Normally, one of the few things more boring than a condemnation trial is a condemnation appeal. But this one addresses an issue of importance; it presents a simple, basic analysis of what to do when a statute and a court rule conflict.

The City condemned Johnson’s property for its light rail system. The jury awarded her more than the City wanted to pay; the City moved – unsuccessfully – for a remittitur or new trial, then paid the money into court (which you can do in a condemnation case) and appealed.

A statute provides that the defendant/condemnee can demand receipt of the money paid into court; Johnson did so. Rule 62(g) says that appeal stays money judgments against political entities, so the City argued that Johnson couldn’t get the money despite the statute. The trial court ordered the funds released, so the City added that ruling to its appeal.

The appellate court first recognized that the statute and the rule are irreconcilable – one has to trump the other.

Which prevails is an issue of substance versus procedure. The legislature has the right to make substantive law. The Supreme Court has the right to make procedural rules. On substantive matters, statutes prevail; on procedural matters, the rules prevail.

So is paying Ms. Johnson procedural or substantive? The court decided that it was substantive. The legislature created a substantive right to the money that the rules cannot hinder or delay.

The court came to this conclusion despite feeling that there was an “element of unfairness” to it that “jumps off the page.” Our view is that that element barely crawls, much less jumps. The stay pending appeal is, after all, a special privilege that the government has created for itself; the rest of us have to buy supersedeas bonds. And the right to possession of the money balances a little bit the government’s right to immediate possession of the property; Phoenix had long since taken Johnson’s land. The court worried that a defendant might spend the money and not be able to pay any back if the government won an appeal. But that is a risk for the defendant as well for the government; any sane defendant will save enough to pay some back if necessary. It really doesn’t seem likely that Ms. Johnson will spend all her $1,046,650 in one place.