a city official who destroys or injures private property

in abating a nuisance may be liable in damages, as may the city, where

there has been no judicial determination that the property is in fact a

public nuisance nor an opportunity for the property owner to be heard on

the subject. 218 N.E.2d at 466.

*In Harris, the plaintiff did not object to the magistrate judge’s

dismissing his Fifth Amendment takings claim, and we expressly

recognized that the takings claim was not before us. "The matter comes

to us as a “pure due process case,” not as one in which the due process

claims are ancillary to any other claim.” 20 F.3d at 1403. Our dicta

regarding the takings claim appears only in the conclusion of the opinion,

and only after our explicit statement that "[tJhe district court, accepting

the magistrate judge’s recommendation, dismissed Harris’ ‘taking’ claim

as premature; it did not decide that claim on the merits.” /d. at 1405.

Al8

in this area is anything but certain. Ohio has no statutory

provision for relief under the circumstances of this case.

The fact that the State’s courts recognize an action in

mandamus, where the State has no mandated procedures

governing inverse condemnation, cannot be equated to a

"reasonable, certain and adequate provision for obtaining

compensation," after the property has been physically taken

in violation of the appropriations statutes. An action for the

extraordinary writ of mandamus is, at best, a procedure

which must be invoked in the absence of any statutory

framework in an attempt to obtain wholly equitable relief for

an injury already inflicted.

The Takings Clause of the Constitution prohibits the

taking of private property for public use without due process

of law and just compensation. U.S. CONST. amend. V.

Cases involving physical occupation/invasion takings are

treated differently than those involving claims of regulatory

takings. Compare, e.g., Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 427 and n.5 (1982) ("When

faced with a constitutional challenge to a permanent physical

occupation of real property, this Court has invariably found

a taking.... The modern significance of physical

occupation is that courts . . . never deny compensation for

a physical takeover. The one incontestable case for

compensation ... seems to occur when the government

deliberately brings it about that its agents, or the public at

large, ‘regularly’ use, or ‘permanently’ occupy, space or a

thing which theretofore was understood to be under private

ownership.") (citations omitted); Armstrong v. United States,

364 U.S. 40, 49 (1960) ("The Fifth Amendment’s guarantee

that private property shall not be taken for a public use

without just compensation was designed to bar Government

from forcing some people alone to bear public burdens

which, in all fairness and justice, should be borne by the

public as a whole.") with, e.g., Dolan v. City of Tigard, __

U.S. _, 114 S. Ct. 2309 (1994) (land use regulation case);

Williamson (same); Keystone Bituminous Coal Ass’n v.

DeBenedictis, 480 U.S. 470, 488-89 n. 18 (1987) ("[A]

‘taking’ may more readily be found when the interference

Al9

with property can be characterized as a physical invasion by

the government[.] While the Court has almost invariably

found that the permanent physical occupation of property

constitutes a taking, the Court has repeatedly upheld

regulations that destroy or adversely affect real property

interests.") (internal citations omitted).

In regulatory cases, where the government has fulfilled

its obligation to provide notice to the property owner, it may

be fair to place the burden of making the next move on the

landowner to attempt prevention of the government action

that is supposedly adverse to the owner’s property interest.

It may make sense to require landowners to pursue relief

through administrative appeals and the mandatory injunction

process when the landowners know in advance that the

government is planning action that threatens their ownership

of their property, especially in cases involving regulation of

the use of the land, since there are generally numerous

Opportunities available to landowners to be heard and to

attempt to prevent a proposed zoning ordinance from taking

effect, or to reach a compromise with the authorities that

permits some alternative use of the land. In contrast, when

"a condemning authority . . . occup[ies] the land in question

. . . [this] taking thus shifts to the landowner the burden to

discover the encroachment and to take affirmative action to

recover just compensation . . . . [The landowner is thereby]

placed at a significant disadvantage by this shifting of the

initiative from the condemning authority to the condemnee."

United States v. Clarke, 445 U.S. 253, 257-58 (1980)

(discussing practical differences between condemnation

proceedings and physical takings by governmental bodies).

These distinctions between regulatory takings and

takings by physical occupation or invasion further support

the conclusion that the landowners in this case are not

required to pursue any further attempts in state court to

obtain the compensation which the Constitution mandates

they be paid. There is no question that the Village effected

a taking of the Kruses’ property. The state court has

definitively ruled that title to the property belongs to them.

A20

The Village no longer contests either the fact that the

property belongs to the Kruses or that the Village’s actions

constituted a taking. All that remains is for the Village to

provide compensation to the Kruses for the taking,

something which the Village steadfastly refuses to do. In

spite of the clear dictates of the Constitution, in spite of the

illegality of the Village’s actions, and in spite of the fact that

the Kruses filed, in accordance with some of the dictates of

the Ohio Supreme Court, an action designed to obtain that

compensation, the Village insists that until the Kruses file

just the right kind of action to obtain the compensation to

which even the Village admits they are entitled, the Village

need not and will not pay.

After reviewing this record and listening to counsel at

oral argument, it is obvious to us that, left to the devices of

the Village’s counsel, this case will become another Jarndyce

v. Jarndyce, with the participants "mistily engaged in one of

the ten thousand stages of an endless cause, tripping one

another up on slippery precedents, groping knee-deep in

technicalities, running their ... heads against walls of

words, and making a pretence of equity. ." CHARLES

DICKENS, BLEAK HOUSE 2 (Oxford University Press ed.

1989) (London 1853). For nearly ten years, the Kruses have

endeavored to vindicate their property rights guaranteed by

the Constitution and by state statutes. The Village’s actions

threaten to turn the Kruse family into generations of "ruined

suitors" pursuing legal redress in a system "which gives to

monied might, the means abundantly of wearying out the

right; which so exhausts finances, patience, courage, hope"

as to leave them "perennially hopeless." Jd. at 3-4. Enough

is enough, and then some.

Il.

For these reasons, the judgment of the district court is

REVERSED and the case is REMANDED with instructions.

On remand, the district court will enter judgment for the

Kruses and conduct a trial to award them damages. Now

that the federal claims are not to be dismissed, the court may

CC NS. =a

A21

also consider whether to exercise pendent jurisdiction over

the plaintiffs’ state-law claim for damages resulting from

severe mental distress caused by the defendant.

A22

No. 94-3435

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RONALD W. KRUSE;

SYLVIA A. KRUSE,

Plaintiffs-Appellants,

ORDER

Vv.

VILLAGE OF CHAGRIN

FALLS, OHIO,

Defendant-Appellant

ee ee ee ee ee ee

BEFORE: MARTIN and BATCHELDER, Circuit Judges;

and EDMUNDS, * District Judge.

The Court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original hearing panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

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A23

dated March 6. 1996

LEONARD GREEN, CLERK

*Hon. Nancy G. Edmunds, United States District

Judge for the Eastern District of Michigan, sitting by

designation