The latest cert petition from Michael Berger, this time involving procedural due process and takings.
Here are the Questions Presented:
The City of Dana Point “red tagged” Petitioner’s motel and then had a receiver appointed to oversee its rehabilitation without ever providing notice of the hearing. Thereafter, it set the property for a foreclosure sale. It did all of this by means of “ex parte” proceedings that provided no formal notice or hearing. That raises serious due process issues, both procedural and substantive, as well as a taking of property without just compensation.
Question 1: When government acts without notice in a way that seriously impacts the rights of citizens, does the lack of constitutionally required notice deprive the victim of property without due process of law?
Question 2: Is it finally time to rein in California’s practice of ignoring this Court’s line of regulatory takings decisions, based on Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), while charting its own more restrictive course on this federal constitutional issue for which this Court’s decisions provide a floor?
The first question is important, no question. No notice, no chance to object sure seems like a recipe for no due process. But don’t miss the petition’s response to the second question, about whether California has gone its own way on takings. Here, the question of whether any use will suffice to get the government off the Lucas hook as the lower court concluded. The petition argues no, the U.S. Supreme Court has emphasized that it must be “economically beneficial use,” and not merely “some” use.
This case doesn’t stand alone, and the petition points out that despite numerous decisions by the U.S. Supreme Court, California courts have charted their own more restrictive course:
For many decades, California has acted on belief that it is free to set its own parameters for how it treats its property-owning citizens. It has consistently disregarded this Court’s clear holdings, even to the point that (until this Court corrected the situation in First English), property rights cases were routinely filed in federal court because the California state courts provided no compensation remedy. See, e.g., City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999). It is time to return California to the American constitutional fold. Indeed, it is long past time.
Pet. at 12.
Be sure to check out the entire petition.
Follow along here, or on the Court’s docket.
The Sunshine Group, LLC v. City of Dana Point, No. 25-414 (U.S. Oct. 2, 2025)