Petition for Writ of Certiorari — Lynette Hathon, et al., Petitioners v. Michigan

Supreme Court briefOct 16, 2025

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No. __________

In the

Supreme Court of the United States

LYNETTE HATHON and AMY JO DENKINS,

Individually and on Behalf of All Others Similarly

Situated,

Petitioners,

STATE OF MICHIGAN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE MICHIGAN SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

E. POWELL MILLER

MILLER LAW FIRM

950 West University Dr.

Rochester, MI 48307

MATTHEW E. GRONDA

GRONDA PLC

4800 Fashion Sq. Blvd.

Saginaw, MI 48604

PHILIP L. ELLISON

Counsel of Record

OUTSIDE LEGAL COUNSEL PLC

530 West Saginaw St.

Hemlock, MI 48626

(989) 642-0055

pellison@olcplc.com

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTION PRESENTED

During the last Term, this Court in DeVillier v.

Texas (No. 22-913) granted certiorari to decide

whether the Takings Clause itself authorizes a

property owner to sue a State directly for just

compensation when the legislature has not created a

statutory cause of action. The Court ultimately

declined to resolve the question because Texas law

supplied an independent state common-law remedy,

thus leaving for another day the central issue of

whether the Takings Clause is judicially enforceable

on its own terms. That question is now ripe. The

Michigan Supreme Court has declared that the Fifth

Amendment itself provides no cause of action in

Michigan and barred inverse condemnation in full,

requiring property owners to rely solely on a statutory

scheme that affirmatively withholds and denies full

just compensation. The federal question avoided in

DeVillier is now squarely presented.

The question presented is:

Whether the Takings Clause of the Fifth

Amendment is a self-executing stand-alone claim that

permits property owners to sue a State directly for

just compensation when the State otherwise

mandates reliance on an inadequate statutory

remedy.

PARTIES TO THE PROCEEDING

Petitioners (plaintiffs-appellees below) are

Lynette Hathon and Amy Jo Denkins individually

and as class representatives. Respondent (defendantappellant below) is the State of Michigan.

RELATED PROCEEDINGS

Hathon v. State of Michigan, No. 168233,

(Mich. Mar. 20, 2025)

Hathon v. State of Michigan, No. 374332,

(Mich. Ct. App. Feb. 20, 2025)

Hathon v. State of Michigan, No. 19-000023-MZ,

(Mich. Ct. Claims. Jan. 15, 2025)

TABLE OF CONTENTS

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

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

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES .......................................v

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

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

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

CONSTITUTIONAL PROVISION INVOLVED ....... 2

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

STATEMENT OF THE CASE ................................... 3

SUMMARY OF ARGUMENT.................................... 8

REASONS FOR GRANTING THE PETITION ........ 9

The Michigan Supreme Court’s

Decision Conflicts With This Court’s

Precedent Holding the Takings Clause

to Be Self-Executing ........................... 10

II.

The Decision Below Both Deepens

Confirms the Division Highlighted in

DeVillier .............................................. 12

iii

III.

The Case Presents Federal Questions

of Exceptional Importance ................. 15

IV.

Hathon Squarely Presents the

Question DeVillier Avoided and

Pung Cannot Resolve.......................... 17

This Case Is an Ideal Vehicle ............. 18

VI.

Without Review, States Can Erase

the Fifth Amendment by Statute ...... 19

CONCLUSION ......................................................... 20

TABLE OF AUTHORITIES

Cases

Azul-Pacifico, Inc. v. City of Los Angeles,

973 F.2d 704 (9th Cir. 1992) .................................... 13

Benson v. State,

710 N.W.2d 131 (S.D. 2006) ..................................... 13

Boise Cascade Corp. v. Bd. of Forestry,

991 P.2d 563 (Or. Ct. App. 1999) ............................. 13

DeVillier v. State of Texas,

63 F.4th 416 (5th Cir. 2023) .............................. 11, 13

DeVillier v. Texas,

144 S. Ct. 938 (2024) .................................................. 9

First English Evangelical Lutheran Church v.

Cnty. of Los Angeles, 482 U.S. 304 (1987) ..... 2, 10, 11

Fulton v. Fulton Cnty. Bd. of Comm’rs,

148 F.4th 1224 (11th Cir. 2025) .............................. 14

Henderson v. City of Columbus,

827 N.W.2d 486 (Neb. 2013) .................................... 13

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) .................................................. 11

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 (U.S.)........... 6

Jacobs v. United States,

290 U.S. 13 (1933) ................................................ 7, 12

Knick v. Twp. of Scott,

588 U.S. 180 (2019) .......................................... 2, 3, 10

Koetter v. Manistee Cnty. Treasurer,

No. 24-1095 (U.S.) (pet. pending) .............................. 6

Manning v. Mining & Minerals Div. of

the Energy, Minerals & Nat. Res. Dep’t,

144 P.3d 87 (N.M. 2006) .......................................... 13

McGee v. Alger Cnty. Treasurer,

No. 25-203 (U.S.) (pet. pending) ................................ 6

O’Connor v. Eubanks,

83 F.4th 1018 (6th Cir. 2023) .................................. 11

Pung v. Isabella Cnty, Mich.,

No. 25-95 (U.S. cert. granted Oct. 3, 2025) ......... 6, 17

Rafaeli, LLC v. Oakland Cnty.,

952 N.W.2d 434 (Mich. 2020) .................................... 5

SDDS, Inc. v. State,

650 N.W.2d 1 (S.D. 2002) ........................................ 13

Seaboard Air Line Ry. v. United States,

261 U.S. 299 (1923) ................................ 10, 11, 15, 20

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Reg’l Planning Agency, 535 U.S. 302 (2002) .......... 11

Thomas v. Shipka,

818 F.2d 496 (6th Cir. 1987) .................................... 13

Tyler v. Hennepin Cnty., Minn.,

598 U.S. 631 (2023) .................................................... 5

United States v. Lawton,

110 U.S. 146 (1884) .................................................... 6

United States v. Lynah,

188 U.S. 445 (1903) .................................................. 12

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) ................................................ 5, 15

Constitutional Provisions

U.S. Const. amend. V ................................................. 2

Statutes

28 U.S.C. § 1257(a)..................................................... 1

Mich. Comp. Laws § 211.78l ..................................... 7

Mich. Comp. Laws § 211.78t ................................ 7, 15

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioners Lynette Hathon and Amy Jo Denkins

seek a writ of certiorari to review the order/judgment

of the Michigan Supreme Court.

OPINIONS BELOW

The order/judgment of the Michigan Supreme

Court (App. 1a-2a) is available at 17 N.W.3d 686

(Mich. 2025). The Michigan Supreme Court’s order

denying reconsideration (App. 1a-2a) is published at

20 N.W.3d 592 (Mich. 2025). The Michigan Court of

Appeals’ order (App. 4a-5a) denying relief to the State

is unpublished. The trial court’s opinion (App. 6a-19a)

is also unpublished.

JURISDICTION

The Michigan Supreme Court entered its

judgment on March 20, 2025, App. 1a-2a, and denied

a timely motion for rehearing on May 22, 2025, App.

20a-21a. On July 30, 2025, Justice Kavanaugh

extended the time to petition for a writ of certiorari to

and including October 19, 2025. This Petition raises

federal questions under the Fifth Amendment to the

United States Constitution. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution

provides, in relevant part, “nor shall private property

be taken for public use without just compensation.”

U.S. Const. amend. V.

INTRODUCTION

For a $5,200 tax debt, Lynette Hathon and her

daughter lost their modest home and more than

$60,000 in equity. Michigan not only kept their

money; it also declared the Constitution itself offlimits as a source of a remedy. This Petition asks

whether a State may self-legislate the Fifth

Amendment out of existence. The answer is simple: it

cannot.

This Court has repeatedly held that the Takings

Clause is self-executing. E.g. First English

Evangelical Lutheran Church v. Cnty. of Los Angeles,

482 U.S. 304, 315 (1987). A property owner acquires

an “irrevocable right to just compensation

immediately upon a taking” and “it is the existence of

the Fifth Amendment right,” not a statutory

provision, “that allows the owner to proceed directly

to” court. Knick v. Twp. of Scott, 588 U.S. 180, 191192 (2019). This means that neither “statutory

recognition” nor “a promise to pay” was ever

necessary to make just compensation enforceable.

First English, 482 U.S. at 315.

But Michigan ignored this solemn constitutional

obligation and did the opposite: it barred property

owners from ever invoking the Constitution directly,

requiring them to proceed only under its inadequate

statutorily-created administrative process provided

by Mich. Comp. Laws § 211.78t, even though that

statute fails to fulfill core components of “just

compensation.” By barring constitutional actions

altogether and because Will v. Mich. Dep’t of State

Police foreclosed the forum against the State in

federal court, the decision relegates the Takings

Clause to a “poor relation” of the Bill of Rights,

precisely what this Court rejected in Knick. 588 U.S.

at 189.

This Court should grant the Petition to reaffirm

the Fifth Amendment’s constitutional command.

STATEMENT OF THE CASE

Petitioners Lynette Hathon, and her daughter

Amy Jo Denkins, were co-owners of a modest

residential dwelling located on Michigan Avenue in

Owosso (Shiawassee County), Michigan. The twostory family residence built in 1935 was jointly held

by them as their home. County tax records reflected

that the property had a fair market value of

approximately $67,398 in 2017.

For personal reasons that are not directly

relevant, they fell behind on property taxes of

$1,483.53. With added interest, penalties, fees, and

statutory costs, the total delinquency reached $5,200.

Because Shiawassee County’s treasurer refused

to act as the foreclosing governmental unit under the

General Property Tax Act, responsibility for

foreclosure proceedings fell to the State. Acting on

behalf of the State of Michigan, officials with the

Michigan Department of Treasury initiated and

completed the in-rem foreclosure proceedings. Title to

the property was seized in the name of the State of

Michigan, and in August 2018, the home was sold at

public auction to a private purchaser for $28,250. The

distressed tax auction sale not only destroyed more

than $39,000 in Petitioners’ equity but also generated

surplus proceeds of approximately $23,050 above the

outstanding tax debt.

Despite realizing this excess value, the State

retained the equity, including the surplus, for its own

benefit. No refund of the excess equity was provided

to Petitioners. No condemnation proceedings were

initiated, and no just compensation was offered. In

total, nearly $62,200 of Petitioners’ constitutionally

protected equity was extinguished or appropriated by

the State through this process.

Petitioners’ experiences are not unique. They

brought suit on behalf of a putative class of similarly

situated former property owners in eight Michigan

counties – Keweenaw, Luce, Iosco, Mecosta, Clinton,

Shiawassee, Livingston, and Branch – where the

State Treasurer, rather than county treasurers who

have “opted-out,” carries out tax foreclosures. In each

instance, the State follows the same process:

foreclosing on homes for minor tax debts, auctioning

properties at depressed sale prices, and retaining all

surplus proceeds beyond the delinquency owed. This

practice strips citizens of their equity built over years

of ownership, without compensation, and without

recourse to any statutory mechanism for recovery.

Foreshadowing the decisions that would later

arrive via Rafaeli, LLC v. Oakland Cnty., 952 N.W.2d

434 (Mich. 2020) and Tyler v. Hennepin Cnty., Minn.,

598 U.S. 631 (2023), Petitioners sued for a Fifth

Amendment taking and an Eighth Amendment

excessive fine. Because of the State’s sovereign

(Eleventh Amendment) immunity from suit in the

federal forum, they brought their case in specialized

state trial court for claims against the State, the

Michigan Court of Claims. And because the State is

not amenable to a claim as a person under Section

1983, Will v. Mich. Dep’t of State Police, 491 U.S. 58,

71 (1989), Hathon and Denkins asserted a direct Fifth

Amendment claim (sometimes called an ‘arising

under’ claim) as well as an inverse condemnation

claim grounded in the Fifth Amendment. The Court

of Claims certified the matter as a class action.

While their case was pending, the Michigan

Supreme Court’s decision in Rafaeli prompted the

Legislature to enact Mich. Comp. Laws § 211.78t.

That statute created a new complicated process for

property owners to claim “remaining proceeds” after

a foreclosure sale—but only up to 95% of the surplus,

without interest or attorney fees. Importantly, the

Legislature also declared that 78t is the “exclusive

mechanism” for seeking such funds, purportedly

foreclosing direct constitutional actions forever.

Uniformly, Michigan courts refused takings

challenges demanding just compensation. E.g. 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 (U.S.); see also Koetter v. Manistee Cnty.

Treasurer, No. 24-1095 (U.S.) (pet. pending); McGee v.

Alger Cnty. Treasurer, No. 25-203 (U.S.) (pet.

pending).

The problem in Michigan is readily apparent.

The 78t process defies what the Fifth Amendment

minimally requires. First, it does not provide the full

compensation that is required for a taking. See Pung

v. Isabella Cnty, Mich., No. 25-95 (U.S. cert. granted

Oct. 3, 2025). Second, it only returns ninety five

percent of surplus proceeds in contravention to what

the Fifth Amendment minimally requires, i.e., the

return of full surplus proceeds. United States v.

Lawton, 110 U.S. 146, 150 (1884) (“If he affirms the

propriety of selling or taking more than enough of his

land to pay the tax and penalty and interest and costs,

and applies for the surplus money, he must receive at

least that.” emphasis added). Third, it also denies any

Jacobs-required interest payment or any attorney

fees recoupment for legal assistance. Jacobs v. United

States, 290 U.S. 13, 17 (1933).

Likely knowing of its legal shortcomings, the

Michigan Legislature mandated that “[a]n action to

recover any proceeds from the sale or transfer of

property foreclosed for nonpayment of real property

taxes under this act must be brought as provided

under section 78t.” Mich. Comp. Laws § 211.78l(1).

After the Court of Claims recertified the Hathon

class, App. 19a, the State appealed on an emergency

interlocutory basis to the Michigan Supreme Court,

which issued a two-page order without even

permitting class counsel to be heard before ruling. In

that decision, Michigan’s highest court held that 78t

“creates a controlling and structured system for

adjudication of tax-foreclosure disputes as the

exclusive means of obtaining surplus proceeds” and is,

in its view, “the exclusive mechanism for a claimant

to claim and receive any applicable remaining

proceeds under the laws of this state” citing Mich.

Comp. Laws § 211.78t(11). App. 2a.

Therefore, according to the Michigan Supreme

Court, the trial court “lacks authority to create a new

mechanism for processing claims to these proceeds or

to certify a class for that purpose, and it erred by

doing so.” Id. Yet Hathon and Denkins never asked

the Court of Claims to create a new mechanism but

rather rely upon the already-existing Fifth

Amendment mandate for just compensation. App.

31a-32 (inverse condemnation) and 33a-34a

(Fifth/Fourteenth Taking claim). Nevertheless, the

Michigan Supreme Court held that class members

“must initiate the statutory process by providing the

foreclosing unit of government notice of their intent to

seek remaining proceeds by March 31, 2025, using a

form prescribed by the Department of Treasury.” App.

3a. It then “remanded the case for entry of an order

denying certification and dismissing the plaintiffs’

claims without prejudice.” Id. What the Michigan

Supreme Court did defies the protections guaranteed

by the Fifth Amendment; as such, this Petition now

follows.

SUMMARY OF ARGUMENT

The Michigan Supreme Court has done what this

Court has said no State may do: it made a federal

constitutional right contingent on state legislation.

By declaring the 78t process the “exclusive

mechanism” for redress, Michigan extinguished the

Takings Clause’s self-executing character recognized

since First English, Jacobs, and Seaboard. This

Petition presents the question DeVillier left open –

whether property owners may invoke the Fifth

Amendment directly when a State denies a complete

remedy. The answer is compelled by text, history, and

precedent alike: yes.

REASONS FOR GRANTING THE PETITION

Just one Term ago, this Court granted certiorari

in DeVillier v. Texas to resolve whether “a person

whose property is taken without compensation [may]

seek redress under the self-executing Takings Clause

even if the legislature has not affirmatively provided

them with a cause of action.” 144 S. Ct. 938, 939

(2024). After briefing and argument, however, the

Court concluded that it need not answer the question

because Texas common law independently provided a

state-law cause of action for just compensation. Id. at

942-943. In the absence of a remediless plaintiff, the

Court vacated and remanded.

This case presents the issue that DeVillier

avoided. Unlike in DeVillier, the Michigan Supreme

Court has explicitly foreclosed any direct

constitutional claim, requiring that property owners

proceed exclusively through the statutory procedure

codified at Mich. Comp. Laws § 211.78t. This

precluded state courts from providing Fifth

Amendment just compensation altogether. The 78t

process is not an adequate substitute for the Takings

Clause: it denies full recovery, withholds

constitutionally

required

interest,

effectively

prohibits

class-wide

relief,

and

imposes

governmentally-favorable deductions not permitted

by federal law. The question reserved in DeVillier is

unavoidable here.

In short, Michigan’s highest court has effectively

declared that the Fifth Amendment itself provides no

judicially cognizable claim against the State in

Michigan’s courts, even when the statutory substitute

fails to deliver appropriate “just compensation.” That

is direct violation of this Court’s teaching. “Just

compensation is provided for by the Constitution and

the right to it cannot be taken away by statute.”

Seaboard Air Line Ry. v. United States, 261 U.S. 299,

304 (1923) (emphasis added). The “self-executing”

promise this Court has reaffirmed since First English

is thus stripped of all meaning. This case offers the

Court a clean vehicle to decide the very issue it could

not reach in DeVillier.

The Michigan Supreme Court’s Decision

Conflicts With This Court’s Precedent

Holding the Takings Clause to Be SelfExecuting

This Court has long recognized that the Takings

Clause itself guarantees a right to compensation that

exists independent of statutory mechanisms. First

English, 482 U.S. at 315 (“Statutory recognition was

not necessary.”); Knick, 588 U.S. at 192 (a property

owner has an “irrevocable right to just compensation

immediately upon a taking”). The duty to compensate

is not discretionary; it is a debt imposed by the

Constitution itself. As First English and Jacobs

confirm, when the government takes property, a

judicially enforceable obligation arises immediately –

no legislative permission is required. Courts have

long rejected the notion that Congress or a State may

condition payment of a constitutional debt on

statutory grace. This is because suits for just

compensation are “founded upon the Constitution of

the United States” itself, First English, 482 U.S. at

315, “shouldn’t depend on any statute” when “the

Constitution requires it,” O’Connor v. Eubanks, 83

F.4th 1018, 1029 (6th Cir. 2023) (Thapar, J.,

concurring); DeVillier v. State, 63 F.4th 416, 436 (5th

Cir. 2023) (Oldham, J., dissenting from the denial of

rehearing en banc) (collecting over a century of

Supreme Court cases highlighting plaintiffs have a

cause of action directly under the Takings Clause).

And equally critical, the right cannot be statutorily

extinguished either. Seaboard, 261 U.S. at 304 (“the

right to it cannot be taken away by statute”). Thus

from the Magna Carta in 1215 to Lawton in 1884

through Knick in 2019, the historical practice and this

Court have been consistent: a governmental taking is

not a hopeful promise awaiting permission – it is a

command that executes itself.

In short, the Fifth Amendment’s command is not

aspirational; it is mandatory. From the Magna Carta,

see Horne v. Dep’t of Agric., 576 U.S. 350, 358 (2015),

to the present day promise that no property may be

taken without payment of just compensation, AngloAmerican law has long treated compensation not as

grace but as an affirmative duty. Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302, 322 (2002) (our jurisprudence

involving takings “is as old as the Republic”); see also

United States v. Lynah, 188 U.S. 445, 465 (1903) (the

Fifth Amendment guarantees that when a taking

occurs “it shall be attended by compensation”).

Jacobs

characterizes

the

government’s

obligation as a constitutional promise that is “implied

because of the duty to pay imposed by the

Amendment,” enforceable the moment the taking

occurs. Jacobs, 290 U.S. at 16. Suits to enforce are

“founded upon the Constitution of the United States”

itself. Id. The text, history, and tradition thus all

converge on the same truth: the Takings Clause

executes itself.

The Michigan Supreme Court charted an

opposite course. It held that Mich. Comp. Laws §

211.78t is the “exclusive mechanism” for property

owners to pursue takings-based claims. It rejected

direct constitutional claims, disallowed constitutional

and class remedies, and compelled owners to rely on

an inferior statutory process. Such a holding relegates

the Takings Clause to a “poor relation” among

constitutional guarantees, exactly what Knick

condemned.

II.

The Decision Below Both Deepens

Confirms the Division Highlighted in

DeVillier

As the DeVillier petition catalogued, state and

federal courts are split. This case deepens the divide.

In some jurisdictions property owners may invoke the

Constitution itself, while in others – like Michigan –

they are left remediless. Certain states hold that the

Takings Clause creates a cause of action directly

enforceable in court. See, e.g., Benson v. State, 710

N.W.2d 131 (S.D. 2006); Henderson v. City of

Columbus, 827 N.W.2d 486 (Neb. 2013); Manning v.

Mining & Minerals Div. of the Energy, Minerals &

Nat. Res. Dep’t, 144 P.3d 87, 93 (N.M. 2006) (“The

Mannings’ claim does not rely at all on congressional

action. Rather, the just compensation claim stems

directly from the text of the Constitution through the

Fifth and Fourteenth Amendments.”); SDDS, Inc. v.

State, 650 N.W.2d 1, 9 (S.D. 2002) (“[T]he remedy [of

just compensation found in the Fifth Amendment’s

Takings Clause] does not depend on statutory

facilitation. Because it is a constitutional provision, it

is a right of the strongest character.”); Boise Cascade

Corp. v. Bd. of Forestry, 991 P.2d 563, 567 (Or. Ct.

App. 1999) (“In short, section 1983 does not provide

for the remedy required by the constitution for a

taking of property by the state.”). Others, including

the Fifth, Sixth, and Ninth Circuits, reject that view

and require legislative authorization. See DeVillier,

63 F.4th 416; Thomas v. Shipka, 818 F.2d 496, 499

(6th Cir. 1987) (“in cases where a plaintiff states a

constitutional claim under 42 U.S.C. § 1983, that

statute is the exclusive remedy for the alleged

constitutional violations”); Azul-Pacifico, Inc. v. City

of Los Angeles, 973 F.2d 704 (9th Cir. 1992).

Since DeVillier, the conflict has sharpened to a

razor’s edge. The Eleventh Circuit has now held that

the Takings Clause “guaranteed the ability to recover

‘just compensation’ directly under the Constitution,”

recognizing a self-executing cause of action for

damages. Fulton v. Fulton Cnty. Bd. of Comm’rs, 148

F.4th 1224, 1234 (11th Cir. 2025). The court reasoned

that “our Founders did not do to us what the Greek

gods did to Tantalus”; the Constitution “doesn’t taunt

us by naming these remedies but then holding them

out of reach.” Id. at 1232. The Fulton majority thus

affirms what this Court has long said – that the right

to just compensation under the Fifth Amendment

carries with it its own remedy. 1 The now resulting

divide between Michigan’s and the Eleventh Circuit’s

views could not be any starker.

This Court granted review in DeVillier precisely

because of this sharp division. But Texas avoided the

issue when it conceded that it would provide an

adequate alternative vehicle. Michigan has now

created the opposite scenario: there is an exclusive

and intentionally-inadequate “remedy” designed to

strip away core and critical elements of Fifth

1 The majority limited its holding to local governments only

because of the Eleventh Amendment’s restriction on federalcourt jurisdiction. However, this is of no moment. Fulton was

limited itself to local governments due to Eleventh Amendment

considerations of the federal forum, not because the Fifth

Amendment cause of action fails against a State in its own

courts. Because this case arises from state courts, no such

sovereign-immunity barrier exists. Michigan’s courts are fully

competent to entertain a self-executing federal claim, but erred

when it refused to do so.

Amendment just compensation. Property owners here

lack any true cause of action that secures the federal

constitutional right. And because the State is the

defendant, there is no ability to sue under Section

1983 in federal court. Will, 491 U.S. at 71. This case

therefore makes the conflict complete.

III.

The Case Presents Federal Questions of

Exceptional Importance

The consequences of the Michigan Supreme

Court’s Hathon decision are sweeping. Michigan’s

foreclosure system affects thousands of homeowners

each year where the State acts as the in-rem

foreclosing petitioner. By channeling claims

exclusively into Mich. Comp. Laws § 211.78t:

•

It directly violates Seaboard’s command.

This Court explained “[j]ust compensation is

provided for by the Constitution and the right

to it cannot be taken away by statute.” 261

U.S. at 304.

•

There is no independent judicial forum.

Claims must return to the very circuit court

that foreclosed on the property with strict

limits on what the courts can do, eliminating

neutral adjudication.

•

Deductions reduce compensation below

the constitutional floor. Mich. Comp. Laws

§ 211.78t(9) authorizes a “sales commission,”

effectively charging property owners for the

government’s unconstitutional retention of

equity.

•

No interest is awarded. In direct conflict

with Jacobs, compensation is limited to less

than full surplus accompanied by nearly a

year in delays with no interest provided.

•

No class actions are allowed. Property

owners must proceed individually, even

where claims are identical and low dollar

value. The purposeful result is systemic

underenforcement and high cost.

The statute’s exclusivity means that property owners

have no ability to invoke the Constitution itself. That

is not a “remedy” at all. It is precisely the

constitutional vacuum that this Court identified as

intolerable in DeVillier.

Today, dozens of states use tax-foreclosure

processes, and many are revising their laws after

Tyler, and rightly so. If Michigan’s inferior and subconstitutional model is permitted to stand, other

states will follow by crafting similar “exclusive”

statutory remedies that strip the essential

components of just compensation. Thus this case now

requires the answer to what DeVillier was able to

defer, i.e., the recognition that the Fifth Amendment,

by its own terms, supplies the cause of action and the

mandatory remedy.

IV.

Hathon Squarely Presents the Question

DeVillier Avoided and Pung Cannot

Resolve.

The Court’s recent grant in Pung v. Isabella

Cnty., Mich. (No. 25-95) ensures consideration of the

scope of “just compensation” for claims such as

Petitioners.’ But Pung does not present the

unavoidable constitutional question raised here:

whether the Takings Clause of the Fifth Amendment

is itself self-executing and judicially enforceable when

a State declares a statutory scheme to be the

“exclusive mechanism” and deliberately withholds

full compensation.

In Pung, the petitioner challenges the adequacy

of combination of only surplus proceeds plus Jacobs

interest as being the proper measure of required just

compensation. This Petition, by contrast, asks

antecedent question of whether the Constitution

allows a State to bar those affected property owners

from invoking the Fifth Amendment remedy at all.

Put differently, Pung tests “how much” compensation

must be paid; Hathon tests “whether” the State can

prohibit the Takings Clause from being invoked in the

first place.

The Michigan Supreme Court’s decision in this

case did not simply apply the 78t process; it held that

78t is the exclusive mechanism and that no

constitutional claim exists independently. That ruling

is a direct repudiation of this Court’s teaching in First

English, Jacobs, Knick, and Seaboard, which held

that just compensation is guaranteed by the

Constitution and cannot be erased by statute. The

question presented here is thus not subsumed within

Pung; it is prior to it.

For that reason, this case is not redundant of

Pung but complementary to it. At minimum, the

Court should hold this petition pending the

disposition of Pung. If Pung leaves unresolved the

foundational question of whether the Takings Clause

is self-executing in its own right, this case provides an

ideal vehicle to resolve it.

This Case Is an Ideal Vehicle

This case is postured ideally. No procedural

defects or jurisdictional complexities exist. The

Michigan Supreme Court entered a final judgment on

a purely federal question, leaving nothing for further

factual development. It arrives cleanly on a single

dispositive constitutional issue resulting in an issued

definitive ruling on the exclusivity of Mich. Comp.

Laws § 211.78t that dismissed the constitutional

claims. The federal question is dispositive. Unlike

DeVillier, there is no adequate state-law cause of

action preserving constitutional remedies. And unlike

Tyler, which resolved whether surplus equity

constitutes property, this case asks the necessary

next question: whether the State can cabin and

curtail the remedy.

The Petition thus allows this Court to resolve

what it set aside just one Term ago. The Takings

Clause is either self-executing – guaranteeing a

federal right of action for just compensation – or it is

subject to legislative nullification. The Michigan

Supreme Court has taken the latter view. Only this

Court can correct it.

VI.

Without Review, States Can Erase the

Fifth Amendment by Statute

If Michigan’s decision is permitted to stand, the

Fifth Amendment will mean only what state

legislatures permit it to mean. States can draft

“exclusive mechanisms” that return only partial

compensation, bar interest, prohibit collective action,

and

shield

themselves

from

constitutional

accountability. The Michigan Supreme Court

candidly acknowledged that property owners’

arguments for interest, attorney fees, and against

deductions may have merit, but declared them

“premature” because the only available mechanism is

statutory. That reasoning turns the Constitution on

its head: it makes state law the source of the right,

and constitutional right merely advisory. That cannot

stand. State legislatures are simply never permitted

to legislate away federal constitutional rights. The

Constitution promises property owners a federal

remedy for takings. Michigan has erased it by statute.

Only this Court can restore what the Fifth

Amendment already and expressly commands.

CONCLUSION

This case is the natural sequel to DeVillier.

Where DeVillier ended with Texas conceding an

alternate remedy, Michigan begins by denying one.

The Michigan Supreme Court together with the

Michigan Legislature did through 78t what Seaboard

squarely prohibits: “[j]ust compensation… cannot be

taken away by statute.” 261 U.S. at 304. The Petition

squarely presents the question reserved, highlights

serious conflicts with this Court’s precedents, deepens

acknowledged divisions among courts, and threatens

to hollow out the Takings Clause. This Court’s

correction is essential to preserve the Fifth

Amendment’s force. Otherwise Michigan’s state

sovereign immunity bars federal court challenges, its

78t “exclusive mechanism” bars constitutional claims,

and 78t is deliberately sub-constitutional. And the

Constitution does not wait upon legislative

permission to be obeyed. This Court’s review is

necessary to ensure that the Fifth Amendment

remains what it has always been—a command, not a

courtesy.

For all the foregoing reasons, this Court should

grant the petition for a writ of certiorari or, in the

alternative, summarily reverse the decision below.

At a minimum, if the Court prefers not to grant

review immediately, it should hold this petition

pending its disposition of Pung v. Isabella Cnty., No.

25-95. If Pung does not fully resolve whether the

Takings Clause is self-executing in its own right,

Hathon provides the clean and necessary vehicle to

answer that foundational question. If Pung makes

clear that 78t’s inadequacy alone violates the

Constitution, the Court should summarily reverse

here, because the Michigan Supreme Court’s

‘exclusive

remedy’

holding

forecloses

any

constitutional avenue for relief.

Respectfully submitted,