The Gym 24/7 Fitness LLC v. State of Michigan ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
THE GYM 24/7 FITNESS, LLC, and All Others FOR PUBLICATION
Similarly Situated, March 31, 2022
9:05 a.m.
Plaintiffs-Appellees/Cross-Appellants,
v No. 355148
Court of Claims
STATE OF MICHIGAN, LC No. 20-000132-MM
Defendant-Appellant/Cross-Appellee.
Before: CAVANAGH, P.J., and MARKEY and SERVITTO, JJ.
MARKEY, J.
Defendant, the State of Michigan (the State), appeals by leave granted the opinion and
order of the Court of Claims that denied the State’s motion for summary disposition with respect
to an action brought by plaintiff, The Gym 24/7 Fitness, LLC (the Gym),1 alleging an
unconstitutional taking of its business property by operation of Executive Orders issued by the
Governor that temporarily shuttered the business in response to the COVID-19 pandemic. The
Gym demanded “just compensation” for the taking of its private property that resulted from the
closure. The Gym cross appeals, arguing that the Court of Claims properly denied the State’s
motion for summary disposition but applied the wrong analytical framework.2 This appeal
concerns the interplay between the constitutional principles applicable to the taking of private
1
The Gym filed suit in an individual capacity and as a representative of a putative class of plaintiffs
comprised of gyms, fitness centers, recreation centers, sports facilities, exercise facilities, exercise
studios, and other similarly-situated businesses in Oscoda, Alcona, Ogemaw, Iosco, Gladwin,
Arenac, Midland, Bay, Saginaw, Tuscola, Sanilac, Huron, Gratiot, Clinton, Shiawassee, Eaton,
and Ingham Counties. At this stage of the proceedings, the class had not been certified by the
Court of Claims. Therefore, for purposes of this opinion, we shall simply refer to the Gym as the
party pursuing the litigation.
2
We note that a cross-appeal is unnecessary when simply urging an alternative basis for
affirmance. Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994).
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property for public use and the principles applicable to the state’s authority to exercise its police
powers to protect the health, safety, and welfare of its citizens. We reverse and remand for entry
of judgment in favor of the State.
I. BACKGROUND
A. RULING BY THE MICHIGAN SUPREME COURT – COVID-19 LITIGATION
The Gym filed suit about three months before our Supreme Court issued its opinion in In
re Certified Questions from the United States Dist Court, Western Dist of Mich, Southern Div, 506
Mich 332; 958 NW2d 1 (2020). The decision provided background information that is helpful in
understanding and giving context to the instant litigation. The Michigan Supreme Court observed
and ruled:
This case concerns the nature and scope of our state’s public response to
one of the most threatening public-health crises of modern times. In response to a
global, national, and state outbreak of the severe acute respiratory disease named
COVID-19, Michigan’s Governor has issued a succession of executive orders over
the past six months limiting public and private gatherings, closing and imposing
restrictions upon certain businesses, and regulating a broad variety of other aspects
of the day-to-day lives of our state’s citizens in an effort to contain the spread of
this contagious and sometimes deadly disease.
The ongoing validity of these executive orders has been the subject of much
public debate as well as litigation in both state and federal courts. In the interest of
comity, the United States District Court for the Western District of Michigan has
asked this Court to resolve critical questions concerning the constitutional and legal
authority of the Governor to issue such orders. We hereby respond to the federal
court in the affirmative by choosing to answer the questions the federal court has
certified, concluding as follows: first, the Governor did not possess the authority
under the Emergency Management Act of 1976 (the EMA), MCL 30.401 et seq.,
to declare a “state of emergency” or “state of disaster” based on the COVID-19
pandemic after April 30, 2020; and second, the Governor does not possess the
authority to exercise emergency powers under the Emergency Powers of the
Governor Act of 1945 (the EPGA), MCL 10.31 et seq., because that act is an
unlawful delegation of legislative power to the executive branch in violation of the
Michigan Constitution. Accordingly, the executive orders issued by the Governor
in response to the COVID-19 pandemic now lack any basis under Michigan law.
***
The coronavirus . . . is a respiratory disease that can result, and has resulted,
in significant numbers of persons suffering serious illness or death. In response to
COVID-19, on March 10, 2020, one day before it was declared a pandemic by the
World Health Organization, the Governor issued Executive Order (EO) No. 2020-
04, declaring a “state of emergency” under the EPGA and the EMA. On March 20,
2020, the Governor issued EO 2020-17, which prohibited medical providers from
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performing nonessential procedures. On March 23, 2020, she issued EO 2020-21,
which ordered all residents to stay at home with limited exceptions.
On April 1, 2020, she issued EO 2020-33, which declared a “state of
emergency” under the EPGA and a “state of emergency” and “state of disaster”
under the EMA. She then requested that the Legislature extend the state of
emergency and state of disaster by 70 days, and a resolution was adopted, extending
the state of emergency and state of disaster, but only through April 30, 2020. Senate
Concurrent Resolution No. 2020-24.
On April 30, 2020, the Governor issued EO 2020-66, which terminated the
declaration of a state of emergency and state of disaster under the EMA. But,
immediately thereafter, she issued EO 2020-67, which provided that a state of
emergency remained declared under the EPGA. [In re Certified Questions from the
United States Dist Court, 506 Mich at 337-339 (emphasis added).]
B. THE COMPLAINT
The Gym’s complaint set forth various allegations that touched on many of the events and
circumstances discussed by the Supreme Court in In re Certified Questions from the United States
Dist Court. The Gym alleged that throughout the period during which the Governor issued the
EOs, the one constant was the closure of fitness centers for the public purpose of halting or
minimizing the spread of COVID-19.3 The Gym further contended that the Governor had placed
the cost of the EOs “squarely upon the shoulders of private businesses and ha[d] failed to justly
compensate affected parties for these takings undertaken for the benefit to the general public.”
The Gym maintained that many fitness centers were on the verge of economic collapse as a direct
result of the Governor’s actions. The Gym also indicated in its complaint that the lawsuit did not
seek to contest whether the Governor’s EOs were prudent or whether they were within her
authority to issue. Indeed, the Gym asserted that it accepted that the Governor had taken her
actions regarding fitness centers “solely for a public purpose.” And, according to the Gym, when
the government takes property for a public purpose the state and federal constitutions “require the
payment of just compensation if eminent domain proceedings are not first commenced.”
The Gym further alleged that notwithstanding the legitimate governmental purpose in
issuing the EOs, they “halted all economic activity for . . . [fitness centers] and made it
impracticable to benefit from the property interests belonging to the [fitness centers] for any
3
The Gym did not specifically identify any particular EO in its complaint. We note that in March
2020, the Governor issued EO 2020-9, which temporarily closed, among other places of public
accommodation, “[g]ymnasiums, fitness centers, recreation centers, indoor sports facilities, indoor
exercise facilities, exercise studios, and spas[.]” EO 2020-9(1)(f). Multiple EOs on the subject
were subsequently issued. Eventually, pursuant to EO 2020-176(3)(b), the Gym and other fitness
centers were permitted to reopen their doors on September 9, 2020. Thus, the closure lasted
approximately six months.
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economically beneficial purpose, and inflicted very nearly the same effect for constitutional
purposes as appropriating or destroying the property as a whole.” The Gym claimed that despite
issuing the EOs “for a readily-apparent public purpose,” the Governor failed to compensate fitness
centers, causing them to suffer “substantial—and perhaps total—diminution of value in their
property interests as a result.” The Gym contended that fitness centers should not have been forced
to bear the public burden that in all fairness should have been borne by the public as a whole
through the government’s payment of just compensation.
In Count I of the complaint, the Gym alleged a cause of action for inverse condemnation.
In Count II, the Gym asserted a takings claim under Const 1963, art 10, § 2. And in Count III, the
Gym alleged a takings claim under US Const, Am V. With respect to each of the three counts, the
Gym maintained that the State had taken “constitutionally-protected property interests” from
fitness centers “in the form of the on-going operations of their business[es] . . . and the resulting
revenues and profits therefrom, and have appropriated or ‘took’ said property interests for public
use without the payment of just compensation and have failed to commence appropriate
condemnation proceedings.” The Gym demanded the payment of “just compensation” as
damages.
C. THE STATE’S MOTION FOR SUMMARY DISPOSITION
In lieu of filing an answer to the Gym’s complaint, the State moved for summary
disposition under MCR 2.116(C)(7), (8), and (10). The State first argued that under precedent
issued by the United States Supreme Court, the government has broad authority to implement
emergency measures to address an epidemic that threatens society. The State contended that the
exercise of police powers to protect the public health and safety does not give rise to inverse
condemnation and taking claims. Therefore, the government “need not pay compensation to
businesses subjected to reasonable, temporary public health and safety measures imposed during
a pandemic.” The State additionally maintained that the Gym failed to sufficiently plead a claim
for inverse condemnation, as there was no assertion of actions that permanently harmed the value
of the Gym’s property, no allegation of facts suggesting that the State had abused its power, and
no contention that the Gym had suffered a unique or special injury. Further, the State argued that
the taking claims were facially meritless “because the challenged regulation is directed toward
public health and safety, removing it from the ambit of relevant takings precedent.” The State also
noted that the Gym had not properly pleaded a viable takings claim. The State explained that the
Gym had not alleged a taking at all, considering that the EOs constituted health-and-safety
regulations. Finally, the State argued that there had been no regulatory taking because such a
taking requires more than a decidedly-proper use of a government’s police powers.
In a response to the State’s motion for summary disposition, the Gym provided the
following overview of its position:
This case is unlike any other case that has come before. This suit does not
seek to contest whether Governor Whitmer’s decision to issue the Executive Orders
that have perpetually closed gymnasiums [and] fitness centers . . . since March 10,
2020[,] were prudent or were . . . within her authority to issue. Moreover, this suit
accepts as fact that Governor Whitmer took the action she did . . . solely for a public
purpose. When the government takes property for a public purpose, the US and
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Michigan Constitutions require the payment of just compensation if eminent
domain proceedings are not first commenced. . . . The Gym . . . alleges (and it is
not disputed) that the State . . . failed to commence appropriate condemnation
proceedings and failed to pay just compensation. The question is whether that
failure is in violation of the US and Michigan’s constitutional obligations to do or
pay the same. Valid taking[] claim[s] have been pled and there remains substantial
material questions that need to be resolved by this case. Summary disposition at
this stage must be denied. [Quotation marks, record citations, and brackets
omitted.]
D. COURT OF CLAIM’S RULING ON MOTION FOR SUMMARY DISPOSITION
In September 2020, the Court of Claims issued a written opinion and order denying the
State’s motion for summary disposition. The Court of Claims initially noted that this case did not
involve a classic taking in which there was a direct appropriation or physical invasion of private
property.4 Instead, the case concerned “regulations effectuated by various Executive Orders and
whether those regulations amount[ed] to a ‘regulatory taking.’ ” The Court of Claims explained
that there are two types of regulatory takings—a categorical taking and a partial taking—the latter
of which is evaluated under the test described in Penn Central Transp Co v New York City, 438
US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978). It then discussed the theory of inverse
condemnation.
The Court of Claims next pointed out that the case entailed the exercise of police power to
curb a public health emergency and that the constitutional rights regarding takings and inverse
condemnation, like all constitutional rights, can be reasonably restricted in order to combat a public
health emergency. The Court of Claims recognized that states have broad authority to fight the
spread of dangerous communicable diseases and that the police power retained by the states to
protect the lives, health, and general welfare of the people empowers them to confront pandemics
largely absent court interference. But the Court of Claims also emphasized that a “state’s ability
to act pursuant to the police power, even during a pandemic, is not absolute.” The Court of Claims,
citing Jacobson v Massachusetts, 197 US 11; 25 S Ct 358; 49 L Ed 643 (1905), observed that court
interference in the face of the exercise of police power is appropriate when a closure of a facility
4
The Court of Claims indicated that fitness centers and gyms were allowed to reopen pursuant to
a new EO issued after briefs on the motion for summary disposition had been submitted. But the
Court of Claims found that the issues presented in the case were not moot. No party is claiming
mootness on appeal. And given that a temporary taking can be compensable, the issues raised in
this case are plainly not moot. See First English Evangelical Lutheran Church of Glendale v Los
Angeles Co, 482 US 304, 321; 107 S Ct 2378; 96 L Ed 2d 250 (1987) (“[W]here the government’s
activities have already worked a taking . . ., no subsequent action by the government can relieve it
of the duty to provide compensation for the period during which the taking was effective.”); see
also Cummins v Robinson Twp, 283 Mich App 677, 704; 770 NW2d 421 (2009) (the temporary
taking of private property for public use absent just compensation comes within the protection of
the Fifth Amendment).
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is arbitrary and oppressive, when the closure has no substantial relation to the public health, or
when the closure is a plain and palpable invasion of rights.
With this backdrop, the Court of Claims ruled:
On the briefing and documentary evidence presented in the parties’ briefing,
the Court concludes that summary disposition is not warranted at this time. In that
regard, [the State] appears to take the position that any measure taken under the
name of public health is permissible and that the Court must conclude that the
restrictions at issue were reasonable and not arbitrary because [the State] has
declared them as such. Indeed, [the State’s] briefing makes many factual assertions
without any documentary evidence to support those assertions. Caselaw, while
giving leeway to the state’s public health measures, does not give that much leeway
. . . . [The State] has produced no evidence in support of its initial decision to close
fitness facilities, nor has it provided evidence that informed its decision to continue
to prohibit use of the facilities, even in a reduced or limited capacity. Nor has [the
State] produced evidence suggesting why other indoor activities were permitted to
resume—such as casinos in August 2020—but gyms and fitness centers remained
closed at that time. And while [the State] cursorily cites after-the-fact internet
materials as justifications for its decisions, there is no documentary evidence
suggesting whether the [S]tate relied on these materials, or any other evidence, in
its decision-making.[5] [The State’s] citation to these materials, with no indicia of
whether this information ever informed the pertinent decisions in this case, does
not satisfy [the State’s] burden as the moving party on a motion for summary
disposition under MCR 2.116(C)(10). Even with the deferential manner of review
that applies, the documentary evidence is not sufficient for the Court to make an
informed decision on the pertinent inquiry demanded by Jacobson and its progeny.
As a result, summary disposition will not issue at this time. [Citation and footnotes
omitted.]
The Court of Claims denied the motion for summary disposition without prejudice. The
State filed an application for leave to appeal in this Court, and the Court of Claims entered a stay
while the application was pending. This Court subsequently granted leave to appeal. The Gym
24/7 Fitness LLC v Michigan, unpublished order of the Court of Appeals, entered March 16, 2021
(Docket No. 355148). The Gym then filed a cross-appeal.
II. ANALYSIS
A. OVERVIEW OF ARGUMENTS ON APPEAL
The State argues that the Gym’s complaint failed as a matter of law to plead a valid takings
claim. The State contends that when the government properly exercises its police power, which
the Gym had conceded, the Taking Clauses of our state and federal constitutions are simply not
5
We note that the Court of Claims’s discussion regarding the documentary evidence was
consistent with the record.
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implicated. The State also maintains that, regardless, there was no categorical taking because the
Governor’s actions were only temporary and partial in nature. The State further asserts that there
was no non-categorical taking of private property upon analysis of economic impact, consideration
of interference with investment-backed expectations, and contemplation of the character of the
government’s actions. The State additionally argues that the Gym’s inverse condemnation claim
failed as a matter of law because it requires a showing of abusive governmental action, which the
Gym admitted did not occur, and the infliction of a unique injury, which the Gym did not allege.
As it maintained below, the Gym continues to argue that for purposes of this lawsuit, it
does not contest whether the closure of fitness centers was prudent or within the Governor’s
authority, and it accepts that the Governor closed the private fitness centers solely for a public
purpose.6 The Gym contends that under those circumstances—when the government takes private
property for a public purpose—the United States and Michigan Constitutions mandate the payment
of “just compensation.” The State, however, did not commence any form of condemnation
proceeding and had not paid just compensation to the Gym or any fitness center. With respect to
the ruling by the Court of Claims, the Gym asserts that the Court reached the right result but for
the wrong reason, in that it applied an incorrect legal standard. The Gym argues that “[u]nder
takings jurisprudence, whether the taking by the government was reasonable or unreasonable is
legally irrelevant.” The Gym explains that “[g]overnments can, almost always, take private
property; [but] they commit an actionable wrong when they fail to pay just compensation.”
Therefore, according to the Gym, this Court should affirm the ruling by the Court of Claims, albeit
on different grounds.
In reply, the State argues that the government’s exercise of police power to place temporary
limits on the use of property in order to halt the spread of a deadly pandemic does not constitute a
taking as a matter of law. And the State contends that the caselaw that the Gym relies on to argue
the contrary is easily distinguishable and provides no support for the Gym’s stance.
B. STANDARD OF REVIEW AND PRINCIPLES OF SUMMARY DISPOSITION
We review de novo a trial court’s decision on a motion for summary disposition. Hoffner
v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). This Court also reviews de novo issues of
constitutional law. Adair v Michigan, 497 Mich 89, 99; 860 NW2d 93 (2014). And the question
whether an unconstitutional taking occurred is likewise reviewed de novo on appeal. Cove Creek
Condo Ass’n v Vistal Land & Home Dev, LLC, 330 Mich App 679, 696; 950 NW2d 502 (2019).
The Court of Claims ultimately analyzed the motion for summary disposition under MCR
2.116(C)(10), examining the documentary evidence, or lack thereof, in making its ruling. In
6
Even with the decision by our Supreme Court in In re Certified Questions from the United States
Dist Court, 506 Mich 332, that the EPGA is unconstitutional and that the EMA did not give the
Governor authority to issue EOs regarding the pandemic after April 30, 2020, the Gym has made
no attempt to alter its position and theory of the case. We do note that EO 2020-9 was the first EO
closing fitness centers and that it was issued in March 2020, meaning that the Governor did have
the authority to issue EO 2020-9 at the time under the EMA.
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Batista v Office of Retirement Servs, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket No.
353832); slip op at 9, this Court recited the principles governing review of a motion brought under
MCR 2.116(C)(10):
MCR 2.116(C)(10) provides that summary disposition is appropriate when,
“[e]xcept as to the amount of damages, there is no genuine issue as to any material
fact, and the moving party is entitled to judgment or partial judgment as a matter of
law.” A motion brought pursuant to MCR 2.116(C)(10) tests the factual support for
a party’s action. “Affidavits, depositions, admissions, or other documentary
evidence in support of the grounds asserted in the motion are required . . . when
judgment is sought based on subrule (C)(10),” MCR 2.116(G)(3)(b), and such
evidence, along with the pleadings, must be considered by the court when ruling on
the (C)(10) motion, MCR 2.116(G)(5). “When a motion under subrule (C)(10) is
made and supported . . ., an adverse party may not rest upon the mere allegations
or denials of his or her pleading, but must, by affidavits or as otherwise provided in
this rule, set forth specific facts showing that there is a genuine issue for trial.”
MCR 2.116(G)(4). A trial court may grant a motion for summary disposition under
MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence,
when viewed in a light most favorable to the nonmovant, show that there is no
genuine issue with respect to any material fact. A genuine issue of material fact
exists when the record, giving the benefit of reasonable doubt to the opposing party,
leaves open an issue upon which reasonable minds might differ. The trial court is
not permitted to assess credibility, weigh the evidence, or resolve factual disputes,
and if material evidence conflicts, it is not appropriate to grant a motion for
summary disposition under MCR 2.116(C)(10). Like the trial court’s inquiry, when
an appellate court reviews a motion for summary disposition, it makes all legitimate
inferences in favor of the nonmoving party. A court may only consider
substantively admissible evidence actually proffered by the parties when ruling on
the motion. [Quotation marks and citations omitted; ellipses in original.]
The issues raised on appeal also implicate MCR 2.116(C)(8), which provides for summary
disposition when a “party has failed to state a claim on which relief can be granted.” MCR
2.116(C)(8) tests the legal sufficiency of a complaint. Beaudrie v Henderson, 465 Mich 124, 129;
631 NW2d 308 (2001). In rendering its decision under MCR 2.116(C)(8), a trial court may only
consider the pleadings. Id. The trial court must accept as true all of the factual allegations in the
complaint. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 380-381; 563 NW2d
23 (1997). “The motion should be granted if no factual development could possibly justify
recovery.” Beaudrie, 465 Mich at 130.
C. CONSTITUTIONAL CONSTRUCTION PRINCIPLES
In AFSCME Council 25 v State Employees’ Retirement Sys, 294 Mich App 1, 8-9; 818
NW2d 337 (2011), this Court articulated the governing principles of construction with respect to
the Michigan Constitution:
When interpreting a constitutional provision, the primary goal is to
determine the initial meaning of the provision to the ratifiers, the people, at the time
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of ratification. The primary objective of constitutional interpretation, not dissimilar
to any other exercise in judicial interpretation, is to faithfully give meaning to the
intent of those who enacted the law. To effectuate this intent, the appellate courts
apply the plain meaning of the terms used in the constitution. When technical terms
are employed, the meaning understood by those sophisticated in the law at the time
of enactment will be given unless it is clear that some other meaning was intended.
To clarify the meaning of the constitutional provision, the court may examine the
circumstances surrounding the adoption of the provision and the purpose sought to
be achieved. An interpretation resulting in a holding that the provision is
constitutionally valid is preferred to one that finds the provision constitutionally
invalid, and a construction that renders a clause inoperative should be rejected.
Constitutional convention debates are relevant, albeit not controlling. Every
provision in our constitution must be interpreted in light of the document as a
whole, and no provision should be construed to nullify or impair another.
[Quotation marks, citations, and brackets omitted.]
When construing the Michigan Constitution, we are not bound by the United States
Supreme Court’s interpretation of the United States Constitution, even when the constitutional
language in both documents is identical. Harvey v Michigan, 469 Mich 1, 6 n 3; 664 NW2d 767
(2003). When, however, we are engaged in the construction of the United States Constitution, we
are bound by decisions of the United States Supreme Court interpreting the United States
Constitution. People v Lechner, 307 Mich 358, 361; 11 NW2d 918 (1943); Easley v John Hancock
Mut Life Ins Co, 70 Mich App 451, 455; 245 NW2d 785 (1976), rev’d on other grounds 403 Mich
521 (1978).
D. DISCUSSION
In light of the theory pursued by the Gym, the primary question presented in this appeal is
whether the business owner of private property is entitled to just compensation under either the
state or federal Takings Clause when the government properly exercises its police power to protect
the health, safety, and welfare of its citizens during a pandemic by temporarily closing the owner’s
business operations.
We first note that the Gym is correct in its assessment that the Court of Claims did not
properly analyze the motion for summary disposition, misconstruing the nature of the Gym’s
argument. The Court of Claims determined that the closure of fitness centers had to be reasonable
and not arbitrary and oppressive and that the State failed to provide any documentary evidence to
establish reasonableness and the absence of arbitrariness and oppressiveness. The Gym, however,
from the commencement of this case through the motion for summary disposition, conceded that
the closure of fitness centers reflected the proper exercise of police power. In other words, the
Gym effectively took the position that the Governor’s EOs were reasonable and not arbitrary and
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oppressive.7 Accordingly, the Court of Claims erred in its reasoning for denying the State’s motion
for summary disposition.
1. POLICE POWER OF THE STATE
We now examine the police power of the states. In Jacobson, 197 US at 12, the United
States Supreme Court addressed and upheld the constitutionality of a Massachusetts statute giving
local boards of health—when necessary for the public health or safety—the authority to require
and enforce the vaccination and revaccination of inhabitants. The case arose when the board of
health for the city of Cambridge mandated smallpox vaccinations. Id. at 13-14. The Court
observed:
The authority of the state to enact this statute is . . . referred to what is
commonly called the police power[]—a power which the state did not surrender
when becoming a member of the Union under the Constitution. Although this court
has refrained from any attempt to define the limits of that power, . . . it has distinctly
recognized the authority of a state to enact quarantine laws and health laws of every
description; indeed, all laws that relate to matters completely within its territory and
which do not by their necessary operation affect the people of other states.
According to settled principles, the police power of a state must be held to embrace,
at least, such reasonable regulations established directly by legislative enactment
as will protect the public health and the public safety. [Id. at 24-25 (quotation marks
and citations omitted).]
The Jacobson Court indicated that “[t]he possession and enjoyment of all rights are subject
to such reasonable conditions as may be deemed by the governing authority of the country essential
to the safety, health, peace, good order, and morals of the community.” Id. at 26 (quotation marks
and citation omitted). The United States Supreme Court “has more than once recognized it as a
fundamental principle that persons and property are subjected to all kinds of restraints and burdens
in order to secure the general comfort, health, and prosperity of the state[.]” Id. (quotation marks
7
To be clear, the Gym does not believe that the closure of fitness centers was reasonable. But the
Gym’s theory of the case is that it is entitled to just compensation regardless of the reasonableness
of the EOs. In its brief on appeal, the Gym notes that it provided documentary evidence in the
form of a study that demonstrated that shuttering gyms and fitness centers was unnecessary and
that the risk of transmitting COVID-19 at such facilities was no greater than at other businesses
involved in indoor activities. The Gym contends that the State’s argument to the contrary was not
supported by any proper documentary evidence and that even if the hearsay references cobbled
together by the State and obtained from the Internet can be considered, it minimally created a
genuine issue of material fact on the matter. Nevertheless, the Gym indicates that this underlying
factual dispute “misses the pertinent point” and is irrelevant. And the Gym emphasizes that “[t]his
suit does not seek to contest whether Governor Whitmer’s decision to issue the [EOs] . . . were
[sic] prudent.”
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and citations omitted). The Supreme Court cautioned that “[e]ven liberty itself, the greatest of all
rights, is not unrestricted license to act according to one’s own will.” Id. at 26-27.
In People ex rel Hill v Lansing Bd of Ed, 224 Mich 388, 390; 195 NW 95 (1923), the
Michigan Supreme Court addressed a comparable smallpox-vaccination mandate, ruling as
follows:
We are plowing no virgin field in considering the questions here involved.
Numerous decisions, both federal and state, have considered the questions now
before us. They are not all in accord and in some instances are not reconcilable.
There is, however, a very marked trend in them in one direction, that which upholds
the right of the state, in the exercise of its police power and in the interest of the
public health, to enact such laws, such rules and regulations, and will prevent the
spread of this dread disease. The power of the state to require vaccination in case
the disease was present in a community was upheld in Jacobson . . . .
“The Constitution guarantees to citizens the general right to engage in any business which
does not harm the public[,]” but “[t]his constitutional right to engage in business is subject to the
sovereign police power of the State to preserve public health, safety, morals and public welfare.”
Grocers Dairy Co v G S McIntyre, 377 Mich 71, 76; 138 NW2d 767 (1966). In general, “[i]t has
been long recognized that the state, pursuant to its inherent police power, may enact regulations to
promote the public health, safety, and welfare.” Blue Cross & Blue Shield of Mich v Milliken, 422
Mich 1, 73; 367 NW2d 1 (1985). “The test to determine whether legislation enacted pursuant to
the police power comports with due process is whether the legislation bears a reasonable relation
to a permissible legislative objective.” Id. at 74 (quotation marks and citations omitted). In this
case, the Gym’s theory of liability does not hinge on any alleged due process violation or other
claimed frailty with the Governor’s exercise of police power in issuing the EOs; rather, the Gym
accepts for the sake of argument that the Governor properly acted for a public purpose, but
nevertheless demands “just compensation” for a taking of private property.8
2. THE TAKING CLAUSES AND INVERSE CONDEMNATION
8
We note that “the police power is legislative in nature.” In re Certified Questions from the United
States Dist Court, 506 Mich at 364 (emphasis added). And we are addressing EOs that were issued
by the Governor. The Governor, however, relied on legislative enactments—the EMA and the
EPGA—as the source of her authority to issue the EOs; therefore, police powers are indeed
implicated. Our Supreme Court stated:
Concerning the subject matter of the emergency powers conferred by the
EPGA, it is remarkably broad, authorizing the Governor to enter orders “to protect
life and property or to bring the emergency situation within the affected area under
control.” MCL 10.31(1). It is indisputable that such orders “to protect life and
property” encompass a substantial part of the entire police power of the state. [In
re Certified Questions from the United States Dist Court, 506 Mich at 363 (citation
omitted).]
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We now examine takings jurisprudence. Under the United States Constitution, private
property shall not be taken “for public use, without just compensation.” US Const, Am V. “The
Takings Clause of the Fifth Amendment [is] applicable to the States through the Fourteenth
Amendment[.]” Cedar Point Nursery v Hassid, ___ US ___; 141 S Ct 2063, 2071; 210 L Ed 2d
369 (2021). And under the Michigan Constitution, “[p]rivate property shall not be taken for public
use without just compensation therefore being first made or secured in a manner prescribed by
law.” Const 1963, art 10, § 2. “While we draw on authority discussing and interpreting both
clauses, we must keep in mind that Michigan’s Takings Clause has been interpreted to afford
property owners greater protection than its federal counterpart when it comes to the state’s ability
to take private property for a public use under the power of eminent domain.” Rafaeli, LLC v
Oakland Co, 505 Mich 429, 449-450; 952 NW2d 434 (2020).
With respect to the analysis regarding an alleged taking under the Fifth Amendment, the
United States Supreme Court in Cedar Point Nursery, 141 S Ct at 2071-2072, recently set forth
the following analytical framework:
When the government physically acquires private property for a public use,
the Takings Clause imposes a clear and categorical obligation to provide the owner
with just compensation. The Court’s physical takings jurisprudence is as old as the
Republic. The government commits a physical taking when it uses its power of
eminent domain to formally condemn property. The same is true when the
government physically takes possession of property without acquiring title to it.
And the government likewise effects a physical taking when it occupies property—
say, by recurring flooding as a result of building a dam. These sorts of physical
appropriations constitute the clearest sort of taking, and we assess them using a
simple, per se rule: The government must pay for what it takes.
When the government, rather than appropriating private property for itself
or a third party, instead imposes regulations that restrict an owner’s ability to use
his own property, a different standard applies. Our jurisprudence governing such
use restrictions has developed more recently. Before the 20th century, the Takings
Clause was understood to be limited to physical appropriations of property. In
Pennsylvania Coal Co v Mahon, 260 US 393; 43 S Ct 158; 67 L Ed 322 (1922),
however, the Court established the proposition that while property may be regulated
to a certain extent, if regulation goes too far it will be recognized as a taking. This
framework now applies to use restrictions as varied as zoning ordinances, orders
barring the mining of gold, and regulations prohibiting the sale of eagle feathers.
To determine whether a use restriction effects a taking, this Court has generally
applied the flexible test developed in Penn Central, balancing factors such as the
economic impact of the regulation, its interference with reasonable investment-
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backed expectations, and the character of the government action. [Quotation marks
and citations omitted.9]
The Taking Clauses of the Michigan and United States Constitutions both “prohibit the
taking of private property for public use without just compensation.” Chelsea Investment Group
LLC v City of Chelsea, 288 Mich App 239, 261; 792 NW2d 781 (2010). “The Taking Clauses do
not prohibit the government’s interference with a private individual’s property, but require that
interferences amounting to a taking be compensated.” Id. Generally speaking, the government
takes private property from the owner by way of formal condemnation proceedings, but regulations
issued by the government that overburden property can also result in a compensable taking. Id. A
“categorical” taking arises “when there has been a physical invasion of a landowner’s property or
when a regulatory taking has deprived an owner of all economically and beneficial use of the
land.” Id. at 261 n 5 (emphasis added). “Regulatory taking claims that do not rise to the level of
a categorical taking are governed by the standard set out in Penn Central . . . .” Id. at 261.10 “[A]
mere reduction in the value of regulated property is insufficient by itself to establish that a
compensable taking has occurred.” Id. at 262.
The Michigan Supreme Court in K & K Constr, Inc v Dep’t of Natural Resources, 456
Mich 570, 576; 575 NW2d 531 (1998), similarly observed that a person’s property may effectively
be taken when it is overburdened by regulations. Taking actions require a case-specific inquiry,
and land-use regulations can effectuate a taking when they deny a landowner economically viable
use of his or her property. Id. As indicated, a “categorical” taking occurs when a regulation
9
In Yee v City of Escondido, Cal, 503 US 519, 522-523; 112 S Ct 1522; 118 L Ed 2d 153 (1992),
the United States Supreme Court similarly stated:
Most of our cases interpreting the [Takings] Clause fall within two distinct
classes. Where the government authorizes a physical occupation of property (or
actually takes title), the Takings Clause generally requires compensation. But
where the government merely regulates the use of property, compensation is
required only if considerations such as the purpose of the regulation or the extent
to which it deprives the owner of the economic use of the property suggest that the
regulation has unfairly singled out the property owner to bear a burden that should
be borne by the public as a whole. The first category of cases requires courts to
apply a clear rule; the second necessarily entails complex factual assessments of
the purposes and economic effects of government actions. [Citations omitted.]
10
“When a taking is noncategorical, the court will undertake the fact-based inquiry enumerated in
Penn Central to evaluate whether the governmental action constituted a compensable taking of the
property interest.” American Pelagic Fishing Co, LP v United States, 379 F3d 1363, 1372 (CA
Fed, 2004).
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deprives an owner of all economically productive or beneficial use of property. Id. at 576-577.11
And a noncategorical regulatory taking can occur upon application of the Penn Central balancing
test. Id. at 577.
Inverse condemnation is a de facto taking in which the government effectively takes
property absent formal condemnation proceedings. Merkur Steel Supply, Inc v Detroit, 261 Mich
App 116, 125; 680 NW2d 485 (2004). “An inverse condemnation claim may be based upon the
government’s ‘regulatory taking’ of private property.” Dorman v Clinton Twp, 269 Mich App
638, 646; 714 NW2d 350 (2006). Inverse condemnation concerns the taking of private property,
and pursuant to the Taking Clauses, “a victim of such a taking is entitled to just compensation for
the value of the property taken.” Hart v Detroit, 416 Mich 488, 494; 331 NW2d 438 (1982).12
Finally, as noted earlier in this opinion, a temporary taking can be compensable under the
Taking Clauses. First English Evangelical Lutheran Church of Glendale v Los Angeles Co, 482
US 304, 321; 107 S Ct 2378; 96 L Ed 2d 250 (1987); Cummins v Robinson Twp, 283 Mich App
677, 704; 770 NW2d 421 (2009). To summarize, there are physical takings and regulatory takings.
A physical taking of private property is a categorial taking that requires the payment of just
compensation. A regulatory taking involving the deprivation of all economically productive or
11
The United States Supreme Court in Lucas v South Carolina Coastal Council, 505 US 1003,
1019; 112 S Ct 2886; 120 L Ed 2d 798 (1992), stated “that there are good reasons for our frequently
expressed belief that when the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave his property
economically idle, he has suffered a taking.”
12
In Hinojosa v Dep’t of Natural Resources, 263 Mich App 537, 548; 688 NW2d 550 (2004), this
Court discussed inverse condemnation:
What governmental action constitutes a “taking” is not narrowly construed,
nor does it require an actual physical invasion of the property. No precise formula
exists. Pertinent factors include whether the governmental entity abused its exercise
of legitimate eminent domain power to plaintiff’s detriment. Further, a plaintiff
alleging inverse condemnation must prove a causal connection between the
government’s action and the alleged damages. A plaintiff alleging a de facto taking
or inverse condemnation must prove that the government’s actions were a
substantial cause of the decline of his property’s value and also establish the
government abused its legitimate powers in affirmative actions directly aimed at
the plaintiff’s property. While there is no exact formula to establish a de facto
taking, there must be some action by the government specifically directed toward
the plaintiff’s property that has the effect of limiting the use of the property.
[Citations, ellipsis, and quotation marks omitted.]
Inaction or omissions cannot support a claim of inverse condemnation. Id. at 549.
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beneficial use of property is also a categorical taking, requiring the payment of just compensation.
The second type of regulatory taking—a noncategorical taking—is one that is determined upon
application of the Penn Central balancing test. Additionally, inverse condemnation arises when
the government takes property, either by physical invasion or regulation, absent formal
condemnation proceedings. Finally, a taking can be either temporary or permanent.
3. RESOLUTION
We begin by noting that to the best of our knowledge, every federal court and state
appellate court that has addressed a takings claim stemming from the government’s closure of a
business as a safeguard against the spread of COVID-19 has rejected the claim. See Bojicic v
DeWine, ___ F Supp 3d ___, ___ (ND Ohio, 2021); slip op at 12-13; Case v Ivey, 542 F Supp 3d
1245, 1281-1283 (MD Ala, 2021); Underwood v City of Starkville, 538 F Supp 3d 667, 678-681
(ND Miss, 2021); Amato v Elicker, 534 F Supp 3d 196, 212-215 (D Conn, 2021); Metroflex
Oceanside LLC v Newsom, 532 F Supp 3d 976, 981-982 (SD Cal, 2021); Northland Baptist Church
of St Paul v Walz, 530 F Supp 3d 790, 815-817 (D Minn, 2021); TJM 64, Inc v Harris, 526 F Supp
3d 331, 336-339 (WD Tenn, 2021); Flint v Kauai Co, 521 F Supp 3d 978, 988-993 (D Hawaii,
2021); Daugherty Speedway, Inc v Freeland, 520 F Supp 3d 1070, 1075-1078 (ND Ind, 2021);
Antietam Battlefield KOA v Hogan, 501 F Supp 3d 339, 347 (D Md, 2020); Bimber’s Delwood,
Inc v James, 496 F Supp 3d 760, 782-785 (WD NY, 2020); Lebanon Valley Auto Racing Corp v
Cuomo, 478 F Supp 3d 389, 400-402 (ND NY, 2020); Savage v Mills, 478 F Supp 3d 16, 30-32
(D Maine, 2020); Oregon Restaurant & Lodging Ass’n v Brown, ___ F Supp 3d ___, ___ (D
Oregon, 2020); slip op at 5-6; JWC Fitness, LLC v Murphy, ___ A3d ___, ___ (NJ Super, 2021);
slip op at 8-10; State v Wilson, 489 P3d 925, 940-942 (NM, 2021); Friends of Danny DeVito v
Wolf, 227 A3d 872, 893-896 (Pa, 2020). We now join those courts and reject the Gym’s claim
that its property was taken absent just compensation in violation of the Taking Clauses of the state
and federal constitutions.
Initially, we conclude that the Gym’s claims do not involve a physical taking of its
property. There is no allegation or evidence that the State physically acquired, took possession of,
occupied, or appropriated the Gym’s private property. Accordingly, this case solely concerns an
alleged regulatory taking through the operation of the EOs. The Gym contends that the EOs
deprived it of all economically productive or beneficial use of its property by completely shuttering
the business, thereby resulting in a categorical or “per se” taking that mandated the payment of
just compensation. In the alternative, the Gym argues that issuance and enforcement of the EOs
gave rise to a noncategorical regulatory taking, as determined upon application of the Penn Central
balancing test.
We hold as a matter of law that the Gym was not deprived of all economically productive
or beneficial use of its property as a result of the Governor’s EOs; there was no regulatory
categorical taking of the Gym’s property. In Tahoe-Sierra Preservation Council, Inc v Tahoe
Regional Planning Agency, 535 US 302, 306; 122 S Ct 1465; 152 L Ed 2d 517 (2002), the United
States Supreme Court introduced its opinion as follows:
The question presented is whether a moratorium on development imposed
during the process of devising a comprehensive land-use plan constitutes a per se
taking of property requiring compensation under the Takings Clause of the United
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States Constitution. This case actually involves two moratoria ordered by
respondent Tahoe Regional Planning Agency (TRPA) to maintain the status quo
while studying the impact of development on Lake Tahoe and designing a strategy
for environmentally sound growth. The first, Ordinance 81-5, was effective from
August 24, 1981, until August 26, 1983, whereas the second more restrictive
Resolution 83-21 was in effect from August 27, 1983, until April 25, 1984. As a
result of these two directives, virtually all development on a substantial portion of
the property subject to TRPA's jurisdiction was prohibited for a period of 32
months.
The Supreme Court first noted that it is “inappropriate to treat cases involving physical
takings as controlling precedents for the evaluation of a claim that there has been a ‘regulatory
taking[.]’ ” Id. at 323. The Court also observed that when “an owner possesses a full bundle of
property rights, the destruction of one strand of the bundle is not a taking.” Id. at 327 (quotation
marks and citation omitted).
Citing language from Lucas v South Carolina Coastal Council, 505 US 1003, 1017-1020;
112 S Ct 2886; 120 L Ed 2d 798 (1992), the Court in Tahoe-Sierra Preservation Council
emphasized that a categorical regulatory taking is limited to extraordinary circumstances in which
no productive or economically beneficial use of land is allowed and that there must be a 100%
complete elimination or obliteration of value, i.e., a total loss; otherwise the Penn Central analysis
applies. Tahoe-Sierra Preservation Council, 535 US at 330. The Court indicated that a permanent
deprivation of an owner’s use of an entire parcel of property constitutes a taking of the whole
parcel, whereas the imposition of a temporary restriction that merely causes a diminution in value
is not a taking of the whole parcel. Id. at 332.13 And according to the Court, a fee simple estate is
not “rendered valueless by a temporary prohibition on economic use, because the property will
recover value as soon as the prohibition is lifted.” Id. 14
The Supreme Court clarified that it was not holding “that the temporary nature of a land-
use restriction precludes finding that it effects a taking; . . . [it] simply recognize[d] that it should
not be given exclusive significance one way or the other.” Id. at 337. The Court determined “that
13
The Court explained that “[a]n interest in real property is defined by the metes and bounds that
describe its geographic dimensions and the term of years that describes the temporal aspect of the
owner’s interest[,]” and “[b]oth dimensions must be considered if the interest is to be viewed in its
entirety.” Id. at 331-332.
14
We note that the Supreme Court distinguished the case from its earlier decision in Lucas in
which the petitioner had purchased two residential beachfront lots for $975,000 upon which he
intended to build single-family homes, but thereafter a state statute was enacted that had the direct
effect of barring the petitioner from ever erecting any habitable structure on the lots. Tahoe-Sierra
Preservation Council, 535 US at 329-330; Lucas, 505 US at 1006-1007. The Lucas Court stated
that the taking had been “unconditional and permanent,” even though the statute was subsequently
amended. Lucas, 505 US at 1012. No such permanency existed in Tahoe-Sierra Preservation
Council or in the instant case.
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the interest in ‘fairness and justice’ will be best served by relying on the familiar Penn Central
approach when deciding cases like this, rather than by attempting to craft a new categorical rule.”
Id. at 342.
In this case, the closure of fitness centers for six months was temporary and considerably
shorter in duration than the 32-month period involved in Tahoe-Sierra Preservation Council.
Furthermore, there is no allegation or evidence that the Gym suffered a total loss or the complete
elimination or obliteration of value by operation of the EOs. Indeed, the Gym asserted in the
complaint that the EOs had “very nearly” destroyed the property as a whole. The property clearly
still had value, even if no revenue or profit was generated during the closure.15 And any lost value
relative to the real and personal property was likely recovered as soon as the temporary prohibition
was lifted.16 In sum, we hold that as a matter of law there was no categorical regulatory taking.
Next, we hold as a matter of law that there was no regulatory taking under Penn Central
analysis. With respect to the Penn Central balancing test,17 the first two factors—economic impact
of the EOs and their interference with reasonable investment-backed expectations—weigh in favor
of the Gym because its business was in fact shuttered under the EOs, but we do not give those
factors all that much weight because the economic impact and the interference with business
expectations arising from the closure orders were short lived. Moreover, the third factor—the
character of the government’s action—was compelling in that the aim of the EOs was to stop the
spread of COVID-19, which our Supreme Court described as “the most threatening public-health
crisis of modern times” and that “has resulted[] in significant numbers of persons suffering serious
illness or death.” In re Certified Questions from the United States Dist Court, 506 Mich at 337-
338. And, once again, the Gym accepted that the Governor’s EOs were issued solely for a public
purpose, and it did not contest the prudence of the Governor’s actions or her authority to issue the
EOs.18 Lending further support for our stance that the character of the Governor’s actions strongly
15
Furthermore, lost profits and other consequential damages are generally not recoverable as just
compensation in condemnation proceedings; just compensation focuses on lost market value.
United States v Petty Motor Co, 327 US 372, 377-378; 66 S Ct 596; 90 L Ed 729 (1946).
16
We find validity in the following argument presented by the State in its brief on appeal:
The [EOs] . . . did not preclude employees of fitness centers from accessing
the centers’ indoor facilities, nor did it preclude those businesses from using their
facilities to engage in other, lower-risk commercial activity, fitness-related or
otherwise (such as the provision of remote fitness services through recorded or live
online classes, or the sale of products . . .).
17
See Penn Central, 438 US at 124.
18
On the issue of reasonableness, for purposes of analyzing an alleged violation of “substantive
due process” and not a taking, land-use, we note regulations must be reasonably necessary to
preserve the public’s health and safety and cannot be arbitrary and capricious. Bonner v Brighton,
495 Mich 209, 227-228; 848 NW2d 380 (2014) (referencing the test of reasonableness in regard
to zoning ordinances and substantive-due-process challenges). The Gym states in its brief on
appeal that it “did not make and will not be making a substantive due process claim.”
-17-
favors the State, or perhaps actually demands that we find no taking, is language in precedent
issued by the United States Supreme Court.
In Lucas, 505 US at 1029, the Supreme Court indicated that just compensation is not owed
to a property owner for an alleged taking that arises from a law or decree that does nothing more
“than duplicate the result that could have been achieved in the courts . . . by the State under its . .
. power to abate nuisances that affect the public generally, or otherwise.” (Emphasis added.) The
Supreme Court then noted, “The principal ‘otherwise’ that we have in mind is litigation absolving
the State . . . of liability for the destruction of real and personal property, in cases of actual
necessity, to prevent the spreading of a fire or to forestall other grave threats to the lives . . . of
others.” Id. at 1029 n 16 (quotation marks and citations omitted; emphasis added). The purpose
of the EOs was to forestall the spread of COVID-19 that had hospitalized and killed thousands of
Michiganders.
Along those same lines, in Penn Central, 438 US at 125, the United States Supreme Court
explained:
[I]n instances in which a state tribunal reasonably concluded that “the
health, safety, morals, or general welfare” would be promoted by prohibiting
particular contemplated uses of land, this Court has upheld land-use regulations that
destroyed or adversely affected recognized real property interests. See Nectow v
Cambridge, 277 US 183, 188; 48 S Ct 447; 72 L Ed 842 (1928). Zoning laws are,
of course, the classic example, see Euclid v Ambler Realty Co, 272 US 365; 47 S
Ct 114; 71 L Ed 303 (1926) (prohibition of industrial use); Gorieb v Fox, 274 US
603, 608; 47 S Ct 675; 71 L Ed 1228 (1927) (requirement that portions of parcels
be left unbuilt); Welch v Swasey, 214 US 91; 29 S Ct 567; 53 L Ed 923 (1909)
(height restriction), which have been viewed as permissible governmental action
even when prohibiting the most beneficial use of the property. . . . .
Similar to this quoted passage, in Keystone Bituminous Coal Ass’n v DeBenedictis, 480 US
470, 491-492; 107 S Ct 1232; 94 L Ed 2d 472 (1987), the United States Supreme Court expressed:
The Court’s hesitance to find a taking when the State merely restrains uses
of property that are tantamount to public nuisances is consistent with the notion of
“reciprocity of advantage” . . . . Under our system of government, one of the State’s
primary ways of preserving the public weal is restricting the uses individuals can
make of their property. While each of us is burdened somewhat by such restrictions,
we, in turn, benefit greatly from the restrictions that are placed on others. These
restrictions are properly treated as part of the burden of common citizenship. Long
ago it was recognized that all property in this country is held under the implied
obligation that the owner’s use of it shall not be injurious to the community, and
the Takings Clause did not transform that principle to one that requires
compensation whenever the State asserts its power to enforce it. [Quotation marks
and citations omitted.]
In light of the precedent, we cannot conclude that the Gym has a viable takings case under
the Penn Central balancing test. We will, however, briefly examine a couple of cases cited by the
-18-
Gym. The Gym attempts to support its position by citing Cedar Point Nursery, 141 S Ct 2063.
But in that case, the United States Supreme Court faced the following set of circumstances:
A California regulation grants labor organizations a “right to take access”
to an agricultural employer’s property in order to solicit support for unionization.
Agricultural employers must allow union organizers onto their property for up to
three hours per day, 120 days per year. The question presented is whether the access
regulation constitutes a per se physical taking under the Fifth and Fourteenth
Amendments. [Id. at 2069 (citation omitted; emphasis added).]
Because Cedar Point Nursery addressed an alleged physical taking, it has no relevance to the
instant case. See Tahoe-Sierra Preservation Council, 535 US at 323 (it is not proper to treat cases
involving a physical taking as controlling precedents when evaluating an alleged regulatory
taking).
The Gym’s reliance on Cebe Farms, Inc v United States, 116 Fed Cl 179 (2014), is also
misplaced. In Cebe Farms, the plaintiffs sought, in part, just compensation following the
destruction by the United States Department of Agriculture of their breeder chickens and eggs as
part of the government’s effort to stop the spread of and to eradicate a serious poultry disease that
had broken out in Southern California. Id. at 184. Again, Cebe Farms was a case involving the
physical destruction or taking of property, distinguishing it from the instant case.
We reverse and remand for entry of judgment in favor of the State. We do not retain
jurisdiction. Having fully prevailed on appeal, the State may tax costs under MCR 7.219.
/s/ Jane E. Markey
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
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