Tonya Bowles v. Eric Sabree

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0248p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

TONYA BOWLES, for herself and all those similarly

│

situated,

│

Plaintiff-Appellee, │

> No. 23-1256

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v. │

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ERIC R. SABREE, in his official and personal capacities; │

Wayne County Board of Commissioners, also │

sometimes known as Charter County of Wayne by its │

Board of Commissioners, │

Defendants-Appellants. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

Nos. 2:20-cv-12838; 2:23-cv-10973—Linda V. Parker, District Judge.

Decided and Filed: November 4, 2024

Before: McKEAGUE, KETHLEDGE, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Nasseem S. Ramin, DYKEMA GOSSETT PLLC, Detroit, Michigan, Theodore W.

Seitz, DYKEMA GOSSETT PLLC, Lansing, Michigan, for Appellants. Philip L. Ellison,

OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, David J. Shea, SHEA LAW, PLLC,

Southfield, Michigan, Aaron D. Cox, LAW OFFICES OF AARON D. COX, PLLC, Taylor,

Michigan, Mark K. Wasvary, MARK K. WASVARY, P.C., Troy, Michigan, Jason J. Thompson,

SOMMERS SCHWARTZ, Southfield, Michigan, Matthew E. Gronda, GRONDA PLC,

Saginaw, Michigan, Donald R. Visser, VISSER & ASSOCIATES PLLC, Kentwood, Michigan,

for Appellee.

No. 23-1256 Bowles v. Sabree, et al. Page 2

_________________

OPINION

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NALBANDIAN, Circuit Judge. For years, Wayne County has held onto money that it

owes private citizens. It foreclosed on and sold people’s property to satisfy their tax debts but

kept the difference for itself. This Court, the Michigan Supreme Court, and the United States

Supreme Court all agree that this kind of scheme is an unconstitutional taking. This case is not

about whether Wayne County violated the law. It did. This case is about how former

landowners can get those extra proceeds back.

Wayne County took Tonya Bowles’s property and sold it to satisfy her tax debt. She

brought a § 1983 suit against the county and its treasurer to recover any leftovers. And she tried

to certify a class of similarly situated former property owners. The district court certified the

putative class in 2022, but since then, several developments have altered the relevant legal

landscape.

These developments include our decisions on when former landowners can bring class-

action takings suits. In Fox v. Saginaw County, for example, we reversed a similar class

certification and noted that the district court had failed to conduct the “rigorous analysis”

required to certify a class under Federal Rule of Civil Procedure 23. 67 F.4th 284, 300–01 (6th

Cir. 2023); Fed. R. Civ. P. 23(a)–(b). Fox points the way here, as do other recent decisions.

Because the district court here did not conduct a rigorous analysis of the Rule 23 requirements,

we vacate the class certification order and remand for further proceedings.

I.

The Michigan General Property Tax Act (GPTA) permits counties to foreclose on

properties with unpaid taxes. See generally Mich. Comp. Laws §§ 211.1–.155. The county must

first provide the property owner with several notices of tax delinquency and potential

foreclosure, but if the owner fails to pay up, the county can move in and take the property. Id.

§§ 211.78b, 211.78c, 211.78f. When a county does so, it takes “absolute title” to the property.

No. 23-1256 Bowles v. Sabree, et al. Page 3

Id. § 211.78k(6). It can then sell the property at public auction and use the proceeds to pay off

any unpaid taxes, interest, penalties, and fees. Id. § 211.78m(1)–(2).

But before 2020, the county would help itself to the rest. Under the GPTA, the county

kept all of the auction’s proceeds, not merely the amount necessary to cover the tax debt. Fox,

67 F.4th at 289. In other words, if a person owed $1,000 on a property worth $100,000, the

county could seize the property, sell it, say, for $90,000, and pocket the extra $89,000. If that

sounds like a classic taking without compensation, that’s because it is. In 2020, the Michigan

Supreme Court found that this statutory scheme violated Michigan’s takings clause. Rafaeli,

LLC v. Oakland County, 952 N.W.2d 434, 460–61 (Mich. 2020). In 2022, this Court found that

it violated the federal Takings Clause. Hall v. Meisner, 51 F.4th 185, 196 (6th Cir. 2022). And

in 2023, the U.S. Supreme Court agreed. Tyler v. Hennepin County, 598 U.S. 631, 639 (2023)

(finding similar Minnesota scheme unconstitutional).

So the Michigan legislature amended the GPTA. In Public Act 256 of 2020 (PA 256),

the legislature created a process that allowed former property owners to request a refund of any

surplus proceeds. Mich. Comp. Laws § 211.78t. PA 256 provided a two-year statute of

limitations for refund claims. Id. § 211.78l. And it barred claims that arose before the Michigan

Supreme Court’s Rafaeli decision unless the court were to decide that its decision applied

retroactively. Id. § 211.78t(1)(b)(i). The court did just that in July 2024. Schafer v. Kent

County, Nos. 164975/165219, 2024 WL 3573500, at *2 (Mich. July 29, 2024).

Now rewind a few years. Bowles sued Wayne County and its treasurer, Eric Sabree,

under 42 U.S.C. § 1983 for violating the Fifth and Fourteenth Amendments. She alleged that in

2017, the county took her property with a fair market value of $36,600 and auctioned it for

$14,000, keeping the difference. She alleged that her property sold for “far more than the Tax

Delinquency,” but did not specify the amount of her delinquency. R.17, Corr. Am. Compl., p.7,

PageID 169. Then, she asked to certify a class defined as follows:

All property owners formerly owning property from within the counties of Wayne

and Oakland who, during the relevant statutory period, had said property seized

by Defendants via the General Property Tax Act, MCL 211.78 et seq., which was

worth more and/or was sold at tax auction for more than the total tax delinquency

No. 23-1256 Bowles v. Sabree, et al. Page 4

and was [sic] not refunded the excess/surplus equity but excluding any property

owner who has filed their own post-forfeiture civil lawsuit to obtain such relief.

R.33, Mot. for Class Cert. Br. in Supp., p.4, PageID 475. Wayne County opposed her motion.

Without any discovery, the district court certified the putative class on the pleadings. Wayne

County appealed under Federal Rule of Civil Procedure 23(f). See In re Sabree, No. 22-0111,

2023 U.S. App. LEXIS 6218, at *1–2 (6th Cir. Mar. 15, 2023). We granted review, noting that

recent legal developments “present[ed] significant obstacle[s] to class certification in class

actions like this one.”1 Id. at *4.

It’s worth spelling out those developments. Intervening caselaw from this Court, the

Michigan Supreme Court, and the U.S. Supreme Court, as well as amendments to the GPTA,

have clarified or altered the landscape of takings law and class-certification law since Bowles

first sued. Here’s a timeline of events.

• In July 2020, the Michigan Supreme Court held in Rafaeli that the (old) GPTA’s

operation with respect to tax foreclosure sales violated Michigan’s Takings Clause.

952 N.W.2d at 460–61.

• That October, Bowles sued the county under § 1983 in federal district court.

• That same month, a district court certified a putative class in a similar takings suit

against other Michigan counties. Fox v. County of Saginaw, No. 19-cv-11887, 2020

WL 6118487 (E.D. Mich. Oct. 16, 2020).

• In December 2020, the Michigan legislature passed PA 256, effective January 1,

2021. 2020 Mich. Pub. Acts No. 256 (codified at Mich. Comp. Laws § 211.78t). PA

256 created the process that former property owners could use to request surplus

proceeds from tax sales.

• In April 2021, Bowles asked the district court to certify her proposed class. Her class

definition included former property owners seeking both surplus proceeds (the

difference between the sale price and the tax debt) and surplus equity (the difference

between the fair market value and the tax debt).

• In January 2022, the district court certified Bowles’s putative class. The court’s

analysis relied on the Fox decision from another judge in the same district court. See

1

We also decided a separate interlocutory appeal on sovereign immunity in this case. Bowles v. Sabree,

No. 22-1912, 2024 WL 1550833 (6th Cir. Apr. 10, 2024). We found that Wayne County did not share Michigan’s

sovereign immunity. Id. at *2–3. But we held that the county’s treasurer, Eric Sabree, did (in his official capacity)

share the state’s qualified immunity, because once the county chose to serve as a foreclosing unit under the GPTA,

state law required Sabree to carry out the foreclosures. Id. at *3. He “was duty bound to enforce state law.” Id.

(internal quotation marks omitted).

No. 23-1256 Bowles v. Sabree, et al. Page 5

R.47, Op. and Order, p.32 n.11, 34, 42–43, PageID 714, 716, 724–25 (citing Fox,

2020 WL 6118487).

• In June 2022, we decided Tarrify Props., LLC v. Cuyahoga County, 37 F.4th 1101

(6th Cir. 2022), a class-action challenge to Ohio’s tax-foreclosure system, which

roughly mirrored Michigan’s GPTA. A putative class of former landowners sued to

get back the surplus equity of their properties. Id. at 1105. The district court denied

class certification. Id. We affirmed because determining the fair market value of

each potential class member’s property—no easy task, even for experts—would have

led to difficulties figuring out class membership and would have undercut the

“efficiencies and ease of administration that might otherwise favor classwide

resolution.” Id. at 1105–07.

• In October 2022, we decided Hall v. Meisner, 51 F.4th 185 (6th Cir. 2022). Finishing

what Rafaeli started, we held that a Michigan county’s refusal to pay compensation

under the old GPTA violated the federal Takings Clause. Id. at 188. The county

never sold the plaintiffs’ foreclosed property at auction and so had no surplus

proceeds; it transferred the property (so the complaint alleged) to other municipalities

for the amount of the tax debt. Id. at 188–89. We explained how doing so effected a

taking of the plaintiffs’ equitable title, as recognized for centuries by Anglo-American

property principles. Id. at 190–92.

• In March 2023, we permitted a Rule 23(f) appeal from the district court’s certification

of Bowles’s putative class. See Sabree, 2023 U.S. App. LEXIS 6218. We stated that

our decision in Tarrify presented a “significant obstacle” to certifying a class of

plaintiffs seeking surplus equity. Id. at *3. And we observed that Bowles’s proposed

class also included those claiming surplus proceeds and noted that a class action

seeking surplus proceeds might not “present the same administrative difficulties

present in a class action seeking surplus equity.” Id. at *4–5.

• In April 2023, we decided Fox v. Saginaw County. 67 F.4th 284. The plaintiff in Fox

sued not only the county that took his property, but also twenty-six other counties that

took other potential class members’ properties. Id. at 290–91. We reversed the

district court’s class certification because Fox lacked standing to sue counties that had

not injured him. Id. at 300. We also provided guidance for any renewed certification

proceedings. And we questioned whether the district court had provided a “rigorous

analysis” of the requirement that issues common to the class predominate over

individual issues. Id. at 300–02. We suggested that the district court deal with at

least these questions: (1) Would landowners prove damages by formulaic calculation

or fact-specific mini-trials that would overwhelm common questions? (2) Would the

county have unique defenses, like res judicata or standing, against class members?

(3) How would third-party lienholders, like banks, factor in? Id.

• In May 2023, the Supreme Court decided Tyler v. Hennepin County, 598 U.S. 631,

holding that the retention of surplus proceeds was a “classic taking” without

compensation. Id. at 639. The case came up from Minnesota and the Eighth Circuit,

but the Court’s decision cited with approval Judge Kethledge’s opinion for this Court

in Hall. Id. at 638 (citing Hall, 51 F.4th at 190).

No. 23-1256 Bowles v. Sabree, et al. Page 6

• In September 2023, we decided Freed v. Thomas, 81 F.4th 655 (6th Cir. 2023). We

clarified that when the government sells foreclosed property at a properly conducted

public auction, a plaintiff can seek only the return of the surplus proceeds—not the

surplus equity. Id. at 658–59. Because “the best evidence of a foreclosed property’s

value is the property’s sales price, not what it was worth before the foreclosure,” we

held that plaintiffs are entitled to “the amount of the sale above [their] debt and no

more.” Id. at 659.

• In July 2024, the Michigan Supreme Court decided Schafer, 2024 WL 3573500,

holding that its decision in Rafaeli applied retroactively. Id. at *17. The court also

ruled on the retroactivity and prospectivity of various parts of the 2020 amendments

to the GPTA. Id. at *21–22.

To recap: after the district court certified the putative class, our decisions in Hall and

Freed explained how foreclosure auctions implicated the Takings Clause, and our decisions in

Tarrify and Fox clarified how class-action takings cases should work. A plaintiff can sue for

surplus equity when there’s no public auction (Hall), but not when there is one (Freed). And

surplus equity claims are unmanageable in takings class actions (Tarrify), which, if it wasn’t

clear before, still require a rigorous analysis of Rule 23’s requirements (Fox).

So as we did in Fox, we vacate the district court’s certification order. The district court

left too many questions unaddressed on a thin record, and we “have little understanding of how

this suit would progress as a class action.” Fox, 67 F.4th at 302. Fox, Tarrify, and our other

decisions point in one direction—the district court did not require Bowles to actually prove,

rather than plead, that her class complied with Rule 23.

II.

We review a class certification order for abuse of discretion. Mays v. LaRose, 951 F.3d

775, 793 (6th Cir. 2020). A district court abuses its discretion when it applies the wrong legal

standard or misapplies the right one. In re Ford Motor Co., 86 F.4th 723, 727 (6th Cir. 2023).

Failing to perform a rigorous analysis of the class action requirements is one way to misapply the

right legal standard. Id.

III.

Our legal system generally permits lawsuits “by and on behalf of the . . . named parties

only.” Califano v. Yamasaki, 442 U.S. 682, 701 (1979). Class actions are an exception to our

No. 23-1256 Bowles v. Sabree, et al. Page 7

tradition of individual litigation. Wal-Mart Stores, Inc., v. Dukes, 564 U.S. 338, 348 (2011).

Federal Rule of Civil Procedure 23 governs class actions and sets forth several requirements a

plaintiff must satisfy to maintain a class. Under Rule 23(a), a plaintiff must show (1) that the

proposed class is so numerous as to make joinder impossible, (2) that there are common

questions of law or fact, (3) that the plaintiff’s claims are typical of the class’s, and (4) that the

plaintiff, as class representative, will adequately protect the class’s interests. For a suit like this,

Rule 23(b)(3) also requires that issues common to the class “predominate over [those] affecting

only individual members” and that the class vehicle be “superior to other available methods for

fairly and efficiently adjudicating the controversy.”

At each step, a plaintiff must prove, rather than allege, that he has met the requirements.

Rule 23 “does not set forth a mere pleading standard”—a plaintiff seeking to certify a class

“must affirmatively demonstrate his compliance” with it. Wal-Mart, 563 U.S. at 350; see also In

re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (“The party seeking the class

certification bears the burden of proof.”).

The Supreme Court has emphasized time and again that “‘it may be necessary for [courts]

to probe behind the pleadings before coming to rest on the certification question,’ . . . and that

certification is proper only if ‘the trial court is satisfied, after a rigorous analysis,’” that the class

fits Rule 23. Wal-Mart, 563 U.S. at 350–51 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.

147, 161 (1982)). Ordinarily, courts need more information than the pleadings provide to

analyze matters thoroughly. See Am. Med. Sys., 75 F.3d at 1079. That usually entails some

opportunity for the parties to gather evidence, develop a record, or depose the other side. Id.

Once they’ve done so, the court must then explain how the facts come together to satisfy the

statutory conditions. Bare recitation of Rule 23’s language does not suffice. Neither do

conclusory findings or statements. The court must rather “forecast how the parties will conduct

the litigation from the certification stage through the trial to the final judgment.” Fox, 67 F.4th at

302.

No. 23-1256 Bowles v. Sabree, et al. Page 8

A.

We first address the parties’ wrangling over standing since it goes to our jurisdiction.

Wayne County points to a quitclaim deed recorded in June 2017 (months after the county

foreclosed) in which Bowles purported to transfer the property to her son for $1.00. This deed,

the county submits, conveyed Bowles’s interest in the surplus proceeds to another person, even if

it couldn’t convey the real property itself after foreclosure. If that’s true, Bowles would be left

without any injury, a prerequisite of Article III standing. See Acheson v. Laufer, 601 U.S. 1, 20–

21 (2023). Her son would be the injured party. Bowles responds that the quitclaim deed had no

force; she’d lost the real estate by June and thus had nothing to convey. The district court

agreed, finding the deed “legally meaningless.” R.47, Op. and Order, p.12, PageID 694.

We agree that the quitclaim deed did not deprive Bowles of standing, though for a

slightly different reason. In Michigan, quitclaim deeds convey “all the estate which the grantor

could lawfully convey.” Mich. Comp. Laws § 565.3. So the question is whether the right to

surplus proceeds from a property’s sale is part of the estate. We find that under Michigan law,

it’s not.

As the Michigan Supreme Court recognized in Rafaeli, the right to collect surplus

proceeds from a tax sale is a “cognizable, vested property right.” Rafaeli, 952 N.W.2d at 461.

The “vesting of fee simple title to the real property” in the county “does not extinguish [the

right].” Id. It “is a separate property right that survives the foreclosure process.” Id. But while

the right flows from the sale of real property, it is not itself an interest in real property. It’s

personal property.2

To illustrate this point, the Michigan Supreme Court quoted at length its 1844 decision in

People ex rel. Seaman v. Hammond, 1 Doug. 276 (Mich. 1844), calling it a “valuable” guide “in

defining the nature and scope of th[e] right [to collect surplus proceeds]”:

The surplus money produced by the tax sale, is the property of the person who has

the legal title to the land at the time of the sale, and the moment the amount is

2

Like other states, Michigan recognizes that real property and personal property aren’t just different—

they’re mutually exclusive. People v. Fox, 591 N.W.2d 384, 391 (Mich. Ct. App. 1998).

No. 23-1256 Bowles v. Sabree, et al. Page 9

ascertained . . . it is as absolutely his as though it were in his own keeping; and the

right is personal—as unqualifiedly so as the ownership of any chattel; and

although the surplus spoken of is produced by the sale of land, yet the right to

receive and control it, no more follows title to the land, than does the ownership

of the cattle and farming utensils that a man may happen to have on his farm

when it is sold for taxes . . . .

Rafaeli, 952 N.W.2d at 455–56 (quoting Seaman, 1 Doug. at 281). The Rafaeli court explained

how Seaman illustrated the longstanding property principle that “the delinquent taxpayer, not the

foreclosing entity . . . would have been entitled to any surplus, which no more followed title to

the land than the former owner’s other personal property.” Id. at 456. And more recent

Michigan caselaw confirms this point. See Alisa A. Peskin-Shepherd, PLLC v. Blume, 974

N.W.2d 835, 836 (Mich. 2022) (“[P]roceeds of a real-estate sale are personal property.”) (citing

Stewart v. Young, 226 N.W.2d 222, 224 (Mich. 1922)); Rieman v. Rieman, No. 352197, 2023

WL 3398237, at *3 (Mich. Ct. App. May 11, 2023) (Proceeds of a sale “are not real estate, but

personal property.” (quoting Stewart, 226 N.W.2d at 224)).

So it’s true that the quitclaim deed didn’t convey anything, as the district court found.

Because title vested absolutely in the county upon foreclosure, Bowles had no real property

interest to give. But even if she had, the deed still wouldn’t have conveyed her separate,

personal property right to any surplus proceeds. Just as the real estate foreclosure didn’t take

Bowles’s car, her TV, or her clothes, it didn’t take her personal property right to surplus

proceeds either. So the deed is irrelevant to Bowles’s standing.

B.

We next consider the issue of surplus equity. Our decision in Tarrify barred certification

of a putative class whose members sought to recover their property’s surplus equity. Class

actions come with an “implied requirement” of ascertainability (“that the putative class members

can be readily identified based on the class definition”), and we found that an equity-based class

could not meet it. Tarrify, 37 F.4th at 1106. Determining fair market value involves an

“individualized assessment” of each property and requires “proof that is variable in nature and

ripe for variation in application.” Id. at 1106–07. And when mini-trials “become necessary to

determine who is in and who is out, the class-action vehicle imposes inefficiencies rather than

No. 23-1256 Bowles v. Sabree, et al. Page 10

ameliorates them.” Id. at 1106. So Tarrify’s class got the boot. Later on, our decision in Freed

barred fair market value altogether as a post-sale measure of compensation. Freed, 81 F.4th at

659. We held that when a municipality sells foreclosed property at a properly conducted public

auction, the former owner can claim “the amount of the sale above his debt and no more.” Id.

In light of Tarrify and Freed, Bowles’s proposed class definition fails. It includes former

property owners seeking both surplus proceeds and surplus equity, and we cannot permit the

latter. Bowles’s recent briefing admits as much, and she has signaled her willingness to amend

the class definition.

C.

With surplus equity claims out, we are unsure whether Bowles herself can state a claim.

If the district court amends the class definition to include only those seeking surplus proceeds,

we are unsure whether Bowles would be a class member because the parties now dispute

whether the sale of her property generated any. If it didn’t, the county owed her no

compensation, and she wouldn’t fit the class definition. Since a class representative must herself

“be part of the class,” Wal-Mart, 564 U.S. at 348 (internal quotation marks omitted), this dispute

goes to both typicality and adequacy. See Fed. R. Civ. P. 23(a)(3)–(4). Bowles cannot serve as

class representative if her situation isn’t typical of the class’s, and “in the absence of typical

claims, the class representative has no incentives to pursue the claims of the other class

members.” Am. Med. Sys., 75 F.3d at 1083.

For the first time on appeal, Wayne County contends that Bowles owed $13,821.61 in

taxes and “at least $500” in fees to cover the auction expenses. Appellant Br. at 34–35. So when

the property sold for $14,000, the county didn’t have quite enough to cover everything. That

amount would only have satisfied part of Bowles’s debt. No surplus, no class membership, the

county insists. Bowles strenuously objects, arguing that the county’s “assertion is false.”

Appellee Br. at 20. Unfortunately, that’s her entire argument. She offers no alternative numbers

and never tells us how much she thinks her taxes and surplus were. On both sides, the problem

is a lack of evidence. Because the district court certified this case on the pleadings, the parties

have yet to conduct discovery, and we have a paper-thin record. Bowles’s complaint originally

No. 23-1256 Bowles v. Sabree, et al. Page 11

sought surplus equity and so only alleged her property’s fair market value. That’s no longer

sufficient (or relevant) post-Freed. The county, meanwhile, tries to come up with the right

numbers—surplus proceeds—but can’t back anything up with citation to the record.3 So who’s

right, we can’t yet say. Appellate courts are the wrong place to try out new facts. See United

States v. Smith, 74 F.4th 799, 802 (6th Cir. 2023). On remand, and perhaps with the benefit of

discovery, the parties and the district court can clear up these factual questions.

The parties argue that Bowles’s class membership sounds in Article III standing as well

as adequacy and typicality. They disagree on whether the county owed her anything but seem to

agree that the existence of surplus proceeds goes to whether Bowles had any injury. We think,

though, that the parties’ framing conflates the merits of Bowles’s claim with her standing to

bring it. See CHKRS, LLC v. City of Dublin, 984 F.3d 483, 489 (6th Cir. 2021); see also Trump

v. Hawaii, 585 U.S. 667, 699 (2018) (distinguishing a case’s merits from its justiciability). As

several courts have recognized, “it is not unusual for the distinction between standing and the

merits to cause conceptual trouble when a plaintiff alleges the deprivation of a dubious property

or liberty interest.” Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d 722, 736 (7th Cir.

2020) (Barrett, J.). But the fact that a plaintiff might lose on the merits does not deprive the

plaintiff of standing to sue. CHKRS, 984 F.3d at 489. Otherwise, courts would dismiss all losing

claims for lack of standing. At this preliminary stage of the litigation, Bowles need only allege

“a ‘colorable’ or ‘arguable’ claim that [the county] invaded a legally protected interest.” Id.

She’s done that. She alleged that the county took her property without paying compensation, so

hashing out the details of her tax debt (which will show whether the county owed her

compensation) will go to the merits (and Rule 23 typicality and adequacy), not justiciability.4

3

If the county does have the right numbers, we have questions about whether it complied with the GPTA.

Under the version of the law then in effect, the “minimum bid” the county could accept had to include “[a]ll

delinquent taxes, interest, penalties and fees due on the property” plus the “expenses of administering the sale.”

Mich. Comp. Laws § 211.78m(16)(a)(i)–(ii) (2014), amended by 2020 Mich. Pub. Act No. 255 (current version at

Mich. Comp. Laws § 211.78m(16)(c)). So if Bowles’s debts in 2017 totaled $14,321.61 or more, as the county

thinks, the property’s sale price of $14,000 came in below the minimum bid. Now, a few kinds of sales weren’t

subject to the minimum bid requirement. See id. § 211.78m(5). So maybe the county could lawfully accept a lower

amount for Bowles’s property. But again, we can’t tell because this case lacks a complete evidentiary record.

4

To be sure, the standing inquiry sometimes reaches forward a bit to borrow from the merits. See Friends

of George’s, Inc. v. Mulroy, 108 F.4th 431, 438 n.4 (6th Cir. 2024). For example, to have pre-enforcement standing

to challenge a regulation, a plaintiff must intend to engage in conduct “affected with a constitutional interest,” like

No. 23-1256 Bowles v. Sabree, et al. Page 12

D.

We now turn to numerosity. Rule 23(a)(1) requires class numbers large enough to make

joinder of all members impracticable. There’s no specific cutoff, but “substantial” numbers will

suffice. Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006) (quoting Am. Med. Sys., 75

F.3d at 1079). Classes generally run in the hundreds or thousands, though we’ve permitted one

of thirty-five before. Young v. Nationwide Mut. Ins., 693 F.3d 532, 542 (6th Cir. 2012). The

“exact number of class members need not be pleaded or proved,” but “impracticability of joinder

must be positively shown, and cannot be speculative.” Golden v. City of Columbus, 404 F.3d

950, 965–66 (6th Cir. 2005) (internal quotation marks omitted).

The district court found that Bowles established numerosity because she asserted that

more than 6,900 properties were sold with surplus proceeds in Wayne County since 2014. The

court thought it “likely that the putative class will well exceed 35 members.” R.47, Op. and

Order, p.34, PageID 716. But in a footnote, the court also noted: “Although plaintiffs represent

this fact [the 6,900 number] . . . the accompanying reference to exhibit C in support of this

contention is not attached.” Id. at p.34 n.12, PageID 716. The plaintiffs stated that they would

“be submitting Exhibit C under seal via a separately filed motion,” which they promised was

“shortly forthcoming,” but they never offered the exhibit. Id.

Relying on the purported contents of a never-submitted exhibit was error. Rule 23

requires more than just pleading numerosity. Bowles never “affirmatively demonstrate[d]” or

“positively show[ed]” the proposed class’s estimated numbers. Wal-Mart, 563 U.S. at 350;

Golden, 404 F.3d at 966 (internal quotation marks omitted). Numerosity is a low bar to clear. If

Bowles had evidence supporting the 6,900 number, she should have provided it.

On appeal, she gives us a link to a website that she says shows thousands of Wayne

County properties that “have been foreclosed upon and sold at tax auction.” Appellee Br. at 18–

19. But that alone would not tell us how many potential class members there could be. We

speaking or publishing. Id. at 438 (internal quotation marks omitted). Making that determination can require a court

to “trace the contours” of the alleged constitutional interest, “bleed[ing] into the merits.” Id. at 438 n.4. But once a

plaintiff has established standing, the merits inquiry does not dip back into standing. Here, Bowles does not have a

pre-enforcement challenge, and there’s no dispute that her claim, if true, would entitle her to a remedy.

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don’t just need to estimate how many properties were sold at auction; we need to estimate how

many properties were sold at auction for more than the former owner’s tax debt. See Golden,

404 F.3d at 966 (calling “unrefined measure[s]” ill-equipped to identify the class size “too

speculative for purposes of the numerosity requirement”).

On remand, the district court should require Bowles to provide something more to prove

numerosity. There could be a class-in-waiting here. There may be a few thousand (or more)

foreclosed properties that Wayne County sold for more than the former owners owed. And

numbers in the thousands can make joinder impracticable and satisfy the numerosity

requirement. See Daffin, 458 F.3d at 552. But the burden is on Bowles to show that’s the case

here, and she hasn’t done so yet.

E.

Next, adequacy. Class representatives must be able to “fairly and adequately protect the

interests of the class.” Fed. R. Civ. P. 23(a)(4). The same goes for class counsel. See Fed. R.

Civ. P. 23(g)(4). Because class members “must act through class counsel,” the representative

parties’ adequacy “turns in part on the competency of class counsel.” Int’l Union, UAW v. Gen.

Motors Corp., 497 F.3d 615, 626 (6th Cir. 2007); see also Jin v. Shanghai Original, Inc., 990

F.3d 251, 262–63 (2d Cir. 2021) (describing how courts have often analyzed class counsel’s

adequacy as part of the class representative’s adequacy). We require a showing of competent

representation from the named parties and counsel because a final judgment in a class action—

including an unfavorable one—binds all absent class members. See Am. Med. Sys., 75 F.3d at

1083.

The district court recited the proper legal standard, noting that representatives must have

qualified counsel and common interest with the rest of the class to adequately prosecute the case.

But while the district court found that Bowles had a common interest with other putative class

members, it made no finding on class counsel. In the years since that certification order, courts

have sanctioned or reprimanded several of Bowles’s lawyers for unethical conduct in similar

class action Michigan-takings cases. See Wayside Church v. Van Buren County, 103 F.4th 1215,

1224 (6th Cir. 2024); Garcia v. Title Check, LLC, Nos. 1574/1578, 2023 WL 2787298, at *2 (6th

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Cir. Apr. 5, 2023). On remand, the district court may consider this and any other new evidence

as it sees fit.

We do not prejudge the representative’s or counsel’s adequacy. We have neither the

evidence nor the necessary argument to make that call. But the district court should take a

careful look at the matter. Class counsel are fiduciaries to the class members and we have not

hesitated to scrutinize their conduct. See In re Dry Max Pampers Litig., 724 F.3d 713, 718 (6th

Cir. 2013). “Most class counsel are honorable,” but class actions “create especially lucrative

opportunities for putative class attorneys” that warrant oversight. Id. (internal quotation marks

omitted). Many Wayne County residents may have valid claims against the county, and the

district court should ensure that the class representatives and counsel can fairly represent their

interests.

F.

Bowles also has to prove commonality and predominance. She must show that there “are

questions of law or fact common to the class,” Fed. R. Civ. P. 23(a)(2), and that those questions

“predominate over any questions affecting only individual members,” Fed. R. Civ. P. 23(b)(3).

At its heart, commonality requires that the class members suffer the same injury and bring claims

that “depend on a common contention . . . capable of classwide resolution.” Wal-Mart, 564 U.S.

at 350. But common questions do not alone make a class. We then have to “add up all the suit’s

common issues (those that the court can resolve in a yes-or-no fashion for the class) and all of its

individual issues (those that the court must resolve on an individual-by-individual basis)” to

“qualitatively evaluate which side ‘predominates’ over the other.” Fox, 67 F.4th at 300. The

predominance requirement “demands more than the commonality requirement.” Id. at 301.

In Fox, the class certification order that we vacated failed on this front. We observed that

the district court’s sparse reasoning did not meet the Rule’s standards, and we identified several

individual issues that could plague takings class litigation, potentially to the point of vitiating its

worth. Id. at 300–01. We asked the district court to consider (1) whether it would calculate

damages formulaically or with fact-specific mini-trials, (2) whether the county would have

unique defenses, like res judicata, against individual class members, and (3) how non-class

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lienholders, like banks holding mortgages on certain properties, would factor into any recovery.

Id. at 301–02.

This case is Fox redux. The district court determined that the computation of damages

was “the only individualized issue” and that it did “not diminish the predominance of the

common issue of an unconstitutional taking.” R.47, Op. and Order, p.41–42, PageID 723–24.

But it gave us little more than that. Because the district court did not address the potential

difficulties that could hamper damages calculations, it left us with “little understanding of how

this suit would progress.” Fox, 67 F.4th at 302. On remand, the district court must conduct a

more thorough analysis and “forecast how the parties will conduct the litigation.” Id. It should

weigh Fox’s concerns—formulaicity, defenses, lienholders—and any others it finds relevant.

G.

Rule 23 also requires, as relevant here, that class litigation be superior to individual

attempts at recovery. Fed. R. Civ. P. 23(b)(3). Put another way, we ask “whether the proposed

class action beats the conventional approach of resolving disputes on a case-by-case basis in

terms of efficiency and administrability.” Tarrify, 37 F.4th at 1106. For example, if many

proposed class members seek small damages amounts or have limited resources, one case

pooling all claims might be better on time and cost fronts than several individual ones, for both

the litigants and the judiciary. Pipefitters Loc. 636 Ins. Fund v. Blue Cross Blue Shield of

Michigan, 654 F.3d 618, 630–31 (6th Cir. 2011); Vassalle v. Midland Funding LLC, 708 F.3d

747, 758 (6th Cir. 2013).

The district court found that Bowles satisfied the superiority requirement because at that

time, PA 256 seemed to exclude the putative class members from seeking compensation through

its statutory process. PA 256 barred relief for former owners whose claims had already arisen

unless the Michigan Supreme Court made its Rafaeli decision retroactive. On appeal, the parties

keep trading shots over Rafaeli and the statutory structure, framing the superiority analysis

around Michigan law.

As an initial matter, the Michigan Supreme Court recently decided Schafer, which

declared Rafaeli retroactive and PA 256’s statute of limitations prospective. Schafer, 2024 WL

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3573500. On remand, the district court can update its superiority analysis in light of that case.

But we have a broader observation to make. We think that the parties and the district court have

been asking the wrong question. (Or, at least, an incomplete one.) Under Rule 23, the question

isn’t just whether a class-action § 1983 suit is superior to state administrative adjudications. It’s

also whether a class-action § 1983 suit is superior to multiple individual § 1983 suits. Rule 23

requires superiority over all “other available methods” of resolving the case, and that includes an

individual suit of the same nature as the class’s. Fed. R. Civ. P. 23(b)(3).

Another point on the GPTA. The Michigan legislature made its statutory process “the

exclusive mechanism” for a claimant to seek compensation, and the parties lock onto this

language while debating superiority. Mich. Comp. Laws § 211.78t(11). Wayne County even

argues that this provision precludes any federal suit. But a plaintiff with a federal constitutional

claim under § 1983 can always go straight to federal court. See Knick v. Twp. of Scott, 588 U.S.

180, 185 (2019). “The Civil Rights Act of 1871, after all, guarantees a federal forum for claims

of unconstitutional treatment at the hands of state officials, and . . . exhaustion of state remedies

is not a prerequisite to an action under [42 U.S.C.] § 1983.” Id. (internal quotation marks

omitted). Still, as far as superiority goes, we’re not sure that really matters. Asking whether the

GPTA’s “exclusive mechanism” provision preempts a federal suit is the wrong question.5 (It

does not and cannot. See id.6) Again, the fact that an individual litigant can bring a § 1983 claim

without exhausting state processes does not tell us whether a § 1983 class action is superior to all

alternatives. Rule 23 asks whether collective litigation trumps other options, not whether it’s

5

Bowles rightly flags Knick, 588 U.S. 180, which the county ignores. But she too focuses on whether state

law can preclude a class action, not whether a class action is superior.

6

Along similar lines, the county cites DeVillier v. Texas, 601 U.S. 285 (2024), for the proposition that a

plaintiff with an available state remedy cannot bring a federal takings claim in federal court. The county

misconstrues that case. DeVillier attempted to sue the state of Texas for takings violations directly under the Fifth

Amendment, not § 1983. DeVillier, 601 U.S. at 290. Because § 1983 does not authorize suits against a state,

DeVillier’s strategy to haul Texas into court was to argue that the Fifth Amendment is uniquely self-executing and

itself provides a cause of action. Id. Because it later came out that Texas law provided its own cause of action for

federal takings claims, the Supreme Court remanded the case without deciding anything. Id. at 293. None of that

matters here. DeVillier sued Texas, which has sovereign immunity that § 1983 did not abrogate. See Will v.

Michigan Dept. of State Police, 491 U.S. 58, 65 (1989). Bowles sued Wayne County, which does not have

sovereign immunity and which can be sued under § 1983. See Knick, 588 U.S. at 185; N. Ins. Co. of New York v.

Chatham County, 547 U.S. 189, 193–194 (2006); see also Bowles, 2024 WL 1550833, at *2–3.

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permitted by them. Bowles must “affirmatively demonstrate” that kind of superiority moving

forward. Wal-Mart, 563 U.S. at 350.

IV.

Wayne County expropriated property from Michiganders and pocketed cash that it owed

them in return. In other contexts, we might call that “theft.” Hall, 51 F.4th at 196. And to some

observers, the county might now appear to be dragging its feet in hopes of running out the clock

on any claimants.

Whether a class action would serve best to right these wrongs remains to be seen. We do

not prejudge whether Bowles can make one out. The district court now has the benefit of four

extra years’ caselaw finetuning our takings doctrine and its interaction with Rule 23’s demands.

But one way or another, the county needs to pay up. After all, the “taxpayer must render unto

Caesar what is Caesar’s, but no more.” Tyler, 598 U.S. at 647.

We vacate the district court’s order certifying the class and remand for proceedings

consistent with this opinion.