so there's three topics that i would like to highlight during oral argument with regards to the takings claim unless there's anything in particular that the piano would like to ask me regarding the briefs but the  three topics that i will otherwise discuss with you are that it doesn't matter that the city defended sought authority to take mr purchase properties by going to the court as opposed to passing an ordinance regard to topic number one that it doesn't matter that the city went to the court as opposed to passing an ordinance to take mr purchase property that doesn't matter for the purposes of this case the supreme court ruled in pennsylvania co a regulation goes too far it will result in a taking but there's a pretty well understood exception to the takings clause that if you have a nuisance you know the city's love to do something about it and you had a client that couldn't afford to pay for these repairs and it seems odd to say there was a lack of process here it's going to take about ten years of back and forth lots of remains and seem to me they were applying this very point the was a nuisance and then they have a whole other set of problems that arise when your client can't pay for the repairs which is quite understandable you don't get to keep the property if you can't pay for keeping it up so a there is this nuisance exception to takings claims and where there's a new sense the city is allowed to use its police powers to abate that nuisance but there's a difference when the city uses when it's actually using an imminent domain power under the guise of using a police power and that's one of the things to be precise what you mean by that is when the the costs went beyond abating a nuisance and went to improving it because in that's the takings analysis has never been done by the court before and that's what the federal court should have done it and it wasn't whether it was you or your client weren't they allowed in the state court to protest when the charges went beyond argument a lot of my client was excluded from the property for years while this was all going on and there wasn't any oversight from the court while the city was making these repairs so while it was in there gutting the property turning it into restaurants and lost the court was frustrated obviously that at least the nd time that the procedure they wanted wasn't followed but then there were hearings after the fact on whether the expenditures were appropriate or not and the courts ultimately s that was ok right there were there were remains several years after the properties were taken but with regards to due process it requires a an opportunity we heard it in a meaningful time in a meaningful manner and you say that when the properties were taken you're talking about the foreclosure sales on the weans it's never it's never been determined when the actual taking occurred at what point in time what would your position be on when the taking occurred might have my position would be when the city took sole exclusive possession of the property that would be i don't know when they wanted a receiver was appointed race a good yeah when they enter when they took physical possession of the that would be because there's there's two types right that's when the taking occurred that's when the physical and physical taking occurred yes and actually yeah that's probably when the regulatory taking also occurred but we're we're under two different theories here taking one is the physical taking and the nd is the taking by regulation i take it that in taking slow on this nuisance exception we're we're looking to state law for the nuisance what's a nuisance and what's not and how to abate it set a state law issue yet more looking at so there's a if i can there's in the taking is analysis it's a two part analysis one the plane to pass establish a property interests and secondly that the property interest was taken the nuisance exception and that you're referring to goes to the st part so my client the plaintiff property owner has to establish that a property interesting c'est the bird and then shifts to the defendant governmental entity to that property interest does not actually exist because it's barred by background background principles of nuisance and property law and that's the analysis that has never been done in this case you know for example this liason that pretty darn close to say that analysis was done when you look at all the activity in those ten years in the state court because the state court never looked at what property interests were taken from my client and individuals so in this case it was a categorical taking of all property rights the right to possess to exclude to control to enjoy to dispose of to make an income of all of those property interests or property interests that were taken from my client in order to be a part of satisfying the lean i mean there's a wino out there it's for repairs it's you know on the property you are not paying for the repairs so somebody can foreclose on the green which means they sell the property right and somebody else takes possession of it presumably if there were proceeds left over your client got those proceeds after the wein have been satisfied but that's i mean that's all of the bundle of sticks right that everything passes to the new owner right at that point in time but the taking h occurred so whatever passed to the new own owner was just the remnants of whatever whatever was left but at that point in time the taking had already occurred those properties had already been begun to be converted into different uses for example that's one of the property rights the right to decide how your property work and a title to the property anyway because of the foreclosure what is your what is the damage from the time of of them taking city these the city defendants having made it is beyond nuisance right paying for things to be a nuisance exactly exactly what you were challenging the state courts and which you won several t while the state court was in looking at the takings analysis i get it i get it i don't mind if the word taking is never used but what i am saying is it seemed to me what was being fought out in the state courts was your client didn't want to pay for things that went beyond baiting or nuisance and i thought your client won a lot of that so lose me just really curious what's left of the case if we accept the nuisance is an exception to taking i guess what's left of the case is nobody has looked at what are the property interests that were taken from him in that process so the fact that you know if they if they exceed the scope of what they can do and they go in there and they convert these properties int locks into a sorority house and then they get to the court of appeals in the court of appeals says oh no you can't do that and we send it back at that point in time the taking as has already occurred there is no it is chief justice roberts said in the next decision a bank robber may may rob a bank argument is that these repairs and renovations were made to the property without any opportunity to object to them intel long after they were made so due process requires an opportune opportunity to be heard in a meaningful place in a meaningful manner and having that hearing or that evidence you're hearing occur long after the renovations repairs have been made that a court of appeals has remained and send it back and there's already a foreclosure action  that point in time giving him a hearing at that point in time was not was was a was not due process so that's the due process argument the takings argument is that when the city came in and took exclusive possession of these properties with the intent to renovate them and rehabilitate them and turn them into uses that mr carter had never intended that's when the taking occurred and it doesn't matter that the court of appeals eventually reversed them and said you can't do that at that point in time the taking had already occurred in my client was entitled to just compensation not not to get the properties back in the condition they were otherwise i suppose federal takings claim when state law and state courts have corrected part of the problem seems to be a disconnect so let me see if i can better explain it the takings occurred at the moment that the city took physical possession of these properties that's when the taking occurred it didn't matter what the city did after that point the takings had already occurred and the only remedy for that is just compensation so when you say the court of appeals remanded in corrected part of the problem i think what you're getting at is due process tell me this you have a  nuisance it's quite dangerous to the neighbors the give them notice hearing and so forth about trying to deal with it he says i don't have the money i'm sorry so the state takes control at that point the minute they take control at that point that's a taking and in other words you're a federal taking claim at that point you go right to federal court after nick and then you've you fight it out what the city has to pay the end of the owner so is that how you're looking at it if it's a physical invasion of property they say they do everything they put red tape around it the client the original owner can't touch it the city is completely in control of it so you've lost every stick in the bond and as i understand your theory your theory even though it's clearly a nuisance that you have a takings analysis that starts the minute the city does what i just said and they demand i have to compensate much but there's some compensation that has to occur i take it that's your position when things were not getting this and that the taking occurred the minute they arrived only western are in position only with regards to the analysis under a physical takings with the analysis on  regulatory taking let's make it simple physical taking the federal court gets the case the minute the city takes over puts red tape all over it then we have a federal court decide what value this is to the owner perhaps to ducting for some of the nuisance problems i don't know but that's what would happen at that point with again with regards to physical take yes you know and i would and i would say i would just preface that by saying that what would how would it work it would be the value of the property likely deduct whatever it cost to abate any nuisances but if they well i it why that why not just and i know don't you just get some of the comes in fair market value this thing used to be worth one hundred and fifty it's really only worth one hundred now given all the repairs it's going to take and the guy says you give me my one hundred and you can continue to abate is that how you think this works with regards to physical taking get i would i would probably agree with you that it's for that what your case for that which your case for the fact that it's a dangerous piece of property and at the minute the city occupies it to prevent anyone from getting hurt they've got to fork over the current value of the property to the owner tommy the case for that while physical takings i think i was back to said that any time that there is a physical invasion of property no matter how my new just compensation is owed so that is better was not a nuisance case i'm quite confident about correct and your case with the nuisance where the court says a th amendment so uncompromising we figure out exactly what the property is worth at that point in the city has to pay it in order to take control and abate the nuisance that's that's correct the way then you know since  he's there is there are no cases like that that that's that's why only one portion of our argument is physical taking because there is there is the supreme court precedent that says any physical taking no matter how minute is a taking in titling the owner to just compensation that's only one argument there is the authority to abate nuisances but for example if you have a broken window the city can't come in and fix that window in front of your kitchen it needs to be tied together and that's what wasn't done in this case is they went in and not only abated nuisances but saying hey we're going to give this whole place a make over we're going to turn it into a luxury lofts in a sorority house and that's where we got away from abating this nuisance that's where the categorical taking of all the the sticks in the bundle that taking occur because that was not when they initially declared it a nuisance would the date or time when this problem arose and the you could go right to federal court or nick and say here's the taking and i need compensation again and that's something i think needs to get decided by our position would probably be when the city took possession with the intention to make the properties economically viable so it physical and regulatory taking care of the same yeah i would i would argue that it would happen the same date because of the the economically viable entering the property and taking sole possession of it for the purposes of making it economically viable kershaw raised a series of arguments before the district court and this court complaining essentially about two rulings of the district court its decision to stay the matter under younger absten no i mean you wouldn't if nick it existed back then he wouldn't have been able to abstain right no i don't agree with that i think that what nick says is you have a ripe constitutional claim and you don't have to exhaust state remedies nick did not overturn younger another abstention doctrines that are based on different policies so what didn't address it at a so you're saying ok but why i'm confused about why younger even applied here what normally into taking screws back before nick you would dismiss the claim under williamson county right why did he what the district court said was there were parallel state proceedings there's three elements under younger abstention criminal law in michigan use nuisance laws not criminal law younger i believe extends beyond i'm happy to discuss it further i'm not sure there is any remedy other than to get to why we just rewind the clock and say under new york you can vindicate your rights in federal court you agree no because  etroactive right the problem with reminding the clock and it's an important problem and one that i believe is insurmountable is that it would essentially override and  reflect a grave just respect on rulings and findings of the state court that bar this claim and i don't believe anything in nick suggests that on the cast operate because is always recognizing a federal constitutional right in the face of ongoing to the proceedings so i can actually is that i'd have to sort of override younger however you want to say that to co exist is not always the circumstance is not always the  federal constitutional claim was right before you had sought just compensation in the state courts and what nec said was we didn't mean to do that because the net effect of that is because the federal courts have always been and continue to be obligated to give respect in deference to factual findings that have been properly main legal conclusions in state court by the time you would get a federal court in your takings claim under williams and race judicata would bar it so the court said we're not going to do that anymore we're going to allow you to bring that claim without pursuing just compensation st in the state courts it didn't address all the various forms of abstention that exist and so why wouldn't he have a better argument here because i mean he didn't even start the proceedings right this was a nuisance action that the city started so it's not an inverse condemnation right so why would the abstention it applied of younger still can apply in the face of nick why would this be a case where it would work seems to me it would be a case where wouldn't work because the federal courts and this the clannish between federal and state courts to reflect the federal court's respect for the state courts right to have come current jurisdiction over federal and state claims and way about what is coming from i'm getting the debate including the perspective of my colleagues i get the point that post nick it's not clear exactly how young or operates in a taking school and i get that and maybe that's one of these things that has to be argue that it's not because the clock is passed and so what with the remedy being that's what we tried to put in our brief that there is no authority as far as i'm aware how do we give effect to it i don't believe there's a remedy that would suggest that you could this court could ignore the principles of race judi in nick supports that reading nick is a very particular decision it arose in a different can tax your answer was a little different i would have thought your answer was that it happens all the time that there are plenty injunction as that last for example for six months in connection with constitutional claims where the constitutional claim does not suffice for the plumbing junction and the end of six months you move on to the merits you don't decide what to do about the six months it has come and gone well the act then it could also be in this case you would move on to the merits what would the merits be the merits would be one of us of taking whether there is a exactly and maybe that's sort of the obvious way and maybe the clearer way of saying what i was trying to say which is at this point the issue the only issue that remains for the court is the question of whether there is a takings claim and the district court properly concluded there is not because there is a nuisance exception there's no question about a nuisance exception and in this case the state courts have made legal rulings and what it does what about paintings i mean the thing that helps you is that the owner original owner was allowed to challenge costs that seem to go beyond abating the nuisance wins on some of those but it's pretty hard to say that was takings analysis in the sense of regulating too far i mean that's just not the way they were looking so does one just say they're  coextensive anything beyond nuisance amounts to taking and the state courts were limiting all the cost to nuisance i don't know trying to figure out what to do with that i think they absolutely are co extensive that is if you if you have held that the expenses are validly incurred to abate a nuisance which the state courts held and narrowed in reform through all this litigation but at the end of the day concluded these expenses were validly related to abating a nuisance then that can't amount to a take but what about the so my recollection is there is like there were fifty grand or something on of nuisance expenses on one of the properties but then when it gets foreclosed on the amount of the weening clued all of the other work that was put into it right and there's a big difference in my mind between foreclosing and saying you've got to pay fifty grand to redeem this property essential or two hundred and fifty right i mean so why me why isn't it inappropriate for somebody to do a foreclosed on the property when most of the expense wasn't nuisance  well i agree that there was a change i don't agree with the conclusion that most of the expense was not nuisance abatement and let me try to explain that if i could just modify the question then anything that was not why don't they get a right at that because there wasn't anything in that category because once the state courts went through the analysis and after the rain man it's requiring the district court to very specifically i the circuit court it's his mean state court to specifically identify what these expenses were related to this was after the foreclosure rate this was after the closure of the property somebody goes back in and say oh ok no those expenses world after it may have been after the foreclosure it certainly was after the appeals and i have to go back i apologize it's a long record i've tried to study up on it but but what the court did was there was initially expenses that had to do with the initial list of repairs then there also were some two hundred dollars code violations in addition to that which is why that dollar amount went up so the the state courts remanded in said we're not going to allow you to use this foreclosure statute and to proceed in this manner in so far as you might be expending funds that are not specific to nuisance abatement and women want to make sure of that so they sent a case back to the circuit court and they said list each municipal code violation building code violation match up the expense you show us that you have properly reviewed this and when they did that there were some expenses that were no longer allowed to be included as expenses that could be a basis for the  foreclosure and they said those cannot be used in this fashion but it will bottom line you can change the wean him out right it wasn't like the point of could go back in and say ok now that i have the new number here's the money i'll take my property back at that point he couldn't get his property back right here so severance that right under state law i would think if the amount that they were allowed to charge an attribute to lean should be diminished he would change the amount of belief i think that's correct and i don't think there's any showing that the plaintiff was read unable or even requested to change the lead him out what what what the lien amount that was ultimately applied was on the basis of this review as i understand the record that's minder standing reading that two thousand and seven decision the one with essentially affirms the foreclosure but says go back just the amounts maybe because some expenses are are not included and then if the proceeds left over then he gets the proceeds but it doesn't say we're going to vacate the foreclosure sale completely and allow him to pay the new amount one dollar of those decisions did say we're  created the foreclosure they sent it back is it is it your position that satisfy any procedural due process requirement applet inside the taking is it that this back and forth remain and adjusting the lien amounts all that was essentially a procedural due process absolutely absolutely the state courts provided process and i think it's important to note through all of this the process was not sorry for forget is that was there any decision though in the courts i know that he raised procedural due process was that ever rejected on the merits by any michigan state court them michigan state courts really rejected his constitutional claims specifically the th amendment takings claim and  but using that more generic language the state claim citing to the th amendment the th amendment and the michigan or constitutional basis when you said generic language we mean by that constitutional claims they use that they didn't go through and say substantive due process procedural due process and they reference the th in the th amendment and what they said was we're rejecting these claims and they said it not only in the court again rejected these constitutional claims saying while they have been raised hardly any legal authority was cited in mr kershaw failed to show any factual support for the all of his claims were raised and repeatedly the michigan court said you've you've raised these issues you haven't shown any factual support to support that you have a claim you haven't shown sufficient legal authority and consequently we reject these claims just let me clarify i'm sorry so in the waitresses and the procedural due process was specifically rejected i don't have the exact language go to any of the major cities certainly in michigan where i've live in gated for thirty years progress on the country i assume these sorts of challenges are pretty routine in other words just given the nature of building repair work in construction that there are always someone could step across the just a one off case and i would say this is an unusual case in the sense that it's gone on for more than ten years ordinarily the municipalities that i've worked with over the years including this one tried to have a more cooperative approach with property owners and you can see in the early proceedings in state court some of the hearings there were initial show cause hearings and out of those hearing the court ordered the city and mr kirshner's attorneys and mr kirschner come up with a list of what needs to be repaired we want you both to work and these repairs problem in this case is that mr kershaw repeatedly refused to do that failed to follow through and fahed legally at every step of the way and i mean it would be probably better for him in retrospect if he had used the money to repair the property than he used trying to fight the city in the early stages but he didn't do that ultimately receivers were appointed repairs were done to state courts have reviewed those repairs on multiple occasions and out of review they concluded that they were validly required to abate a nuisance i think that finding completely bars any takings claim because of the nuisance exception which is well accepted under federal law and i think the history of the reed man's and the care with which the state courts required these expenditures to be reviewed refutes any potential for  procedural due presses claim thank you appreciate your agreement thank you so nuisance a nuisance exception not applying to physical takings so there there is no case thought that holds that but i think that's telling because the nuisance exception was  a something that was the the court had ruled applied to regulatory takings physical takings like in loreto or or lucas the lucas decision both said that physical taking so matter how minute intrusion constitute a taking where they said you can't apply case law from regulatory takings and apply it to two physical takings there are two separate analysis so i think that would that's my answer to your question is there is no case law that says a nuisance exception is somehow applies to physical takings physical takings are in separating and if you can think about it if you want to write a supplemental letter you can but it just seems really implausible to me that you could have a very dangerous building  not your client a slum or on willing to help the city's got to act and i understand your argument on a physical takings component the minute the city occupies it puts red flags around and tries to abate  nuisance the person would have an automatic federal taking it's clean and go right to federal court and could demand the value of their property that seems just forgive me utterly implausible but i'm happy to be educated not abating nuisances because they would get cash for something that was not sellable well that's just you know think about it i mean you can write me a write us a letter but just think about it it just seems really hard to property when it entered the property to be a nuisance but also took a bunch of other property rights and the federal court of claims in that case did not i had summary disposition to the e p a because in order to decide whether taking had occurred they needed to look at these other rights and that it was the property owners right to access of the property which was destroyed in the process of a beating a new sense that was the issue in that so it's i mean when you look go back and look at it it looks to me like they're talking about the non nuisance repeated property rights that were lost that seems pretty fair to me i couldn't agree more you have two buildings and you're denied access to the other one and it doesn't have a nuisance that i get what i don't get is the building that's dangerous  that one doesn't make much sense to me well in place where they're talking about the same property in that's why that's in alice's again that hasn't been done here so one of the property in order to determine that the takings analysis we need to look at each of those property ensures that was taken so i agree with you if the property interest he's asserting is in fact a nuisance then he doesn't have that right to begin with it's not really a nuisance exception it's just the right never existed but there's a lot of rights that were taken from m kurtzer that he did have and that the city has not shown are are somehow prohibited by underlying principles of nuisance and property law for example one of those interest is the right to decide how his property is going to be used there was nothing unlawful about the thompson building being used as a commercial property as opposed to luxury lost in restaurants that is one of the property rights that was taken from him and that has not been tied to any sort of nuisance exception same with the cross street building it was  multifamily apartment complex there was nothing on lawful or nuisance like about his right to use it for that purpose but the city decided that it was going to turn it into a sorority house and when it did that it took that right away from him and that's an analysis that has never been done same with the parent property that again was a four unit quad plex that the city decided it was going to turn into a more spacious and upgraded to unit duplex there was nothing new sense like about it being a  plex but that was a right that was taken the nuisance repairs the things that he had to admit that there were some things that were beating a news story yeah and like the fifty grand on the cross street property they continued to make these renovations while he still owned the property this was this was long before the foreclosure actions that he did he end up paying for a nuisance of for i don't i don't know i don't know how much he paid or if he if anything and it may be nothing ok thanks to both of you for your arguments we appreciate your briefs and your arguments thanks for answering our questions which we always appreciate the case will be submitted the cour