Check this out, a recent case on the Uniform Relocation Act from the Ohio Supreme Court. Does it conflict with a decision that goes the other way from the West Virginia Supreme Court, or is it consistent with a South Dakota decision (cert. denied in that one, by the way)? Read on and find out.
In State ex rel. New Wen Inc. v. Marchbanks, No. 2017-0813 (Oct. 14, 2020), the property owner prevailed on an inverse condemnation case in the Ohio Supreme Court. (Well, not technically an "inverse condemnation" case because Ohio doesn't recognize such a claim when a government action has de facto taken property; instead, the property owner applies to the Supreme Court to issue a writ of mandamus to compel the government to institute eminent domain.) But no matter - the property owner (a Wendy's restaurant) won its takings case in the Ohio Supreme Court after the Ohio DOT's highway project closed off access to the Wendy's from the highway.
The owner sought attorneys' fees under the URA's provisions that shift the usual rule of each party bears its own fees when an owner is forced to initiate a claim for compensation.
The Ohio Supreme Court held that the URA does not require payment of attorneys' fees to a property owner who prevails in a federally-funded inverse condemnation case for two reasons:
First, the URA only governs actions by federal agencies:
When a federal agency institutes a condemnation proceeding in federal court, the act authorizes the court to award “reasonable costs, disbursements, and expenses” to the real property owner, including reasonable attorney fees, if the federal agency cannot acquire the property by condemnation or abandons the proceeding. 42 U.S.C. 4654(a)(1) and (2). And under 42 U.S.C. 4654(c), a similar award is authorized for a plaintiff who prevails in an inversecondemnation proceeding against the United States for the taking of property by a federal agency or for a plaintiff in such a proceeding that ends in a settlement; see also 49 C.F.R. 24.107. By their terms, however, these provisions apply only to exercises of eminent domain by federal agencies. The federal act does not create a statutory basis for an award of attorney fees in a state mandamus action.
Slip op. at 3. The URA only "imposes an obligation upon federal officials to ensure certain conditions are met before approving contracts. It does not purport to be a statutory authorization for this court to award attorney fees in a mandamus action." Slip op. at 3-4.
Second, the court rejected the owner's argument that Ohio has adopted the URA's requirements. "[T]he Revised Code contains no counterpart to 42 U.S.C. 4654(c) or 49 C.F.R. 24.107 authorizing an award of attorney fees in a mandamus action brought to compel an appropriation proceeding, and New Wen does not rely on any Ohio statute in its application for an award of attorney fees." Slip op. at 4. The court also rejected the argument that by regulation, the Ohio DOT had adopted the URA's requirements. The owner asserted that even though Ohio statutes had not done so, the Ohio regulations plainly mirror 49 C.F.R. 24.107's requirement to pay inverse condemnation attorneys fees.
No deal, held the court, the administrative regulation was ultra vires because it "lacks statutory authorization." Slip op. at 5. If an Ohio statute doesn't authorize URA-like fee shifting, then a regulation alone can't do it.
Finally, in what may be the weirdest quirk in the opinion, the court concluded that the fee-shifting provision in the Civil Rights Act (42 U.S.C. § 1988) does not compel an award of attorneys fees, even though the property owner alleged a section 1983 claim in its complaint. The court concluded that it -- the Ohio Supreme Court -- does not have original jurisdiction to consider 1983 or 1988 claims, and therefore rejected the claim. Now it is true enough that the Ohio Supreme Court does not have original jurisdiction to consider a 1983 claim or the related 1988 claim for fees. An Ohio trial court, however, would have (concurrent) jurisdiction over such claims.
Does it strike you as odd that simply because of a procedural quirk in how an owner raises an inverse condemnation or takings claim in Ohio -- as a mandamus action brought directly in the Supreme Court -- that the owner is deprived of the otherwise-available opportunity to recover fees and costs for a pretty plain violation of its federal constitutional rights? Does this mean that Ohio property owners should skip the Ohio Supreme Court and bring their takings and mandamus claims in a federal court, either under that court's original (Knick) or supplemental jurisdiction?
And what of the differences in analysis between the Ohio court and the West Virginia court on the URA issues? Are we seeing a lower-court split with cert potential?
Stay tuned, as always.
State ex rel. New Wen, Inc. v. Marchbanks, No. 2017-0813 (Ohio. Oct. 14, 2020)
