Amicus Curiae Brief — Johanna McGee, as Personal Representative of the Estate of Jacqueline McGee, et al., Petitioners v. Alger County Treasurer, et al.
Supreme Court briefOct 6, 2025
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No. 25-203
───────────────────────────
In the
Supreme Court of the United States
──────────────────────────
JOHANNA MCGEE, as Personal Representative of
the Estate of Jacqueline McGee, ET AL.,
Petitioners,
v.
ALGER COUNTY TREASURER, ET AL.,
Respondents.
──────────────────────────
ON PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MICHIGAN
──────────────────────────
AMICI CURIAE BRIEF OF
THE BUCKEYE INSTITUTE, MANHATTAN
INSTITUTE FOR POLICY RESEARCH, NATIONAL
FEDERATION OF INDEPENDENT BUSINESS
SMALL BUSINESS LEGAL CENTER, INC., AND
OWNERS’ COUNSEL OF AMERICA IN SUPPORT
OF PETITIONERS
──────────────────────────
Jay R. Carson
Counsel of Record
David C. Tryon
Alex M. Certo
THE BUCKEYE INSTITUTE
88 East Broad Street, Suite 1300
Columbus, OH 43215
(614) 224-4422
J.Carson@BuckeyeInstitute.org
Counsel for The Buckeye Institute
* Counsel continued on inside cover
Ilya Shapiro
MANHATTAN INSTITUTE
52 Vanderbilt Ave.
New York, NY 10017
(212) 599-7000
Counsel for Manhattan Institute
Elizabeth Gaudio Milito
Patrick J. Moran
NFIB SMALL BUSINESS LEGAL CENTER, INC.
555 12th Street, NW, Ste. 1001
Washington, DC 20004
(202) 406-4443
Counsel for NFIB Small Business Legal Center, Inc.
Heather A. Cunningham
OWNERS’ COUNSEL OF AMERICA
102 Rudolph Street
Caldwell, ID 83605
(303) 806-5155
Counsel for Owners’ Counsel of America
i
QUESTIONS PRESENTED
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
TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................... i
TABLE OF AUTHORITIES........................................ iii
INTEREST OF AMICI CURIAE ................................. 1
SUMMARY OF THE ARGUMENT............................. 3
ARGUMENT ................................................................. 5
I. Compensation under the Fifth Amendment is
categorically required ........................................... 5
A. Tyler established that the duty to pay
surplus proceeds to a landowner is
categorical ........................................................ 5
B. The categorical nature of the right to just
compensation is rooted in history .................. 7
II. History is replete with examples of legislative
and judicial foot-dragging .................................. 12
III. The vast majority of states provide reasonable
procedures designed to protect a homeowner’s
Fifth Amendment rights .................................... 17
CONCLUSION ............................................................ 19
iii
TABLE OF AUTHORITIES
Cases
Adderley v. State of Fla.,
385 U.S. 39 (1966)...................................................... 5
Arkansas Game & Fish Comm’n v. United States,
568 U.S. 23 (2012)...................................................... 6
Baltimore & Ohio R.R. Co. v. United States,
298 U.S. 349 (1936) ................................................... 6
Brady v. United States,
397 U.S. 742 (1970) ................................................. 18
Brown v. Board of Education,
347 U.S. 483 (1954) ................................................. 12
Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (1993) .................................... 5
Colgrove v. Battin,
413 U.S. 149 (1973) ................................................... 5
Curtis Publ’g Co. v. Butts,
388 U.S. 130 (1967) ................................................. 18
D.H. Overmyer Co. v. Frick Co.,
405 U.S. 174 (1972) ................................................. 18
District of Columbia v. Heller,
554 U.S. 570 (2008) ................................................. 13
Gardner v. Village of Newburgh,
2 Johns. Ch. 162 (N.Y. Ch. 1816) ........................... 10
Horne v. Dep’t of Agric.,
576 U.S. 350 (2015) ................................................... 7
Johnson v. Zerbst,
304 U.S. 458 (1938) ................................................. 18
iv
Knick v. Twp. of Scott, Pennsylvania,
588 U.S. 180 (2019) ................................................... 6
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ................................................. 14
McColloch v. Maryland,
17 U.S. 316 (1819).................................................... 11
Miranda v. Arizona,
384 U.S. 436 (1966) ................................................. 18
Nelson v. City of New York,
352 U.S. 103 (1956) ................................................. 11
New York State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1 (2022)................................................ 13, 14
North Carolina State Bd. of Ed. v. Swann,
402 U.S. 43 (1971).................................................... 13
Phillips v. Washington Legal Found.,
524 U.S. 156 (1998) ................................................... 3
Swann v. Charlotte-Mecklenburg,
402 U.S. 1 (1971)...................................................... 13
Tahoe–Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 535 U.S. 302 (2002)..... 6
Tallage Lincoln, LLC v. Williams,
485 Mass. 449 (2020) ............................................... 16
Tyler v. Hennepin Cnty., Minnesota,
598 U.S. 631 (2023) ................................................... 3
Wilson v. Hawaii,
145 S. Ct. 18 (2024) ................................................. 14
Wolford v. Lopez, No. 24-1046,
2025 WL 2808808 (U.S. Oct. 3, 2025) .................... 14
v
Statutes
Cal. Rev. & Tax. Code § 4675..................................... 17
Fla. Stat. § 197.582 ..................................................... 17
Ga. Code Ann. § 48-4-5 (West) ................................... 17
Ohio Rev. Code Ann. § 5723.11 (West) ..................... 17
Tex. Tax Code Ann. §§ 34.02–34.04 (West) .............. 17
Wash. Rev. Code Ann. § 84.64.080 (West) ................ 17
Other Authorities
Confederation Cong., An Ordinance for the
Government of the Territory of the United
States North-West of the River Ohio (1787) ........... 8
James Madison, Observations on Jefferson’s Draft
of a Constitution of Virginia, reprinted in 8 The
Papers of Thomas Jefferson 308 (J. Boyd ed.
1953) ........................................................................... 7
James Madison, Property, reprinted in 14 The
Papers of James Madison 266 (University Press
of Va., 1977)................................................................ 9
James Madison, Speech Proposing the Bill of
Rights, in 12 The Papers of James Madison 204
(C. Hobson & R. Rutland eds. 1979) ...................... 10
Jenna Christine Foos, State Theft in Real
Property Tax Foreclosure Procedures, 54 Real
Prop. Tr. & Est. L.J. 93 (2019) ............................... 16
Joseph J. Lazzarotti, Public Use or Public Abuse,
68 UMKC L. Rev. 49 (1999) ...................................... 8
vi
Katy Marquardt Hill, Can Congress overturn
Supreme Court rulings?, CU Boulder Today
(July 30, 2024), https://tinyurl.com/299h4cr7 ....... 15
Marcia Kramer & Dick Brennan, Fresh off
primary win, Gov. Kathy Hochul dives right into
guns--who can get them and where they can take
them, CBS New York (June 29, 2022),
https://tinyurl.com/a6jcfd3p .................................... 14
Stop Corporate Capture Act, H.R. 1507, 118th
Cong. § 12(1)(A) (2023) ............................................ 15
The Declaration of Independence (U.S. 1776) .......... 12
The Federalist No. 51 (James Madison) (Fall
River Press ed., 2021) ................................................ 4
The Federalist No. 54 (James Madison) (Fall
River Press ed. 2021) ................................................. 9
The Southern Manifesto and "Massive Resistance"
to Brown v. Board, Legal Defense Fund,
https://www.naacpldf.org/brown-vsboard/southern-manifesto-massive-resistancebrown/ (last visited Oct. 1, 2025)............................ 13
Warren Leads Senate Response to End of Chevron
Doctrine, Elizabeth Warren (July 23, 2024),
https://tinyurl.com/59sjs5vb ................................... 15
William Michael Treanor, The Origins and
Original Significance of the Just Compensation
Clause of the Fifth Amendment, 94 Yale L.J.
694 (1985) ..................................................... 7, 8, 9, 10
Constitutional Provisions
U.S. Const. amend. V.................................................... 3
1
INTEREST OF AMICI CURIAE1
The Buckeye Institute was founded in 1989 as
an
independent
research
and
educational
institution—a think tank—to formulate and promote
free-market policy in the states. The Buckeye
Institute accomplishes its mission by performing
timely and reliable research on key issues, compiling
and synthesizing data, formulating free-market
policies, and marketing those policy solutions for
implementation in Ohio and replication across the
country. The Buckeye Institute also files lawsuits and
submits amicus briefs to fulfill its mission. The
Buckeye Institute is a nonpartisan, nonprofit, taxexempt organization, as defined by I.R.C. section
501(c)(3). The Buckeye Institute has been vocal in its
opposition to practices in Ohio allowing government
entities to seize real property to satisfy a tax debt
without compensating the property owners for their
accrued equity, whether that seizure comes directly, as
it did in Tyler v. Hennepin County, or in through
procedural hurdles designed to frustrate the
vindication of the Fifth Amendment right recognized
in that case.
The Manhattan Institute for Policy Research
is a nonpartisan public policy research foundation
whose mission is to develop and disseminate new
ideas that foster greater economic choice and
individual responsibility. To that end, it has
1 Pursuant to Supreme Court Rule 37.6, no counsel for any party
authored this brief in whole or in part and no entity or person,
aside from amici curiae made any monetary contribution toward
the preparation or submission of this brief. Counsel timely
provided the notice required by Rule 37.2.
2
historically sponsored scholarship and filed briefs
supporting economic freedom and property rights
against government overreach.
The National Federation of Independent
Business Small Business Legal Center, Inc.
(NFIB Legal Center) is a nonprofit, public interest law
firm established to provide legal resources and be the
voice for small businesses in the nation’s courts
through representation on issues of public interest
affecting small businesses. It is an affiliate of the
National Federation of Independent Business, Inc.
(NFIB), which is the nation’s leading small business
association. NFIB’s mission is to promote and protect
the right of its members to own, operate, and grow
their businesses. NFIB represents, in Washington,
D.C., and all 50 state capitals, the interests of its
members.
The Owners’ Counsel of America (OCA) is a
nonprofit organization, organized under IRC §
501(c)(6) and sustained solely by its members. OCA is
an invitation only network of the most experienced
eminent domain and property rights attorneys from
across the country who seek to advance, preserve and
defend the rights of private property owners, large and
small, locally and nationally. Since its founding in
2000, OCA has sought to use its members’ combined
knowledge and experience as a resource in the defense
of private property ownership, and to make that
opportunity available and effective to property owners
nationwide. OCA member attorneys have been and are
involved in landmark property rights cases in nearly
every jurisdiction nationwide.
3
This case interests amici because home equity
theft—a clear violation of property rights—remains a
nationwide problem.
SUMMARY OF THE ARGUMENT
The Fifth Amendment does not mince words. Its
simple and unadorned language provides, “[n]or shall
private property be taken for public use, without just
compensation.” U.S. Const. amend. V. This Court has
been equally clear that a state “may not extinguish” a
dispossessed owner’s right to the remaining equity in
his or her home “to avoid paying just compensation
when it is the one doing the taking.” Tyler v. Hennepin
Cnty., Minnesota, 598 U.S. 631, 645 (2023) (citing
Phillips v. Washington Legal Found., 524 U.S. 156,
167 (1998)). Yet rather than creating a process to
ensure that dispossessed homeowners recover the
surplus equity due to them, the Michigan legislature
erected procedural barriers to frustrate those
homeowners from vindicating their rights under
Tyler.
Unlike some constitutional protections, the Fifth
Amendment’s just compensation requirement is
categorical. When the government takes property, it
must pay for it. Always. There is no balancing test or
weighing of interests. Rather, the Fifth Amendment—
and the historical antecedents on which the Framers
relied in crafting it—conditions the government’s
power to take property on the payment of just
compensation. The Court should grant the petition to
clarify that local governments cannot excuse
themselves from the categorical duty to pay by
creating a byzantine claims process that aims to pad
4
the government treasury rather than allow citizens to
exercise their rights.
Deviation from, and resistance to, new precedents
by legislatures and lower courts is not unheard-of. At
times, this is a result of honest efforts to address
complex issues. However, in other cases, the
legislative and judicial responses appear to be based
on hostility to the right itself. This was the case in the
civil rights era. More recently, the tendency of
legislatures and lower courts to circumscribe or
“underrule” recent precedent cases has been manifest
in Second Amendment jurisprudence. Here,
Michigan’s enactment of its surplus equity claims
process in Tyler’s immediate wake, coupled with its
unusually complex requirements and easy default
rules, points to an illegitimate government interest of
maximizing windfalls to local governments at the
expense of citizens who are often unsophisticated and
reeling from the loss of their home.
Madison wrote that “[j]ustice is the end of
government. It is the end of civil society.” The
Federalist No. 51, at 297 (James Madison) (Fall River
Press ed., 2021). Here, this Court and the corpus of
Anglo-American law say that justice requires local
governments to return surplus equity. Any
government process that elevates administrative
convenience or capturing funds for the local
government over this constitutional imperative must
fail.
To the extent that local governments require some
mechanism to ensure that equity refunds are
processed in a timely manner and reach their proper
recipients, the statutes of other states are instructive.
5
Nearly every state—both before and after Tyler—
boasts a more liberal equity recovery process than
Michigan. Administration of surplus equity claims
apparently does not require the complexity and tight
deadlines that Michigan has imposed. States can, and
do, balance the homeowner’s constitutional right to a
refund with reasonable administrative convenience.
The Court should grant certiorari and look to these
other state statutes to create a procedural floor for
equity claims.
ARGUMENT
I. Compensation under the Fifth Amendment is
categorically required.
A. Tyler established that the duty to pay
surplus proceeds to a landowner is
categorical.
In arguing in favor of legislation regulating or
curtailing the exercise of a constitutional right,
politicians often fall back on the cliché that “no
constitutional right is absolute.” This holds true in
some contexts, but not others. For example, the First
Amendment’s Free Exercise clause does not prohibit a
state from preventing cruelty to animals, so long as it
does not target ritual animal sacrifice. See Church of
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 539 (1993). The First Amendment’s free speech
guarantee does not permit protestors to trespass or
block public right-of-ways. See Adderley v. State of
Fla., 385 U.S. 39, 43 (1966). The exercise of one’s right
to a trial by jury is subject to the court’s local
procedural rules. See Colgrove v. Battin, 413 U.S. 149
(1973).
6
But the Fifth Amendment’s just compensation
requirement is different, and this Court has
repeatedly recognized that difference. Unlike other
rights, “[w]hen the government physically takes
possession of an interest in property for some public
purpose, it has a categorical duty to compensate the
former owner.” Arkansas Game & Fish Comm’n v.
United States, 568 U.S. 23, 31 (2012) (quoting Tahoe–
Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency, 535 U.S. 302, 322 (2002)). The justcompensation requirement is “categorical” in the
sense that a sovereign’s proper authority to physically
take private property exists only to the extent that the
taking is necessary for a public use. Applying this
principle to satisfy a debt requires that the
government compensate the property owner for his or
her accrued equity in that property. Indeed, a
“property owner has suffered a violation of his Fifth
Amendment rights when the government takes his
property without just compensation . . . .” Knick v.
Twp. of Scott, Pennsylvania, 588 U.S. 180, 185 (2019)
(emphasis added). Thus, “[t]he 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.” Id. at 365.
7
B. The categorical nature of the right to just
compensation is rooted in history.
The categorical nature of the right arises from the
Takings Clause’s historical antecedents. The
requirement that “just compensation” must
accompany any taking of private property predates
the U.S. Constitution and has a pedigree stretching
back nearly a millennium. This Court has observed
that the roots of the Just Compensation Clause extend
“back at least 800 years to Magna Carta, which
specifically protected agricultural crops from
uncompensated takings.” Horne v. Dep’t of Agric., 576
U.S. 350, 358 (2015). Specifically, Clause 28 of Magna
Carta forbade any “constable or other bailiff” from
taking “corn or other provisions from any one without
immediately tendering money therefor, unless he can
have postponement thereof by permission of the
seller.” Id. (emphasis added and citation omitted).
Not long after the Revolutionary War’s conclusion,
Madison voiced his concerns over the erosion of
property rights that had attended the conflict, writing
to Jefferson that “[t]he necessity of . . . guarding the
rights of property was for obvious reasons unattended
to in the commencement of the Revolution” and cited
the need for positive steps to secure those rights in the
new country. William Michael Treanor, The Origins
and Original Significance of the Just Compensation
Clause of the Fifth Amendment, 94 Yale L.J. 694, 709
(1985) (quoting James Madison, Observations on
Jefferson’s Draft of a Constitution of Virginia,
reprinted in 8 The Papers of Thomas Jefferson 308,
310 (J. Boyd ed. 1953)).
8
While the colonial right to compensation for a
taking of property often relied on a patchwork of
purveyance statutes and general reliance on the
common law, the Congress of the Confederation of the
United States provided what was to be the first
national statement on the matter when it enacted the
Northwest Ordinance of 1787. In essence, the
Northwest Ordinance provided the first national “preconstitutional codification of the eminent domain
power.” Joseph J. Lazzarotti, Public Use or Public
Abuse, 68 UMKC L. Rev. 49, 54 (1999).2 In language
that prefigured the Fifth Amendment, the 1787
Northwest Ordinance provided that:
No man shall be deprived of his liberty or
property, but by the judgment of his
peers, or the law of the land, and should
the public exigencies make it necessary,
for the common preservation, to take any
person’s property, or to demand his
particular services, full compensation
shall be made for the same.
Confederation Cong., An Ordinance for the
Government of the Territory of the United States
North-West of the River Ohio, art. 2 (1787) (emphasis
added).
Significantly, the State of Michigan was carved out
of the Northwest Territory. Limiting takings to those
that are necessary and requiring full compensation for
While the Northwest Ordinance provided the first “national”
statement of the Just Compensation requirement, the Vermont
Constitution of 1777 and the Massachusetts Constitution of 1780
included similar categorical requirements. Treanor, supra, at 701.
2
9
them is thus part of the Michigan origin story. When
they loaded their wagons and lit out for the West, the
men and women who settled what would become the
State of Michigan would have relied—at least in
part—on this national policy protecting them from
uncompensated government takings.
The Framers’ writings following ratification of the
Fifth Amendment strongly support robust protection
of private property. Madison, in particular, saw broad
protection for property—both real and intangible—as
the proper end of government. James Madison,
Property, reprinted in 14 The Papers of James
Madison 266 (University Press of Va., 1977),
https://tinyurl.com/34cz994u.
Indeed,
Madison
considered protection of property as a government
responsibility commensurate with protection of
individuals. The Federalist No. 54, at 311 (James
Madison) (Fall River Press ed. 2021) (“Government is
instituted no less for protection of the property, than
of the persons of individuals.”). And after the
experiences of the Revolutionary War, he believed it
necessary “to erect strong safeguards for rights in
general and for property rights in particular.” Treanor,
supra, at 694. The Just Compensation Clause—
although intended to have relatively narrow legal
consequences—was such a safeguard. And though
Madison viewed the Fifth Amendment as a
restatement of what was already unquestionably the
law, he believed that the codification of these preexisting guarantees into the Bill of Rights would serve
the hortatory purpose of encouraging respect for
private property. “ ‘Paper barriers,’ he declared, have
a tendency to impress some degree of respect for them,
to establish the public opinion in their favor, and rouse
10
the attention of the whole community.’ ” Id. at 710
(quoting James Madison, Speech Proposing the Bill of
Rights, in 12 The Papers of James Madison 204–05 (C.
Hobson & R. Rutland eds. 1979)). Of course, the paper
barriers that Madison spoke of were intended to
preserve rights. By contrast, Michigan’s “paperwork
barriers” serve as means to stealthily divest citizens of
their property rights.
Following ratification, Madison’s broader vision
took hold in American jurisprudence. Professor
Treanor explains that “[i]n addition to limiting the
national government’s freedom of action, the just
compensation clause served an educative role: It
inculcated the belief that an uncompensated taking
was a violation of a fundamental right. . . . [T]he Fifth
Amendment was a national declaration of respect for
property rights.” Treanor, supra, at 714. “By the
1820s, the principle of just compensation had won
general acceptance.” Id.
In the landmark case of Gardner v. Village of
Newburgh, 2 Johns. Ch. 162, 167 (N.Y. Ch. 1816),
Chancellor Kent articulated the broad Madisonian
view that had begun at Runnymede, crossed the
ocean, survived a war, and firmly established its place
as the fundamental law of the new nation:
[T]his inviolability of private property,
even as it respects the acts and the wants
of the state, unless a just indemnity be
afforded, has excited so much interest,
and been deemed of such importance,
that it has frequently been made the
subject of an express and fundamental
11
article of right in the [United States]
constitution of government.
In its simplest terms, the Fifth Amendment places
the requirement to compensate the landowner
squarely on the government. The question is not if the
local government must provide the surplus equity to
the dispossessed homeowner, but how and when it
must do so.
In other words, there is no precedent that
prescribes a balancing test or weighing of interests in
determining whether to pay just compensation. To the
extent that the Michigan Court of Appeals relied on
Nelson v. City of New York, 352 U.S. 103 (1956),
Petitioners have ably distinguished it from the case
here. To read Nelson to countenance any procedure, no
matter how cumbersome, as constitutional, elevates
form over substance. As Justice Marshall recognized,
the cornerstone of any legislative scheme must be
some legitimate governmental purpose. See
McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (“Let
the end be legitimate.”). The frustration of a
constitutional right can never be a legitimate end of
government.
And while there is a legitimate interest in
preventing people from shouting “fire” in a crowded
theater when there is no fire, there is no legitimate
countervailing government interest in avoiding
paying just compensation. And as shown below, to the
extent that the government has an interest in having
an orderly system for the payment of just
compensation, it can do so in a manner that facilitates,
rather than frustrates, citizens’ property rights.
12
II. History is replete with examples of legislative
and judicial foot-dragging.
The Michigan statute was enacted in the wake of
this Court’s decision in Tyler, ostensibly to establish a
system to provide for owner equity distributions in tax
foreclosures. History teaches, however, that when this
Court recognizes a constitutional right, state
legislatures—and even lower courts—are not always
keen to go along. Such is the case here, where
Michigan obstructed, rather than facilitated, postforeclosure equity distributions. It remains for this
Court to serve as the final authority and promote
procedural uniformity—or at least establish a
procedural ground floor below which state processes
may not sink. The Court has done this for almost all
other constitutional guarantees and should, therefore,
grant the petition to clarify, and if necessary, amplify
its holding in Tyler that the Fifth Amendment’s just
compensation requirement is categorical.
Some of the nation’s jurisprudential and legislative
history demonstrates how, lamentably, without this
Court’s enforcement of its decisions, obdurate
legislatures can frustrate the exercise of constitutional
rights that are unfashionable or inconvenient. Some of
the grossest—and most shameful—examples of
legislatures brushing off this Court’s clear holdings
occurred following this Court’s in Brown v. Board of
Education, 347 U.S. 483 (1954). .
Legislatures, particularly, not but exclusively, in
the South, sought to frustrate the national policy of
desegregation that flowed from Brown. In 1954,
“Virginia Governor Thomas Bahnson Stanley created
a commission to conspire to defy Brown.” The
13
Southern Manifesto and "Massive Resistance" to
Brown
v.
Board,
Legal
Defense
Fund,
https://www.naacpldf.org/brown-vs-board/southernmanifesto-massive-resistance-brown/ (last visited Oct.
1, 2025). The Gray commission “held that school
attendance should not be compulsory; money should
be allocated to parents as tuition grants if they
opposed integration; and authorized local school
boards would assign students to schools themselves.”
Id. Following this Court’s decision in Swann v.
Charlotte-Mecklenburg, 402 U.S. 1 (1971), North
Carolina enacted an “Anti-Busing Law” that
prohibited school authorities from considering busing
as part of the desegregation plan ordered by the Court.
This Court stepped in to confirm that it meant what it
said in Swann and that the North Carolina statute’s
“flat prohibition against the assignment of students
for the purpose of creating racial balance must
inevitably conflict with the [court-ordered] duty of
school authorities to disestablish dual school
systems.” North Carolina State Bd. of Ed. v. Swann,
402 U.S. 43, 46 (1971).
Decades later, this same legislative resistance
arose in the context of the rights preserved under the
Second Amendment. Those rights had long been
denigrated by legislatures and courts. Finally, in
District of Columbia v. Heller, 554 U.S. 570 (2008), the
Court held that the Second Amendment protected
individuals’ rights to bear arms.
After the Court invalidated New York’s prohibition
on carrying firearms in New York State Rifle & Pistol
Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), New York
refused to comply. It simply enacted a very similar law,
14
the Concealed Carry Improvement Act, which banned
firearms in numerous public places, despite the
Court’s noting that “there is no historical basis for
New York to effectively declare the island of
Manhattan a ‘sensitive place,’ ” Id. at 31.
When New York Governor Hochul fielded questions
about the law, one reporter commented that it seemed
like the new law restricted concealed carry in all
public places. Marcia Kramer & Dick Brennan, Fresh
off primary win, Gov. Kathy Hochul dives right into
guns--who can get them and where they can take them,
CBS
New
York
(June
29,
2022),
https://tinyurl.com/a6jcfd3p. Hochul responded, “I
can’t shut off all places.” Id. And when asked where
people could carry concealed, she responded,
“[p]robably some streets.” Id.
Indeed, some state legislatures, encouraged by
sympathetic courts, continue to push the envelope of
firearms regulations. Some courts have even
expressed Reinhardt-like defiance as they affirmed
legislative opposition to Bruen. See Wilson v. Hawaii,
145 S. Ct. 18 (2024) (Thomas, J., respecting the denial
of cert.) (noting that “the Hawaii Supreme Court
ignored” this Court’s holding in Bruen); see also
Wolford v. Lopez, No. 24-1046, 2025 WL 2808808 (U.S.
Oct. 3, 2025) (granting certiorari to review whether
Hawaii may presumptively prohibit the carry of
handguns by licensed concealed carry permit holders
on private property open to the public). More recently,
there have been attempted congressional responses to
this Court’s decision in Loper Bright Enters. v.
Raimondo, 603 U.S. 369 (2024). Some legislators took
that decision particularly hard, arguing that it
15
“undermines our government’s ability to promote
worker safety, ensure clean air and water, and protect
consumers.” Warren Leads Senate Response to End of
Chevron Doctrine, Elizabeth Warren (July 23, 2024),
https://tinyurl.com/59sjs5vb.
In
response,
the
proposed “Stop Corporate Capture Act” would “[c]odify
Chevron deference . . .” in an attempt to annul the
Court’s opinion. Id.; see also Stop Corporate Capture
Act, H.R. 1507, 118th Cong. § 12(1)(A) (2023).
As once commentator explained, the bill’s
constitutionality turns on how the Court reads Loper
Bright. Katy Marquardt Hill, Can Congress overturn
Supreme Court rulings?, CU Boulder Today (July 30,
2024), https://tinyurl.com/299h4cr7. Professor Scott
Skinner-Thompson opined that “to the extent the
[C]ourt’s decision in Loper hinged on constitutional
separation of power principles” the bill “goes too far by
preventing courts from having the final say on the
law.” Id. On the other hand, the bill is “arguably
perfectly permissible,” if instead the Court views the
bill as seeking “to revise a statute and correct a
Supreme Court interpretation of that statute . . . . It’s
a fine line.” Id. While only a speculative case, it is
representative of a common theme—just because
courts speak, that does not mean legislatures are
listening.
To be clear, the societal impact of the Michigan
equity claims statute is not on par with the resistance
to this Court’s civil rights decisions. Rather, the
legislative hurdles Michigan imposed on foreclosed
property owners are a good old-fashioned money grab.
But the principle is the same. The first proper concern
of a government “of the People, by the People, and for
16
the People” must be the protection of the rights
secured by the People in their constitution. When
legislatures address this Court’s decisions by seeking
to frustrate the rights recognized therein, quick
correction is warranted.
Like North Carolina’s attempt to avoid its
obligation to desegregate by frustrating the means by
which that desegregation might occur, Michigan’s
statute attempts to undo what this Court ordered in
Tyler. The statute removes—indeed one might argue
forcibly extracts—the teeth from Tyler. The pre-sale
notice requirement and narrow claims window appear
designed to trip up the unwary. And homeowners
going through the emotional and financial trauma of
foreclosure process are particularly vulnerable. They
are often unrepresented, see, e.g., Tallage Lincoln,
LLC v. Williams, 485 Mass. 449, 450 (2020), and must
contend with relocating, finding a place for their
belongings. Further, foreclosures most often “affects
the elderly, mentally disabled, or ill . . . .” Jenna
Christine Foos, State Theft in Real Property Tax
Foreclosure Procedures, 54 Real Prop. Tr. & Est. L.J.
93, 96 (2019). If a private commercial entity attempted
to take advantage of procedural complexities to work
a default in similar circumstances, it would be rightly
decried as unconscionable. And as set forth above, the
government’s attempt to do so is doubly harmful
because it has a constitutional obligation not to engage
in such activities. If the Court grants cert, it can
decisively correct Michigan’s attempt to obstruct this
Court’s Tyler decision.
17
III. The vast majority of states provide
reasonable procedures designed to protect
a homeowner’s Fifth Amendment rights.
Payments out of the public fisc, of course, require
some processes and recordkeeping to ensure that the
money reaches the correct recipient. Similarly, local
governments are not banks or escrow agents. But
almost every other state accomplishes that goal
without the tight timelines and pre-sale notice of claim
required by Michigan. In light of the statutes enacted
in other states that require returning surplus equity,
the Michigan statute appears unnecessarily punitive.
For example, California allows dispossessed
homeowner up to a year of recording of the tax deed on
a tax-defaulted property to claim excess proceeds. See
Cal. Rev. & Tax. Code § 4675. In Florida, the Clerk of
Courts is required to give notice and instructions to all
lienholders regarding the filing requirements, and the
state allows the owner of record 120 days after that
notice to file the request. Fla. Stat. § 197.582. Georgia
provides written notice of excess funds to homeowners
and allows them up to five years to seek recovery. Ga.
Code Ann. § 48-4-5 (West).
In Texas, excess proceeds are paid into court, and
prior homeowners have a two-year window to make a
claim. Tex. Tax Code Ann. §§ 34.02–34.04 (West).
Washington holds excess funds for the record owner
for three years. Wash. Rev. Code Ann. § 84.64.080
(West). In Ohio, the county treasurer holds excess
proceeds for one year and local treasurers establish
processes on a county-by-county basis for requesting
the funds. Ohio Rev. Code Ann. § 5723.11 (West).
18
This is not to argue that any particular state’s
processes are constitutional, but rather to highlight
that most states have policies ordered more towards
protecting the owner’s rights than facilitating
windfalls to local governments. The variety of state
processes also provide this Court with many examples
of possible due process floors below which a statute
cannot fall.
The Court has prescribed such constitutional bare
minimum
requirements
in
numerous
other
constitutional contexts. In fact, the Court has, in some
cases, required warnings to prevent the unknowing
waiver of constitutional rights. See, e.g., Miranda v.
Arizona, 384 U.S. 436 (1966); see also Curtis Publ’g
Co. v. Butts, 388 U.S. 130, 145 (1967) (noting that
“[w]here the ultimate effect of sustaining a claim of
waiver might be an imposition on that valued freedom
[of speech], we are unwilling to find waiver in
circumstances which fall short of being clear and
compelling”); D.H. Overmyer Co. v. Frick Co., 405 U.S.
174, 185–86 (1972) (noting that the standard
applicable to waiver in a criminal proceeding is that
“it be voluntary, knowing, and intelligently made,
Brady v. United States, 397 U.S. 742, 748 (1970)” or be
“ ‘an intentional relinquishment or abandonment of a
known right or privilege,’ Johnson v. Zerbst, 304 U.S.
458, 464 (1938)” (emphasis added and citations
cleaned up)). This case offers the Court the
opportunity to put its unanimous holding in Tyler into
operation and articulate a national baseline for due
process in excess equity claims.
19
CONCLUSION
For the above reasons, the Court should grant the
petition for a writ of certiorari, and the decision of the
court of appeals should be reversed.
Respectfully submitted,
Jay R. Carson
Counsel of Record
David C. Tryon
Alex M. Certo
THE BUCKEYE INSTITUTE
88 East Broad Street, Suite 1300
Columbus, OH 43215
(614) 224-4422
J.Carson@BuckeyeInstitute.org
Counsel for The Buckeye Institute
Ilya Shapiro
MANHATTAN INSTITUTE
52 Vanderbilt Ave.
New York, NY 10017
(212) 599-7000
Counsel for Manhattan Institute
Elizabeth Gaudio Milito
Patrick J. Moran
NFIB SMALL BUSINESS LEGAL CENTER, INC.
555 12th Street, NW, Ste. 1001
Washington, DC 20004
(202) 406-4443
Counsel for NFIB Small Business Legal Center, Inc.
20
Heather A. Cunningham
OWNERS’ COUNSEL OF AMERICA
102 Rudolph Street
Caldwell, ID 83605
(303) 806-5155
Counsel for Owners’ Counsel of America
October 6, 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.