We’ve been meaning to post this one, a short per curiam opinion from the Ohio Supreme Court, for some time. Not because it deals with earth-shattering substantive eminent domain issues, but because it highlights a somewhat niche, but pretty important, procedural issue. 

Say an owner challenges the take, either by way of a public use or a necessity challenge. Some jurisdictions, Ohio included, permit the owner whose challenge is initially denied, to an immediate interlocutory appeal. The question before the court in State ex rel. Bohlen v. Halliday, No. 2020-1245 (Jan 27, 2021) was whether, while that appeal was being considered by the court of appeals, the trial court could move forward and determine just compensation. The trial court thought it could, and set a trial date. The property owners thought otherwise, and sought a writ in the Supreme Court.

This mostly turned on a question of how Ohio’s statute establishing how and when compensation trials are to be held should be interpreted after a necessity challenge. The statute sets a time “for the assessment of compensation by the jury not less than sixty days from the date of the journalization of that determination.” The trial judge concluded that means even when there’s a pending appeal of a necessity challenge. Also, in most other civil cases, you need to wait for a final judgment that wraps up all issues in the case before you can appeal. The condemnor also argued that time is of the essence in eminent domain (doesn’t it always seem that agencies make this argument — unless the delays are the agency’s fault?), and the court should not allow a project to be held up while an owner appeals. The owners, however, pointed to other language which notes that such a trial is “subject to … the right of the owner to an immediate appeal[.]” They argued this means the lege intended to say no comp trials while an appeal is pending.

The Supreme Court agreed with the owners, and concluded that yes, the “subject to” language was meant to cover the scheduling of the compensation trial. Besides, the Ohio legislature’s 2007 amendment of the statute to allow immediate interlocutory appeals on preliminary issues in eminent domain cases. After all, “it was cognizant of the public policy to expeditiously advance eminent-domain cases.” Slip op. at 10. The court also noted that even in interlocutory appeals, the appellate jurisdictional principle that trial courts lose jurisdiction during appeals applies:

Judge Halliday lacks jurisdiction to proceed with the compensation trial because the issues to be adjudicated there are currently within the Fourth District’s appellate jurisdiction. Because relators have appealed the necessity of the takings, the scope of the property rights that must be valued at a compensation trial is squarely before the Fourth District. Indeed, should the Fourth District reverse or modify Judge Halliday’s judgment, the amount of compensation would be based on the scope of the takings as determined by the Fourth District.

Slip op. at 11.

We think the underlying sense of this opinion could also apply to other preliminary matters in eminent domain trials, even when those matters are not related to power-to-take. Critical evidentiary matters, for example. To us, it makes about as much sense to go forward on a compensation trial if the trial court has made dispositive rulings that, if reversed on appeal, would require a retrial. This overburdens the owner’s rights to full compensation because in most jurisdictions, the cost of two trials is borne by the owners. Yes, we recognize the difference between, say, this situation where the lege has expressly opened up interlocutory appeals or a jurisdiction like New York where interlocutory appeals are more allowable (at least in our Law and Order (dun-dun) understanding), and the usual “wait til final judgment to appeal” situation, but we’ve experienced cases where holding up a compensation trial in order to get it right would have avoided a lot of hassles and unnecessary expense.

State ex rel. Bohlen v. Halliday, No. 2020-1245 (Ohio Jan. 27, 2021) (per curiam)