the whole case whether it's t i a tax injunction act comedy or wayside it all comes down to the same fundamental question it does michigan provide and you can pick the words you want to use from each of the cases plain speedier efficient remedy a pla adequate or complete remedy a reasonable certain are in error adequate remedy whatever words we want to use the question is does michigan provide a remedy here and the answer is not whether it provides a claim they do provide a claim of inverse condemnation that's recognized under machine law but the particular flavor of the taking in this particular instance will not provide a remedy to mr fried in bringing these cases before the michigan lowered council i just art it seems to me that there's morgan it's northwest airlines or existed in support of a equalization probably all of those say the state need something like the state need only provide a full hearing in which a taxpayer may present and secured judicial determination at which he or she may raise any and all constitutional protections to the tax the problem is that we can't raise those here they're all precluded under rafaeli one at that they're not precluded i mean it's just you're going to lose on the merits you can raise your claim decision and the formal position of the of the state of michigan itself within the tim lee builders case everything that has come out say every every court or officer of the law who has had the opportunity to position on this has said there's the courts are not going to provide a remedy to your right but it what you want remedy to me is i went on the merits and if you're right about that then in order to determine our jurisdiction we would st have to determine the merits of your claim so in other words if you had a losing claim on the merits we would say we don't have jurisdiction because you should go to state court where you will lose as you should but if you have a winning claim on the merits then you should come to frederick court where you w win as you should because you won't get relief and state court so we would have to decide the merits before we decide after sticks i disagree with that i mean i guess to me parse it on two different ways and i was thinking about this in preparation here today there's a difference between losing on the merits because you're for example not the owner of the property or you have insufficient proofs ok in that case if that was the reason why for example if brought in for a fee only came back and said you just didn't have you didn't have enough proof to make your claim i would agree with you that that would not serve as a basis to be clean speedy or efficient remedy preclusion in that respect because essentially the person lost because of not because of the law but because of their particular case in a particular instance in the proof that they put forward in this case the distinction is as if i walk into a michigan court with these very claims themselves the the the the st thing that my opponents are going to say is is court a claim state of michigan missed the court of appeals all of these things are precluding you as a matter of appeals precedent i see the problems i should say the president of the standard for an not ignore you can ignore the st panel is what i'm saying and michigan supreme court accepted that case for argument they have but they only did so after the both judge brinn judge friedman and dismissed this case as well as after already taking an appeal to this particular court jurisdiction is determined not from later events but on the date that the complaint is actually file if the cleveland branch there anything that would preclude your client from now filing a claim in michigan state court i mean i understand you say i'm precluded because of rafaeli but i mean like is but but it could i file could i walk down to the grassy county courthouse and file a complaint with a judge to hold it in the commission again yes i could in that respect the problem is that the game is up before even walking and that's and i know you understand my theory on that  state court so i guess the problem that i have is that the standard that applies in these is that you know running short on time here but the point of these of all of these rationales is that form should not trump substance here and so what this what the argument is d is that you can go through them you have the chance to go through the motions and state court and if you do you're going to lose but you know it's too bad so sad in that respect and that's that's not that can't possibly be when you have a constitutional right to a service rep he was terminated right so that i mean the the constitution only establishes the supreme court of the united states and such lower courts as congress may ordain and establish so we don't have to exist that the original contemplation is there could be the supreme court and just the state courts and then the state courts would decide these things and then if they got it wrong  remedy would be cert to the supreme court of the united states so the thinking this congress has given us the ability to bring these claims in federal court because again is granted specifically federal courts trial courts original jurisdiction he went through the different forms of relief that were specifically addressed in that respect the plain language of the t i a actually only applies to injunction because the idea behind the t i a of course is to prevent you know basically folks from running into federal court and getting an injunction against a tax collection rather than this respect so that's that is as far as the is i have read the case law that the that the supreme court has gone into those two respects ok assyria time is right and i will reserve balance of my time thank you it please the court christina martin for amoco specific legal foundation a straightforward application of supreme court precedent shows that the county violated mr freed's property rights has just compensation rights by taking more than it and keeping more than it was a good in taxes interest and penalties and fees i want to address the merits a little bit but st i'm just going to circle back to the jurisdictional question there are three supreme court cases that where the u s supreme court specifically said that a plane remedy under the tax injunction act means there needs to it if it's uncertain it doesn't satisfy the requirement of it being a plain remedy and they did look to whether you would be able to prevail in state court to some extent and those three cases are georgia railroad versus red wine thirty four to us to ninety nine specter motor service versus mc laughlin that's three  nuff to satisfy federal jurisdiction and so i think that the tax injunction act while wayside church understood the states as providing just compensation remedy to the plaintiffs in that case they said that they had to read the statute they had to assume a constitutional construction of the general property tax act and of michigan law so they assumed there was a just compensation remedy we now know that that's not plain or though your argument is if an intervening unpublished decision of an intermediate appellate court that makes the remedy uncertain that's right because what you're left with what somebody mr f mr a felony actually originally tried to file in federal court because he believed he would lose in state court he went to state court he lost in the trial court he lost in the court of appeals if he loses in the michigan  injunction act congress did not intend to bar all claims they intended to bar claims where there's a plain remedy in state court what about the argument that the tax injunction act doesn't bar damages cl that so and and was there a claim for damages in wayside church there was a claim for just compensation so that is damages yes right and so are we just bound by wayside church  injunction act peace unless we buy the theory that the plane plane speedy and efficient remedy is no longer exists because of our feeling i think not and there's a nd reason why you wouldn't be barred and that's because and the opinion only discusses whether there's a remedy in state court it does not discuss why what's going on is a tax if there's no analysis whatsoever and so i think that that distinguishes this case because here the party the part ies have explained where mr fried is explained that they're not challenging the tax or the penalties or the interest of the field they have to be challenging the collection because the only way to collect under michigan law is to suck in the whole property right now i've got my one thousand dollars that i need out of this one hundred thousand dollars of value in the state i take my one thousand dollars that's the only way to collect my one thousand dollars now we can argue about whether it violates the constitution meant to give in the ninety eight dollars back or the forty eight dollars that's left over after the sheriff's sale or whatever but the collection mechanism in michigan rightly or wrongly is to take the take the whole property and so if we were to say that's not constitutional we would be saying michigan doesn't have a way to collect its tax no michigan will be able to continue collecting property by foreclosing on it they can continue to seize the title to the property they can continue to keep it or sell it if they so desire but they have to follow the common law protection that's existed since blackstone since before impact right now there's no legal mechanism for them to do that so it would be probably the county treasurer would it right now the funds as i understand them go into the kearney treasury so if the county treasurer county just write check to mr fried presumably the county treasurer has violated michigan law because there's no statutory mechanism for dispersing what by statute are public funds to just some right well whatever the mechanism they want to go about doing it the constitution trumps state law and ultimately they do have that responsibility i understand that but we can't create a mechanism for that when we are in the legislature or we certainly are in the state legislature like it but what we can do is say your tax collection scheme is unconstitutional but it's not like there's some piece of it we can sever well i think you can separate it's not that they're collecting it wrong it's that they're failing to give back what's not there they're allowed to and in this practice of distress is ultimately what it arises from to the practice of taking any sort of property subjecting it to auction and refunding the surplus was protected in magna carta it was protected in england it was part protected in michigan for up until the two at some time in the two and up until a statute came in and said we're not going to do that anymore right and that violates the takings cause the feluda provide the remedy is the issue it's injection or that want to fact the tax injunction act although that also arguably could have been dipped since it wasn't needed to reach the decision in ways i church and really did give brother short attention to it he stated the ruling didn't provide any analysis about why what was being collected was a tax or what white qualified as collection as the supreme court has defined it and so for that reason we would ask that you reverse the trial court i  time ok there's an incredible amount of presumption in the plaintiff's case and argument to this court they presume on the one hand that the michigan supreme court won't decide in favor of raphael e fact as we point out in our brief the michigan supreme court has unsettled sections of the general property tax act it's a done versus wayne county they said the notice provisions weren't adequate and that those had to be you know they had to be different procedures so bring in one of the u s as to no i'm saying that they're making a presumption that there's no remedy and here they argue their case no remedy no remedy no remedy well cases it's been heard at all stages the judge larson pointed out they lost on the merits that the supreme court may still decide that they do have a constitutional claim and may give them you know may say there is a remedy so to say that there is no remedy is really so very presumptuous at this point it's also there's a presumption that nick will somehow overrule williams we don't know maybe they will i'm sure this course pretty good at reading the tea leaves as to what the supreme court's thinking better than me as i read both of the oral argument proceedings on the nick case looked to me like the supreme court was very heavily divided but of course as we've also seen there very saw very odd divisions of that court of late and it's presumptuous to say that the williamson county decision would be overturned and the court may in fact say no we were right you have to exhaust hearings st yeah i understand all of that i'm interested in the question if i want to think about the tax injunction not so if we they argue look you're not joining collection of any tax we concede that pressure county can collect the tax we can see that they can foreclose on the house we can we can see that they can sell it at foreclosure sale they just what a refund they've got two different joining the collection of any tax is in the sense if you look at the direct marketing association versus paul case justice thomas and his majority opinion went through looked at the words assessment and le the collection and said that he listed off a number of things which fell into the scope of the texan junction i think that forfeitures what we've got here if you want to call it that is it is a sort of forfeiture they've lost the although i would say that that's an odd way to look at it given our merits argument is that well you failed to redeem you had your opportunity to prevent the whole loss of the property in the st place had you taken advantage of the opportunity to deem there is a  solution that you failed to and then you lost title vested in the foreclosing governmental unit because you failed to take advantage of your opportunity to redeem it in so you have no property interest laughter and i don't want to argue the merits because really the state attorney general as you know is charged by statute with defending the handiwork of the legislature and i don't want to step on anything the state's position might be because my ultimate position is you're suing the wrong people  pointed out michel thomas and county gresham can't do anything but what they did even if they would like to write a refund check to mr freed to do so would violate state law and subject them to everything from criminal penalty to michelle thomas or self to mandamus by other people who would think they were forcing state law they're really caught this is as the as the district court recognized this is a facial challenge to a provisional michigan general property tax act that's why he invited the attorney general to step in in the st place it can't be a manilla claim against aggression county because they didn't author the policy and michele thomas would have immunity for enforcing state law that no court has yet claims michigan affords a remedy for people to sue for an unconstitutional statute in the court of lines where the attorney general can step up and argue whether or not and defend the statute i'm saying that you can't hold the local government liable for enforcing state law the wiser incentiv local officials to say well you know we have a different idea than the state legislature we might be liable so we're not going to force state law they overdubs about issues over something they claim is done to show taking that they have to go through or state and they don't go to court a claim well in michigan you're going to sue the state you have to go to the court of claims and if you're the state statute that's where you go if you're suing the county for an action of its own for example say the county passed as zoning ordinance and they were enforcing net result of it taking will sure you can sue the county and the circuit court that happens all the time that's where universe condemnation was created in that context or say the city of detroit seizes land for its airport that's one of the cases i know exists of course you can sue the city of detroit for that but in this case it's really the state that should be on the hook but to to return to the tax injunction act where we've got is a situation where there has been a form of collection by a type of forfeiture or seizure of property and under the direct marketing association case supreme court said that is part of the collection that's what falls within the scope of that act we've still got rightness unless i'm sure before this court makes a decision on this case we will have an answer in the nick which may eliminate the rightness argument or may bolster the rightness argument i i'm not going to speculate about what i think they're going to do and then of course we have comedy the state courts work it through i suppose and then if you're done judge larsen points out you can always petition to the supreme court to overrule the supreme court of the highest court you can get a decision from the state but i think my  much covers it i've touched on all the points and less the palace more questions will turn over the attorney general thank you  i only remind because there has been a lot of merits argument and this is a pretty straightforward analysis of this court's decision away side which remains binding and remains correct there are remedies available in state courts and the michigan supreme court has reaffirmed that if anything in its recent decision to take up the referee elliott is judge larson knows there has been a trend toward what they call in many arguments on applications in the state which is a shortened version to see whether are principles of federalism and this is working the way it's supposed to work this was sent back to the to the lower court in wayside to to dismiss for lack of jurisdiction in the state court is taking a look at it and this isn't the st time the court has has touched on this when the court being the machine supreme court there was an earlier case and we put it in our brief that went up to the michigan supreme court from the ingham circuit i believe a local circuit court county circuit court and there were multiple theories of recovery for a bank that had been foreclosed on its interest had been foreclosed on by the tax law and they were they prevailed on a tour theory and the court of appeals affirmed saying you didn't have notice and you know there was a constitutional to your title damages the michigan supreme court reversed and said no due process was satisfied you had notice but we're going to remand for the remaining issues that were addressed and one of them was a taking without just compensation and for whatever reason on and they never litigated their case they didn't prosecute it and it was eventually dismissed i think administratively with no pursuit of it another example of the side own case and so is the point of all of that to say i guess i'm confused of how why to what extent does our jurisdiction depend on whether or not the michigan courts will declare mr freed the don't recognize they just said we don't recognize that at the moment like we're we're michigan we have our own way we don't recognize that the memo we don't recognize taking claims i mean would you say he has a remedy you can bring your takings claim here and we will you know not listen no absolute bar no i would not say that's the case and i would say that if if that sort of but isn't that the effect i mean rough alien or stand is an unpublished decision if it were if the supreme court affirm that has been implemented by the state that is as comprehensive front to back if we look at the entirety of this taxing statute we have remedies throughout and the supreme court is going to decide how far out they go but we can't ignore the fact that we've had a series of procedures and remedies and options available up throughout throughout the entire process prior to that to that cut off that work letter so what are what are the remedies that mr freeh should have taken advantage of completely avoiding a loss at all and i'm not being facetious here i don't mean we should just paid i mean that is one option there is the option of showing up to an administrative show cause hearing to a circuit court hearing pleading that he has a financial hardship he can tell the court i can't afford to pay right now i need some more time can i have more time in the court has that authority he could sell the property himself if you wants the the proceeds from the sale of property he can sell it satisfy the taxes out of the proceeds and keep it of claims anyway i think we have two problems here if you wait until after it so you have a entire circuit court proceeding in front of a judge to handle the initial taxing you know you're late now you're delinquent now you're forfeited now you're on the verge of foreclosure raise your defenses you've got that entire process if you wait until after that's closed and you decide you're going to sue the state are you going to sue on the constitutionality of a statute after the fact in the original action then you're going to the court of claims ok if mr frequences case will michigan county still be able to use foreclosure as a means to collect back taxes if mr freed wins this case here today well if he wins ultimately so i guess if i guess my question really keeps going back to the tax injunction act he says it's not you're not in joining a tax you can entertain this claim federal court because we can see that they have the ability to tax they have the ability to take my house they have the ability to sell it or foreclosure sale they just have to give me the money back the difference it's always asking for exactly you get my one thousand bucks so so the tax injunction act is not implicated that's his argument why it's iraq because it is part of the collection process and it was the line of question was exactly on point that this is one of the collection methods one is paying the taxes and actually cash taking the money and the other is in an interim proceeding the property is forfeited there's a redemption period in the property is given over and satisfaction of the tax sometimes it's enough sometimes it's not enough there's no deficiency in that event this is part of the collection process and it cannot be severed and this would also touch on state property rights to some extent in the efficiency of the collection process afterward if we're talking about right surviving  the foreclosure process you have three years it's cut off but not really cut off holders and the stakeholders in claimants can kind of hang around and see what happens you're talking about going right back to the where the law was before where you sold liens michigan supreme court addresses what remedies are available at this point whether this is constitutional or not whether he should be compensated and that would be if he does not prevail it would be sir thank you paid the taxes all paid this is i would point this court to coleman coleman and i think i actually started the bridge trying to look to see if i think i started my brief by saying this case is just like home and i wouldn't  statute so regard it doesn't have to be the author of the statute it's the person who is conducting the act and that's why in one thousand nine hundred and three was provided crysis is this post civil war dealing with racial discrimination in the south it was they could because in the south that's what we did this because it's the state in a state of alabama or a state of mississippi has given this the power to do so it pricked it provides this court the remedy to be able to say states you can't do that which is unconstitutional we can go after the individual that caused that constitutional harm here the person that caused that harm is michelle thomas in the county of gresham in that respect my very last point that i'd like to make and i think it's i think i was just actually writing about this yesterday the arguments of the state it's been consistently that the th amendment only should not apply because we give a lot of due process that's essentially what they're arguing here we have a lot of due process on the front end so the backend should be there the fit the language  of due process somehow excuses that obligation and i would ask the court to rule accordingly thank you very much