Petition for Writ of Certiorari — Johanna McGee, as Personal Representative of the Estate of Jacqueline McGee, et al., Petitioners v. Alger County Treasurer, et al.
Supreme Court briefAug 15, 2025
Ask Donna
What actually matters in this document.
Text
No.
In the Supreme Court of the United States
_________
J OHANNA MC G EE , AS PERSONAL REPRESENTATIVE
OF THE E STATE OF J ACQUELINE M C G EE ,
v.
Petitioner,
ALGER COUNTY T REASURER,
Respondent,
AND
L ILLIAN J OSEPH ,
v.
Petitioner,
I RON C OUNTY T REASURER ,
Respondent.
_________
On Petition For A Writ Of Certiorari
To The Michigan Court Of Appeals
_________
PETITION FOR A WRIT OF CERTIORARI
_________
D EBORAH J. L A F ETRA
Pacific Legal Foundation
3100 Clarendon Blvd.
Suite 1000
Arlington, VA 22201
CHRISTINA M. M ARTIN
Counsel of Record
Pacific Legal Foundation
4440 PGA Blvd., Suite 307
Palm Beach Gardens, FL
33410
Telephone: (916) 330-4059
CMartin@pacificlegal.org
Counsel for Petitioners
QUESTIONS PRESENTED
When government takes and sells private property
to collect a tax debt, it must return the surplus
proceeds from the sale to the former property owner
as just compensation. Tyler v. Hennepin Cnty., 598
U.S. 631 (2023). Michigan continues to evade that
categorical duty. It established a complicated claims
process purporting to offer owners an opportunity to
claim their funds, Mich. Comp. Laws § 211.78t, yet in
approximately 95% of cases, the tax debtors cannot
successfully navigate it. When that happens, the
government keeps the owner’s equity as a windfall.
Four other states have enacted similarly Byzantine
claims processes. Federal and state courts allow this
end-run around Tyler and due process mainly based
on Nelson v. City of New York, 352 U.S. 103 (1956),
which contains language that the existence of any
procedure to recover surplus proceeds prevents the
taking from occurring. The questions presented are:
1. Does Michigan’s claims process violate the
Takings and Due Process Clauses?
2. To the extent it authorizes Michigan’s
confiscatory claim statute, should the Court
overrule Nelson v. City of New York?
ii
PARTIES TO THE PROCEEDING AND
RULE 29.6 STATEMENT
Petitioners Johanna McGee and Lillian Joseph
were defendants-appellants in the proceedings below.
Respondents Alger County Treasurer and Iron
County Treasurer were plaintiffs-appellees below.
STATEMENT OF RELATED CASES
These proceedings are directly related to the abovecaptioned case under Rule 14.1(b)(iii):
In re Petition of Alger County Treasurer for
Foreclosure, No. 167712 (Mich. Mar. 28, 2025).
In re Petition of Alger County Treasurer for
Foreclosure, No. 363803 (Mich. Ct. App. Sept. 12,
2024).
In the Matter of the Petition of Alger County
Treasurer for the Foreclosures of Certain Parcels of
Property Due to Unpaid 2018 and Prior Years’
Taxes, Interest, Penalties, and Fees, No. 2020-8018CZ (Alger Cnty. Cir. Ct. Sept. 28, 2022).
In the Matter of the Petition of Iron County
Treasurer for the Foreclosures of Certain Parcels of
Property Due to Unpaid 2018 and Prior Years’
Taxes, Interest, Penalties, and Fees, No. 20-6007CZ (Iron Cnty. Cir. Ct. Apr. 26, 2022).
iii
TABLE OF CONTENTS
Petition for a writ of certiorari ................................... 1
Opinions below ............................................................ 4
Jurisdiction ................................................................. 5
Constitutional and statutory provisions involved ..... 5
Statement of the case ................................................. 6
A. Michigan’s claim statute .............................. 6
B. Michigan’s strict claim statute operates to
deprive the McGee Estate and Joseph of
their just compensation ............................... 7
C. Based primarily on Nelson v. City of
New York, the Michigan Court of Appeals
holds the County did not take property
without just compensation or violate
due process ................................................. 10
Reasons for Granting the Petition ........................... 11
I. The Court Should Settle the Important
Question of Whether the Government May
Avoid Its Categorical Constitutional Duty to
Pay Just Compensation by Burdening Owners
with an “Exclusive” Claims Process ............... 11
A. Nelson v. City of New York ........................ 15
B. Nelson cannot be reconciled with the
duty to pay just compensation ................... 16
C. Michigan’s statute cannot be reconciled with
the duty to pay just compensation ............ 20
II. The Court Should Resolve Whether NelsonInspired Procedures Impose Unconstitutional
Exhaustion Requirements .............................. 23
A. Takings decisions that rely on Nelson
conflict with this Court’s holdings in
Knick and Felder ........................................ 23
iv
B. The lower courts conflict as a result of
their application of Nelson ......................... 26
III. The Lower Court’s Decision Conflicts With
This Court’s Due Process Decisions................ 29
Conclusion ................................................................. 34
APPENDIX
Michigan Court of Appeals, Nos. 363803, 363804,
Opinion, filed September 12, 2024. ..................... 1a
Michigan 11th Circuit Court for the County of Alger,
No. 20-8018-CH, Order Re: Claim of McGee
Estate, filed September 28, 2022 ....................... 26a
Michigan 41st Circuit Court for the County of Iron,
No. I20-6007-CZ, Order Denying Motion of
Lillian Joseph (Hennessy) to Disburse Surplus
Proceeds, filed April 26, 2022 ............................ 28a
Michigan Supreme Court, No. 167712,
Order Denying Application for Review,
filed March 28, 2025........................................... 31a
MCL § 211.78t (excerpts)........................................ 33a
Michigan 11th Circuit Court for the County of Alger,
No. 20-8018-CH, Judgment of Foreclosure,
filed February 17, 2021 ...................................... 44a
Payment Deadline Notice,
mailed sometime after February 17, 2021 ........ 49a
Notice of Foreclosure,
mailed sometime after March 31, 2021 ............. 52a
Form 5743 – Notice of Intention to Claim Interest in
Foreclosure Sales Proceeds by Lillian Joseph,
mailed June 29, 2021 ......................................... 55a
v
Michigan 11th Circuit Court for the County of Alger,
No. 20-17073-CZ, Verified Motion of the
Estate of Jacqueline Helen McGee to
Disburse Remaining Proceeds from Tax
Foreclosure Sale, filed May 16, 2022................. 58a
vi
TABLE OF AUTHORITIES
Cases
257-261 20th Ave., Realty, LLC v.
Roberto,
259 N.J. 417 (2025)................................................ 1
A.A.R.P. v. Trump,
145 S. Ct. 1364 (2025) ......................................... 32
Arkansas Game & Fish Comm’n v.
United States,
568 U.S. 23 (2012) ............................................... 11
Baltimore & Ohio R.R. Co. v.
United States,
298 U.S. 349 (1936) ............................................. 17
Biesemeyer v. Mun. of Anchorage,
No. 3:23-CV-00185,
2024 WL 1480564
(D. Alaska Mar. 13, 2024) ................................... 28
Bigelow v. Ballerino,
111 Cal. 559 (1896) ......................................... 20-21
Bogie v. Town of Barnet,
129 Vt. 46 (1970).................................................. 20
Bolling v. Sharpe,
347 U.S. 497 (1954) ............................................. 29
Breithaupt v. Abram,
352 U.S. 432 (1957) ............................................. 29
Brody v. Vill. of Port Chester,
434 F.3d 121 (2d Cir. 2005) ............................ 32-33
Brown v. Legal Found. of Washington,
538 U.S. 216 (2003) ............................................. 17
Brown v. Western Ry. of Ala.,
338 U.S. 294 (1949) ............................................. 25
vii
Bufkin v. Collins,
145 S. Ct. 728 (2025) ....................................... 3, 18
Burke v. City of River Rouge,
215 N.W. 18 (Mich. 1927) .................................... 19
Cedar Point Nursery v. Hassid,
594 U.S. 139 (2021) ........................................ 16-17
Cherokee Nation v. S. Kan. Ry. Co.,
135 U.S. 641 (1890) .............................. 3, 11-12, 21
Chicago, B&Q Ry. Co. v.
People of State of Illinois,
200 U.S. 561 (1906) ......................................... 3, 18
Cocks v. Izard,
74 U.S. 559 (1868) .......................................... 19-20
Collins v. City of Harker Heights,
503 U.S. 115 (1992) ......................................... 4, 29
Continental Oil Co. v. Bonanza Corp.,
706 F.2d 1365 (5th Cir. 1983) ............................. 17
Davis v. Wechsler,
263 U.S. 22 (1923) ............................................... 25
Elzea v. Nat’l Bank of Georgia,
570 F.2d 1248 (5th Cir. 1978) ........................ 18-19
F.M.C. Stores Co. v. Borough of
Morris Plains,
100 N.J. 418 (1985).............................................. 30
Felder v. Casey,
487 U.S. 131 (1988) ........................ 3, 23-26, 29, 33
In Re: Franco,
No. 24-21084-ABA, 2025 WL 884067
(Bankr. D.N.J. Mar. 17, 2025) ............................ 28
Fulton v. Fulton Cnty. Bd. of Comm’rs,
No. 22-12041, __ F.4th __,
2025 WL 2166416
(11th Cir. July 31, 2025) ........................ 3-4, 17, 24
viii
Garcia v. Title Check, LLC,
No. 22-1574, 2023 WL 2787298
(6th Cir. Apr. 5, 2023) ......................................... 22
Gates v. City of Chicago,
623 F.3d 389 (7th Cir. 2010) ............................... 33
Grainger v. Ottawa Cnty.,
90 F.4th 507 (6th Cir. 2024) ................................ 21
Hagar v. Reclamation Dist. No. 108,
111 U.S. 701 (1884) ............................................. 29
Harmelin v. Michigan,
501 U.S. 957 (1991) ............................................. 34
Hart v. City of Detroit,
416 Mich. 488 (1982) ........................................... 21
Hathon v. State,
17 N.W.3d 686 (2025) ............................... 11, 28-29
Haverhill Bridge Proprietors v.
Essex Cnty. Comm’rs,
103 Mass. 120 (1869) ........................................... 21
Horne v. Dep’t of Agriculture,
576 U.S. 350 (2015) ................................ 2-3, 11, 16
Howard v. Macomb Cnty.,
133 F.4th 566 (6th Cir. 2025) ................... 26-29, 31
Jackson v. Southfield Neighborhood
Revitalization Initiative,
No. 166320, __ Mich. __,
2025 WL 1959046 (July 16, 2025).................. 12-14
Jacobs v. United States,
290 U.S. 13 (1933) ............................................... 18
Jones v. Flowers,
547 U.S. 220 (2006) ......................................... 4, 30
Joslin Mfg. Co. v. City of Providence,
262 U.S. 668 (1923) ......................................... 3, 18
ix
Kankakee Cnty. v. Aetna Life Ins. Co.,
106 U.S. 668 (1883) ......................................... 3, 19
Kelly v. Okla. Tpk. Auth.,
269 P.2d 359 (Okla. 1954) ................................... 21
Kidd v. Pappas,
No. 22 C 7061, 2025 WL 1865983
(N.D. Ill. July 7, 2025) ......................................... 14
Knellinger v. Young,
134 F.4th 1034 (10th Cir. 2025) ..................... 26-27
Knick v. Township of Scott,
588 U.S. 180 (2019) .................................... 3, 23-29
Koontz v. St. Johns River Water
Mgmt. Dist.,
570 U.S. 595 (2013) ............................................. 17
Lawson v. United States,
124 F.3d 198, 1997 WL 530540
(6th Cir. 1997)...................................................... 18
Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005) ............................................. 17
Magruder v. Drury,
235 U.S. 106 (1914) ............................................. 15
Maron v. Chief Fin. Officer of Fla.,
136 F.4th 1322 (11th Cir. 2025) .......................... 27
McDuffee v. Collins,
117 Ala. 487 (1898) .............................................. 20
Md. Indus. Dev. Fin. Auth. v.
Meadow-Croft,
243 Md. 515 (1966) .............................................. 19
Mennonite Bd. of Missions v. Adams,
462 U.S. 791 (1983) ............................................. 33
Miller v. Port of N.Y. Auth.,
15 A.2d 262 (N.J. 1939) ....................................... 19
x
Minnesota v. Barber,
136 U.S. 313 (1890) ............................................. 30
Monongahela Nav. Co. v. United States,
148 U.S. 312 (1893) ......................................... 3, 18
Mullane v. Central Hanover Bank &
Trust Co.,
339 U.S. 306 (1950) ............................................. 32
In re Muskegon Cnty. Treasurer
for Foreclosure,
348 Mich. App. 678 (2023),
petition for writ of certiorari pending
sub nom. Beeman v. Muskegon Cnty.
Treasurer, No. 24-858 ................. 2, 7, 10-11, 14, 32
N.Y. and Presbyterian Hosp. v.
United States,
881 F.3d 877 (Fed. Cir. 2018) .............................. 18
Nelson v. City of New York,
352 U.S. 103 (1956) .............. 2-4, 10, 12, 14-16, 20,
23, 26-30
Nelson v. Colorado,
581 U.S. 128 (2017) ............................................. 30
Niz-Chavez v. Garland,
593 U.S. 155 (2021) ............................................. 33
O’Connor v. Eubanks,
83 F.4th 1018 (6th Cir. 2023) ........................ 21, 31
OPV Partners, LLC v. City of Lansing,
No. 24-2035, 2025 WL 1898235
(6th Cir. July 9, 2025) ......................................... 28
Patsy v. Bd. of Regents of Florida,
457 U.S. 496 (1982) ............................................. 24
xi
In re Petition of Alger Cnty. Treasurer
for Foreclosure, No. 363803, 363804,
2024 WL 2981520 (Mich. Ct. App.
Sept. 12, 2024) .................................................... 4-5
In Re Petition of Iron Cnty. Treasurer
for Foreclosure,
No. 368382, 2025 WL 2147421
(Mich. Ct. App. July 29, 2025) ............................ 14
Rafaeli, LLC v. Oakland Cnty.,
505 Mich. 429 (2020) ....................................... 6, 29
Ramsey v. City of Newburgh,
No. 23-CV-8599, 2024 WL 4444374
(S.D.N.Y. Oct. 8, 2024) ........................................ 13
Ross v. Blake,
578 U.S. 632 (2016) ............................................. 30
S. Buffalo Ry. Co. v. Ahern,
344 U.S. 367 (1953) ............................................. 25
Sage v. Brooklyn,
89 N.Y. 189 (1882) ............................................... 20
San Diego Gas & Elec. Co. v.
City of San Diego,
450 U.S. 621 (1981) ............................................. 17
Schafer v. Kent Cnty.,
No. 164975, __ Mich. __,
2024 WL 3573500 (July 29, 2024)....................... 29
Schillinger v. United States,
155 U.S. 163 (1894) ............................................. 19
Seaboard Air Line Ry. Co. v.
United States,
261 U.S. 299 (1923) ............................................. 18
People ex rel. Seaman v. Hammond,
1 Doug. 276 (Mich. 1844)............................... 20, 31
xii
Sharritt v. Henry,
No. 23-C-15838, 2024 WL 4524501
(N.D. Ill. Oct. 18, 2024) ....................................... 27
Sikorsky v. City of Newburgh,
136 F.4th 56 (2d Cir. 2025) ................................. 13
Slater v. Maxwell,
73 U.S. 268 (1867) ......................................... 20, 30
Sweet v. Rechel,
159 U.S. 380 (1895) ............................................. 18
Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Plan. Agency,
535 U.S. 302 (2002) .................................. 11, 16-17
Taylor v. Yee,
136 S. Ct. 929 (2016) ............................................. 4
Terry v. Anderson,
95 U.S. 628 (1877) ............................................... 33
Tyler v. Hennepin Cnty.,
598 U.S. 631 (2023) ........... 1-2, 6, 12-13, 15-16, 19,
22, 28, 34
United States v. Carmack,
329 U.S. 230 (1946) ............................................. 17
United States v. James Daniel Good
Real Prop.,
510 U.S. 43 (1993) ............................................... 34
United States v. Reynolds,
397 U.S. 14 (1970) .......................................... 22-23
United States v. Taylor,
104 U.S. 216 (1881) ....................................... 20, 31
United States v. Thayer-West Point
Hotel Co.,
329 U.S. 585 (1947) ............................................. 23
United States v. Williams,
504 U.S. 36 (1992) ............................................... 15
xiii
Watson Mem. Spiritual Temple of Christ
v. Korban,
387 So. 3d 499 (La. 2024) .................................... 19
Wilkins v. United States,
498 U.S. 152 (2023) ............................................. 15
Williams v. Dallas Area Rapid Transit,
242 F.3d 315 (5th Cir. 2001) ............................... 19
Williamson Cnty. Regional Planning
Commission v. Hamilton Bank of
Johnson City,
473 U.S. 172 (1985) ........................................ 23-24
Wilson v. Hawaii,
145 S. Ct. 18 (2024) ............................................. 24
Wilson v. Iseminger,
185 U.S. 55 (1902) ............................................... 33
Wright v. Rollyson,
No. 2:24-CV-00474, 2025 WL 835040
(S.D.W.V. Mar. 17, 2025) ............................... 27-28
United States Constitution
U.S. Const. amend. V ................ 5, 11, 17-18, 23-24, 27
U.S. Const. amend. XIV, § 1 ....................................... 5
Statutes
28 U.S.C. § 1257 .......................................................... 5
28 U.S.C. § 2403(b) ..................................................... 5
42 U.S.C. § 1983 ...................................... 2-3, 24-25, 27
Ala. Code § 40-10-197(i)(1)(b) ..................................... 1
Ala. Code § 40-10-197(i)(1)(e)(1)(v) ............................ 1
Ariz. Rev. Stat. § 42-18204(B) .................................... 1
Ariz. Rev. Stat. § 42-18231-36 .................................... 1
Ark. Code Ann. § 26-37-205(b) ................................. 12
xiv
2024 Colo. Legis. Serv. Ch. 165
(H.B. 24-1056) ...................................................... 12
Fla. Stat. § 197.582 ................................................... 12
Idaho Code § 31-808(2)(c) ......................................... 12
Ind. Code § 6-1.1-24-7(c) ........................................... 12
Ind. Code § 6-1.1-24-7(e)(2) ...................................... 12
Kan. Stat. Ann. § 79-2803 ........................................ 12
2024 Mass. Legis. Serv. Ch. 140 § 80
(H.B. 4800) ........................................................... 12
2024 Mass. Legis. Serv. Ch. 140 § 93
(H.B. 4800) ........................................................... 12
Me. Rev. Stat. Ann. tit. 36, § 943-C ......................... 12
Mich. Comp. Laws § 211.78t ......... 1, 6, 8-9, 11, 26, 29
§ 211.78k(5)(b) ....................................................... 6
§ 211.78k(8)............................................................ 7
§ 211.78m(1) .......................................................... 6
§ 211.78m(2) .......................................................... 6
§ 211.78m(8)(i) ..................................................... 14
§ 211.78m(16)(c)............................................... 7, 22
§ 211.78t(2) ............................................................ 6
§ 211.78t(3)(i) ......................................................... 6
§ 211.78t(3)(k) ........................................................ 6
§ 211.78t(4) ...................................................... 6, 22
§ 211.78t(9) ............................................................ 7
§ 211.78t(10) .......................................................... 7
§ 211.78t(12)(b) ................................................ 7, 22
§ 213.55(5)............................................................ 21
§ 213.58 ................................................................ 21
§ 567.224 ........................................................ 21, 31
§ 567.234 ........................................................ 21, 31
§ 600.3252 ............................................................ 31
xv
§ 600.6044 ............................................................ 31
Gen. Laws of Minn., Ch. IV, § 3 (1862) .................... 32
Gen. Laws of Minn., Ch. VI (1864) ........................... 32
Gen. Laws of Minn., Ch. XII,
§ 6 (1867).............................................................. 32
Minn. Gen. Stat. of 1866, Ch. 81,
tit. II, § 35 ............................................................ 31
Minn. Gen. Stat. of 1878, Ch. 81,
tit. II, § 35 ............................................................ 31
Minn. Stat. Ann. § 282.015....................................... 12
Mo. Rev. Stat. § 140.230(2)....................................... 12
Mont. Code Ann. § 15-18-221 ................................... 12
2023 Neb. Laws L.B. 727 .......................................... 12
N.M. Stat. Ann. § 7-38-71(A)-(C) .............................. 12
N.Y. Real Prop. Tax Law § 1136(3) ............................ 1
N.Y. Real Prop. Tax Law § 1197(4) ............................ 1
S.D. Codified Laws § 10-25-39.................................. 12
2024 S.D. Laws Ch. 38 (H.B. 1090) .......................... 12
Tenn. Code Ann. § 67-5-2702 ................................... 12
Tex. Tax Code § 34.03(a)(2) ...................................... 12
Va. Code Ann. § 58.1-3967........................................ 12
Va. Code Ann. § 58.1-3970........................................ 12
Code of Washington § 367.5 (1881) .......................... 31
Wash. Rev. Code § 84.64.080 .................................... 12
Wis. Stat. § 75.36(2m)(b) .......................................... 12
Other Authorities
2 Blackstone, Commentaries on the
Laws of England (1768) ...................................... 20
Black’s Law Dictionary (11th ed. 2019) ................... 16
xvi
Mich. Dep’t of Treasury, Foreclosing
Governmental Unit Report of Real
Property Foreclosure Sales,
https://tinyurl.com/3hxkxtuy
(visited Aug. 12, 2025) ......................................... 14
Nichols on Eminent Domain,
Vol. 3, Sec. 8.3 (3d ed. 1964)................................ 21
Petition for Writ of Certiorari, Koetter v.
Manistee Cnty. Treasurer,
No. 24-1095 (Apr. 17, 2025) .............................. 2, 7
PETITION FOR A WRIT OF CERTIORARI
Tyler v. Hennepin County, 598 U.S. 631, 639 (2023),
held that the government violates the Takings Clause
when it confiscates more property than necessary to
collect delinquent property taxes, penalties, interest,
and fees. Id. at 647. But five states continue to
regularly take more than what is owed by requiring
owners to follow unusual and complicated procedures
to collect the compensation due.1 When owners do not
strictly comply with these demanding claims statutes,
the government confiscates the entire property, no
matter how large the proceeds or small the tax debt.
For most owners in these states, Tyler’s promise
remains unfulfilled.
Here, the Alger County Treasurer foreclosed on
Jacqueline McGee’s home ten days after she
unexpectedly died after a weeklong illness at age 53.
Her children, mourning the loss of their mother and
sorting out her affairs, did not begin probate until
after the premature, pre-sale deadline to preserve the
estate’s right to surplus proceeds had passed. Thus,
when the County sold the property, it kept $34,150
more than it was owed as a windfall, depriving the
children of their inheritance. Michigan’s claims
process sets other traps even for those who strictly
follow its unintuitive deadlines. Seventy-year-old
Lillian Joseph was one of the few Michiganders who
figured out the notice of claim deadline before it
passed. She timely mailed Iron County the notarized
notice that she (of course) wanted any surplus
1 See Ala. Code § 40-10-197(i)(1)(b), (e)(1)(v); Ariz. Rev. Stat.
§§ 42-18204(B), 42-18231-36; MCL § 211.78t; 257-261 20th Ave.,
Realty, LLC v. Roberto, 259 N.J. 417, 434 (2025) (describing new
process); N.Y. Real Prop. Tax Law §§ 1136(3), 1197(4).
2
proceeds from the sale of her foreclosed property.
Because she mailed the claim form by trackable,
express priority mail instead of certified mail, and the
Treasurer did not retrieve it from the mailroom until
after the deadline, the lower court held the County
could keep a windfall of $21,755 that exceeded
Joseph’s debt. App. 11a-12a.
Joseph’s and the McGee Estate’s compliance with
every other aspect of Michigan’s claims statute was for
nought. The lower court dismissed their judicial
challenge to the confiscation based on Nelson v. City
of New York, 352 U.S. 103, 110 (1956). In Nelson, this
Court rejected a takings claim by a former owner of
property seized to satisfy a tax debt because the
owners missed a brief opportunity during the
foreclosure action to request surplus proceeds from a
future sale. Ibid. Lower courts, including the one in
this case, have interpreted Nelson to mean that the
existence of any claims process, no matter how poor,
effectively precludes takings claims brought by former
property owners aiming to recover their lost equity.
App. 15a. See also In re Muskegon Cnty. Treasurer for
Foreclosure, 348 Mich. App. 678 (2023), petition for
writ of certiorari pending sub nom. Beeman v.
Muskegon Cnty. Treasurer, No. 24-858; Petition for
Writ of Certiorari, Koetter v. Manistee Cnty.
Treasurer, No. 24-1095. This reasoning does not meet
the mandate of Tyler.
To the extent that Nelson’s statements on the
Takings Clause are not deemed dicta, Petitioners ask
the Court to overturn it. Nelson’s takings language
conflicts with this Court’s takings and Section 1983
decisions that hold the government has an
affirmative, “categorical duty” to pay owners just
compensation, Horne v. Dep’t of Agriculture, 576 U.S.
3
350, 358 (2015), with “reasonable, certain, and
adequate” procedures for remittance.
Cherokee
Nation v. S. Kan. Ry. Co., 135 U.S. 641, 659 (1890).2
Moreover, Nelson cannot be squared with this
Court’s rejection of exhaustion requirements for
takings claims in Knick v. Township of Scott, 588 U.S.
180, 189 (2019), and the holding in Felder v. Casey,
487 U.S. 131, 142 (1988), that government cannot
impose notice of claim requirements to deny
constitutional claims raised via 42 U.S.C. § 1983 in
state court. This Court should grant the Petition to
clarify that the government bears the burden of
remitting just compensation to a known owner. See
Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 677
(1923) (“the requirement of just compensation is
satisfied when the public faith and credit are pledged
to a reasonably prompt ascertainment and payment,
and there is adequate provision for enforcing the
pledge”); Chicago, B&Q Ry. Co. v. People of State of
Illinois, 200 U.S. 561, 593 (1906) (government that
takes property “must obey the constitutional
injunction to make or secure just compensation to the
owner.”). To pledge the faith of a government “means,
of course, that payment shall be made. . . .” Kankakee
Cnty. v. Aetna Life Ins. Co., 106 U.S. 668, 670 (1883).
“Shall” means “must.” Bufkin v. Collins, 145 S. Ct.
728, 737 (2025).
As such, the government’s
“categorical duty” to remit just compensation cannot
be conditioned on an owner’s successful completion of
bureaucratic hurdles. Fulton v. Fulton Cnty. Bd. of
2 See also Monongahela Nav. Co. v. United States, 148 U.S. 312,
325 (1893) (the power to take private property is “inseparably
connected” to the required payment of just compensation as to be
“parts of one and the same principle.”).
4
Comm’rs, No. 22-12041, __ F.4th __, 2025 WL
2166416, at *10 (11th Cir. July 31, 2025) (“if a
legislative substitute for ‘ just compensation ’ is not
coextensive with the constitutionally prescribed
remedy
of
‘just
compensation,’
then
the
constitutionally prescribed remedy remains directly
available.”). Nelson’s approval of just such hurdles is
irreconcileable with takings jurisprudence.
Finally, lower courts’ interpretation of Nelson to
authorize any process as an “exclusive” means to
recover just compensation, App. 8a, 15a-16a, cannot
be reconciled with this Court’s Due Process
jurisprudence, which is fundamentally concerned
with fairness. See Collins v. City of Harker Heights,
503 U.S. 115, 125 (1992) (the Due Process Clause
“guarantee[s] fair procedure in connection with any
deprivation of .-.-. property by a State.”) (emphasis
added). Due process requires procedures designed to
return property to the rightful owner, not to enrich the
government. See Taylor v. Yee, 136 S. Ct. 929, 930
(2016) (Alito, J., concurring on denial of cert.); cf.
Jones v. Flowers, 547 U.S. 220, 229 (2006) (due process
requires notice that would be used by one “who
actually desired to inform a real property owner of an
impending tax sale”).
This Court should grant the Petition to hold that a
state statute cannot immunize government from its
unqualified obligation to pay just compensation for a
taking.
OPINIONS BELOW
The decision of the Michigan Court of Appeals
(App. 1a-25a) is unpublished but available at In re
Petition of Alger Cnty. Treasurer for Foreclosure, No.
363803, 363804, 2024 WL 2981520 (Mich. Ct. App.
5
Sept. 12, 2024). The trial courts’ opinions dismissing
the claims raised here (App. 26a-30a) are
unpublished. The Michigan Supreme Court’s order
denying review is at App. 31a-32a.
JURISDICTION
The Michigan Court of Appeals issued the
judgment at issue here on September 12, 2024. App.
1a. On March 28, 2025, the Michigan Supreme Court
denied a timely application seeking leave to appeal
the decision. App. 32a. This Petition raises federal
questions under the Fifth and Fourteenth Amendments to the United States Constitution. This Court
has jurisdiction under 28 U.S.C. § 1257.
28 U.S.C. § 2403(b), which allows a state to
intervene to defend the constitutionality of a state
statute, may apply.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment to the U.S. Constitution
provides, “nor shall private property be taken for
public use, without just compensation.”
Section 1 of the Fourteenth Amendment to the U.S.
Constitution provides in part, “No state shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty, or
property, without due process of law .-.-. .”
Relevant portions of the Michigan statutes are
reproduced at App. 33a-43a.
6
STATEMENT OF THE CASE
A. Michigan’s claim statute
1. Three years before Tyler, the Michigan Supreme
Court held in Rafaeli, LLC v. Oakland Cnty., 505
Mich. 429 (2020), that the government violated the
Michigan Constitution when it took property to collect
a tax debt and kept more than the owed taxes,
penalties, interest, and costs. In response, Michigan
amended its tax foreclosure statute. App. 4a. As
relevant here, tax foreclosures occur in February or
March each year. MCL § 211.78t. If a tax debt is not
paid by March 31, a foreclosing county obtains fee
simple title. MCL § 211.78k(5)(b). By July 1—while
the owner usually retains possession of the property,
and weeks before the sale—the owner must notify the
County that she wants to be paid any future surplus
proceeds from the sale by submitting a notarized
notice of claim using Form 5743 by personal service
acknowledged by the County or by certified mail,
return receipt requested. See MCL § 211.78t(2);
App. 4a.
If the government declines the right of first refusal
to purchase the property, the County sells it at a
public auction several weeks after foreclosure. MCL
§ 211.78m(1), (2). The following January, up to six
months after the sale, the government calculates the
proceeds remaining after deducting all tax debts,
expenses, interest, and penalties, and mails notice to
those who properly filed Form 5743 that they must file
a motion in the original judicial foreclosure action to
recover the proceeds. MCL § 211.78t(3)(i), (k), (4).
The court holds a hearing on the motion to
determine the relative priority of any claims, granting
first priority to the government for payment of the
7
debt, interest, and sale costs, plus an additional five
percent of the purchase price, MCL §§ 211.78t(12)(b),
211.78m(16)(c); then other liens; and finally the
remainder to the former owner who timely submitted
Form 5743 to the county and the motion to recover the
surplus in the appropriate court. MCL § 211.78t(9).
The foreclosing county pays the amounts ordered by
the circuit court, MCL § 211.78t(10), but only after
holding the money for approximately one year,
accruing interest that the county keeps for itself.
MCL § 211.78k(8).
The critical point is that if an owner fails to
properly serve the notarized notice of claim (Form
5743) weeks before the foreclosure sale, the statute
cuts off the owner’s right to any future claim or
constitutional challenge, and the County keeps the
just compensation that it was otherwise constitutionally required to remit, as a windfall for the public
coffers.
B. Michigan’s strict claim statute operates to
deprive the McGee Estate and Joseph of
their just compensation
Petitioners here and in the Beeman and Koetter
petitions, also pending before this Court, are
representative of Michigan tax debtors whose claims
for just compensation were defeated by Michigan’s
unusual and self-serving claims process, allowing the
government to confiscate the debtors’ surplus funds
for its own use.
1. Jacqueline McGee owned and lived in a modest
home in Shingleton in Alger County, Michigan. App.
5a. She died unexpectedly on February 21, 2021.
Ibid. Ten days later, the Alger County Treasurer
obtained a foreclosure judgment against McGee’s
8
property for her delinquent 2018 taxes.
When
McGee’s debt was not paid by March 31, 2021, the
Alger Treasurer took title for the county. App. 5a.
The Alger Treasurer sent two notices to the
deceased (Jacqueline McGee) of the procedure to claim
surplus proceeds from any sale of her home. See, e.g.,
Alger Response to Application for Leave to Appeal,
Mich. Supreme Ct., No. 167712 (Nov. 21, 2024). The
first notice, mailed shortly after her death, warned
primarily of the imminent foreclosure if the debt was
not paid by March 31. App. 49a. The second, mailed
after the County took title to the property, was
entitled “NOTICE OF FORECLOSURE” and stated
near the top: “Any interest that you possessed in
this property prior to foreclosure, including any
equity associated with your interest, has been
lost.” App. 52a. The paragraph after this hopeless
declaration then states, “Any person that held an
interest in this property at the time of foreclosure has
a right to file a claim for REMAINING PROCEEDS
pursuant to MCL 211.78t” and that “Form 5743” is
due July 1, 2021. Ibid. Form 5743 was not enclosed.
McGee’s heirs sorted out her affairs after the July
1, 2021, claim deadline passed. Weeks after the July
1 deadline, Alger County auctioned the McGee home
for $38,250 to collect $3,599.79 in taxes, penalties,
interest, and fees, including attorney fees. See App.
5a. About six months later, on February 25, 2022,
McGee’s daughter, Johanna McGee, submitted Form
5743 on behalf of her late mother’s estate to the
County. See ibid. Johanna moved for disbursement
to the estate of the remaining proceeds on May 20,
2022, in the court with jurisdiction over the original
foreclosure action. Ibid. Alger County opposed her
motion because she missed the 92-day deadline to
9
submit Form 5743. Ibid. McGee argued that MCL
§ 211.78t is unconstitutional if it is the exclusive
mechanism for claiming surplus proceeds. App. 6a.
The trial court denied the motion for surplus
proceeds but noted its “concerns about the
constitutionality of MCL 211.78t as a sole remedy.”
App. 27a.
2. In 1981, Lillian Joseph inherited her parents’
home in Crystal Falls, Michigan. For almost four
decades, she paid her property taxes before falling
behind. Iron County obtained a foreclosure judgment
on February 19, 2021. Iron County took title when she
failed to redeem the property by March 31, 2021.
App. 6a.
On June 29, 2021, Joseph sent the notarized noticeof-claim Form 5743 by Priority Mail Express for $26,
to the correct address that omitted only the suite
number for the Treasurer’s office. App. 7a. The Iron
County mailroom received Joseph’s form on July 1 at
8:17 a.m., and held it for the Treasurer’s office, which
retrieved it the following day. Ibid.
On August 4, 2021, Iron County sold Joseph’s
property at auction for $27,500, approximately
$23,000 more than Joseph’s debt. See App. 7a. On
February 24, 2022, Joseph timely filed a motion in
court with jurisdiction over the foreclosure action to
claim the surplus proceeds from the sale of her
property. App. 7a. The Iron County Treasurer
opposed her motion because she sent Form 5743 via
the wrong type of mail, and because the Treasurer
actually received the notice a day late because it sat
in the County mailroom all day on July 1. Ibid.
Joseph argued that denial of her surplus proceeds
10
violates her right to due process and just
compensation. App. 30a.
On April 26, 2022, the trial court denied Joseph’s
claims because she missed the July 1 deadline; thus,
the government refused to remit the surplus
proceeds/just compensation, and kept the windfall for
itself. App. 30a.
C. Based primarily on Nelson v. City of New
York, the Michigan Court of Appeals holds
the County did not take property without
just compensation or violate due process
On appeal, the McGee Estate and Joseph argued
that the counties’ confiscations of their surplus
proceeds violated their federal constitutional rights to
just compensation and procedural due process. App.
15a, 18a.
After consolidating their cases, the
Michigan Court of Appeals ruled against them based
on Nelson, 352 U.S. at 100, and a prior decision by the
Michigan Court of Appeals, Muskegon County
Treasurer, 348 Mich. App. 678, which is pending on a
petition for writ of certiorari before this Court. See
Beeman v. Muskegon County Treasurer, No. 24-858.
Muskegon construed Nelson to mean that no
compensable taking occurs “when there [i]s a
statutory path for property owners to recover surplus
proceeds, but the property owners failed to avail
themselves of that procedure.” Id. at 700, citing
Nelson, 352 U.S. at 110. Thus because Joseph and the
Estate failed to timely file the pre-sale claim notice
(Form 5743), there was “no compensable taking.”
App. 17a.
As to due process, the Court relied on Muskegon’s
holding that “[t]he statutory scheme for recovering
remaining proceeds satisfied due process,” and that
11
the court must defer entirely to the legislature:
“whether such a scheme makes sense or not, or
whether a ‘better’ scheme could be devised, are policy
questions for the Legislature, not legal ones for the
Judiciary.” App. 18a-19a (quoting Muskegon, 348
Mich. App. at 697).
The Michigan Supreme Court denied review, App.
32a, but subsequently followed and cited Muskegon in
Hathon v. State, 17 N.W.3d 686, 686-87 (2025),
holding that owners “must first utilize the statutory
process provided by MCL 211.78t for recovery of
remaining post-foreclosure sale proceeds before”
pursuing their constitutional claims seeking just
compensation. Ibid. That is, without timely filing
Form 5743, no takings claim can survive a motion to
dismiss in Michigan courts.
REASONS FOR GRANTING THE PETITION
I.
The Court Should Settle the Important
Question of Whether the Government May
Avoid Its Categorical Constitutional Duty to
Pay Just Compensation by Burdening
Owners with an “Exclusive” Claims Process
Under the Fifth Amendment’s Takings Clause, the
government has a “categorical duty” to pay just
compensation when it takes private property for a
public use. Horne, 576 U.S. at 358; Arkansas Game &
Fish Comm’n v. United States, 568 U.S. 23, 31 (2012);
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan.
Agency, 535 U.S. 302, 323 (2002). The government
satisfies its categorical duty to pay for taking private
property only with a “reasonable, certain, and
adequate provision for obtaining compensation.”
Cherokee Nation, 135 U.S. at 659.
12
The categorical duty to pay just compensation
applies when the government seizes private property
to pay a tax debt. Tyler, 598 U.S. at 639. While the
government “ha[s] the power” to sell property to
recover unpaid property taxes, it violates the Takings
Clause if the government “confiscate[s] more property
than was due.” Ibid. The government must pay for
any excess property taken. Ibid.
After Tyler, most states using confiscatory tax
foreclosures revised their statutes to resemble other
debt collection laws—giving owners a reasonable
period after the sale of seized property to recover any
proceeds remaining after the debts are paid.3 Indeed,
most states already automatically remitted surplus
proceeds to owners4 or gave them years after sale to
recover their money.5
But Alabama, Arizona,
Michigan, New Jersey, and New York rely on Nelson
to give owners an unusual and short claim window
that occurs before the sale and long before the money
is available to collect. Supra n.1. In other words, they
require owners to claim just compensation before the
taking. See Jackson v. Southfield Neighborhood
Revitalization Initiative, No. 166320, __ Mich. __,
3 See, e.g., See 2024 Colo. Legis. Serv. Ch. 165 (H.B. 24-1056);
2024 Mass. Legis. Serv. Ch. 140 §§ 80, 93 (H.B. 4800); Minn. Stat.
Ann. § 282.015; 2023 Neb. Laws L.B. 727; 2024 S.D. Laws Ch. 38
(H.B. 1090).
4 See, e.g., Idaho Code § 31-808(2)(c); Kan. Stat. Ann. § 79-2803;
Me. Rev. Stat. Ann. tit. 36, § 943-C; Mont. Code Ann. § 15-18221; S.D. Codified Laws § 10-25-39; Wis. Stat. § 75.36(2m)(b).
5 See, e.g., Ark. Code Ann. § 26-37-205(b); Fla. Stat. § 197.582;
Ind. Code § 6-1.1-24-7(c), (e)(2); Mo. Rev. Stat. § 140.230(2); N.M.
Stat. Ann. § 7-38-71(A)-(C); Tenn. Code Ann. § 67-5-2702; Tex.
Tax Code § 34.03(a)(2); Va. Code Ann. §§ 58.1-3967, -3970; Wash.
Rev. Code § 84.64.080.
13
2025 WL 1959046, at *14 (Welch, J., concurring) (“a
taking [that] occurs only as to excess proceeds []would
not be possible if the takings claim occurred as soon
as a tax-foreclosure judgment becomes final. This is
because the ‘ excess proceeds ’ are not determined until
after the judgment of foreclosure is issued.”); Sikorsky
v. City of Newburgh, 136 F.4th 56, 63 (2d Cir. 2025)
(takings claim accrued once the property sold for more
than the debt and government retained the excess);
Ramsey v. City of Newburgh, No. 23-CV-8599, 2024
WL 4444374 (S.D.N.Y. Oct. 8, 2024) (dismissing
owner’s claims for taking under Tyler as unripe
because the city hadn’t yet sold the property
(generating the surplus) or decided to keep it
(generating a constructive surplus equivalent to the
excess if it had been sold)).
The result is predictable: all but the most
sophisticated owners miss this counterintuitive
deadline. State records document a widespread
problem as counties confiscate millions of dollars. The
most recent report of tax foreclosure sales reveals that
in 2022 many Michigan counties remitted not one
penny of surplus proceeds to former owners, while
retaining enormous windfalls for themselves. Typical
examples are Branch County, which confiscated
$337,397.87; Clinton County, which kept $209,809.90;
and Livingston County, which kept $290,453.13.
Some counties confiscated much more, such as Barry
County, which remitted nothing and kept
$993,750.34, and Oakland County which remitted
$991,021 and kept $2,592,366.
Wayne County
reported that it remitted $1.9 million to former owners
and confiscated nearly $24 million for the public
14
coffers.6 There is no recourse to the courts. The
Michigan Court of Appeals uniformly denies
claimants and the Michigan Supreme Court has
denied every application for review. See, e.g., In Re
Petition of Iron County Treasurer for Foreclosure, No.
368382, 2025 WL 2147421 (Mich. Ct. App. July 29,
2025) (relying, as in this case, on Muskegon and
Nelson); Jackson, 2025 WL 1959046, at *13 (Welch, J.,
concurring) (noting the “proliferation of takings
claims based on tax foreclosures in Michigan and
across the country.”). And those who lose their
property to tax foreclosure tend to be vulnerable and
more likely to be elderly or ill. Kidd v. Pappas, No. 22
C 7061, 2025 WL 1865983 (N.D. Ill. July 7, 2025)
(class members who lost property to tax foreclosure
were overwhelmingly “not sophisticated parties” and
can’t afford to hire a lawyer).
This Court’s decision in Nelson is the reason why
state and federal courts have authorized these
confiscations, even though they violate the
government’s categorical duty to pay for what it takes
with a reasonable, certain, and adequate process, and
the modern and traditional duty of debt collectors.
Mich. Dep’t of Treasury, Foreclosing Governmental Unit
Report of Real Property Foreclosure Sales (compilation of county
reports of 2022 foreclosures), https://tinyurl.com/3hxkxtuy
(visited Aug. 12, 2025). Counties submit these reports pursuant
to MCL § 211.78m(8)(i). The amount remitted to former owners
is recorded in column xi and the amount kept by the county in
column xii.
6
15
A. Nelson v. City of New York
In Nelson, the property owners failed to pay their
water bills on two properties because of a bookkeeper’s
misconduct. Nelson, 352 U.S. at 105, 108. To satisfy
the debts, the City of New York foreclosed, kept one
property, and sold the other, retaining a windfall for
the public. Id. at 105-06. The bookkeeper “concealed”
the debt and foreclosure action from the owners. Id.
at 107. The owners later moved to vacate the
judgment, arguing violations of procedural due
process and equal protection. Id. at 106, 109. Nelson
rejected these claims, holding “the City cannot be
charged with responsibility for the misconduct of the
bookkeeper in whom appellants misplaced their
confidence nor for the carelessness of the managing
trustee in overlooking notices of arrearages.” Id. at
108.
The Court also addressed the argument that the
City took property without just compensation. 7 Id. at
109. “New York City’s ordinance .-.-. permitted the
owner to recover the surplus but required that the
owner have ‘ filed a timely answer in [the] foreclosure
proceeding, asserting his property had a value
substantially exceeding the tax due.’ ” Tyler, 598 U.S.
at 644 (quoting Nelson, 352 U.S. at 110). Because the
These comments should be considered dicta because the
takings claim was raised solely in a reply brief before this Court
(see Nelson, 352 U.S. at 109); it was neither pressed nor passed
upon in the lower court; and was unnecessary to resolution of the
questions presented. Magruder v. Drury, 235 U.S. 106, 113
(1914); United States v. Williams, 504 U.S. 36, 41 (1992). The
Court is also wary of “endow[ing] a fleeting statement with
lasting significance,” Wilkins v. United States, 498 U.S. 152, 161
(2023), particularly when that statement operates to bar
litigants from court. Id. at 165.
7
16
owners “did not take advantage of this procedure,”
Nelson says, “they forfeited their right to the surplus.”
Tyler, 598 U.S. at 644; see Nelson, 352 U.S. at 110. To
protect their property right in the excess value of the
property, the owners would have had to stake their
claim before foreclosure and before there was any
money to claim. Ibid. Because the owners missed that
narrow window, Nelson states there was no taking.
Ibid.
Thus, Nelson apparently endorsed New York City’s
claim exhaustion requirement and established a
principle that a valid takings claim can be
extinguished if an owner fails to pursue even the
narrowest state remedy. Tyler “readily distinguished”
Nelson. Tyler, 598 U.S. at 643. A case is distinguished
“to minimize the case’s precedential effect or to show
that it is inapplicable.” Distinguish, Black’s Law
Dictionary (11th ed. 2019). Tyler avoided the takings
question presented here: whether Nelson is binding
and, if so, whether it should be overturned.
B. Nelson cannot be reconciled with the duty
to pay just compensation
This Court has repeatedly expressed the principle
that just compensation must be paid for a taking of
property, stressing in different ways the mandatory
nature of the constitutional obligation. See, e.g.,
Cedar Point Nursery v. Hassid, 594 U.S. 139, 147
(2021) (“the Takings Clause imposes a clear and
categorical obligation to provide the owner with just
compensation.”); Horne, 576 U.S. at 358 (“The
Government has a categorical duty to pay just
compensation when it takes your car, just as when it
takes your home.”); Tahoe–Sierra, 535 U.S. at 322
(“When the government physically takes possession of
17
an interest in property for some public purpose, it has
a categorical duty to compensate the former owner);
Brown v. Legal Found. of Washington, 538 U.S. 216,
233 (2003) (same); Koontz v. St. Johns River Water
Mgmt. Dist., 570 U.S. 595, 613 (2013) (government
“must pay just compensation” when it takes money);
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005)
(“where government requires an owner to suffer a
permanent physical invasion of her property—
however minor—it must provide just compensation”);
United States v. Carmack, 329 U.S. 230, 242 (1946)
(noting “obligation to pay just compensation”).
The government’s obligation to compensate within
a reasonable time after it takes property is not an
“empty formality, subject to modification at the
government’s pleasure.” Cedar Point, 594 U.S. at 158;
Fulton, 2025 WL 2166416, at *8 (“We don’t think the
Founders made an empty promise to Americans. A
guaranteed remedy is a guaranteed remedy only if it’s
accessible.”). As Justice Brennan explained, “the just
compensation requirement in the Fifth Amendment is
not precatory: once there is a ‘taking,’ compensation
must be awarded.” San Diego Gas & Elec. Co. v. City
of San Diego, 450 U.S. 621, 654 (1981) (Brennan, J.,
dissenting). Cf. Continental Oil Co. v. Bonanza Corp.,
706 F.2d 1365, 1372 (5th Cir. 1983) (defining
“categorical duty” as one that incurs criminal or civil
penalties if not done). This has long been the rule and
no state law can undermine it.
“The just
compensation clause may not be evaded or impaired
by any form of legislation.” Baltimore & Ohio R.R. Co.
v. United States, 298 U.S. 349, 368 (1936). “It does not
rest with the public, taking the property, through .-.-.
the legislature, .-.-. to say .-.-. what shall be the rule of
compensation. The constitution has declared that just
18
compensation shall be paid.-.-.-.” Monongahela, 148
U.S. at 327 (emphasis added).8 This Court explained
in Jacobs v. United States, 290 U.S. 13, 16 (1933), that
“the form of the [just compensation] 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 government’s
obligation to pay just compensation is “comprehensive,” entitling owners to interest payments even
when interest is not explicitly commanded by statute.
Seaboard Air Line Ry. Co. v. United States, 261 U.S.
299, 306 (1923).
The government thus secures its obligation to pay
just compensation by pledging its full faith and credit.
Chicago, B&Q Ry., 200 U.S. at 593 (“secure”); Joslin,
262 U.S. at 677 (pledge “public faith and credit”);
Sweet v. Rechel, 159 U.S. 380, 401 (1895) (considering
“[w]hether a particular provision be sufficient to
secure the compensation to which, under the
constitution, he is entitled”) (emphasis added).
“Secure” means “to assure of payment” and “make
certain the payment of a debt or discharge of an
obligation.” N.Y. and Presbyterian Hosp. v. United
States, 881 F.3d 877, 885 (Fed. Cir. 2018) (citations
omitted); Elzea v. Nat’l Bank of Georgia, 570 F.2d
1248, 1250 n.6 (5th Cir. 1978) (same). To pledge the
faith of a government “means, of course, that payment
8 The nature of a categorical duty is one that “shall” be done.
Lawson v. United States, 124 F.3d 198, 1997 WL 530540, at *3
(6th Cir. 1997). Shall is a mandatory command. Bufkin, 145
S. Ct. at 737.
And that command appears in the Fifth
Amendment: “nor shall private property be taken for a public
use, without just compensation.”
19
shall be made. .-.-.” Kankakee Cnty., 106 U.S. at 670.
In short, a state’s “full faith and credit” “guarantees
[payment of legal] obligations.” Williams v. Dallas
Area Rapid Transit, 242 F.3d 315, 320 (5th Cir. 2001)
(emphasis added); see also Md. Indus. Dev. Fin. Auth.
v. Meadow-Croft, 243 Md. 515, 522 (1966) (“The
generally accepted meaning of a pledge of the faith
and credit of a political entity is that the governmental
body is unconditionally liable for the payment of the
debt, if sufficient money is not otherwise made
available.”) (emphasis added). As Justice Harlan
phrased it, the constitutional obligation to pay just
compensation is a “covenant between the government
and every citizen whose property is appropriated by it
for public use.” Schillinger v. United States, 155 U.S.
163, 177 (1894) (Harlan, J., dissenting).
Consequently, once the amount of just compensation is known and due, courts consider the actual
payment of just compensation to be a “ministerial,
non-discretionary duty.” See, e.g., Watson Mem.
Spiritual Temple of Christ v. Korban, 387 So. 3d 499,
512 (La. 2024); Burke v. City of River Rouge, 215 N.W.
18, 18 (Mich. 1927); Miller v. Port of N.Y. Auth., 15
A.2d 262, 268 (N.J. 1939).
There is no plausible debt collection exception to
the government’s categorical duty to pay just
compensation. See Tyler, 598 U.S. at 639-40. Quite
the opposite. As far back as Blackstone, the law has
imposed on debt collectors a duty to fairly sell
confiscated property and refund any surplus. 2
Blackstone, Commentaries on the Laws of England
453 (1768) (“bound by an implied contract in law .-.-.
when sold, to render back the overplus.”); Cocks v.
Izard, 74 U.S. 559, 562 (1868); United States v. Taylor,
104 U.S. 216, 221-22 (1881) (the government had a
20
duty to hold surplus proceeds “indefinite[ly]” as
“trustee” for the taxpayer); Slater v. Maxwell, 73 U.S.
268, 276 (1867) (duty to fairly sell property); People ex
rel. Seaman v. Hammond, 1 Doug. 276, 280-81 (Mich.
1844) (owner is “at all times” entitled to receive
surplus funds); McDuffee v. Collins, 117 Ala. 487, 492
(1898) (tax collector bore the “duty of seeking the
owner and paying him the balance” or holding it in
trust); Bogie v. Town of Barnet, 129 Vt. 46, 52 (1970)
(government “must suffer the restraints of fiduciary
duty” when selling property to collect taxes).
In none of these cases does the burden shift from
the government to citizens defending their property
rights. Instead, the unbroken line of cases from early
in the nation’s history until the current decade
highlights the requirement that compensation be paid
for a taking.
Nelson is an aberration that
unaccountably shifts the covenantal obligation from
the government to pay just compensation to the
former property owners to comply with any claims
process that self-interested states may devise.
C. Michigan’s statute cannot be reconciled
with the duty to pay just compensation
To conform to the requirements of the Takings
Clause, just compensation and the process to provide
it must be “reasonable, certain, and adequate.”
Cherokee Nation, 135 U.S. at 659; Sage v. Brooklyn,
89 N.Y. 189, 195 (1882) (process must be “sure,
sufficient and convenient”). Courts historically forbid
government from shifting the government’s
“categorical duty” to pay onto the person whose
property was taken. In a takings case, “[i]t is not
incumbent upon [the owner] to demand that the
authorities shall respect his rights; the duty is [the
21
government’s] to work no unlawful invasion of them.”
Bigelow v. Ballerino, 111 Cal. 559, 564-65 (1896). See
also Kelly v. Okla. Tpk. Auth., 269 P.2d 359, 363 (Okla.
1954) (“[T]he owner has an absolute right to the
condemnation money, and the condemnor has neither
right nor authority to impose any condition or
obligation upon the owner’s right.”) (citing Nichols on
Eminent Domain, Vol. 3, Sec. 8.3 (3d ed. 1964));
Haverhill Bridge Proprietors v. Essex Cnty. Comm’rs,
103 Mass. 120, 124-25 (1869) (rejecting effort to make
procedural opportunities a stand-in for reasonable
compensation).
Michigan’s process for paying just compensation in
the usual eminent domain context complies with that
traditional duty: the government deposits an estimated amount of just compensation in escrow, “held
for the benefit of the owners,” MCL § 213.55(5), until
the court orders payment. MCL § 213.58. When
owners can’t be found or fail to demand the money
within one year, the State of Michigan holds it
“indefinitely” for them. See O’Connor v. Eubanks, 83
F.4th 1018, 1021 (6th Cir. 2023) (describing how
unclaimed money statute requires holding property
for the owner indefintely); MCL §§ 567.224, 567.234
(money held for an owner by a court but not claimed
within one year is administered pursuant to
unclaimed money statute). When government takes
property without invoking eminent domain, property
owners have six years to bring an inverse
condemnation claim seeking just compensation under
the Michigan Constitution’s Takings Clause and three
years under the federal Takings Clause. Hart v. City
of Detroit, 416 Mich. 488, 503 (1982); Grainger v.
Ottawa Cnty., 90 F.4th 507, 510 (6th Cir. 2024).
22
By contrast, tax debtors like Joseph and McGee
must act within 92 days of foreclosure—weeks before
the sale and before the taking—to preserve their
inchoate, future right to collect any just compensation.
This is long before most owners realize what is
happening, as reflected in the 95% failure rate. And
the government still confiscates just compensation
owed to those few owners who—like Joseph—timely
submit the notarized form but fail to perfectly comply
with every requirement, like the type of mail used.
MCL § 211.78t(4). Government cannot “make[] an
exception only for itself ” to avoid paying just
compensation. Tyler, 598 U.S. at 645.
Moreover, the statute in all cases fails to provide an
“adequate” remedy of just compensation, because it
awards claimants less than they are constitutionally
due. The statute gives counties interest earned on the
principal for the year the county holds the money, plus
five percent of the sale price, on top of all taxes,
penalties, interest, fees, and expenses, even if the
county purchased the property. MCL §§ 211.78t(12)(b),
211.78m(16)(c). The statute calls this five percent
deduction a “commission,” but the realtor’s fee is
already deducted under MCL § 211.78m(16)(c).
Moreover, Alger and Iron counties, like most Michigan
counties, contract with a private company to
administer the statute; the company charges buyers a
ten percent commission. See Garcia v. Title Check,
LLC, No. 22-1574, 2023 WL 2787298, at *1 (6th Cir.
Apr. 5, 2023). Hence, owners who successfully
navigate the statute recover at most only ninety-five
percent of surplus proceeds and are deprived of the
accrued interest. This is not just compensation.
“‘[J]ust compensation’ means the full monetary
equivalent of the property taken.” United States v.
23
Reynolds, 397 U.S. 14, 16 (1970); United States v.
Thayer-West Point Hotel Co., 329 U.S. 585, 588 (1947)
(federal statute prohibiting recovery of interest on
unpaid claims could not apply in condemnation
actions because the Fifth Amendment entitles a
property owner to receive, as part of just compensation, interest from the date of the taking to the date
of payment).
II. The Court Should Resolve Whether NelsonInspired Procedures Impose Unconstitutional Exhaustion Requirements
An owner who is denied just compensation for a
taking may bring a constitutional takings claim in
federal or state court without first exhausting state
administrative or judicial remedies. Knick, 588 U.S.
at 189; Felder, 487 U.S. at 142. But several federal
and state courts, including the court below, construe
Nelson to mean that owners must exhaust a state
claim process for compensation—even if the process
itself always results in less than just compensation.
These courts allow the government to use procedural
hurdles to evade its duty to pay just compensation.
Other jurisdictions hold fast to Knick and Felder,
creating a split of authority. This Court should grant
review to settle the conflict.
A. Takings decisions that rely on Nelson
conflict with this Court’s holdings in
Knick and Felder
If Nelson’s reasoning is analogous to any of this
Court’s precedents, it is Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson
City, 473 U.S. 172, 194 (1985).
The Court in
Williamson County held that a plaintiff does not have
24
a ripe federal takings claim if a claimant failed to
“seek compensation through the procedures the State
has provided for doing so.” Ibid. Unless the claimant
sought and was denied such compensation in a state
court action, there was no ripened federal taking. Id.
at 194-96. But Williamson County proved unworkable, often barring takings claims from both federal
and state courts, a clearly unjust result. See Knick,
588 U.S. at 185.
That is largely why Knick overruled Williamson
County, holding instead that as soon as “government
takes private property without paying for it, that
government has violated the Fifth Amendment—just
as the Takings Clause says—without regard to
subsequent state court proceedings.” Id. at 189.
Knick restored the traditional understanding that
offering a process is not the same thing as timely
paying just compensation. See Wilson v. Hawaii, 145
S. Ct. 18, 20 (2024) (Thomas, J., statement on denial
of cert.) (“[T]he availability of state-law compensation
remedies cannot delay or undo the accrual of a takings
claim.”) (citing Knick, 588 U.S. at 193-94); Fulton,
2025 WL 2166416, at *10, *25 (the “constitutionally
prescribed remedy” of just compensation cannot be
narrowed by legislation that purports to impose “an
exclusive remedy that is more restrictive than the
Takings Clause’s guarantee”).
Knick realigned this Court’s takings jurisprudence
with principles expressed in Patsy v. Board of Regents
of Florida, 457 U. S. 496 (1982), and Felder, 487 U.S.
at 142, which held that plaintiffs need not exhaust
state administrative remedies before asserting civil
rights claims under Section 1983. Felder—involving
federal constitutional claims raised in state court—is
especially apt. In that case, a Wisconsin statute
25
required arrestees to file an administrative notice of
claim within 120 days of the government’s violation of
their rights. Id. at 136. The claim requirement was
designed to “minimize governmental liability” and
stood out “rather starkly, from rules uniformly
applicable to all suits.” Id. at 141, 145. The notice-ofclaim statute imposed an “exhaustion requirement on
persons who choose to assert their federal right in
state courts,” id. at 146, and therefore Section 1983
preempted it. Id. at 149 (noting congressional intent
to provide judicial fora for constitutional claims).
Wisconsin’s notice-of-claim statute did not involve
lengthy or expensive administrative proceedings.
Still, it forced claimants “to seek satisfaction from
those alleged to have caused the injury in the first
place.” Ibid. The Court held that failure to follow the
claim statute could not bar relief for the federal
constitutional claim brought in Wisconsin state court.
Ibid. That holding was consistent with this Court’s
precedents that “[p]eculiarities of local law may not
gnaw at rights rooted in federal legislation.” S.
Buffalo Ry. Co. v. Ahern, 344 U.S. 367, 372 (1953). See
also Brown v. Western Ry. of Ala., 338 U.S. 294, 299
(1949) (this Court will “protect federally created rights
from dismissal because of over-exacting local requirements for meticulous pleadings”); Davis v. Wechsler,
263 U.S. 22, 25 (1923) (“it is necessary to see that local
practice shall not be allowed to put unreasonable
obstacles in the way” of assertion of federal rights in
state courts). Felder’s bottom line is that states “may
no more condition the federal right to recover for
violations of civil rights than bar that right
altogether.” Felder, 487 U.S. at 144.
In conflict with Knick and Felder, state and federal
courts rely on Nelson to hold that the 92-day notice-of-
26
claim deadline in MCL § 211.78t is mandatory and
failure to comply defeats any takings claim. Compare
App. 15a and Howard v. Macomb Cnty., 133 F.4th
566, 572-73 (6th Cir. 2025), with Felder, 487 U.S. at
140 (notice-of-claim statutes “are neither universally
familiar nor in any sense indispensable prerequisites
to litigation”) (emphasis added). These courts do not
hold that the claims are nonjusticiable because
claimants missed the deadline; they hold that, per
Nelson, missing the notice of claim deadline means
there was no taking. App. 15a-16a; Howard, 133 F.4th
at 572-73 (“Michigan’s procedures for collecting the
surplus do not compensate the property owner for a
taking. They prevent a taking from happening in the
first place.”). Nelson’s approval of such procedures
cannot be reconciled with Knick and Felder. The
Court should grant review to hold it was unpersuasive
dicta or to overrule it.
B. The lower courts conflict as a result of
their application of Nelson
The Tenth and Eleventh Circuits follow Knick, not
Nelson, in holding that no exhaustion of state
remedies is necessary to bring a federal takings claim
under analogous circumstances, where an owner
wants to recover her own money. In Knellinger v.
Young, the Tenth Circuit considered whether owners
of unclaimed property held in custody by the state
must file a claim for the property before filing a
lawsuit alleging a taking of interest accrued on the
money while in custody. The court held that property
owners “need not file administrative claims with
Colorado before they may sue for just compensation.
The moment a state takes private property for public
use without just compensation, a property owner has
27
an actionable claim under the Takings Clause.” 134
F.4th 1034, 1038, 1044 n.4 (10th Cir. 2025) (analyzing
Knick).
The Eleventh Circuit also followed Knick in a case
involving a property owner’s challenge to the state’s
retention of accrued interest on unclaimed property:
“It made no difference that state law provided a
‘ procedure that [could] subsequently result in just
compensation, ’ because ‘ it is the existence of the Fifth
Amendment right that allows the owner to proceed
directly to federal court under § 1983.’ ” Maron v.
Chief Fin. Officer of Fla., 136 F.4th 1322, 1330-31
(11th Cir. 2025) (citing Knick, 588 U.S. at 191).
Therefore, “[e]ven if a plaintiff later compensated by
state law remedies would have no further claim, that
would be ‘ because the taking has been remedied by
compensation, not because there was no taking in the
first place.’ ” Ibid. (citation omitted); see also Sharritt
v. Henry, No. 23-C-15838, 2024 WL 4524501, at *13
(N.D. Ill. Oct. 18, 2024) (a procedure “cannot both be
the proper procedure that former owners can exercise
to receive compensation .-.-. and a gatekeeping
mechanism that prevents those who lost their land
from receiving compensation.”).
In conflict with the Tenth and Eleventh Circuits,
the Sixth Circuit, Michigan courts, and several federal
district courts construe Nelson to mean that an
owner’s failure to strictly comply with the state
administrative and court process defeats a claim for
just compensation. App. 15a; Howard, 133 F.4th at
572; see also Wright v. Rollyson, No. 2:24-CV-00474,
2025 WL 835040, at *3 (S.D.W.V. Mar. 17, 2025)
(Tyler and Nelson mean “[t]here is no Takings Clause
violation when a sovereign’s statutory scheme
28
provides an opportunity for the taxpayer to recover
the excess value.”) (cleaned up); In Re: Franco, No. 2421084-ABA, 2025 WL 884067, at *7 (Bankr. D.N.J.
Mar. 17, 2025) (statute “complies with both Tyler and
Nelson” even though it gives tax-lienholders a
windfall from the owner who failed to request a
judicial sale before the foreclosure judgment was
final); Biesemeyer v. Mun. of Anchorage, No. 3:23-CV00185, 2024 WL 1480564, at *7 (D. Alaska Mar. 13,
2024) (holding Alaska’s six-month claim process
“meets the low threshold implied by Tyler and
Nelson,” and dismissing takings and due process
claims seeking $243,235 in excess proceeds).
The Sixth Circuit in Howard, 133 F.4th at 572, held
that failure to comply with Michigan’s claims statute
“prevent[s] a taking from happening in the first
place.” The court construed Knick as “guarantee[ing]”
only that a plaintiff can bring a takings claim if she
first “follow[s] the .-.-. procedures for claiming the
surplus, only to be denied it.” Ibid. That decision has
now infected takings law outside the tax foreclosure
context, with the Sixth Circuit recently holding that
an owner who did not exhaust administrative
remedies before challenging an uncompensated
taking “ ‘forfeited ’ its takings claim when it chose not
to follow that [state] procedure.” OPV Partners, LLC
v. City of Lansing, No. 24-2035, 2025 WL 1898235, at
*3 (6th Cir. July 9, 2025) (relying on Howard to bar a
takings challenge to rental property regulations).
Like the Michigan Court of Appeals below, the
Michigan Supreme Court recently relied on Nelson to
add exhaustion requirements to takings claims. In
Hathon, the state’s high court dismissed as unripe a
takings claim based on government’s retention of
surplus proceeds that was filed two years before the
29
claims statute here was adopted. 17 N.W.3d at 686-87
(following Nelson).9 Although the state has held the
owners’ private property for seven years—without
compensation—the court ordered the owners to
comply with MCL § 211.78t by filing Form 5743
within eleven days before pursuing their
constitutional claims seeking just compensation. Ibid.
Howard, Hathon, and the court below thus mimic the
exhaustion rationale that this Court rejected in Knick
and Felder. Supra 23-24; see also Schafer v. Kent
Cnty., No. 164975, __ Mich. __, 2024 WL 3573500, at
*6, *16 n.94, *17 (July 29, 2024) (explaining Hathon’s
procedural history, and holding that the claim
provisions of MCL § 211.78t are fully retroactive). The
Court should grant review to settle this conflict among
the lower courts and resolve the conflict between
Nelson, Knick, and Felder.
III. The Lower Court’s Decision Conflicts With
This Court’s Due Process Decisions
The Due Process Clause “provide[s] a guarantee of
fair procedure in connection with any deprivation of
life, liberty, or property by a State.” Harker Heights,
503 U.S. at 125. “Fairness” is the watchword for due
process. Bolling v. Sharpe, 347 U.S. 497, 499 (1954);
Breithaupt v. Abram, 352 U.S. 432, 436 (1957) (due
process reflects the “whole community sense of
‘ decency and fairness’ ”).
Due process therefore
requires procedures “appropriate to the case, and just
to the parties to be affected .-.-. it must be adapted to
the end to be attained.” Hagar v. Reclamation Dist.
No. 108, 111 U.S. 701, 708 (1884).
9 Four of the seven justices who decided Rafaeli have since left
the bench.
30
The government’s function is to protect private
property, not confiscate it. “[I]n the condemnation
field, government has an overriding obligation to deal
forthrightly and fairly with property owners.” F.M.C.
Stores Co. v. Borough of Morris Plains, 100 N.J. 418,
426 (1985). And when the taking occurs in the context
of tax foreclosure, the government’s procedures must
recognize that owners facing foreclosure are
“generally ignorant” of their peril “until [it is] too
late.” Slater, 73 U.S. at 276. The government must
use reasonable procedures that would be used by one
who actually wanted to return seized property to its
rightful owner. See Jones, 547 U.S. at 229.
Michigan’s process is an unreasonable trap for the
unwary, depriving up to 95% of owners of their
surplus proceeds. The statute authorizes inadequate
notice and insufficient time for owners to protect their
interests, resulting in huge windfalls for the
government. Cf. Minnesota v. Barber, 136 U.S. 313,
323 (1890) (noting this Court’s “duty to maintain the
constitution will not permit us to shut our eyes to
these obvious and necessary results of the [state]
statute”); Ross v. Blake, 578 U.S. 632, 643 (2016) (“an
administrative scheme might be so opaque that it
becomes, practically speaking, incapable of use”);
Nelson v. Colorado, 581 U.S. 128, 137 (2017); id. at
143 (Alito, J., concurring in the judgment) (“harsh,
inflexible” procedure that “prevents most defendants
whose convictions are reversed from demonstrating
entitlement to a refund” violates due process).
The procedure departs dramatically from modern
and historical
procedures for paying
just
compensation and returning surplus proceeds. In all
other contexts, Michigan gives owners many years to
recover their own money. See supra at 21 (owners
31
have 3-6 years after the taking to file a takings claim);
MCL § 600.6044 (property sold by officials via
execution on judgment paid “on demand” to judgment
debtor); MCL § 600.3252 (surplus money paid “on
demand, to the mortgagor”); MCL §§ 567.224, 567.234
(any unclaimed money held by public officials are
handed over to state unclaimed money fund after one
year, to be held for owner); O’Connor, 83 F.4th at 1021
(state holds unclaimed money “indefinitely” for
benefit of rightful owner); Taylor, 104 U.S. at 221-22
(holding no statute of limitations could apply until the
government affirmatively disavowed its duty to pay);
Hammond, 1 Doug. at 280-81 (owner is “at all times”
entitled to receive surplus funds); Howard, 133 F.4th
at 571 (citing historic examples in other states that
gave owners many years to claim their money). 10
Howard incorrectly characterizes two statutes as giving
owners only a brief claim window. 133 F.4th at 571 (stating 1866
Minnesota statute gave three months and 1881 Washington
statute required action before conclusion of court proceedings).
The Washington statute required owners to affirmatively file a
notice only to accelerate the return of surplus proceeds. If the
owner didn’t file, then after the court certified the regularity of
the sale, “such proceeds shall be paid [to the judgment debtor] of
course.” Code of Washington § 367.5 (1881) (emphasis added).
The Minnesota mortgage foreclosure law provided that even if no
claim was made by the former owner after three months, “the
district judge may direct the same to be put out at interest .-.-.
for the benefit of the defendant, his representatives or assigns, to
be paid to them.” Minn. Gen. Stat. of 1866, Ch. 81, tit. II, § 35
(1867); see also Minn. Gen. Stat. of 1878, Ch. 81, tit. II, § 35
(same). Other Minnesota laws from that time—including tax
sale laws—put no deadline on owners to recover their money.
See, e.g, General Laws of Minn., Ch. XII, § 6 (1867); General
Laws of Minn., Ch. IV, § 3 (1862); General Laws of Minn., Ch. VI
(1864).
10
32
The court below did not analyze whether the claims
statute’s procedures comport with due process,
instead deferring entirely to the legislature’s
“exclusive” procedure for tax debtors to recover their
just compensation.
App. 18a-19a (relying on
Muskegon, 348 Mich. App. at 696-97, which
shortcircuited the due process analysis because courts
should not consider whether the process “makes
sense” because that is a question for the legislature).
This abdication of judicial responsibility should not
stand. If this Court believes that the categorical duty
to pay just compensation can be fulfilled by creation of
a statutory process to claim recovery, then this
petition should be granted and remanded for the lower
courts to analyze whether the procedures at issue
violate due process. Even a cursory analysis reveals
significant due process concerns.
“Due process requires notice that is reasonably
calculated, under all the circumstances, to apprise
interested parties and that affords a reasonable time
to make an appearance.” A.A.R.P. v. Trump, 145 S.
Ct. 1364, 1367-68 (2025) (quoting Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950))
(cleaned up). “[A] mere gesture” is not adequate;
“[t]he means employed must be such as one desirous
of actually informing the absentee might reasonably
adopt to accomplish it.” Mullane, 339 U.S. at 314-15.
Notice must be reasonable under the circumstances.
Id.; Brody v. Vill. of Port Chester, 434 F.3d 121, 132
(2d Cir. 2005) (inadequate notice where “[un]likely
that the average landowner would have appreciated
that [the] notice .-.-. began the exclusive period in
which to initiate a challenge to the condemnor’s determination.”). Moreover, “a party’s ability to take steps
to safeguard its interests does not relieve the State of
33
its constitutional obligation.”
Mennonite Bd. of
Missions v. Adams, 462 U.S. 791, 799 (1983).
Among other things, a remand should instruct
lower courts that laws that bar civil rights lawsuits
based on the passage of time must give “a reasonable
time” for the claimant to enforce her rights before
eliminating her ability to do so. Terry v. Anderson, 95
U.S. 628, 632-33 (1877) (“[S]tatutes of limitation
affecting existing rights are” constitutional only “if a
reasonable time is given for the commencement of an
action before the bar takes effect.”); Wilson v.
Iseminger, 185 U.S. 55, 63 (1902) (same).
The deadline here is a mere 92 days, while owners
still possess their property and often don’t realize
they’ve lost title. Cf. Felder, 487 U.S. at 152 (“Civil
rights victims often do not appreciate the
constitutional nature of their injuries, and thus will
fail to file a notice of injury or claim within the
requisite time period, which in Wisconsin is a mere
four months.”) (citations omitted). With such grave
consequences at stake under Michigan’s statute, the
government must provide a simple process for
remittance. See Niz-Chavez v. Garland, 593 U.S. 155,
172 (2021) (“If men must turn square corners when
they deal with the government, it cannot be too much
to expect the government to turn square corners when
it deals with them.”); Gates v. City of Chicago, 623
F.3d 389, 404 (7th Cir. 2010) (owners are not
“willingly abandoning millions of dollars” where
government “has made the process obtuse and
unreasonably difficult”).
Moreover, the Michigan statute must be viewed in
light of the government’s direct “pecuniary interest in
the outcome,” which weighs in favor of a more
34
protective process. United States v. James Daniel
Good Real Prop., 510 U.S. 43, 55-56 (1993). Cf.
Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991)
(opinion of Scalia, J.) (“[I]t makes sense to scrutinize
governmental action more closely when the State
stands to benefit.”). The state’s self-serving statute
does not comport with the “fundamental fairness”
demanded by the Due Process Clause.
This case identifies pressing national problems left
unresolved by Tyler and an excellent vehicle to
address them.
CONCLUSION
This Court should grant the Petition.
Respectfully submitted,
CHRISTINA M. M ARTIN
Counsel of Record
D EBORAH J. L A F ETRA
Pacific Legal Foundation
3100 Clarendon Blvd.
Suite 1000
Arlington, VA 22201
Telephone: (916) 330-4059
CMartin@pacificlegal.org
Counsel for Petitioners
AUGUST 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.