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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

Sutiome.
Ps

‘
'

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1500%3A2. Public record. Not legal advice.