Way back when (you know, less than 2 months ago, a lifetime in coronavirus time) when the plaintiffs filed the complaint, we noted that, win or lose, it laid out the takings argument in a comprehensive and understandable way.
It still may be that the arguments are worthwhile pursuing. Our more comprehensive thoughts on that subject here ("Evaluating Emergency Takings: Flattening The Economic Curve"). We don't know yet, because the district court dismissed the suit because the defendants (Michigan's governor) enjoys 11th Amendment immunity. Yes, even against claims for just compensation. Opinion and Order Granting Defendant's Motion to Dismiss, Martinko v. Whitmer, No. 2:20-cv-10931 (E.D. Mich. June 5, 2020).
A suit against the Governor in her official capacity is a suit against the State, and there's no takings exception to 11th Amendment immunity (according to the court). As is often the case, the harder stuff is located in the footnotes:
The fact that plaintiffs claim that defendant has taken their property without compensation does not change the Eleventh Amendment analysis. Plaintiffs cite Knick v. Twp. of Scott, Pa., 139 S. Ct. 2162 (2019), for the proposition that they may bring a § 1983 action as soon as government action “takes” their property. But the defendant in that case was a Pennsylvania township that issued an ordinance plaintiff claimed took her property without compensation, and the Court, in summarizing its holding, stated that “[a] property owner may bring a takings claim under § 1983 upon the taking of his property without just compensation by a local government.” Id. at 2179 (emphasis added). Plaintiffs in the present case cite no authority suggesting that a state is not entitled to Eleventh Amendment immunity as to a Fifth Amendment takings claim asserted in federal court.
Slip op. at 4, n.2.
This is an issue percolating in the lower courts (both in coronavirus and non-corona takings claims). See here, here, and here, for example. In this report ("Judge dismisses lawsuit against Michigan governor over coronavirus orders"), the property owners' lawyer vows an appeal. So it appears the Sixth Circuit will soon add some thoughts, so stay tuned.
Opinion and Order Granting Defendant's Motion to Dismiss, Martinko v. Whitmer, No. 2:20-cv-10931 (E.D. Mich. June 5, 2020)
