A quick per curiam from the Ohio Supreme Court.
In State ex rel. AWMS Water Solutions, LLC v. Mertz, No. 2023-0125 (Ohio Jan. 24, 2024), the court issued a gentle (or maybe not-so-gentle) "benchslap" to the court of appeals. Here's the scenario.
First of all, recall that Ohio does not recognize a claim for "inverse condemnation" or "regulatory taking." Instead, if a property owner believes that the government has de facto taken property but has not provided just compensation, the owner seeks a writ of mandamus asking the court to compel the government to institute an eminent domain action (what CJ Roberts calls "an upfront taking").
AWMS thought this was the case and sought a writ to compel Mertz, an official with the state Department of Natural Resources, to take and pay. The court of appeals entered summary judgment for Mertz, but the Ohio Supreme Court held that the case should be tried. "In an earlier appeal, we reversed the court of appeals’ grant of summary judgment in favor of the state and remanded the case to the court of appeals with directions to weigh the parties’ evidence relating to AWMS’s total-takings and partial-takings claims." Slip op. at 1.
On remand, the court of appeals held a nine-day trial. [Sidebar: it is interesting that in Ohio, a three-judge panel of the court of appeals conducts trials.] So far, so good. But at the close of the evidence, "the court of appeals again ruled in favor of the state and denied the writ. This time, the court of appeals held that AWMS did not have a cognizable property interest for purposes of a takings analysis." Id. It denied the writ. Foiled again!
AWMS sought Ohio Supreme Court review, and requested oral argument.
The court said no (to the request for oral argument, that is). We don't need to hear more to conclude that the court of appeals wasn't listening to us when we said to WEIGH THE PARTIES' EVIDENCE. "[T]he court of appeals failed to follow our remand order and violated the law-of-the-case doctrine by sua sponte revisiting the issue whether AWMS possessed a cognizable property interest for Takings Clause purposes." Slip op. at 6.
The Supreme Court didn't seem that happy with the appeals court:
It is axiomatic that an inferior court lacks jurisdiction to depart from a superior court’s mandate. State ex rel. Heck v. Kessler, 72 Ohio St.3d 98, 104, 647 N.E.2d 792 (1995). In AWMS, we reversed the court of appeals’ grant of summary judgment to the state and remanded the case specifically for the purpose of conducting the proper takings analysis. In this regard, we did not leave the court of appeals’ task open-ended. Rather, we specified that the court of appeals “must weigh the parties’ evidence relating to AWMS’s total-takings claim” and “must weigh the parties’ evidence in accordance with this opinion and balance all three Penn Cent.[, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631] factors to determine whether AWMS suffered a partial taking.” (Emphasis added.) AWMS at ¶ 88-89.{¶ 20} The court of appeals did not follow our instructions. Instead, after a trial and posttrial briefing, the court of appeals sua sponte ordered the parties to file supplemental briefs on the threshold issue of whether AWMS has a cognizable property interest that is compensable under the Takings Clause.
Slip op. at 7.
The court didn't really deal with the court of appeals' legal conclusion (AWMS has no property interest) other than to say "we already decided that." Slip op. at 11 ("it is the law of the case that AWMS possesses a cognizable property interest in the leasehold right").
Although this opinion is really more about law of the case than about takings, there's a good lesson here. The Ohio Supreme Court saw this case as one about facts (as most Penn Central takings claims inherently are). Having so concluded -- and apparently treating this takings claim like any other civil claim, and not one subject to judges imposing their own views of the law -- the court rebuked the court of appeals for not understanding that these are factbound claims, not generally resolved by law.
"Ad hoc factual inquiry" rules the day!
State ex rel. AWMS Water Solutions, LLC v. Mertz, No. 2023-0125 (Ohio Jan. 24, 2024)
