Opposition Brief — Bischoff v. Louisville and Jefferson County (No. 07-1462)

Sutiome.

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IN THE

Supreme Court of the United States

RAYMOND BISCHOFF,

Petitioner,

Vv.

COMMONWEALTH OF KENTUCKY, LOUISVILLE AND

JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT,

ZIELKE, PEDLEY, GORDINIER, DwYER, CLAYTON,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNrreED SraTes Court oF APPEALS

FOR THE SixtTH CirRculr

BRIEF IN OPPOSITION FOR RESPONDENTS

LOUISVILLE AND JEFFERSON COUNTY

METROPOLITAN SEWER DISTRICT

AND JOHN H. DWYER, JR.

LAURENCE J. ZIELKE

ZIELKE LAW FIRM

1250 Meidinger Tower

462 South Fourth Street

Louisville, Kentucky 40202

(502) 589-4600

Counsel for Respondents

Louisville and Jefferson County

Metropolitan Sewer District

and John H. Dwyer, Jr.

216520 #

COUNSEL PRESS

(800) 274-3821 + (800) 359-6859

No. 07-1462 | Liebe 3

~Uult, US.

‘LE D

a

QUESTION PRESENTED

Should the well established, long-standing rule that

the Seventh Amendment of the U.S. Constitution does

not apply in state courts be revisited when a state court

litigant was denied a jury trial after failing to properly

demand one pursuant to state procedural rules and then

collaterally attacked the state court ruling in the United

States District Court while the state court action was

pending?

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................. i

ee AE PINION LTD iccvcwcccccsenccnnes ii

TABLE OF CITED AUTHORITIES ......... iii

STATEMENT OF THE CASE ............... 1

REASONS FOR DENYINGTHE PETITION ... 6

I. Seventh Amendment Does Not Apply. .. 6

II. Younger Abstention Is Proper. ......... 8

III. The District Court and Sixth Circuit

Lacked Jurisdiction Over This Claim. ... 10

IV. 28 U.S.C. § 2403 (b) is not applicable to

NR Ss os io beek bane chee bee eee 12

ie asap sein sek canucney oan he eeee 17

il

TABLE OF CITED AUTHORITIES

CASES

Artway v. Scheidemaniel,

671 FSupp. 330 (D. N.J. 1987) ..........

Beauclaire v. Greenhouse,

922 So.20 501 (La. Z006) ................

Chesapeake & O. R. Co. v. Kelly’s Adm’x,

161 We ONS ie 1810) ..,...5........-..

Chisolm v. TranSouth Financial Corp.,

194 F.R.D. 538 (E.D.Va., 2000) ...........

District of Columbia Court of Appeals v.

Feldman,

460 U.S. 462, 103 S.Ct. 1303,

TO Nsitel, BAO CEO) svc c cess ccccccecne

Dohany v. Rogers, State Highway

Commissioner of Michigan, et al.,

281 U.S. 362, 50 S.Ct. 299 (19380) ........

Exxon v. Saudi Basic Indust. Corp.,

ge Re ee

Gasperini v. Ctr. for Humanities,

DES Ws SES CEI BOO) Mees crecceswcce

Page

il

6-7

iv

Cited Authorities

Hayse v. Wethington,

RA Pe Bee ee Ge 1007) cic cen cecvucts

Huffman v. Pursue,

EE ee AED einai bec coe oue ce vice Sas

Iacaponi v. New Amsterdam Cas. Co.,

258 F.Supp. 880 (W.D. Pa. 1966), affirmed,

379 F.2d 311, certiorari denied, 88 S.Ct. 802,

Te RG ba beck sb kee obi avaavas

Lance, et al. v. Gigi Dennis,

546 U.S. 459 (2006) on remand

2007 U.S. Dist. LEXIS 20965

CUA Sls RIS PO PE ok o's cee ewe cccces

Maytag Co. v. Meadows Mfg. Co.,

45 F.2d 299 (7th Cir. 1930), certiorari denied,

OL PAs Ge Be Is OOO Soi ccc ce eeeasesc

Melancon v. McKeithen,

345 F.Supp. 1025 (E.D. La. 1972) ...........

Middlesex County Ethice Committee v.

Garden State Bar Association,

Md Sh RE. ho ECs Wo eho hoe dveeede

Montanez-Baez v. Puerto Rico Ports Authority,

509 F'Supp.2d 152 (D. Puerto Rico 2007) ....

11

17

17

Vv

Cited Authorities

Moore v. U.S.,

196 F.2d 906 (5th Cir. 1952)

O’Connor v. State of Nev.,

507 F.Supp. 546 (D.C.Nev.1981), affirmed 686

F.2d 749, certiorari denied, 103 S.Ct. 491,

459 U.S. 1071

Pacific Mut. Life Ins. Co. v. Haslip,

499 U.S. 1, 111 S.Ct. 1032 (1991)

People v. Ramos,

101 P3d 478 (Ca. 2004)

R.J. Reynolds Tobacco Co. v. Shewry,

423 F.3d 906 (Ca. 2005)

Sperandeo v. Denny’s, Inc.,

683 So.2d 743 (5th Cir. 1996)

Wagner Electric Mfy. Co. v. Lyndon,

43 S.Ct. 589, 262 U.S. 226 (1923)

Walker v. Sauvinet,

92 U.S. 90 (1876)

Will v. Mich. Dep't. of State Police,

491 U.S. 58 (1989)

Younger v. Harris,

401 U.S. 37 (1971)

vi

Cited Authorities

FEDERALSTATUTES

28 U.S.C. § 1257

28 U.S.C. § 2403

42 U.S.C. § 1983

KENTUCKY STATUTES

Ky. Rev. Stat. Ann. § 416.570

Ky. Rev. Stat. Ann. § 416.580

Ky. Rev. Stat. Ann. § 416.610

Ky. Rev. Stat. Ann. § 416.620

l

STATEMENT OF THE CASE

This action! began in Jefferson County Circuit Court

in Louisville, Kentucky, as the compensation phase of

an eminent domain proceeding filed by the Respondent

Louisville and Jefferson County Metropolitan Sewer

District (hereinafter “MSD”), to obtain permanent and

temporary sewer easements across property owned by

Petitioner Raymond Charles Bischoff. The right to take

the easements has been finally established, and the

sewer has been installed.

Before the Circuit Court, Petitioner Bischoff made

a belated motion for a jury trial. Respondent John H.

Dwyer, Jr.’, acting as attorney for Respondent MSD

objected to Petitioner’s belated motion. The Circuit

Court denied Petitioner’s motion and held a bench trial.

The relevant facts concern the timing of filing

certain pleadings and motions, including Mr. Bischoff’s

very belated request for a jury trial. The relevant filings

occurred as follows:

e June 11, 2002 MSD files a verified petition

for condemnation against

Raymond Charles Bischoff.

' Petitioner has provided the wrong docket number for this

case in its Petition; the correct docket number is 07-1462.

2 Mr. Dwyer is an attorney for the formerly named law firm

of Pedley, Zielke, Gordinier and Pence. Petitioner has

mistakenly included the law firm as a party to this appeal when

it was never named as a party in the underlying state court

proceedings.

erage | eo ee ee J bos en, Aap! ath at ee ty ” 7 4 es aby Aye 7 aa

SE EIT Se CTR DE EO Se et PTE I ST eves PME: Ee ee sa Leng BTM ae gee TaN aE, aes EE NS APR ee eae

¢ August 20, 2002 Personal service on

Raymond Charles Bischoff.

¢ September 11, 2002 Mr. Bischoff files what is

termed “correspondence”

on the court docket sheet.

This correspondence objects

to MSD’s “compensation

offer” and to MSD’s

condemning a sewer

easement across his

property. This document

contains no jury demand.

¢ September 16, 2002 MSD moves for a hearing

on its right to condemn an

easement across Mr.

Bischoff’s property.

« December 30, 2002 MSD files a Statement of

Exceptions in which it

contests the amount of the

commissioners’ award.

¢ January 14, 2003 Mr. Bischoff files a document

either objecting to or moving

to strike MSD’s Statement

of Exceptions. This

document contains no jury

demand.

¢« January 14, 2003 Bischoff files his own

exceptions to the

January 30, 2003

Januai y 30, 3002

April 4, 2003

August 7, 2003

August 18, 2003

September 5, 2003

3

commissioners’ award. This

document contains no jury

demand.

The trial court enters an

interlocutory judgment

condemning the permanent

and temporary easements

across Mr. Bischoff’s

property.

Mr. Bischoff files a motion to

set aside the trial court’s

Interlocutory Judgment.

The trial court enters an

order denying Mr. Bischoff’s

motion to set aside the

Interlocutory Judgment.

Mr. Bischoff files a written

request for a jury trial.

There is no indication that

Mr. Bischoff tendered the

required fee for a jury trial.

Mr. Bischoff makes an oral

motion for a jury trial.

The trial court enters an

order denying Mr. Bischoff’s

motion for a jury trial.

4

Pursuant to Kentucky Civil Rule 38.02, a jury

demand must be served within 10 days of the last

pleading directed to the issue. In eminent domain

actions, the last pleading directed to the issue of

compensation is the statement of exceptions, which must

be filed within thirty days of the entry of the

interlocutory judgment. Kentucky Revised Statute

416.620(6). Petitioner Bischoff failed to meet this

deadline.

In denying Mr. Bischoff’s motion for a jury trial, the

Circuit Court stated:

By Motion heard on August 18, 2003, the

respondent made a request for a jury trial by

jury. A hearing on the issue of the property

value and compensation to the respondent

was scheduled for August 26, 2003. The

petitioner objects to this request for a jury

trial stating that request was not made timely.

The Court finds that pursuant to Civil Rule

38, the respondent’s request for a jury trial is

not timely. Further, pursuant to Civil Rule

38.04, the basis for the respondent to request

a jury trial was not the result of excusable

neglect discussed in Civil Rule 6.02.

TR 109.

A bench trial on valuation was ultimately held on

October 25, 2004. At trial, MSD presented testimony

from licensed real estate appraiser Sharon Hall that the

difference in the value of the property before and after

the taking, along with the value of a temporary work

5

easement, was at most $5,522. 30-5-04-VCR-062 at

15:23:10-35.

Mr. Bischoff’s proffered testimony on valuation was

limited to the testimony of Reba McIntyre, a local

realtor. Ms. McIntyre testified that Mr. Bischoff had

received an offer of $3,000,000 for the property.

Ms. McIntyre admitted that this offer was based on the

existence of the sewer being constructed by this project,

and that she had no opinion of the value of the property

prior to the addition of the sewer. TR 135-37 Final Order.

In fact, Ms. McIntyre conceded that Mr. Bischoff’s

property would be worth MORE after the taking, 7.e.,

after the sewers were installed. 30-5-04-VCR-062 at

16:20:07-40. Mr. Bischoff never offered any proof that

the subject property had a higher value before the

taking. Final Order, TR 135-37.

Based on this proof, the trial court entered its final

judgment on November 4, 2004, awarding Mr. Bischoff

$5,522, the precise amount proposed by MSD. Jd The

judgment also notes that Mr. Bischoff failed to offer any

proof of diminution of value at the trial. Jd. Mr. Bischoff

appealed and filed a parallel action in the United States

District Court for the Western District of Kentucky.

The United States District Court for the Western

District of Kentucky dismissed Petitioner Bischoff’s

claims abstaining based on the doctrine announced in

Younger v. Harris, 401 U.S. 37 (1971). The United

States Court of Appeals for the Sixth Circuit upheld the

decision of the United States District Court.

6

REASONS FOR DENYING THE PETITION

The facts of this case do not merit review as they do

not present any unique question or point of law that

should be revisited. The case of Younger v. Harris,

401 U.S. 37, 49-53 (1971), requires that a federal court

abstain from ruling on a case if the same issues are

litigated in a state court proceeding where all defenses

may be raised. Mr. Bischoff was properly in state court

where he raised each argument currently before this

Court. Further, the Seventh Amendment to the

U.S. Constitution is not binding on the states. Finally,

Bischoff waived his right to appeal the District Court’s

dismissal of his claims because he never filed an

objection or response to Respondents’ motions to

dismiss.

I. Seventh Amendment Does Not Apply.

Petitioner’s sole claim is for a violation of a Seventh

Amendment right to a jury trial in state court. But the

Seventh Amendment is not applicable to the states

through the Fourteenth Amendment. Walker v.

Sauvinet, 92 U.S. 90, 92 (1876); accord Gasperini v. Ctr.

for Humanities, 518 U.S. 415, 482 (U.S. 1996) (explaining

that the Seventh Amendment “governs proceedings in

federal court but not in state court”.). This Court,

Wederal courts and numerous state courts have been

consistent in determining that the Seventh Amendment

is not applicable to the states. See generally e.g.

Chesapeake & O. R. Co. v. Kelly’s Adm’x, 161 Ky. 655,

659 (Ky. 1914); R.J. Reynolds Tobacco Co. v. Shewry, 423

F.3d 906 (Ca. 2005); Artway v. Scheidemantel, 671

F.Supp. 330 (D. N.J. 1987); Dohany v. Rogers, State

7

Highway Commissioner of Michigan, et al., 281 U.S.

362, 50 S.Ct. 299 (19380); Melancon v. McKeithen, 345

F:Supp. 1025 (E.D. La. 1972); Pacific Mut. Life Ins. Co.

v. Haslip, 499 U.S. 1, 111 S.Ct. 1032 (1991); Wagner

Electric Mfg. Co. v. Lyndon, 48 S.Ct. 589, 262 U.S. 226

(1923); Beauclaire v. Greenhouse, 922 So.2d 501

(La. 2006); Chisolm v. TranSouth Financial Corp., 194

E.R.D. 538 (E.D.Va., 2000); O'Connor v. State of Nev.,

507 FSupp. 546 (D.C.Nev.1981), affirmed 686 F:2d 749,

certiorari denied 103 S.Ct. 491, 459 U.S. 1071; Jacaponi

v. New Amsterdam Cas. Co., 258 F.Supp. 880 (W.D. Pa.

1966), affirmed 379 F.2d 311, certiorari denied 88 S.Ct.

802, 389 U.S. 1054.

Respondent Judge Clayton’s denial of Petitioner’s

motion for a jury trial, therefore, did not implicate his

rights under the Seventh Amendment. Thus, his

complaint does not alege a claim arising under the U.S.

Constitution. For the same reason the complaint does

not allege a claim arising under the laws of the United

States.

The only federal law seemingly implicated here is

42 U.S.C. § 1983, which provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State ... subjects, or causes to be subjected,

any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress... .

8

Because Judge Clayton’s denial of Petitioner’s motion

for a jury trial did not deprive him of any federal right,

privilege, or immunity, the complaint did not state a claim

under 42 U.S.C. § 19838. Therefore, the District Court

did not have jurisdiction over this case under 28 U.S.C.

§ 1331 or 28 U.S.C. § 1343.

Assuming for the sake of argument only that the

District Court found a valid cause of action for violation

of Petitioner’s Seventh Amendment right to a jury trial,

there was no allegation that either Respondent MSD

or Dwyer had a duty to Petitioner. Therefore, their

dismissal was valid.

Petitioner moved for a jury trial. Respondent MSD

through counsel objected to the motion as being

untimely. Judge Clayton consequently denied

Petitioner’s motion. Neither Respondent MSD nor

Dwyer owed Petitioner a duty under these

circumstances. With no duty, there was no viable cause

of action against either MSD or Mr. Dwyer. See e.g., Doe

v. Claiborne County, 103 F.3d 495, 511 (6th Cir. 1996)

(holding that “for constitutional tort liability on the basis

of inaction must derive from some identifiable source of

duty”).

II. Younger Abstention Is Proper.

In its Memorandum and Order dated March 15,

2007, the District Court correctly cited the abstention

doctrine established in Younger v. Harris, 401 U.S. 37,

49-53 (1971), as another basis for its order dismissing

Petitioner’s claims. Younger formalized a long-standing

national policy forbidding federal courts to interfere with

9

state court proceedings. It is applicable here as

Petitioner wished to have an ongoing state court action

stopped in mid-stream and transferred to the federal

court system. It cannot be done. Younger involved an

on-going state criminal proceeding; however, the

abstention doctrine has been expanded to cover civil

proceedings such as the one before this Court in this

case. See, e.g., Huffman v. Pursue, 420 U.S. 592 (1975).

In Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423 (1982), the Supreme

Court set vut a three part test for determining when

the abstention doctrine should be applied. That test is

met here. As described by the Sixth Circuit, the test is

as follows:

Younger abstention in civil cases requires the

satisfaction of three elements. Federal courts

should abstain when (1) state preceedings are

pending; (2) the state proceedings involve an

important state interest; and (3) the

state proceedings will afford the plaintiff

an adequate opportunity to raise his

constitutional claims.” Hayse v. Wethington,

11 F3d 18, 20 (6 Cir. 1997).

As set forth in the Statement of Facts, state

proceedings were pending at the time Petitioner filed

the U.S. District Court action in this case. Petitioner

appealed the decision of the Jefferson Circuit Court to

the Kentucky Court of Appeals where Petitioner

prevailed. The Court of Appeals opinion was the subject

of a motion for discretionary review at the Kentucky

Supreme Court, which reversed the Court of Appeals.

fe ri ewe “ es

10

The final state court action occurred in April of 2008,

long after this action was filed. Thus the first element

of the Younger abstention test is met.

Second, the state proceedings must involve

important state interest. In this case, the state

proceedings must determine whether a litigant in a state

court condemnation action may waive his or her right

to a jury trial by failing to ask for one by a date certain

in a court scheduling order. This is an interest only to

the state. Condemnation actions for a Kentucky public

body corporate is uniquely a state interest. Whether to

grant or not grant jury trials in state court is uniquely

a state interest. Whether to aliow state court judges to

enforce state court scheduling orders is uniquely a state

interest. The second element is thus met.

The third element asks whether the state

proceedings will allow the litigant to raise constitutional

issues. This element is also met. The Petitioner has been

allowed to raise his constitutional issues in the state

proceeding and has raised them in the Jefferson Circuit

Court, the Kentucky Court of Appeals and now in the

Kentucky Supreme Court which is empowered to rule

on his constitutional issues if it grants discretionary

review to do so.

III. The District Court and Sixth Circuit Lacked

Jurisdiction Over This Claim.

Jurisdiction has not been proper in this case and

subsequently violates 28 U.S.C. § 1257. Petitioner asked

the United States District Court to exercise jurisdiction

over a state court judgment. After the District Court

11

dismissed the suit, Petitioner appealed to the United

States Court of Appeals to exercise jurisdiction over a

state court judgment. Now, Petitioner is asking for a

grant of certiorari from the United States Court of

Appeals, not from the Kentucky Supreme Court.

Thereby violating 28 U.S.C. § 1257.

The grant of federal jurisdiction over state court

judgments is exclusive to the United States Supreme

Court under 28 U.S.C. § 1257 and cannot begin with a

complaint in a United States District Court followed by

an appeal to a United States Court of Appeal. Lance, et

al, v. Gigi Dennis 546 U.S. 459 (2006) on remand 2007

U.S. Dist. LEXIS 20965 (D. Colo. Mar. 23, 2007).

See also, District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed. 2d

206 (1983). “Accordingly, under what has come to be

known as the Rooker-Feldman doctrine, lower federal

courts are precluded from exercising appellate

jurisdiction over final state-court judgments.” Lance v.

Gigi Dennis at 1201. As this Court has stated, the

Rooker-Feldman doctrine is “confined to cases of the

kind from which the doctrine acquired its name: cases

brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the

district court proceedings commenced and inviting

district court review and rejection of those judgments.”

Kauxon v. Saudi Basic Indust. Corp., 544 U.S. 280, 284

(2005). Petitioner lost on its issues presented in the

Kentucky state courts and then proceeded to file in

Federal court to appeal the state court decision. This is

impermissible under 28 U.S.C. § 1257.

12

IV. 28 U.S.C. § 2403 (b) is not applicable to this case.

Petitioner has stated that 28 U.S.C. § 2403 (b) “may

apply” because as

“[pjetitioner contends that, Kentucky KRS

416.550 to 416.670 mandates requiring a jury

trial were violated [sic] by all Respondents.

Also, the statues [stc] do not allow for just

compensation ii consideration of a main sewer

line, noting that new construction on the

easement property is totally eliminated for

future use, not the normal utility easement

consideration.

Petition, p. 3.

28 U.S.C. § 2403 (b) provides:

In any action, suit, or proceeding in a court of

the United States to which a State or any

agency, officer, or employee thereof is not

a party, wherein the constitutionality of any

statute of that State affecting the public

interest is drawn in question, the court shall

certify such fact to the attorney general of the

State, and shall permit the State to inter~’ene

for presentation of evidence, if evidence is

otherwise admissible in the case, and for

argument on the question of constitutionality.

The State shall, subject to the applicable

provisions of law, have all the rights of a party

and be subject to all liabilities of a party as to

court costs to the extent necessary for a

13

proper presentation of the facts and law

relating to the question of constitutionality.

(emphasis added).

In this action, Petitioner has named Judge Denise

Clayton’ as a party‘ and she is an employee of the state.

Moreover, this Court held that state officials who are

sued in their official capacity for monetary damages are

not considered “persons” subject to suit under 42 U.S.C.

§ 1983. Will v. Mich. Dep’t. of State Police, 491 U.S. 88,

70-71 n. 10 (1989). Thus, 28 U.S.C. § 2403 (b) is not

applicable.

Furthermore, Fetitioner contends that “Kentucky

KRS 416.550 to 416.670 mandates requiring a jury trial

were violated by all Respondents.” Kentucky Revised

Statutes § 416.550-416.670 make no mention, express

or implied, that Petitioner is entitled to a jury trial for

property valuation in a condemnation proceeding. In

fact, KRS § 416.570 states:

Except as otherwise provided in KRS

416.560, a condemnor seeking to condemn

property or the use and occupation thereof,

shall file a verified petition in the Circuit Court

of the county in which all or the greater

3’ Judge Clayton’s involvement with this case arises during

her time serving on the bench for the Commonwealth of

Kentucky Jefferson County Circuit Court.

* Petitioner has also named the Commonwealth of

Kentucky as a party to this appeal, however, the Commonwealth

of Kentucky was not a named party in the underlying Federal

cases.

14

portion of the property sought to be

condemned is located, which petition shall

state that it is filed under the provisions of

KRS 416.550 to 416.670 and shall contain, in

substance:

(1) Allegations sufficient to show that the

petitioner is entitled, under the provisions of

applicable law, to exercise the right of eminent

domain and to condemn the property, or the

use and occupation thereof, sought to be

taken in such proceedings;

(2) A particular description of the property

and the use and occupation thereof sought to

be condemned; and

(3) An application to the court to appoint

commissioners to award the amount of

compensation the owner of the property

sought to be condemned is entitled to

receive therefor.

KRS § 416.570 (emphasis added). This statute clearly

demonstrates that property valuations for the amount

of “just compensation” are determined through an

appointment of commissioners and not a jury trial. Even

if KRS § 416.570 was not sufficient to show that jury

trials are not granted to determine the amount of

compensation, KRS § 416.580 provides in even greater

detail:

(1) The Circuit Court, or in the absence of the

Circuit Judge from the county, the Circuit

15

Court Clerk, shall appoint as commissioners

three (3) impartial housekeepers of the

county who are owners of land. They shall

be sworn to faithfully and impartially

discharge their duties under this section. The

commissioners shall view the land or

material sought to be condemned and

award to the owner or owners such a sum

as will fairly represent the reduction in the

market value of the entire property, all of or

a portion of which is sought to be condemned,

said sum being the difference between the

market value of the entire property

immediately before the taking and the market

value of the remainder of the property

immediately after the taking thereof, together

with the fair rental value of any temporary

easements sought to be condemned. Within

fifteen (15) days from the date of their

appointment, they shall return a written

report to the office of the Circuit Court,

stating the above values in their award and

shall describe in their report the property

sought to be condemned. They shall be

allowed a reasonable fee which shall be taxed

as costs.

(2) In the event any person appointed to

serve as commissioner fails, refuses or

becomes incapable of acting, the court, or

judge thereof, shall forthwith appoint a

qualified person to fill the vacancy. A majority

of the commissioners appointed and qualified

have the power to act and to make and sign

16

the award and report. If a majority of the

commissioners do not agree on a decision,

three (3) new commissioners shall be

appointed by the court on application by

any of the parties to the action.

KRS § 416.580 (emphasis added). Instead of a jury trial

to determine the value of the property, three (3)

commissioners are appointed. And even if those

commissions cannot agree on a decision no jury trial is

granted- three more commissioners are appointed to

value the property. After the property’s value has been

determined by the commissioners an interlocutory

judgment is entered. KRS § 416.610 (2).

The interlocutory judgment was entered January

30, 2003. Petitioner then had thirty (30) days from the

date of entry of the interlocutory judgment to file a

statement of exceptions. KRS § 416.620 (1). Petitioner

could have questioned the amount of compensation at

this time and been granted a jury trial; “[aJll questions

of fact pertaining to the amount of compensation to the

owner, or owners, shall be determined by a jury, which

jury on the motion of either party shall be sent by the

court, in the charge of the sheriff, to view the land and

material.” KRS § 416.620 (1). However, Petitioner failed

to make a timely statement of exceptions in response to

the interlocutory judgment. Bischoff did not file his

demand for a jury trial unti] August 7, 2003, almost three

months past the last pleading directed to the issue of

compensation and eleven months after Bischoff filed his

first pleading in this case. Thus, Petitioner waived his

right to a jury trial by not following applicable procedural

rules in a timely fashion.

17

Failure to abide by filing deadlines that limit one’s

rights to a jury trial do not abridge Seventh Amendment

rights because that person still had access to a jury trial.

See Beauclaire v. Greenhouse 922 So.2d 501 (La. 2006);

Moore v. U.S., 196 F.2d 906 (5 Cir. 1952); Maytag Co. v.

Meadows Mfg. Co., 45 F.2d 299 (7 Cir. 1930), certiorari

denied, 51 S.Ct. 489, 288 U.S. 848; Montanez-Baez v.

Puerto Rico Ports Authority, 509 F.Supp.2d 152

(D. Puerto Rico 2007); People v. Ramos, 101 P3d 478

(Ca. 2004); Sperandeo v. Denny’s, Inc., 683 So.2d 743

(5% Cir. 1996).

CONCLUSION

The legal issues presented in this case are clearly

established and need not be revisited by this Honorable

Court. For the foregoing reasons, Petitioner’s petition

for a writ of certiorari should be denied.

Respectfully submitted,

LAURENCE J. ZIELKE

ZIELKE LAw FIRM

1250 Meidinger Tower

462 South Fourth Street

Louisville, Kentucky 40202

(502) 589-4600

Counsel for Respondents

Louisville and Jefferson County

Metropolitan Sewer District

and John H. Dwyer, Jr.