Decision: Harsch v. Miller

February 13th. The Kansas Supreme Court has issued its opinion in Harsch v. Miller (No. 100,149) a procedural appeal arising out of an eminent domain proceeding. In a unanimous opinion, written by Justice Nuss, the Court affirmed a Coffey County District Court ruling, dismissing Doyle Harsch’s appeal against the  appraiser’s valuation of his land on the grounds that Harsch and his attorney did not appear on the date set for the civil trial. A ruling of the District Court sanctioning Harsch’s attorney and imposing costs upon him based on a finding of contempt of court in the case was overturned. Note: The “Miller” of the case title is Debra Miller, Kansas Secretary of Transportation. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Stephen Hill of the Court of Appeals.

In 2007, KDOT instituted eminent domain proceedings to acquire part of Doyle and Lea Harsch’s land. The Harsches began several legal proceedings to fight this. They appealed the appraiser’s valuation to District Court, began a constitutional claim in District Court and filed another constitutional claim in Federal District Court. They withdrew the State constitutional case. In the midst of this, they filed a motion with the District Court hearing their valuation appeal to stay the case, pending the outcome of their constitutional appeals. The District Court denied their motion. As the date of the jury trial on their appraisal appeal approached the Harsches filed an appeal of the denial of stay with the Court of Appeals. While the Court of Appeals asked them to show why the appeal should not be dismissed as interlocutory (i.e. filed before the lower Court had concluded the case, something there are specific procedures to follow if desired and which is rarely granted), it set a date on which it would rule on their appeal after the date on which the jury trial was to take place.

The District Court proceeded towards the jury trial, while the Harsches and their attorney argued that it could not do this while the Court of Appeals was considering their appeal of the denial of stay. The District Court ruled that it retained jurisdiction in the case, and the Harsches and their attorney announced they would not attend the trial since they argued that the District Court did not and the trial would therefore be a nullity. They carried out their threat, and on the day of the trial the District Court dismissed their appeal and confirmed the appraiser’s valuation. It also sanctioned their attorney, Mark Rockwell, for several thousand dollars in costs of the abandoned trial. A few days later the Court of Appeals dismissed the Harsch’s appeal of the denial of stay. Their Federal case is scheduled for trial in June of this year.

In their appeal the Harsches repeat their argument that the District Court lacked jurisdiction at the scheduled time of the jury trial to hear the case. Some background on rules of appeal in civil cases is necessary to the Supreme Court’s rejection of their argument. Appeals are governed by statute. In civil cases, such as this one, they may only be brought at the conclusion of a lower court proceeding, or as an interlocutory appeal through a particular procedural process. Interlocutory appeals are rarely granted and those that are not filed through the defined process are always dismissed. One exception to this rule is a narrow group of appeals under the collateral order doctrine, which allows interlocutory appeals of District Court rulings that have a degree of finality to them, cover significant legal issues and which would not be possible to preserve for the regular appeals process if the appellant waited. The Harsch’s argued that their appeal fell into this category. The Court rejected this argument, and emphasizing the Legislature’s goal that cases not be tried piecemeal and be concluded as speedily as possible noted several alternative approaches the Harsch’s had opted not to use (such as following the procedure for filing an interlocutory appeal in the prescribed manner). The Court found no grounds that the filing of the Harsch’s appeal of the denial of stay would have removed the District Court’s jurisdiction (in effect getting them the stay they had been denied by simply filing a motion in the higher court), and therefore found that the District Court acted within its discretion in proceeding with the jury trial.

The Kansas Supreme Court overturned the finding that the Harsches and their attorney were in contempt of court by not showing up for trial. It did so on a technicality. Under the Statute cited by the District Court in its contempt ruling, the Court journal is required to include a statement of why they were found in contempt, the sanctions applied and a description of the defendants reason or excuse for the behavior found in contempt. Despite Rockwell’s having made his jurisdictional argument to the District Court when he said the Harsches would not be attending the trial, this information was not included in the journal. Therefore the contempt citation is invalid and was vacated by the Supreme Court along with the fees Rockwell had been ordered to pay.


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3 Responses to “Decision: Harsch v. Miller”

  1. MikeB Says:

    Kelo was the tipping point on grassroots rising to protect property rights. Coalitions are now active in communities across the country — but it is still an uphill battle.

    Speaking as someone actually fighting eminent domain in federal court with Houston-based Spectra Energy, I can confirm that, nowadays, eminent domain has less to do with projects for the “public good,” and everything to do with the financial good of publicly held companies.

    In Bedford County, Pennsylvania (2 hours from Washington), property owners are being hauled into federal court by Spectra Energy, backed by the power of the Federal Energy Regulatory Commission.

    The landowners’ property is sitting on top of the gas-rich Marcellus Shale; but they can’t develop that because Spectra Energy wants to use the Oriskany sands layer for an underground gas storage facility.

    Here is the great conundrum of eminent domain: property owners possess the key asset that companies and government covet – the land. But they are treated as a waste product in this process rather than as key stakeholders.

    For info:

  2. Maisie Says:

    This is a topic that is near to my heart… Many thanks! Exactly where are your contact
    details though?

  3. Alexis Thomas Says:

    I absolutely love your blog.. Very nice colors & theme.
    Did you create this website yourself? Please reply back as I’m attempting to
    create my own personal website and would like to find out
    where you got this from or just what the theme is called.

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