Amicus Curiae Brief Filed in Fifth Amendment Takings Case on Behalf of Wayne, Oakland and Macomb Counties

Today, I filed another friend of the court (amicus curiae) brief in the Court of Appeals for the counties of Macomb, Oakland and Wayne.  The plaintiff filed suit against the state of Michigan claiming administrative user fees paid into the county court Friend of the Court system are an unconstitutional taking of private property in violation of the Fifth Amendment to the U.S. Constitution.

The position in the brief I wrote on behalf of the three largest metropolitan counties in Michigan is that the user fees are not separate property that the users are compelled to part with as a result of unconstitutional governmental regulation.

Although Fifth Amendment jurisprudence concerning taking of private property without just compensation, and the legal definitions of what constitutes property and what constitutes a taking has been described as a confusing “bramble bush” by some commentators, here I reduce the main branches of the jurisprudence and explain each of the seemingly divergent categories of “takings clause” jurisprudence.

In the end, the plaintiff’s attempt to make this case similar to ones in which individuals are actually compelled to part with a separate, cognizable property interest as the result of a government’s interference fails.  Here, the user fees at issue do not even qualify under any of the analyses applied to consider whether a taking has occurred because the fees at issue are not a separately cognizable “property interest” under the Fifth Amendment to the United States Constitution.

Read the brief here:  (FINAL)Trantham.Amicus.Brief.filed.1.23.2015

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