Petition for Writ of Certiorari — Bischoff v. Louisville and Jefferson County (No. 07-1462)

3 rt, US.

a 1) SPPRCR

071462 NAR 20 2008

IDFRIGHOF THE CLERK

In The

SUPREM COURT of the UNITED STATES

Raymond Bischoff Petitioner

V.

Commonwealth of Kentucky, Respondents

Louisville and Jefferson County Sewer District,

Zielke, Pedley, Gordinier, Dwyer, Clayton

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Sixth District

PETITION FOR WRIT OF CERTIORARI

Raymond Bischoff

5215 Bardstown Road

Louisville, Kentucky 40291

(502) 499-1323

QUESTIONS PRESENTED

. Without Written Release from the property

owner, then, how can the filed for, state granted

and held Bench Trial, for a compensation matter

of property over twenty dollars, be considered

anything but irrefutable proof of violating a citi-

zen’s guaranteed right to Just Compensation

and Jury Trial under U.S. Constitution Amend-

ments V and VII ?

. How can Just Compensation be satisfied, when

agricultural products are taken or destroyed

without recognition or compensation from the

defendants, and fair market value is outra-

geously unjust and arbitrary under a bench

trial ?

. How can the Commonwealth of Kentucky Emi-

nent Domain law be considered constitutional

when it has no gatekeepers to guard against

abusive use and no allowance for total loss of fair

market value for property, as in Luca v. South

Carolina Coastal Council, 505 U.SS. 1003

(1992) ?

. Is Judicial Immunity the Scapegoat by which the

Respondents, in their official capacities, justify

failure to uphold the true essence of the laws and

rights of citizens, putting the burden of time and

expense upon the citizen to seek justice ?

(i)

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVI-

SIONSS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

UNITED STATE COURT OF APPEZLS

FOR THE SIXTH DISTRICT

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

APPENDIX C

ORIGINAL COMPLAINT

(il)

JURISDICTION

Jurisdiction in this claim relies upon the U.S. Con-

stitution Amendment V and VII to uphold the guar-

anteed rights of a citizen for Just Compensation

and Jury Trial for a matter of property over twenty

dollars. The citizen can not rely upon the defen-

dants, all, when, in a matter of compensation, a

bench trial was filed for and then held, without

Written Release from this citizen Just Compensa-

tion can not be satisfied by a forced bench trial of an

outrageously unjust and arbitrary decree, and de-

stroyed or taken agricultural crops have not been

recognized for compensation.

Commonwealth of Kentucky Eminent Domain law

does not have a gatekeeper for abuse and no allow-

ance for total loss of fair market value, therefore, 28

U.S.C. 2403(b) may apply and shall be served on its

Attorney General.

The Order entered October 22, 2007, by the United

States Court of Appeals, For the Sixth Circuit does

not uphold the rights of this citizen’s claim.

The Opinion and Order entered January 26, 2007,

by the United States District Court, Western Dis-

trict of Kentucky at Louisville, does not uphold the

rights of this citizen’s claim.

Extension of time January 30, 2008, extended to

February 19. 2008.

Extension of time February 19, 2008, extended to

March 20, 2008, by Justice Stevens, application No.

07A628.

(1)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution Amendment V Just Compensation

U.S. Constitution Amendment VII all matters of

property, twenty dollars or more, shall be decided

by jury trial

(2)

STATEMENT OF THE CASE

This claim is based upon the actions of the Defen-

dants, filing and then holding a forced bench trial

for a compensation matter, without Written Release

from this citizen, having cited both state and fed-

eral law mandates. This claim is not based upon

the final decision of the Commonwealth of Ken-

tucky Supreme Court, resting against, which over-

turned the Kentucky Court of Appeals.

Compensation was based upon a probate settle-

ment price through an appraiser, not qualified for

Fair Market Value, in the face of evidence clearly

showing an outrageously unjust and arbitrary con-

tradiction over a hundred times the difference. De-

stroyed or taken agricultural crops were not recog-

nized nor compensated for. Total loss of fair market

value was not recognized, due to a main sewer line

installation prohibiting future new construction as

defined by zoning laws.

Kentucky KRS 416.550-416.670 Eminent Domain

law, mandates a jury trial for compensation mat-

ters. There is no allowance for total loss of fair

market value due to a main sewer line, whereby no

new construction can be developed, as in Lucas v.

South Carolina Council, 505 U.S. 1003 (1992).

Therefore, it is noted that 28 U.S.C. 1403(b) may

apply.

This citizen can not rely upon the Defendants, all,

te uphold the true essence of rights and law, nor

their authority in official capacities to be responsi-

ble when cited both state and federal mandates.

(3)

REASONS FOR GRANTING THE WRIT

Petitioner relies upon this Highest Court to recog-

nize the injustice of violations of Amendment V and

VII in this compensation matter, and find outra-

geously unjust and outrageously arbitrary the pos-

ture of the Respondents, having cited both state

and federal mandates .

The Commonwealth of Kentucky Eminent Domain

law is not specific enough regarding compensation

matters. Allowing a sewer company as a normal

utility abuses true essence of that privilege, fora

tota! loss of resale value for new construction is

taken from the property by a main sewer line in-

stallation, just as zoning laws and common sense

prohibit. This is sustained by Lucas v. South Caro-

lina Coastal Council, 505 U.S. 1003 (1992), and

therefore 28 U.S.C. 2403(b) may apply.

Without granting this Writ, citizens in all states

may be open to the same violations from a prece-

dence that would be created. The Respondents, in

their official capacities, being irresponsible to the

true essence of the law and rights of citizens, fail to

uphold the law and abuse their authority, putting

the burden upon the citizen to buy justice. This

same obligation and responsibility should apply in

all public matters.

The history of Carpet bagging by the Respondents’

corroborations continues in this state with judges

turning the cheek to complaints, twisting the law to

justify the means of their actions.

(4)

EE

CONCLUSION

This citizen honorably served in Viet Nam for the

rights and privilege of guaranteed U.S. Constitution

rights and property to be upheld and recognized in

the true essence of the law. The whole concept of

this matter lies upon the Respondents not serving

the citizen honorably and responsibly, and not up-

holding rights and mandates of law.

Just Compensation can not be satisfied by a forced

bench trial, without Written Release from the prop-

erty owner. Main sewer lines take total fair market

value for future construction. Commonly used ap-

praisers are not experts for evaluation of fair mar-

ket property values, when they are restricted by

their methods and prone to be user friendly, in the

face of real estate agents being the professionals

that set fair market value standards. Agricultural

crops can not be destroyed or taken without com-

pensation.

The Respondents have no excuse for ignorance of

the law in their official capacities and responsibili-

ties, and their violation of a citizen’s rights and

property can only be construed as pre-meditated

continuance of their Carpet bagging history in this

state, without your intervention to protect citizens.

Petition for Writ of Certiorari to be granted

Respectfully submitted,

Raymond Bischoff

5215 Bardstown Road

Louisville, Kentucky 40291

(502) 499-1323

May 20, 2008

(5)

APPENDIX A

No. 07-5320

UNITED STATES COURT OF APPEALS

FOR THE SIXTH DISTRICT

RAYMOND BISCHOFF _Plaintiff-Appellant

V.

LOUISVILLE AND JEFFERSON COUNTY

METROPOLITAN SEWER DISTRICT, JOHN

DWYER, DENISE CLAYTON, Judge

Defendants-Appellees

ORDER

Before MERRITT, ROGERS, and MCKEAGUE,

Circuit Judges

Raymond Bischoff, proceeding pro se, appeals a

district court order dismissing his civil rights action

construed as filed under 42 U.S.C. 1983. This case

has been referred to a panel of the court pursuant

to Rule 34(j)(1), Rules of the Sixth Circuit. Upon

examination, this panel unanimously agrees that

oral argument is not needed. Fed. R. App. P. 34(a).

This case arises out of an eminent domain pro-

ceeding filed by the Louisville and Jefferson County

Metropolitan Sewer District (MSD) to obtain per-

manent and temporary sewer easements across

property owned by Bischoff. After a bench trial in

the Jefferson County Circuit Court, a monetary

judgment in the amount of $5,522.00 was entered in

favor of Bischoff for the taking of his property.

Prior to the bench trial, Bischoff belatedly moved

for a jury trial, which the trial court denied as

untimely under Ky. R. Civ. P. 38. The issue of

whether the trial court’s denial of Bischoff’s motion

for a jury trial violated the Kentucky Constitution

was decided in Bischoff’s favor on appeal to the

Kentucky Court of Appeals. See Bischoff v. Louis-

ville & Jefferson County Metro Sewer Dist., No.

2004-C-002545-MR, 2005 WL3443059 (Ky. Ct. App.

Dec. 16, 2005). The case is currently pending in the

Kentucky Supreme Court on discretionary review.

Bischoff filed the instant lawsuit against MSD,

MSD’s counsel in connection with the eminent do-

main proceeding (John Dwyer), and the Jefferson

County Circuit Court Judge who presided over the

eminent domain proceedings ( Judge Denise Clay-

ton), alleging that the defendants denied “a jury

trial for Raymond Bischoff, pro se, property owner,

in the face of objection and reference to U.S. Consti-

tution Amendment VII by motion.” For relief,

Bischoff requests “a jury trial” and “damages and

punitive damages for violations of constitutional

rights.”

Upon motions be the defendants, the district court

dismissed the complaint for lack of subject matter

jurisdiction and also under the abstention doctrine

because an appeal in the condemnation case was

still pending. This timely appeal followed.

We review de novo a district court’s dismissal for

lack of subject matter jurisdiction under Fed. R.

Civ. P. 12(b)(1). Beamon v. Brown, 125 F.3d 965,

967 (6th Cir. 1997). We also review de novo a dis-

trict court’s decision to abstain. See Berger v.

Cuyahoga County Bar Ass’n, 983 F.2d 718, 721 (6th

Cir. 1993).

Upon review, we conclude that the district court

was correct in abstaining on the basis of the

sd

Oe en ge Ok CRSP BED oe eae” OP ee i ey ee ee AR a ee

doctrine announced in Younger v. Harris, 401 U.S.

37 (1971). The Younger doctrine is invoked when

state proceedings are pending and principles of fed-

eralism dictate that the constitutional claims

should be raised and decided in state court without

interference of the federal courts. In Middlesex

County Ethics Comm. V. Garden State Bar Ass'n,

457 U.S. 423, 432 (1982), the Supreme Court articu-

lated a three —-part test for determining whether

Younger abstention is appropriate. It held that ab-

stention is appropriate if: 1) state proceedings are

ongoing; 2) the state proceedings implicate impor-

tant state interests; and 3) the state proceedings

afford adequate opportunity to raise federal ques-

tions. Id.

The three-part test is met in this case. First,

Bischoff has an eminent domain case that is appar-

ently still pending in a Kentucky state court. Sec-

ond, condemnation actions for a Kentucky public

body are uniquely a state interest.. Finally, Bischoff

has failed to show that the Kentucky courts cannot

or will not provide an adequate opportunity to raise

his constitutional claim. Indeed, the record reveals

that Bischoff has been allowed to raise his constitu-

tional issue in the state proceeding and has raised

it in the Jefferson Circuit Court, the Kentucky

Court of Appeals, and now the Kentucky Supreme

Court, which is empowered to rule on his constitu-

tional issue if it grants discretionary review to do

so. Thus, abstention was proper.

Upon further review, we conclude that the district

court was correct to dismiss Bischoffs complaint

against Judge Clayton. As a state court judge,

Judge Clayton is entitled to absolute judicial immu-

nity from liability for damages related to her

judicial acts. Butz v. Economou, 438 U.S. 478, 511-

14 (1978); Shelly v. Johnson, 849 F.2d 228, 229-30

(6th Cir. 1988). in addition, insofar as Bischoff

seeks monetary da:nages from Judge Clayton he is

barred by the doctrine of Will v. Mich. Dep’t of State

Police, 491 U.S. 58 (1989). In Will, the Supreme

Court held that state officials who are sued in their

official capacity for monetary damages are not con-

sidered “persons’ subject to suit under 1983. It is

the plaintiff's affirmative duty to plead the capacity

in which he is suing the defendants. See Wells v.

Brown, 891 F.2d 591, 593 (6th Cir. 1989). Because

Bischoff did not specify the capacity in which he

sued Judge Clayton, the complaint is construed as

suing this defendant in her official capacity as an

employee of the state and Bischoff's claim for mone-

tary damages must fail. See id. At 593-94.

The district court was also correct to dismiss the

complaint against the remaining defendants. To

state a viable 1983 claim, a plaintiff must allege

that: 1) he was deprived of a right, privilege, or im-

munity secured by the Federal Constitution or laws

of the United States, and 2) the deprivation was

caused by a person while acting under color of state

law. See Flagg Bros. v. Brooks, 436 U.S. 149, 155-

57 (1978). Bischoff did not sufficiently allege a dep-

rivation of a federal right because the Seventh

Amendment has not been extended to the states

and thus does not guarantee a jury trial in state

court. See Minneapolis & St. Louis R.R. Co. v.

Bombolis, 241 U.S. 211, 217 (1916).

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

CIVIL ACTION NO. 3:06CV-540-H

RAYMOND BISCHOFF PLAINTIFF

V.

LOUISVILLE AND JEFFERSON COUNTY

METROPOLITAN SEWER DISTRICT, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER

This case arises out of an eminent domain pro-

ceeding filed by the Metropolitan Sewer District

(“MSD”) to obtain a permanent and temporary

sewer easements across property owned by Plain-

tiff. After a trial in Judge Clayton’s court and the

entering of a monetary judgment in Plaintiff's favor

for the taking of his property, Plaintiff appealed

first to the Kentucky Court of Appeals and has now

moved for discretionary review with the Kentucky

Supreme Court. All the Defendants have asked

that the case be dismissed.

In essence, Plaintiff is asking this federal court to

take jurisdiction away from an ongoing proceeding

in the Kentucky Supreme Court. This Court knows

of no principle of law by which it could undertake to

do such a thing in these circumstances. Eminent

domain procedures are particularly a feature of

state law and are well established. There is no rea-

son the appellate courts of Kentucky cannot ade-

quately consider Plaintiff's due process concerns

Concerns of policy, comity and jurisdiction will

prevent this Court from interfering in such an ongo-

ing state law proceeding. It goes without saying

that Judge Clayton retains complete immunity for

her actions as a judge. In short, this Court agrees

with all of the reasons and arguments set forth in

the various motions for summary judgment submit-

ted by Defendants. Plaintiff has not se forth any

arguments and reply that suggest a reason for this

Court interfering with the ongoing state court pro-

ceedings.

Plaintiff has also requested leave to amend his

complaint adding various constitutional claims.

These are not a lot different than the concerns he

has raised already. Once again, Kentucky courts

can consider constitutional claims as part of his

state appeal. This Court cannot interfere with an

ongoing state appeal in these circumstances.

Being otherwise sufficiently advised,

IT IS HEREBY ORDERED that Plaintiff's motion

to amend his complaint is DENIED.

IT IS FURTHER ORDERED that the motions to

dismiss of all Defendants are SUSTAINED and this

case is DISMISSED WITH PREJUDICE in its en-

tirety.

This is a final and appealable order.

January 26, 2007 John B. Heyburn II

Chief Judge, U.S. District Court

cc: Raymond Bischoff, Pro Se

Counsel of Record

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

RAYMOND BISCHOFF, Pro Se

Plaintiff

MSD METROPOLITAN SEWER DISTRICT

JOHNE DWYER, PEDLEY, ZIELKE, GORDINIER

JUDGE DENISE CLAYTON, JEFFERSON CIR-

CUIT COURT, COMMONWEALTH OF KEN-

TUCKY

Defendants

COMPLAINT

U.S. Constitution Amendment VII guarantees jury

trial in all matters of property twenty dollars or

more

U.S. Constitution Amendment V guarantees just

compensation/fair market value in said matters

Neither was complied with

Plaintiff

Raymond Bischoff

5215 Bardstown Road

Louisville, Ky. 40291

502 499-1323

Defendant

MSD Metropolitan Sever District

700 W. Liberty St

Louisville, Jefferson County, Kentucky 40202

John Dwyer, Pedley, Zielke, Gordinier

2000 Meidinger Tower

462 So. 4th St

Lou, Ky 40202

Commonwealth of Kentucky, Jefferson Circuit

Court, Judge Denise Clayton

700 W. Jefferson St.

Lou. Ky 40202

On October 25, 2005, Jefferson County Circuit

Court held trial for compensation to a condemna-

tion case, MSD vs. Raymond Bischoff, Judge Denise

Clayton presiding. John Dwyer, Zielke, Pedley, and

Gordinier, MSD, Jefferson County Circuit Court

and Judge Denise Clayton did not provide but deny

provision of a jury trial for Raymond Bischoff, Pro

Se, property owner, in the face of objection and ref-

erence to U.S. Constitution Amendment VII, by mo-

tion.

U.S. Constitution Amendment V calling for Just

Compensation is mo3t point at this time, but, ap-

praisers can not give fair market value, probate set-

tlements are improper motive for unjust enrich-

ment by MSD.

There was no written statement to relinquish the

right to jury trial.

Prayers for relief:

A. provide a jury trial in order that a fair and unbi-

ased hearing of the facts for just deliberation in

this matter

B. Restitution for damages and punitive damages

for violations of constitutional nghts

C. Admonishment of attornies, Commonwealth of

Kentucky, and courts and judges

D. Clarification of right to condemnation, and pro-

visions thereof, especially just compensation

Request for a jury trial ‘yes’

I hereby certify under penalty that the above peti-

tion is true to the best of my information, knowl-

edge, and behief.

24 , October, 2096

Raymond Bischoff