Amicus Curiae Brief — The Gym 24/7 Fitness, LLC, Petitioner v. Michigan

Supreme Court briefMar 28, 2025

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No. 24-757

IN THE

THE GYM 24/7 FITNESS, LLC,

Petitioner,

STATE OF MICHIGAN,

Respondent.

On Petition for Writ of Certiorari to the

Michigan Court of Appeals

BRIEF AMICI CURIAE OF CITIZEN ACTION

DEFENSE FUND, BUILDING INDUSTRY

ASSOCIATION OF WASHINGTON, AND

WASHINGTON BUSINESS PROPERTIES

ASSOCIATION IN SUPPORT OF PETITIONER

SAM SPIEGELMAN

Counsel of Record

JACKSON MAYNARD

Citizen Action Defense Fund

111 21st Avenue SW, Ste. 13

Olympia, WA 98501

(850) 519-3495

sam@citizenactiondefense.org

jackson@citizenactiondefense.org

Counsel for Amici CADF, WBPA

ASHLI PENNER

SYDNEY PHILLIPS

Building Industry

Association of Washington

300 Deschutes Way SW

Olympia, WA 98501

(360) 352-7800

ashlip@biaw.com

sydneyp@biaw.com

Counsel for Amici BIAW

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................... ii

INTEREST OF AMICI CURIAE .........................1

INTRODUCTION AND SUMMARY OF

ARGUMENT....................................................2

ARGUMENT ..........................................................4

PRIVATE PROPERTY IS THE

SINE QUA NON OF LIBERTY ....................4

II. PENN CENTRAL PROVIDES NO

GUIDANCE ON THE LINE BETWEEN

TAKINGS AND BONA FIDE

EMERGENCY REGULATIONS ................ 10

CONCLUSION.................................................... 14

TABLE OF AUTHORITIES

Page(s)

Cases

Berman v. Parker, 348 U.S. 26 (1954) ...................... 11

Block v. Hirsch, 256 U.S. 135 (1921) ........................ 14

Chi. League Ball Club v. City of Chicago,

77 Ill. App. 124 (1898) ........................................... 14

Dobbs v. Jackson Women’s Health Org.,

142 S.Ct. 2228 (2022)...............................................4

Murr v. Wisconsin,

582 U.S. 383 (2017)..................................................9

Roman Catholic Diocese of Bklyn. v. Cuomo,

141 S.Ct. 63 (2020)................................................. 16

Standard-Vacuum Oil Co. v. United States,

127 F. Supp. 195 (Ct. Cl. 1955) ............................. 14

United States v. Caltex (Philippines), Inc.,

344 U.S. 149 (1952).......................................... 12, 14

Other Authorities

Amanda L. Taylor, Judicial Review in Times of

Emergency: From the Founding Through the

Covid-19 Pandemic, 109 Va. L. Rev. 489 (2023)... 15

Aristotle, Rhet. (c. 4th cent. BCE) ..............................5

Brian A. Lee, Emergency Takings,

114 Mich. L. Rev. 391 (2015) ................................. 13

Hugo Grotius, De Jure Belli ac Pacis (1625) ..............7

Jack N. Rakove, Original Meanings (1996) ...............8

James Madison: Writings

(Jack N. Rakove, ed., 1999) ................................. 7, 8

iii

James W. Ely, Jr., “Poor Relation” Once More: The

Supreme Court and the Vanishing Rights of

Property Owners, 2005 Cato Sup. Ct. Rev. (2005) ..9

John Adams, 6 Works of John Adams

(C. Adams ed., 1851) ................................................9

John Locke, Second Treatise of Government (1689)...6

John Yoo, Emergency Powers During a Viral

Pandemic, 15 N.Y.U. J.L. & Liberty 822 (2022) ... 15

Juan Javier Del Granado, The Genius of Roman Law

from a Law and Economics Perspective,

13 San Diego Int’l L.J. 301 (2011) ...........................5

R. Hamad, K.A. Lyman et al., The U.S. COVID-19

County Policy Database: A Novel Resource to

Support Pandemic-Related Research,

22 BMC Public Health 1882 (2022) ...................... 15

Richard A. Epstein, The Classical Liberal

Constitution: The Uncertain Quest for Limited

Government (2014) ...................................................7

Robert C. Ellickson & Charles DiA. Thorland,

Ancient Land Law: Mesopotamia, Egypt, Israel,

71 Chi.-Kent L. Rev. 321 (1995) ..............................5

Thomas J. Bollyky, Emma Castro et al., Assessing

Covid-19 Pandemic Policies and Behaviours and

Their Economic and Educational Trade-Offs

Across U.S. States From Jan. 1, 2020 to July 31,

2022: An Observational Analysis,

401 Lancet 1341 (2023) ......................................... 15

Thomas W. Merrill, Property and the Right to

Exclude, 77 Neb. L. Rev. 730 (1998) .......................5

W. Blackstone, Commentaries on the Laws of

England (1768) ........................................................8

INTEREST OF AMICI CURIAE 1

This amicus brief is submitted by the Citizen

Action Defense Fund (“CADF”), the Building

Industry Association of Washington (“BIAW”),

and Business Properties Association of

Washington (“WBPA”).

CADF is an independent, nonprofit organization

based in Washington State that supports and pursues

strategic, high-impact litigation to advance free

markets, restrain government overreach, and defend

constitutional rights. As a government watchdog,

CADF files lawsuits, represents affected parties,

intervenes in cases, and files amicus briefs when a

state enacts laws that violate the state or federal

constitutions, when government officials take actions

that infringe upon the Fifth Amendment or other

constitutional rights, and when agencies promulgate

rules in violation of state law.

BIAW is a Washington state-based trade

association representing over eight-thousandmember home builders, remodelers, suppliers, and

other professionals supporting the home building

industry. The Association is made up of fourteen

affiliated local associations. BIAW is one of the largest

home-building associations in America, championing

the rights of its members and fighting for affordable

home ownership at all levels of government. BIAW is

a committed advocate in Washington State, and the

Ninth Circuit, frequently participating as a party

1 Pursuant to Rule 37, counsel for amici affirm that no counsel

for any party authored this brief in whole or part, and no person

or entity, other than amici, their members, or counsel, made any

monetary contribution to its preparation or submission. All

parties received timely notice of Amici’s intention to file.

litigant and amicus curiae to safeguard the rights and

interests of its members, and all others interested in

the availability and affordability of housing

nationwide.

WBPA is a member-based non-profit organization

advocating for property owners against burdensome

taxation and encroaching regulation of property. It is

a broad coalition of businesses and professional

associations focused on commercial, residential, retail

real estate, and property rights in Washington state.

WBPA represents the interests of business owners to

state and local legislative bodies, news media, and the

general public. It is actively involved in the

Legislature and local governments on any legislation

affecting property rights and property taxation.

Amici have a strong interest in the outcome of this

case as they are committed to the protection of the

individual from the mercurial nature of state police

power. Specifically, Amici are concerned that if the

Court does not grant review, then the thousands of

ultra vires actions of the Covid Era will continue

morphing into a feature and not a bug of American

governance.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioner, The Gym 24/7 Fitness LLC, owns an

indoor gym and fitness center located in Alma,

Michigan. Petitioner, as well as other Michigan

businesses, were subject to the Executive Order and

MDHSS Order reprinted in the Petitions for Review. 2

See also, Petition for Writ of Certiorari, Mount Clemens

Recreational Bowl, Inc., et al. v. Hertel, et al., Docket No. 24-754.

On March 10, 2020, Michigan Governor Gretchen

Whitmer issued Executive Order 2020-09, which was

extended by subsequent orders and terminated on

September 3, 2020, declaring a state of emergency in

response to the uptick in COVID-19 cases in

Michigan. These orders decreed that businesses of

public accommodation must be “closed to ingress,

egress, use, and occupancy by members of the public.”

During the State’s control over the use of their

properties, Petitioner earned little or no income while

their monthly expenses and obligations continued

unabated. App. 75a-76a, 79a. Four years on and

Petitioner has not come close to recovering.

In this brief, Amici provide a concise history of

ownership in the common law and American

constitutional traditions. Amici then explain how the

so-called “Penn Central test”—an amorphous blob of

some among many factors for analyzing whether a

regulation is a taking—has failed in both theory and

practice to protect ownership from the whims of the

public. The Penn Central test is in desperate need of

replacement or overhaul—especially in view of its

widespread misuse in so-called “emergency” takings

cases. Amici then proceed to a discussion of

government’s

emergency

regulatory

powers,

demonstrating that the limits and obligations

Michigan authorities imposed on Petitioner falls well

outside the ambit of justifiable salus populi actions.

Any overhaul or replacement to Penn Central must

elaborate the grounds upon which a regulation of

private property that functions as a taking morphs

beyond the exigency for which it was crafted.

Permitting Governor Whitmer and other public

officials to run roughshod over the fundamental uses

and rights of ownership without compensation

exposes businesses across the United States to future

extraconstitutional restrictions under false claims or

exaggerations of an “emergency.” Covid-related

closures predictably have generated substantial

litigation in recent years and there is widespread

concern that if the Court does not finally intervene

and rectify the proverbial runaway train that is Penn

Central, this will further embolden state and local

officials to trample such rights under increasingly

thinly veiled guises.

ARGUMENT

I. PRIVATE PROPERTY IS THE SINE QUA

NON OF LIBERTY.

A. Ownership as Fundamental.

The Court regularly—and properly—relies upon

legal history and tradition to cite fundamental rights,

even those not explicitly included in the Constitution’s

text (cf., the right to free speech). Dobbs v. Jackson

Women’s Health Org., 142 S.Ct. 2228, 2246–48 (2022).

The history of the “right to exclude” in the property

rights “bundle of sticks” highlights the consistent and

quintessential role in limiting governmental

overreach. Professor Thomas Merrill, one of the most

cited legal scholars, called the right “more than just

‘one of the most essential’ constituents of property—it

is [its] sine qua non”—i.e., ownership could not exist

without it. Thomas W. Merrill, Property and the Right

to Exclude, 77 Neb. L. Rev. 730, 730–31 (1998). This

is especially so within the Anglo-American conception

of property, though the right to exclude has been a

mainstay of most legal and cultural frameworks since

the dawn of civilization. See Robert C. Ellickson &

Charles DiA. Thorland, Ancient Land Law:

Mesopotamia, Egypt, Israel, 71 Chi.-Kent L. Rev. 321,

341 (1995) (“The foundational norm of private

property” being “the right to control entry. On this

legal issue there is much textual evidence from

Mesopotamia and Israel, the two civilizations for

which law codes have been found.”). The right to

exclude as the sine qua non of ownership has been

central to Western legal theory since at least the Greek

Golden Age and the Pax Romana. See Aristotle, Rhet.,

1361a (c. 4th cent. BCE) (writing that a thing “is our

own if it is in our power to dispose of it or not”); see

also, Juan Javier Del Granado, The Genius of Roman

Law from a Law and Economics Perspective, 13 San

Diego Int’l L.J. 301, 316 (2011) (“Roman property law

typically gives a single property holder a bundle of

rights with respect to everything in his domain, to the

exclusion of the rest of the world.”).

Knowing these origins, it is no surprise that the

protection of private property against sovereign

interference was among the core freedoms English

King John’s rebellious barons demanded from him in

the Magna Carta (1215)—the “Great Charter” that

put a (granted, temporary) stop to their uprising.

Specifically, the Great Charter includes that “[n]o free

man shall be seized or imprisoned or stripped of his

rights or possessions . . . except by the lawful

judgments of his equals or by the law of the land.”

Magna Carta, art. 39 (cleaned up) (emphasis added).

By the 1600s, after centuries of violent struggle

between kings, nobles, and crowds for overall

hegemony

Europe’s

nation-states,

many

“Enlightenment” thinkers began gravitating towards

the most rights-based theories of government

theretofore conceived. Most prominent among those

spearheading this shift was English philosopher John

Locke, who soon after the Glorious Revolution of 1688

declared that the “great and chief end” for which men

“unite into commonwealths” is to ensure the

“preservation of their property.” John Locke, Second

Treatise of Government, IX § 123 (1689) (cleaned up).

Locke himself found inspiration in the writings of

Dutchman Hugo Grotius, who earlier offered that “no

man could justly take from another, what he had thus

first taken to himself.” Hugo Grotius, De Jure Belli ac

Pacis, § II.II.II (1625).

B. “Property” in the Original Public Meaning.

Shortly after ratification of the Constitution,

James Madison gave full endorsement to his

intellectual forebears’ understanding of property,

declaring “[t]his being the end of government, that

alone is a just government, which impartially secures

to every man, whatever is his own.” James Madison,

“Property,” in James Madison: Writings, 515 (Jack N.

Rakove, ed., 1999) (1792). And in this he was hardly

alone.

Summarizing the classical-liberal contours of

public authority, American legal scholar Richard

Epstein declared that “the proper ends under the

police power are those of the private law of nuisance,

no more and no less.” Richard A. Epstein, The

Classical Liberal Constitution: The Uncertain Quest

for Limited Government 353 (2014). Epstein did not

devise this approach in a vacuum. Rather, it reflects

the consensus regarding government—and the

limitations thereon, especially with respect to

property rights—shared between the Constitution’s

Framers and among eighteenth and nineteenth

century American courts tasked with interpreting

their words. Together, the conception of the Takings

Clause and property in general comprise the former’s

original public meaning, a theory of interpretation

that, with some ebbs and flows, has proven the most

durable means of constitutional interpretation.

Precisely because it asks what the document was

popularly understood to mean at ratification. See Jack

N. Rakove, Original Meanings 339–68 (1996).

The Framers, following Locke, understood the

necessity for robust constitutional protection of

property. James Madison, the chief author of the

Constitution (including of the Takings Clause),

already enamored of Locke and Grotius, also relied

upon

distinguished

English

jurist

William

Blackstone’s definition of property—viz., “that sole

and despotic dominion which one man claims and

exercises over the external things of the world, in total

exclusion of the right of any other individual in the

universe.” W. Blackstone, Commentaries on the Laws

of England, *2 (1768); Madison, supra, at 515 (“This

term in its particular application means ‘that

dominion which one man claims and exercises over

the external things of the world, in exclusion of every

other individual.’”).

As Chief Justice Roberts wrote in Cedar Point,

“[t]he Founders recognized that the protection of

private property is indispensable to the promotion of

individual freedom.” Cedar Point Nursery, et al. v.

Hassid, et al., 141 S.Ct. 2063, 2071 (2021). As John

Adams tersely put it, “[p]roperty must be secured, or

liberty cannot exist.” “Discourses on Davila,” in 6

Works of John Adams (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.

383, 394 (2017).

C. Regulations Have Always Been Subject to

Takings Analysis.

Much hay has been made of the argument, typified

in a series of articles by Professor Michael Treanor,

that “mere” regulations were never meant to fall

under the canopy of takings protection. See generally,

Michael Treanor, The Original Understanding of the

Takings Clause and the Political Process, 95 Colum.

L. Rev. 782 (1995). As evidence, proponents like

Professor Treanor point to the scant number of

regulations that garnered constitutional scrutiny

before the modern age—conveniently ignoring that

until the twentieth century, regulations of the sort we

now grapple with were very rare. See James W. Ely,

Jr., “Poor Relation” Once More: The Supreme Court

and the Vanishing Rights of Property Owners, 2005

Cato Sup. Ct. Rev. 39, 40–57 (2005) (explaining that

“[p]roperty ownership had long been understood to

encompass use and enjoyment, not mere title,” and

that “[James] Madison anticipated the regulatory

takings doctrine.”) Professor Ely correctly points out

that the doctrine emerged later not by mere judicial

fiat but because there were suddenly troves of

property-interfering regulations where few had

existed before.

Professor Treanor also relied upon the dubious

posit that the Framers, in crafting the Constitution,

were driven more by “civic republicanism” than by

Lockean classical liberalism. Per Treanor:

Liberalism begins with the belief that

individuals are motivated primarily, if

not wholly, by self-interest and with the

belief that rights are prepolitical.

Government exists to protect those

rights and the private pursuit of goals

determined by self-interest. Republican

thinkers, in contrast, see the end of the

state as the promotion of the common

good and of virtue. Rights, rather than

being prepolitical, are created by the

polity and subject to limitation by the

polity when necessitated by the common

interest.

Treanor, supra, at 821.

Professor James Ely offers a strong historical

counter to Professor Treanor’s misunderstanding of

the Takings Clause as a shield against—rather than

a sword for—public intervention into the privateproperty realm. Within the broad context of property

rights, the narrow classical-liberal concern around the

state’s authority to seize private property or to

regulate it into oblivion—without framework

limitations—is the public’s tendency to shortchange

the productive power of profit-driven individuals for

the short-term satisfaction of majoritarian whims.

Civic republicanism favors this “wisdom” of the crowd

and essentially views the “tragedy of the commons” as

a failure of political imagination more than a natural

and inevitable byproduct of conceiving property in

communitarian rather than ultimately private

terms—i.e., property remains private until the public

devises “better” purposes for which to utilize it. Armed

with this premise, it is not a far leap to Justice

William O. Douglas’s temptingly simplistic approach

that “when the legislature has spoken, the public

interest has been declared in terms well-nigh

conclusive.” Berman v. Parker, 348 U.S. 26, 32 (1954).

Many opinions citing Berman on this fail to clarify

that Justice Douglas prefaced that this deference is

still “[s]ubject to specific constitutional limitations.”

Id.

Courts using Penn Central to uphold Covid-related

restrictions tend to mimic the civic-republican

approach, searching for any conceivable justification

(even some the public never proffer) to excuse even

total-value-killing measures as “mere” regulations.

Once understood that the Framers conceived the

Takings Clause to protect ownership instead of

providing a framework for its orderly dismantling,

then of course the universe of measures qualifying as

overriding public necessities will shrink.

II. PENN CENTRAL PROVIDES NO GUIDANCE

ON THE LINE BETWEEN TAKINGS AND

BONA FIDE EMERGENCY REGULATIONS.

Outside of standing “inspection regimes” and other

laws designed to prevent nuisance uses of private

property—i.e., state actions preventing owners from

utilizing their properties in ways the common law

already patently prohibits—government must always

pay for what it takes. Cedar Point, 141 S.Ct. at 2071.

Of course, even wholly innocuous uses of property can

become a source of harm in the right—or rather,

wrong—context. And by no fault of its owners’ actions

or inaction.

Thus, beyond government’s ordinary salus populi

power exists a limited universe of extraordinary

powers, triggerable only in exigent (read: emergency)

circumstances, permitting it to regulate private

property—even to the point of total-value-loss—fully

outside the ambit of the Takings Clause. Properly

justified and deemed necessary, emergencies even

permit government to physically destroy private

property

without

providing

compensation—

regardless of the owners’ culpability (or lack thereof).

See, e.g., United States v. Caltex (Philippines), Inc.,

344 U.S. 149 (1952) (endorsing the uncompensated

destruction of private oil facility to prevent its

immediate enemy capture). Such circumstances are,

however, exceedingly rare, and courts need not accept

proffered justifications pell-mell—in fact, they would

be derelict to do so.

Judicial confusion over how to apply Penn Central

to Covid-related property restrictions (among other

potentially ultra vires actions) makes abundantly

clear that this “test” is ill-equipped to address

measures taken in response to public exigencies—

especially those constraining fundamental rights. See

generally, Michelle M. Mello, et al., Judicial Decisions

Constraining Public Health Powers During Covid-19:

Implications for Public Health Policy Making, 43

Health Aff. 759 (2024) (analyzing a significant

number of Covid-related lawsuits and success rates

across subject-matters).

Justified “emergencies” include, inter alia,

conflagrations, stopping active crimes, and stemming

emergent floods. See generally, Brian A. Lee,

Emergency Takings, 114 Mich. L. Rev. 391 (2015). Of

course, stopping or slowing the spread of disease is

among these as well. Id. at 399–401 (discussing longpracticed public measures to combat disease,

including the destruction of buildings). But there are

two important caveats.

First, because the powers wielded in these

situations are so extraordinary, government cannot

simply claim a proper justification and expect courts

to accept its proffer as “well-nigh conclusive”—at least

not when the rights being abrogated are fundamental

(e.g., the rights of ownership). Second, if the property

is not destroyed or restricted in pursuit of an

articulated, justified objective, but rather taken—even

constructively—and impressed into service to combat

the emergency, then government is liable to pay

compensation. See, e.g., Standard-Vacuum Oil Co. v.

United States, 127 F. Supp. 195, 196–97 (Ct. Cl. 1955);

Chi. League Ball Club v. City of Chicago, 77 Ill. App.

124, 138–39 (1898); Caltex, 344 U.S. at 152–53

(compensation is due for impressment and use for

wartime purposes, in contrast to outright destruction

to avoid enemy capture).

Unless the Court intervenes here, lower courts will

continue permitting state and local officials to

exaggerate or invent emergency powers to shield ultra

vires acts from the judicial scrutiny they deserve. In

Block v. Hirsch, the Court upheld a District of

Columbia rent-control ordinance on the grounds that

the emergency—urban overpopulation resulting from

the rapid acceleration of industrial output during the

First World War—was “a publicly, notorious and

almost worldwide fact.” 256 U.S. 135, 154 (1921).

Whether the coronavirus pandemic was an emergency

sufficient to justify state-sponsored holdover

tenancies and other drastic measures is a matter of

much greater debate. See, e.g., Amanda L. Taylor,

Judicial Review in Times of Emergency: From the

Founding Through the Covid-19 Pandemic, 109 Va. L.

Rev. 489 (2023); John Yoo, Emergency Powers During

a Viral Pandemic, 15 N.Y.U. J.L. & Liberty 822

(2022). Thus the White House, states, counties, and

municipalities offered wildly different and often

divergent responses. See R. Hamad, K.A. Lyman, et

al., The U.S. COVID-19 County Policy Database: A

Novel Resource to Support Pandemic-Related

Research, 22 BMC Public Health 1882 (2022); Thomas

J. Bollyky, Emma Castro, et al., Assessing Covid-19

Pandemic Policies and Behaviours and Their

Economic and Educational Trade-Offs Across U.S.

States From Jan. 1, 2020 to July 31, 2022: An

Observational Analysis, 401 Lancet 1341 (2023).

Among these measures, one stands out as particularly

bold: the Centers for Disease Control and Prevention’s

(“CDC”) nationwide eviction moratorium, which the

Court dispatched per curiam. Alabama Ass’n of

Realtors, et al. v. Dep’t of Health & Human Servs., 141

S.Ct. 2485 (2021). Though the ultimate conclusion

was that Congress, rather than a lone federal agency,

decides what constitutes an “emergency” of the caliber

necessary to justify the disruption of property rights,

the Court in Alabama Association of Realtors crucially

noted that the CDC “preventing [rental owners] from

evicting tenants who breach their leases intrudes on

one of the most fundamental elements of property

ownership—the right to exclude.” Id. at 2489.

Perhaps on the merits the Court will find, in view

of the Framers’ intent and its own emergencies

doctrine, that Governor Whitmer and others indeed

acted within their emergency, or even ordinary police

powers, when they imposed the closures here in issue.

Still, as the Court noted in an earlier Covid case, “even

in a pandemic the Constitution cannot be put away

and forgotten.” Roman Catholic Diocese of Bklyn. v.

Cuomo, 141 S.Ct. 63, 68 (2020). That is, “emergencies”

are not get-out-jail-free cards for those who have

sworn to uphold the Constitution. This is especially

the case for property rights—the ends of government,

as Locke declared—which are particularly susceptible

to erosion when the majority takes unfettered and

unprincipled actions. The Takings Clause is the

restraining mechanism. Casting it aside in times of

crisis is a recipe for constitutional disaster.

It is not enough for the government to proffer that

property interference is preventing public harm

rather than merely conferring a public benefit (for

which compensation is owed). Whatever the outcome,

Amici urge the Court to grant review of this case to

resolve these and the other outstanding legal

questions at stake.

CONCLUSION

For the foregoing reasons and those stated in the

Petition, the Court should grant review of the

Petition, reverse the Michigan Court of Appeals, and

remand the case for further proceedings in accordance

with the Court’s longstanding recognition that the

Takings Clause is designed to protect property rights,

not as a blueprint for abrogating them without

compensation.

Respectfully submitted,

MARCH 28, 2025

/S/ SAM SPIEGELMAN