Petition for Writ of Certiorari — Skatemore, Inc., dba Roll Haven Skating Center, et al., Petitioners v. Gretchen Whitmer, Governor of Michigan, et al.

No. 22-_____

IN THE

Supreme Court of the United States

_________

SKATEMORE, INC., ET AL.,

Petitioners,

v.

GRETCHEN WHITMER, ET AL.,

Respondents.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

WILLIAM R. WAGNER

JACK C. JORDAN

Of Counsel

GREAT LAKES JUSTICE

CENTER

STEPHEN P. KALLMAN

Counsel of Record

DAVID A. KALLMAN

KALLMAN LEGAL GROUP, PLLC

5600 W. Mount Hope Hwy.

Lansing, MI 48917

dave@kallmanlegal.com

steve@kallmanlegal.com

Counsel for Petitioners

i

QUESTION PRESENTED

Does the Fifth Amendment’s requirement of “just

compensation,” as incorporated by the Fourteenth

Amendment, waive Eleventh Amendment Sovereign

Immunity for a takings claim in federal court against

a state.

ii

PARTIES TO THE PROCEEDING

Petitioners Skatemore, Inc., d/b/a Roll Haven

Skating Center; Slim’s Rec, Inc. d/b/a Spartan West

Bowling Center/Beamers Restaurant; Mr. K

Enterprises, Inc. d/b/a Royal Scot Golf & Bowl; M.B.

and D., LLC, d/b/a Fremont Lanes; R2M, LLC, d/b/a

Spectrum Lanes & Woody’s Press Box were the

appellants in the court below.

Respondents Gretchen Whitmer, Robert Gordon,

and the Michigan Department of Health and Human

Services were the appellees in the court below.

STATEMENT OF RELATED PROCEEDINGS

There are no related proceedings in this matter.

iii

CORPORATE DISCLOSURE STATEMENT

Skatemore, Inc., d/b/a Roll Haven Skating Center;

Slim’s Rec, Inc. d/b/a Spartan West Bowling

Center/Beamers Restaurant; Mr. K Enterprises, Inc.

d/b/a Royal Scot Golf & Bowl; M.B. and D., LLC, d/b/a

Fremont Lanes; R2M, LLC, d/b/a Spectrum Lanes &

Woody’s Press Box (hereinafter “Petitioners”) state

the following:

None of the Petitioners are subsidiaries or

affiliates of a publicly owned corporation. There are no

publicly owned corporations, party to this appeal, that

have a financial interest in the outcome.

iv

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

CORPORATE DISCLOSURE STATEMENT ........... iii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI .................1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

CONSTITUTIONAL PROVISIONS INVOLVED ......1

INTRODUCTION ........................................................2

STATEMENT OF THE CASE ....................................6

REASONS FOR GRANTING THE PETITION..........7

COURT’S

ELEVENTH

AMENDMENT

SOVEREIGN IMMUNITY JURISPRUDENCE DOES NOT

RECOGNIZE THE IMPORTANT CONSTITUTIONAL

EFFECT THAT THE SUBSEQUENT RATIFICATION OF

THE FOURTEENTH AMENDMENT HAD ON THE

INCORPORATION OF THE FIFTH AMENDMENT ................7

THIS

A. History of Eleventh Amendment Immunity ...11

B. The Fifth Amendment and the Impact of

the Ratification of the Fourteenth

Amendment on Sovereign Immunity .............13

CONCLUSION ..........................................................25

v

APPENDIX

Appendix A

Opinion in the United States Court

of Appeals for the Sixth Circuit

(July 19, 2022).......................... App. 1

Appendix B

Opinion in the United States District

Court for the Western District of

Michigan Southern Division

(September 2, 2021) ............... App. 26

Appendix C

Order in the United States District

Court for the Western District of

Michigan Southern Division

(September 2, 2021) ............... App. 41

Appendix D

Judgment in the United States

District Court for the Western

District of Michigan Southern

Division

(September 2, 2021) ............... App. 43

vi

Cases

TABLE OF AUTHORITIES

Cedar Point Nursery v. Hassid,

594 U.S. ___, 141 S.Ct. 2063 (2021) ........ 4, 5, 12, 13

Chicago, Burlington & Quincy Railroad

Company v. Chicago, 166 U.S. 226 (1897) .. 2, 19, 20

Ex parte Young,

209 U.S. 123 (1908) .......................................... 19, 23

First English Evangelical Lutheran Church v.

Los Angeles County, 482 U.S. 304 (1987) .... 4, 14, 15

Gitlow v. New York,

268 U.S. 652 (1925) ................................................ 24

Hamilton v. Regents of the University of California,

293 U.S. 245 (1934) ................................................ 24

Horne v. Department of Agriculture,

569 U.S. 513, 133 S.Ct. 2053 (2013) ........................ 5

Jacobs v. United States,

290 U.S. 13 (1933) .................................................. 14

Knick v. Township of Scott,

588 U.S. ___; 139 S.Ct. 2162 (2019) .......... 15, 16, 21

Ladd v. Marchbanks,

971 F.3d 574 (6th Cir. 2020) ............................ 19, 20

Malloy v. Hogan,

378 US 1 (1964) ...................................................... 25

McDonald v. City of Chicago,

561 U.S. 742 (2010) .................................... 21, 22, 25

vii

Penneast Pipeline Co., LLC v. New Jersey,

594 U.S. ___, 141 S.Ct. 2244 (2021) .......... 17, 18, 20

United States v. Lee,

106 U.S. 196 (1882) .......................................... 11, 12

Constitutional Provisions and Statutes

U.S. Const. amend. V ........................................ passim

U.S. Const. amend. XI ....................................... passim

U.S. const. amend. XIV ..................................... passim

28 U.S.C. § 1254(1) ...................................................... 1

42 U.S.C. § 1983 .................................................... 6, 16

Other Authorities

“Can State Governments Claim Sovereign

Immunity In Takings Cases?” J.P. Burleigh,

University of Cincinnati Law Review, January

15, 2020,

https://uclawreview.org/2020/01/15/can-stategovernments-claim-sovereign-immunity-intakings-cases/ ........................................................... 8

1

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-25a) is

reported at 40 F.4th 727. The district court’s order

granting judgment as a matter of law in favor of

respondent (App. 26a-40a) is reported at 2021 WL

3930808.

JURISDICTION

The judgment of the court of appeals was entered

on July 19, 2022. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in relevant part that private

property shall not “be taken for public use, without

just compensation.”

The Eleventh Amendment to the United States

Constitution provides that “[t]he Judicial power of the

United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign State.”

The Fourteenth Amendment to the United States

Constitution provides in relevant part that no State

shall “deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

2

within its jurisdiction the equal protection of the

laws.”

INTRODUCTION

This case is about whether the Constitution

requires Respondents to justly compensate Petitioners

when taking Petitioners’ private property. The Fifth

Amendment Takings Clause, as incorporated by the

Fourteenth Amendment (ratified after the Eleventh

Amendment), is an exception to, and/or waives,

Eleventh Amendment immunity. In this case,

Respondents took Petitioners’ property pursuant to a

state statute that was held unconstitutional by the

Michigan Supreme Court. Under these circumstances,

Respondents’ conduct is not entitled to Eleventh

Amendment immunity. Petitioners can, therefore,

properly challenge Respondents’ conduct in federal

court.

The Fifth and Fourteenth Amendments were

ratified by the states on December 15, 1791, and July

28, 1868, respectively. Subsequent to the ratification

of the Eleventh Amendment, the explicit text of the

Fifth Amendment (including the takings clause) was

incorporated as applicable against the states through

the Fourteenth Amendment in Chicago, Burlington &

Quincy Railroad Company v. Chicago, 166 U.S. 226

(1897). Thus, by ratifying the Fourteenth

Amendment,

the

states

consented

to

the

requirements, duties, limitations, responsibilities,

and explicit language of the incorporated

amendments, including the Fifth Amendment.

Therefore, the Fifth Amendment’s unequivocal

remedy of “just compensation” as the result of a taking

3

is enforceable against the states through the

Fourteenth Amendment.

Contrary to other COVID-19 cases from around the

country, this case is not a debate about the severity of

COVID-19, its impact, or the merits of the policies

implemented by the State of Michigan. Instead, this

case primarily focuses on whether Respondents can

take private property from individuals and businesses

and fail to provide just compensation. This case is

unlike other COVID-19 takings cases brought across

the country:

1. This case involves businesses that the State

completely closed and wholly prohibited from

engaging in any economic activity. While the

State’s COVID-19 policies severely limited most

businesses in Michigan through capacity

limitations, gathering restrictions, and other

regulations, this case focuses on the few businesses

the State forced to fully close. For example, while

restaurants in Michigan were prohibited from

offering indoor dining, those restaurants could still

provide food for take-out orders and therefore were

never totally closed. As explained below, if

Petitioners prevail in this case, it does not open the

door to an unlimited number of additional lawsuits

by every business in the country impacted by the

COVID-19

restrictions.

Thus,

while

the

constitutional import of this legal question is great,

its economic impact is narrow.

2. Unlike constitutionally enacted COVID-19

regulations in other states, Michigan’s Supreme

Court declared Respondent Whitmer’s Executive

4

Orders (EOs) unconstitutional. The State of

Michigan, therefore, took Petitioners’ private

property via unconstitutional state action.

Respondents’

unconstitutional

exercise

of

government power distinguishes the case at bar

from COVID-19 regulations in other states.

Background of Takings Jurisprudence

It is well settled that a takings claim can be

brought for a temporary regulatory act. This Court

held:

In this case, the California Court of Appeal held

that a landowner who claims that his property

has been “taken” by a land use regulation may

not recover damages for the time before it is

finally determined that the regulation

constitutes a “taking” of his property. We

disagree, and conclude that, in these

circumstances, the Fifth and Fourteenth

Amendments to the United States Constitution

would require compensation for that period.

First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304, 306-307 (1987). This

Court concluded “that ‘temporary’ takings which, as

here, deny a landowner all use of his property, are not

different in kind from permanent takings, for which

the Constitution clearly requires compensation.” Id. at

318.

This Court held that a taking could occur when the

state “restricted a property owner’s ability to use his

own property.” Cedar Point Nursery v. Hassid, 594

U.S. ___, 141 S.Ct. 2063, 2071 (2021). Further, the

5

Court’s example to illustrate this point was the raisin

growers case (Horne v. Department of Agriculture, 569

U.S. 513, 133 S.Ct. 2053 (2013)). Id. at 2071. Just as

the raisin growers were required to “set aside” their

crops and not earn an income from those crops,

Respondents in this case required Petitioners to “set

aside” their businesses, completely shut down, and

restricted all physical public access to the property.

This Court further held:

The essential question is not, …, whether the

government action at issue comes garbed as a

regulation (or statute, or ordinance, or

miscellaneous decree). It is whether the

government has physically taken property for

itself or someone else—by whatever means—or

has instead restricted a property owner’s ability

to use his own property. See Tahoe-Sierra, 535

U.S., at 321–323. Whenever a regulation

results in a physical appropriation of property,

a per se taking has occurred, and Penn Central

has no place.

Cedar Point Nursery, supra, at 2072. In this case,

Respondents physically took Petitioners’ property

because they “restricted a property owner’s ability to

use his own property” to such a degree that they could

not allow any member of the public to enter. Indeed,

the orders required that Petitioners’ businesses be

“closed to ingress, egress, use, and occupancy by

members of the public.” Because such conduct

amounts to a per se physical taking, Penn Central “has

no place” and “the government must pay for what it

takes.” Id. at 2071 and 2072.

6

This case, and its important legal question of

federal constitutional law, is significantly different

than other takings cases brought around the country.

The Eleventh Amendment and the exercise of state

power is not absolute. When government totally and

completely takes a person’s private property, it must

provide just compensation.

STATEMENT OF THE CASE

Petitioners brought this action under the Takings

Clause of the Fifth Amendment to the United States

Constitution, as incorporated by the Fourteenth

Amendment, and 42 U.S.C. § 1983, challenging

Respondents’ acts, orders, policies, practices, customs,

and procedures, which deprived Petitioners of their

property without just compensation.

Respondent Governor Gretchen Whitmer issued

EO 2020-9 on March 16, 2020. This Order required

that Petitioners completely close their businesses to

the public. No exceptions existed permitting bowling

or roller-skating business activity to occur.

Respondent Whitmer then issued a series of EOs

(2020-9, 2020-20, 2020-43, 2020-69, 2020-100, 2020110, 2020-160, 2020-176, and 2020-183) 1 which

extended the period that Petitioners’ businesses had

to stay completely closed to the public.

On October 2, 2020, the Michigan Supreme Court

confirmed that Respondent Whitmer’s EOs were

unconstitutional and unenforceable. Respondent

Whitmer’s actions completely shut down Petitioners’

1 Available at: https://www.michigan.gov/whitmer/0,9309,7-387-

90499_90705---,00.html

7

businesses from March 16, 2020, to October 2, 2020.

Respondents provided no compensation to Petitioners

for their unlawful actions in this case.

The Petitioners in this case are small, family

businesses located in Michigan who were forcibly

closed by Respondent’s orders. Respondent’s orders

required that Petitioners’ businesses be “closed to

ingress, egress, use, and occupancy by members of the

public.” 2

The District Court granted Respondents’ motion

for summary judgment (App. 26a-40a) and dismissed

Petitioners’ claims. The Sixth Circuit affirmed the

District Court’s dismissal on the grounds that

Eleventh Amendment Sovereign Immunity trumps

any claim for “just compensation” pursuant to a Fifth

Amendment takings claim against a state (App. 1a25a).

REASONS FOR GRANTING THE PETITION

THIS

COURT’S

ELEVENTH

AMENDMENT

SOVEREIGN IMMUNITY JURISPRUDENCE DOES NOT

RECOGNIZE THE IMPORTANT CONSTITUTIONAL

EFFECT THAT THE SUBSEQUENT RATIFICATION OF

THE FOURTEENTH AMENDMENT HAD ON THE

INCORPORATION OF THE FIFTH AMENDMENT.

Whether the Fifth Amendment Takings Clause is

an exception to a state’s Eleventh Amendment

sovereign immunity, is a question of significant

Available at: https://www.michigan.gov/whitmer/news/stateorders-and-directives/2020/03/16/executive-order-2020-9

2

8

constitutional import in need of resolution by this

Honorable Court.

[T]he Supreme Court has never applied

sovereign immunity in a Takings case against a

state government and has questioned whether

“sovereign immunity retains its vitality” in that

context. In First English Evangelical Lutheran

Church v. County of Los Angeles, the Court

clarified that the Fifth Amendment requires

damages for a Taking; that opinion expressly

disregarded

California’s

argument

that

“principles of sovereign immunity” suggested

otherwise. In Palazzolo v. Rhode Island, the

state of Rhode Island asserted sovereign

immunity as a defense against a Taking claim

but the Court ignored that argument in its final

decision against the state. Although sovereign

immunity can be raised at any time, the Court

has decided other Takings claims against state

governments without addressing the issue. 3

The Fifth Amendment’s explicit language provides

a remedy for “just compensation.” It would make no

sense for the Fifth Amendment to apply to the states

through incorporation by the Fourteenth Amendment,

but then have the Eleventh Amendment nullify it

completely by barring all “just compensation” from

those same states. Ironically, the Sixth Circuit’s

opinion only permits a remedy to a Fifth Amendment

violation which is not explicitly stated in its text:

3 “Can State Governments Claim Sovereign Immunity In Takings

Cases?” J.P. Burleigh, University of Cincinnati Law Review,

January 15, 2020. https://uclawreview.org/2020/01/15/can-stategovernments-claim-sovereign-immunity-in-takings-cases/

9

prospective equitable relief. Instead, the Fifth

Amendment should be properly interpreted as an

exception to the Eleventh Amendment by its explicit

text authorizing “just compensation.”

It is time for the People to know if they can hold

their state government accountable for Fifth

Amendment Takings violations in federal court.

Pursuant to Rule 10, whether the Fifth Amendment,

as incorporated by the Fourteenth Amendment,

waives Eleventh Amendment sovereign immunity is

an important question of federal law that must be

settled by this Court. COVID-19 may have been the

first time in recent memory that states aggressively

abused their power to take private property on such a

scale, but it certainly will not be the last.

If this issue becomes settled and states know that

federal courts have the authority to order “just

compensation,” the explicit remedy required in the

Fifth Amendment, as incorporated by the Fourteenth

Amendment, they may tread more carefully before

shuttering businesses, taking property, and

destroying a person’s entire life’s work.

To accept the assertion that the Eleventh

Amendment bars compensation for a violation of the

Fifth

Amendment

undermines

a

protection

guaranteed by the Bill of Rights and produces illogical

results. If the Eleventh Amendment bars

compensation against a state, then it would create the

paradoxical scenario in which a federal court has the

authority to hear a case for a violation of the Fifth

Amendment, and yet is unable to provide the explicit

10

remedy prescribed by the Fifth Amendment itself:

“just compensation.”

Consider the following: A state confiscates and

completely destroys a private farm to build a state

governmental complex without providing any

compensation to the owner. The owner of the farm

sues in federal court for a violation of the Fifth

Amendment takings clause. The court accepts the case

and finds that the state did violate the farmer’s Fifth

Amendment rights by taking his property without

providing just compensation. It would be illogical for

the court to then rule that it was powerless to provide

any injunctive relief (because the farm has been

destroyed and a governmental building now sits on the

property), and it could not provide any compensation

because of the Eleventh Amendment. This sort of

ruling would completely negate not only the

constitutional protections provided by the Fifth

Amendment, but would nullify the explicit language of

the Fifth Amendment itself that the farmer is entitled

to “just compensation.” Clearly this is an untenable

approach and creates an impossible conflict within the

law.

Further, such an interpretation does not nullify the

meaning of the Eleventh Amendment. The Fifth

Amendment is the only amendment that specifically

provides the ability to obtain damages or “just

compensation.” Thus, a damage claim, for example, for

a First or Second Amendment claim against a state

could still be barred by the Eleventh Amendment.

However, a Fifth Amendment takings claim for “just

compensation” would not. Petitioners believe that a

proper review of Fifth and Fourteenth Amendment

11

history and jurisprudence indicates that the Eleventh

Amendment is not a bar to a Fifth Amendment

takings claim for “just compensation” against a state

or state official.

Thus, as explained below, the Eleventh

Amendment does not prohibit a valid Fifth

Amendment takings claim against a state.

A. History of Eleventh Amendment Immunity.

The Eleventh Amendment to the United States

Constitution states:

The Judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of

the United States by Citizens of another State,

or by Citizens or Subjects of any Foreign State.

One of the first cases to discuss the doctrine of

sovereign immunity at length is United States v. Lee,

106 U.S. 196 (1882), which held:

Courts of justice are established, not only to

decide upon the controverted rights of the

citizens as against each other, but also upon

rights in controversy between them and the

government, and the docket of this court is

crowded with controversies of the latter class.

Shall it be said, in the face of all this, and of the

acknowledged right of the judiciary to decide in

proper cases, statutes which have been passed

by both branches of congress and approved by

the president to be unconstitutional, that the

courts cannot give remedy when the citizen has

been deprived of his property by force, his estate

12

seized and converted to the use of the

government without any lawful authority,

without any process of law, and without any

compensation, because the president has

ordered it and his officers are in possession?

If such be the law of this country, it sanctions a

tyranny which has no existence in the

monarchies of Europe, nor in any other

government which has a just claim to wellregulated liberty and the protection of personal

rights.

Id. at 220-221.

In Cedar Point Nursery, supra, this Court began its

Fifth Amendment analysis by stating:

As John Adams tersely put it, “[p]roperty must

be secured, or liberty cannot exist.” Discourses

on Davila, in 6 Works of John Adams 280 (C.

Adams ed. 1851). This Court agrees, having

noted that protection of property rights is

“necessary to preserve freedom” and “empowers

persons to shape and to plan their own destiny

in a world where governments are always eager

to do so for them.” Murr v. Wisconsin, 582 U. S.

___, ___ (2017) (slip op., at 8).

Id. at 2071.

In this case, Respondents illegally acted pursuant

to a state statute held unconstitutional by the

Michigan Supreme Court.

Hence, Respondents’

taking of private property was without any valid

authority. “If the Constitution provided no protection

against such unbridled authority, all property rights

13

would exist only at the whim of the sovereign.” Id.

Respondents

acted

in

an

unlawful

and

unconstitutional manner to take Petitioners’ property

and they cannot use the Eleventh Amendment to

shield their unlawful taking. Petitioners can,

therefore, properly challenge the government’s

conduct in federal court.

B. The Fifth Amendment and the Impact of the

Ratification of the Fourteenth Amendment

on Sovereign Immunity.

Petitioners brought this action pursuant to the

Fifth Amendment’s takings clause, as incorporated by

the Fourteenth Amendment. The right to bring a

takings claim is guaranteed by the United States

Constitution itself. This Court has held:

“The suits were based on the right to recover

just compensation for property taken by the

United States for public use in the exercise of

its power of eminent domain. That right was

guaranteed by the Constitution. The fact that

condemnation proceedings were not instituted

and that the right was asserted in suits by the

owners did not change the essential nature of

the claim. The form of the remedy did not

qualify the right. It rested upon the Fifth

Amendment. Statutory recognition was not

necessary. A promise to pay was not necessary.

Such a promise was implied because of the duty

to pay imposed by the Amendment. The suits

were thus founded upon the Constitution of the

United States.” Jacobs, moreover, does not

stand alone, for the Court has frequently

14

repeated the view that, in the event of a taking,

the compensation remedy is required by the

Constitution.

First English, supra, at 315-316 (emphasis in original)

(citing Jacobs v. United States, 290 U.S. 13 (1933)).

Petitioners’ right to obtain “just compensation” is

founded in the Constitution itself and is the supreme

law of the land. Every state is subject to the

Constitution’s explicit requirements as incorporated

through the Fourteenth Amendment. First English

does not hold that the Fifth Amendment may only

require a state to provide prospective equitable relief.

Instead, “the compensation remedy is required by the

Constitution.”

The First English Court noted that the Solicitor

General argued that sovereign immunity must limit

such takings claims. This Court rejected that

argument and held:

The Solicitor General urges that the prohibitory

nature of the Fifth Amendment, see supra, at

482 U.S. 314, combined with principles of

sovereign immunity, establishes that the

Amendment itself is only a limitation on the

power of the Government to act, not a remedial

provision. The cases cited in the text, we think,

refute the argument of the United States that

“the Constitution does not, of its own force,

furnish a basis for a court to award money

damages against the government.” Brief for

United States as Amicus Curiae 14. Though

arising in various factual and jurisdictional

settings, these cases make clear that it is the

15

Constitution that dictates the remedy for

interference with property rights amounting to

a taking.

Id. at 322, fn 9. This Court must make it eminently

clear that it is the Constitution’s explicit text that

requires “just compensation” be paid. The Eleventh

Amendment is no bar to such a claim because the

unambiguous requirements of the Constitution

supersede any claims of sovereignty by a state.

This Court recently summarized a takings claim:

A property owner has an actionable Fifth

Amendment

takings

claim

when

the

government takes his property without paying

for it. That does not mean that the government

must provide compensation in advance of a

taking or risk having its action invalidated: So

long as the property owner has some way to

obtain

compensation

after

the

fact,

governments need not fear that courts will

enjoin their activities. But it does mean that the

property owner has suffered a violation of his

Fifth Amendment rights when the government

takes his property without just compensation,

and therefore may bring his claim in federal

court under § 1983 at that time.

Knick v. Township of Scott, 588 U.S. ___; 139 S.Ct.

2162, 2167-2168 (2019). While the facts in Knick dealt

with the conduct of a municipality, Petitioners in this

case allege that a Fifth Amendment taking took place,

no just compensation was paid, and the principle of

Knick equally applies. Respondents took Petitioners’

property without providing just compensation, and

16

Petitioners now bring this § 1983 action to vindicate

their rights. This Court further held:

Compensation under the Takings Clause is a

remedy for the "constitutional violation" that

"the landowner has already suffered" at the

time of the uncompensated taking. A later

payment of compensation may remedy the

constitutional violation that occurred at the

time of the taking, but that does not mean the

violation never took place. The violation is the

only reason compensation was owed in the first

place. A bank robber might give the loot back,

but he still robbed the bank. The availability of

a subsequent compensation remedy for a taking

without compensation no more means there

never was a constitutional violation in the first

place than the availability of a damages action

renders negligent conduct compliant with the

duty of care. . . In sum, because a taking

without compensation violates the Fifth

Amendment at the time of the taking, the

property owner can bring a federal suit at that

time.

Id. at 2172-2173 (internal citations omitted). In this

case, Respondents eventually ceased their restrictions

on Petitioners’ property and allowed them to reopen

their businesses, but this does not mean the violation

did not take place. Just because Respondents were

forced by the Michigan Supreme Court to cease their

unconstitutional actions, they still “robbed the bank”

and just compensation is owed.

17

The language implemented in the orders by

Respondents was sweeping, broad, and allencompassing. The orders required that Petitioners’

businesses be “closed to ingress, egress, use, and

occupancy by members of the public.” Such language

destroyed all economically beneficial or productive use

of Petitioners’ property. Indeed, the EO specifically

stated that the public could not “use” Petitioners’

property.

Petitioners were forced to sit back and watch their

businesses suffer millions of dollars in losses, while

most other businesses in the state were permitted to

be open in at least some limited capacity to provide

their primary service. Since Petitioners were forced to

completely shutter their businesses and not allow any

“use” by the public, it destroyed “all economically

beneficial or productive use” of Petitioners’ property.

This taking demands “just compensation.”

Recently, this Court issued an opinion involving

Eleventh Amendment immunity in Penneast Pipeline

Co., LLC v. New Jersey, 594 U.S. ___, 141 S.Ct. 2244

(2021). It involved a pipeline company (acting as an

arm of the federal government) who was utilizing

takings authority to appropriate property to build

energy infrastructure. Id. at 2251. While the facts in

Penneast do not involve the same actions as

Respondents in this case, this Court outlined Fifth

Amendment principles which would apply in this case.

This Court held:

Those vested with the [taking] power could

either initiate legal proceedings to secure the

right to build, or they could take property up

18

front and force the owner to seek recovery for

any loss of value.

Id. at 2255 (emphasis added). In this case, Petitioners’

property was taken “up front” and they are now

seeking recovery for their “loss of value.”

This Court further held:

As a final point, the other dissent offers a

different theory— that even if the States

consented in the plan of the Convention to the

proceedings below, the Eleventh Amendment

nonetheless divests federal courts of subjectmatter jurisdiction over a suit filed against a

State by a diverse plaintiff. But under our

precedents that no party asks us to reconsider

here, we have understood the Eleventh

Amendment to confer “a personal privilege

which [a State] may waive at pleasure.” When

“a State waives its immunity and consents to

suit in federal court, the Eleventh Amendment

does not bar the action.” Such consent may, as

here, be “‘inherent in the constitutional plan.’”

Id. at 2262 (internal citations omitted).

Because the Fifth and Fourteenth Amendments

were ratified by the states on December 15, 1791, and

July 28, 1868, respectively, both of these Amendments

are “inherent in the constitutional plan.” Further, the

states were fully aware of the Eleventh Amendment

when they ratified the Fourteenth. Thus, the states

consented to the requirements, duties, limitations,

and responsibilities of those amendments when they

adopted them. The Fifth Amendment explicitly

19

requires “just compensation” as the result of a taking,

and the Fifth Amendment applies to the states

through the Fourteenth Amendment pursuant to

Chicago, Burlington & Quincy Railroad Company v.

Chicago, supra.

Ratification is the clearest form of consent. When

the states ratified the Fifth and Fourteenth

Amendments, they consented to be governed under

the explicit language of those amendments. Because

the Fifth Amendment unambiguously provides for

“just compensation” and the states ratified said

language, the states have thus consented to a

mechanism that is “inherent in the constitutional

plan.” Therefore, because the states consented to the

ratification of the Fifth and Fourteenth Amendments,

those states cannot claim sovereign immunity as a

defense to a Fifth Amendment takings claim.

Again, this is an important question of federal law

that must be settled by this Court. Because nothing

else in the Constitution provides for a remedy of “just

compensation,” an opinion in Petitioners’ favor would

only apply to a Fifth Amendment takings claim, and

no other constitutional claims.

This Court has recognized three typical exceptions

to the Eleventh Amendment: (1) congressional

abrogation, id. at 66; (2) express consent or waiver by

the State, id.; and (3) official capacity suits for

prospective equitable relief based on ongoing

violations of federal law, Ex parte Young, 209 U.S. 123

(1908). The Sixth Circuit relied upon Ladd v.

Marchbanks, 971 F.3d 574 (6th Cir. 2020) because it

held that the Fifth Amendment does not abrogate the

20

Eleventh Amendment. Ladd, however, only dealt with

the first exception to Eleventh Amendment Sovereign

Immunity: abrogation. Petitioners in this case argue

the second exception: waiver, or, in the alternative, an

exception created by the explicit language of the Fifth

Amendment itself requiring “just compensation” be

paid.

The Penneast Court held that “[w]hen a State

waives its immunity and consents to suit in federal

court, the Eleventh Amendment does not bar the

action. Such consent may, as here, be explicitly in the

text of the Fifth Amendment, as incorporated by the

Fourteenth Amendment, or may be “‘inherent in the

constitutional plan.’” Penneast, supra. at 2262

(internal citations omitted). Either way, it amounts to

a waiver.

Petitioners’ position in this case is that the states

waived the Eleventh Amendment when the states

consented to the enactment of the Fourteenth

Amendment,

which

incorporated

the

Fifth

Amendment. The Fifth Amendment explicitly

requires “just compensation” as the result of a taking,

and the Fifth Amendment applies to the states

through the Fourteenth Amendment. Chicago,

Burlington & Quincy Railroad Company, supra.

The Sixth Circuit erred by holding that the

incorporation of the Fourteenth Amendment cannot

amount to a waiver because incorporation of the Fifth

Amendment took place 30 years after the Fourteenth

Amendment was adopted, and because Petitioners

could have brought their claims in state court. Such a

holding contradicts this Court’s precedent.

21

First, the Sixth Circuit erred by ignoring that this

Court has expressly abandoned any state-litigation

requirement for takings claims. This Court held:

The state-litigation requirement relegates the

Takings Clause “to the status of a poor relation”

among the provisions of the Bill of Rights.

Dolan v. City of Tigard, 512 U.S. 374, 392, 114

S.Ct. 2309, 129 L.Ed.2d 304 (1994). Plaintiffs

asserting any other constitutional claim are

guaranteed a federal forum under § 1983, but

the state-litigation requirement “hand[s]

authority over federal takings claims to state

courts.” San Remo, 545 U.S. at 350, 125 S.Ct.

2491 (Rehnquist, C.J., concurring in judgment).

Fidelity to the Takings Clause and our cases

construing it requires overruling Williamson

County and restoring takings claims to the fullfledged constitutional status the Framers

envisioned when they included the Clause

among the other protections in the Bill of

Rights.

Knick, supra, at 2169-2170. This Court held that when

a state violates the Fifth Amendment and takes

property without providing just compensation, a

plaintiff can sue in federal court “at that time.” Id. at

2170. Therefore, the Sixth Circuit’s holding that a

state court’s availability affects Petitioners’ ability to

bring this case is mistaken.

Next, the Sixth Circuit’s holding violates

McDonald v. City of Chicago, 561 U.S. 742 (2010). The

McDonald Court held:

22

Finally, the Court abandoned “the notion that

the Fourteenth Amendment applies to the

States only a watered-down, subjective version

of the individual guarantees of the Bill of

Rights,” stating that it would be “incongruous”

to apply different standards “depending on

whether the claim was asserted in a state or

federal court.” Instead, the Court decisively

held that incorporated Bill of Rights protections

“are all to be enforced against the States under

the Fourteenth Amendment according to the

same standards that protect those personal

rights against federal encroachment.”

Id. at 765 (internal citations omitted).

The Sixth Circuit erred by holding that there are

two different applications of the Fifth Amendment,

simply depending on in which Court the claim is

brought. According to the Sixth Circuit, if a Fifth

Amendment claim is brought in state court, “just

compensation” is available. If it is brought in federal

court, however, it is not. This contradicts McDonald.

It was “incongruous” for the Sixth Circuit to hold

that whether the explicit remedy of the Fifth

Amendment (just compensation) is available depends

on “whether the claim was asserted in a state or

federal court.” Id. Similarly, a Fifth Amendment claim

against a state should be held to “the same standards

that protect those personal rights against federal

encroachment.” Id. If a plaintiff can obtain “just

compensation” in federal court for federal takings,

then that same plaintiff can obtain “just

compensation” in federal court for state takings.

23

When the states ratified the Fourteenth

Amendment,

which

incorporated

the

Fifth

Amendment, they consented to be governed under the

explicit language of those amendments. Because the

Fifth Amendment provides for “compensation” and the

states consented to the language of the Fifth and

Fourteenth Amendments, the states have thus

consented to a mechanism that is “inherent in the

constitutional plan.” In other words, when the states

consented to the Fourteenth Amendment (which

incorporated the Fifth Amendment), they waived the

Eleventh Amendment only as to “just compensation”

for takings claims. Since the states consented to be

governed by the United States Constitution and its

explicit language, they consented and waived any

Eleventh Amendment defense to the explicit

requirement that states provide “just compensation”

for their takings of private property.

In the alternative, beyond the exceptions provided

in Ex parte Young, supra, the states cannot claim the

immunity of the sovereign because they are beholden

to the ultimate authority of the United States

Constitution which requires that “just compensation”

be paid, regardless of what prior exceptions to the

Eleventh Amendment exist.

Such a holding would not nullify the Eleventh

Amendment. Since this waiver would only apply to the

explicit language of the Constitution, it would only

apply to the Fifth Amendment’s requirement for

“compensation.” This waiver would be inapplicable to

every other provision in the Constitution that does not

explicitly require that “compensation” be provided.

Thus, this waiver would not, for example, apply to

24

claims of damages for a First, Second, or Fourth

Amendment claim because those constitutional

provisions make no mention of “compensation” or any

other language authorizing damages. Therefore, since

the only time the states agreed to provide

“compensation” was in the Fifth Amendment, a

takings claim is the only waiver to which the states

explicitly consented.

Moreover, if this Court were to clearly hold that the

Eleventh Amendment does not bar Fifth Amendment

takings claims in federal court, this would not provide

automatic victories to every possible plaintiff. Instead,

it only means that those cases can be heard on the

merits. Petitioners request that this Honorable Court

hold that their claims can proceed and the Eleventh

Amendment is no bar to their case being heard.

Finally, the Sixth Circuit erred by holding that the

states could not have waived their immunity because

the takings clause was not incorporated against the

states until 30 years after the Fourteenth Amendment

was ratified. There is no such temporal requirement

in this Court’s incorporation doctrine. What matters is

whether the explicit text of each amendment is

applicable to the states, regardless of when it was

incorporated.

The First Amendment right to freedom of speech

was incorporated 57 years after the Fourteenth

Amendment was ratified (Gitlow v. New York, 268

U.S. 652 (1925)); the First Amendment right to free

exercise of religion was incorporated 66 years later

(Hamilton v. Regents of the University of California,

293 U.S. 245 (1934)); the Fifth Amendment right

25

against self-incrimination was incorporated 96 years

later (Malloy v. Hogan, 378 US 1 (1964)); and the

Second Amendment right to keep and bear arms was

incorporated as recently as 2010 (McDonald, supra)).

None of our incorporated rights are diluted or

unenforceable against a state merely because a

requisite amount of time has passed since the

ratification of the Fourteenth Amendment. Instead, a

proper analysis requires an examination of the explicit

text of each amendment and how they apply to the

states. In the case at bar, it is clear that the Fifth

Amendment not only contemplates, but requires, that

damages be paid because it explicitly states “just

compensation” is the constitutional remedy.

Regardless of the date of incorporation, all states must

submit to the specific language of all incorporated

rights, including the right of a citizen to obtain “just

compensation” for a taking.

Since Congress has the authority to abrogate a

State’s sovereign immunity, certainly a Constitutional

Amendment

explicitly

authorizing

“just

compensation” must do so as well. The Fifth

Amendment is the one and only exception to the

Eleventh Amendment that “just compensation” be

paid. The Fifth Amendment’s explicit text requires it.

CONCLUSION

For the foregoing reasons, Petitioners respectfully

request that their petition for a writ of certiorari be

granted.

26

Respectfully submitted,

STEPHEN P. KALLMAN

Counsel of Record

DAVID A. KALLMAN

Kallman Legal Group, PLLC

5600 W. Mount Hope Hwy.

Lansing, MI 48917

steve@kallmanlegal.com

dave@kallmanlegal.com

WILLIAM R. WAGNER

JACK C. JORDAN

Of Counsel

Great Lakes Justice Center

Will@GreatLakesJC.org

Jack@GreatLakesJC.org

Counsel for Petitioners

OCTOBER 17, 2022