state but ohio permits an action for inverse condemnation by landowners who have their property taken a year councillor do you agree that we i mean we have published precedents for closes those arguments right few in this case i think there's a very narrow way that the court can address this issue and that would be simply to look at the adequacy of ohio's mandamus procedures i do think and i believe there's a very cost to tional argument for why this court should look at the interplay of the th and the th amendments more broadly but it doesn't need to do that in this case but why i mean we've i understand ohio is unusual i used regarding ohio's procedures no specifically every state but ohio has the inverse condemnation remedy or statute and then later on he says as now almost every state has an adequate remedy injunction injunctive relief is no longer necessary i think the court is saying or is saying a lot without explicitly saying that ohio is not adequate and i think if you look at this court's prior decision  kohls where the it was struggling to kind of justify how this mandamus procedure works cold was viewed through the prism of a williamson county president without williamson county we have to look back again and i think justice roberts what he's talking about the need for a full and complete remedy in order to pass muster under the th amendment the other things they talked about in that opinion when you look at ohio my eggs are also in the horn basket judge you know ohio does not have a process by which personal property you can mandamus doesn't work for personal property theft one hundred and sixty three doesn't work for personal property horn as cited by the state acknowledges there has to be a remedy for personal property taking justice roberts noted whether you take a car you take somebody when the government is obligated to pay for it ohio doesn't have any procedure and is acknowledged by the state to allow for personal property taking screams to be litigated and moreover there is no process whereby a personal property pay can claim to be litigated in the same proceeding as a real property taking claim so that's the grab him out of my argument is this case is a perfect example of why view i've system doesn't work in light of the things that judge justice roberts chief justice roberts identified in it is being critical in any th amendment analysis i would i would refer the court to horn i think that's changed the nature of the game a little bit here and nick is well and ohio is not adapted to meet the constitutional guidelines that have been set forth in order to  but how is it what is it specifically about the ohio system that's problematic now or what has been brought to light is it just that you the procedural the th amendment requires a complete remedy that complete remedy means the costs associated with vindicating your rights so iow does not permit for a fee shifting or any way that a claimant can recover his his or her attorney fees in this provision i always mandamus procedure essentially is a is a i'm in a straight a remedy that has to be exhausted before you can get to the compensation and as justice roberts notes in it states aren't allowed to would create administrative hurdles to admit again bringing a constitutional claim so i think that's very problematic as what the mandamus is the mandamus is what you have to do to even get to the courthouse to get pay that creates a piecemeal litigation where my clients are going to be forced to argue that it take is a kurd and they're going to have to prove that by clear convincing evidence they're going to have prove that there is no other adequate remedy at law and that there was a clear duty on the part of the state provide that's a much different birding then isn't any other th amendment that i've seen across the country and certainly when a case is tried in a normal condemnation action where the state has provided notice provided an appraisal and then brought a lawsuit there's no burden of proof in that  creating these procedural hurdles and it's also designed to stop any of the claims ultimately because there's no way that a litigant can afford to fight the state of ohio all the way the supreme court if they're paying an attorney out of pocket and their land has already been taken i think an important thing to know that that is reaffirmed by nikias this is a tasca to tional injury where the person has a claim the minute the land is taken so the procedure has to be geared to providing a complete remedy and in on that basis i don't think you can look at ohio's current procedures and say they passed last year we ask you this question i guess it's a car show question or maybe i should have asked that before but there is a believe the state suggests that you waive this argument or didn't raise apolo and i'm wondering what your responses to that question thank you your honor i didn't really understand where that came from in our briefing st of all just you harry likes to move things along he had in a pretty aggressive briefing schedule and he and oral arguments in the briefing that we filed we noted that there is no adequate remedy i think there is even emphasize that point there has to be an adequate remedy in the precinct and then we discussed that length in oral argument which was on the record for which a transcript was prepared and was filed and as part of this record for the court so to say that we somehow waive that argument as to the adequacy i don't think that's that's correct and frankly i don't know that we could wa t if we were you know that would result in a fundamental constitutional injury to my client and i don't think there's any six circuit law that would support waiving a legal argument at this stage of the proceeding on that basis i think when this court is looking at this case is a bit analogous to the old popeye cartoons is when people come up and say i'll gladly pay you tuesday for a hamburger today and you know that doesn't sound right but under our existing precedent the state can take the property and pay later the mean we can you know we can we that is permissible under the law what the state can't do is say i'll gladly take your hamburger and then you can go to three different places and recover eighty five percent of the value of that hamburger if you can you get do you still have an injunction are equitable relief that you could get in federal court  under mr nix that would not be barred by the element the moment i think at that point judge we're looking for an ex parte young exception the question is an ex parte young section is for an equitable purpose the the question is what is the court ordering in this case that were to issue some sort of an injunction it would be basically taking the role of the mandamus itself and it would be saying there's bennett taking the taking is continue as the facts stay to me my client probably spent flooded at least three times in two years it's an ongoing taking i think the court could issue an injunction and that would the injunction would be state of ohio taking has occurred you shall commence appropriation proceedings i think that would be the way that the court could keep jurisdiction without having to address the th amendment issue but at this point i mean ohio you know one of the things that ohio talked about in its brief is hey ohio you know the states this was part of the bargain the state agreed that they would sign on to the union to me but maintain their sovereignty well it goes both ways to be part of the union you had to agree that if you break it you bought and that's in the th amendment and if you're going to agree that you have their procedure where people can vindicate that right ohio does not have that and so in light of that we we'll hear from mr carty for the state the morning may please the court even carney for the state of ohio and our director of our department of transportation are owed off in his official capacity  doesn't change that either i think the most important thing to keep in mind here is that this court standard under moody and other cases is that great prior panel to not be followed the supreme court decision that allegedly changes things have to mandate a different outcome the standard is a supreme court mandate a new not is there a whisper of a hint of a crack in the door that might someday lead to something and here time you know why we didn't just pass an inverse condemnation statute but because a court started saying well you have a clear legal duty and keep in mind you know high on my federal mandate in this which is very rare or hard to get statement gam used in ohio all the time not just in taking hits use for a lesson law in the us for all sorts of things with state action so you go to court you get your mandamus it is a two st but it's not a particularly cumbersome to staff in that you just go to room one of the room two you're still in a courthouse and what our history does show is that we pay out unfortunately for us we stay out the images claims or taking flame all the time so there is a rich history feel if we say you know the donor case against our d n r there are a lot of cases that have affected a lot of people that is a flooding case of a lot of landowners the equitable relief option and i go you know maybe in this particular case after a flood or something maybe there's nothing that can be done but if he does nick do anything with regard to whether i can go into federal court and get a get an injunction to stop the state from taking my property imminently mill your honor it doesn't but even the state has no process at all we just said doors close we don't have to step mandamus we just don't give taking claims then d l x says you could do some sort of injunction perhaps to tell us they get a process together to do something here but that would be the kind of individualized we they're speaking of give us money damages the problem is where there blurring the difference between these two separate points is they're asking for inconsistent things because on the one hand they say we could try to squeeze in an injunction or a declaration here but on the other hand when they talk about the adequacy of the procedure they say we want a jury through federal court  damages directly and the problem is no matter how terrible our procedure allegedly is applicable obviously don't agree with afa program and see if that doesn't overcome that the jurisdictional problem here sovereign immunity the refusal to compensate that actually is the violation so if there's a flood you don't come in and say stop what do you say hey cough up the compensation and if we say no and refuse that's what the violation is and so we do have a process here but again what's important is if you look for example the graphic they say were not equipped because they want to get damages well as d l x said it doesn't matter whether it's fifty men st amendment nd your favorite amendment there is no right to get money damages against the state agency however that's a that's a global rule unless you have either statutes congressional operation not in play here even the ones who need three is only about seeking damages in an individual personal capacity they haven't even millions personal capacity but the other thing is i have encouraged the court because it's ruled wealthier to look at the complaint page id seven they have only two counts here isn't just a waiver in the sense of oh we didn't put it in our opposition the motion to dismiss this is it's not really in the four corners of the complaint there's nothing in the complaint an alternate declaration or alternate injunction specifically didn't ask for a declaration that the procedure was inadequate correct why is that not perhaps generously reading the complaint tied up in their account to mean  there but nd in the nd cause of action paragraph thirty one to thirty three they simply say that defendants takings of plaintiff respective properties that describe here in represents an infringement of the constitutional rights so they're not sending the refusal to compensate represents a violation they're saying if taken directly and then they say as a direct result we suffer damages in an amount to be proven so they're seeking damages so they're right in the heartland of a lot of sovereign immunity i mean they're they're asking basically to reinstate chism that baffling to question everything about two hundred years of you know this isn't the next what's happened in the last few months this is questioning two hundred years of what not just eleven amendment but article three is all about if they are truly seeking a declaratory and injunctive claim not only would they have to come up with a new complaint but it would have to be aimed at the adequa separate thing mick has nothing to do with that and again i commend my friend on the other side for their openness they openly say it takes time of every they went to court to revisit their word not mine revisit coles and revisit last this panel cannot resist incest eating order the supreme court would have to do something or if not the supreme court the agong court would have to do something if they want to see because they alternately talk about some section i've amendment power congress would have to do something so of all the different answers that could do something even if they were on to something it's not this panel of this court at this time on this complaint and again the cash in and actually get a chop and federal court but that puts you again squarely against the heartland of you cannot ask federal court order money damages it's neither one works on their own but certainly taken together that that can't work here and that's why by the way the th circuit the th circuit both of them have looked at this exact issue post net and have rejected it so this court would be not only rejecting prior precedent from its own circuit a circuit split with the other courts to look out it so there's really no pathway here the best fast way is either to just simply do the state court taking claim or as they already have pending they filed and have on hold a least they frame it as bust where you can't you don't have to do what they say i've tried all because you can collect for the same damages if they do collect in their negligence counts and we do pay them out for that  then it obviously there will be a set off when you get to taking claim there would be a collateral loss that you already get when you get i guess i'm wondering if can you get can you get damages for the damage to the real property in the court of claims or is it just the personal property well your honor is under the sense this is precedent you can actually see the system claim itself but as far as the negligence claim of what it's brought against  have to be included in the same way obviously who are in changes out of get to that bus for instance getting attorney fees or other compensatory damages pain and suffering other sorts of damages are not part of  these facts i have personal property assume i believe for some properties been damaged i want to turn a seed i want to other things in addition to the diminution in the value of my real property i have to bring the mandamus claim to make clear of the bundle that i think under court and we have to follow including personal property as well as your property but as far as dates of damages such as compensatory pain and suffering fees we don't win the court of claims and it's true you don't get a jury trial i know that one of the things they complain about is whether they have to do yet another case against the contractor we in the court  think my time is up so if i may briefly conclude none of that creates the right to a federal claim for money damages because that's the heart of article three and the lack of jurisdiction there's no to the money in federal to i cannot agree with the mandamus procedure renders a final judgement subject to appeal meaning the state what if it's unhappy with the mandamus decision has an immediate right of appeal and can take it all the way up to supreme court only then after all appeals are exhausted can it come back down and then a compensation proceeding occurs so we can be looking to years between when it gets filed and when my high tech should get money under the man's name statute i think that's required to pay prejudgment interest ok under under supreme court precedent under ohio law but justice delayed is still justice denied st and foremost this is a system that is designed to create hurdles create barriers to compensation and then when you get there it's not all compensation because if there is a time value of your money and go and you get it if you have to run all over town to get the same money you should get a little more for your effort  and ohio recognizes that because they do permit attorneys every other state within this just the circuit allows for attorneys fees both on a regular condemnation claim and with the exception of this state on an inverse condemnation attorney fees are permitted in to speak to the court of claims litigation i was hired with a statute pending two years ours is the statute of limitations for claims against the state that put us in a position where we had to file everything to protect of claims case is in a great example of why this is them doesn't work i'm stuck in the court of claims trying to construction case when my clients homes were flooded they had nothing to do with that project they were asleep in their house the st time and their water came into their house and started flooding that is not the same thing as director marchbanks rear ended me at a stop sign that is it taking so now we've had to create a legal fiction where it's a negligence claim and we're going to have to deal with specific causation i've received requests for admission from the construction company regarding  issues if i mean the takings claim in federal court i don't have that discussion my guys don't need to prove that my client shouldn't have to prove my five had did nothing here but live in their property and it was taken from their stuff was destroyed and they were thrown from the house and with that you're on i think that up ever says the importance i see my time is up we s that you reverse we think there is a basis to do so thank you thank you counsel prieur arguments the case will be submitted