No.

____________

In the
Supreme Court of the United States
____________ ____________

ERICA BOJICIC, dba Evolve Dance

Company, et al.,
Petitioners,
v.
RICHARD MICHAEL DEWINE, individually and
in his official capacity as GOVERNOR
OF THE STATE OF OHIO, et al.,
Respondents.
____________ ____________

On Petition for a Writ of Certiorari

to the United States Court of Appeals
for the Sixth Circuit
____________ ____________

PETITION FOR A WRIT OF CERTIORARI

____________ ____________

THOMAS B. RENZ ROBERT J. GARGASZ

1907 West State Counsel of Record
Street, Suite 162 1670 Cooper Foster
Fremont, Ohio 43420 Park Road
Lorain, Ohio 44053
(440) 960-1670
rjgargasz@gmail.com

Counsel for Petitioners

 –i–

QUESTION PRESENTED

Is the government required to prove with

evidence that its action taken during an emergency
which intrudes on private property rights was a
necessity in order to be relieved of its duty of
compensation for a taking under the Fifth
Amendment?
 – ii –

LIST OF PARTIES

PETITIONERS
Erica Bojicic, dba Evolve Dance Company, LLC;
Kenneth Edward Ican, dba Rock City Dance, Inc.;
David A. Ross, II, dba DA Ross Holdings, LLC, dba
Crystal Ballroom;
Emily Mertens, dba Ballroom Dance Experience, dba
Movement Enterprises, LLC;
Jeffrey Goltiao, dba Dance Edge;
Randy Clinger, dba UA Fitness, LLC;
Jerry Satava, dba Hudson Ballroom Company, dba
In-Flight Ballroom Company, dba Mambo Kings
Inc.;
Lisa Ferrara, dba Your Next Move, LLC;
Sergi Bakalov, dba Columbus Dance Sport, LLC;
Joshua L. Tilford;
Darcy Sines, dba Miss Darcys Academy of Dance and
Art, LLC;
Michael Scoggins, dba Ohio Ballroom;
Amanda Shane, dba Count Me In, LLC.

RESPONDENTS
Richard Michael DeWine, individually and in his
official capacity as the Governor of the State of
Ohio;
Stephanie B. McCloud, in her individual capacity;
Lance Himes, in his individual capacity;
 – iii –

Amy Acton, in her individual capacity;

Sovereign State of Ohio;
Joseph Mazzola, individually and in his official
capacity as Health Commissioner, Director of
Franklin County Public Health;
Peter Schade, individually and in his official capacity
as Health Commissioner, Director of Erie County
Health;
David P. Covell, individually and in his official
capacity as Health Commissioner, Director of
Lorain County Health;
Terry Allan, individually and in his official capacity
as Health Commissioner, Director Cuyahoga
County Board of Health;
Melba R. Moore, individually and in her official
capacity as Health Commissioner, Director of the
Cincinnati Health Department offices;
Mysheika Roberts, individually and in her official
capacity as Health Commissioner, Director of the
Columbus Public Health;
Eric Zgodzinski, individually and in his official
capacity as Health Commissioner, Director of the
Toledo-Lucas County General Health
Department;
Kirkland Norris, individually and in his official
capacity as Health Commissioner, Director of the
Stark County Public Health with offices;
Donna Skoda, individually and in her official
capacity as Health Commissioner, Director of the
Summit County Public Health;
 – iv –

Bruce Vanderhoff, in his official capacity as the

Director of the Ohio Department of Health;
Ron Graham, individually and in his official capacity
as Health Commissioner, Director of Lake County
General Health District.

CORPORATE DISCLOSURE STATEMENT

None of the Petitioners are subsidiaries or

affiliates of a publicly owned corporation. There are
no publicly owned corporations, party to this appeal,
that have a financial interest in the outcome.

LIST OF DIRECTLY RELATED CASES

Bojicic v. DeWine, No. 21-4123, 2022 U.S. App.

LEXIS 23652 (6th Cir., 2022).

Bojicic v. DeWine, Case No. 3:21-CV-00630-JGC, 569

F. Supp. 3d 669 (N.D. Ohio 2021)
 –v–

TABLE OF CONTENTS

Question Presented .................................................... i

List of Parties ............................................................ ii

Corporate Disclosure Statement .............................. iv

List of Directly Related Cases .................................. iv

Table of Contents....................................................... v

Table of Authorities ................................................. vii

Petition for a Writ of Certiorari ................................ 1

Opinions Below .......................................................... 1

Jurisdiction ................................................................ 1

Constitutional Provisions and

Regulations Involved ........................................... 1

Statement of the Case ............................................... 3

Reasons for Granting the Writ.................................. 7

I. A public purpose is always a

condition antecedent to a Fifth
Amendment taking ....................................... 7

II. Rational basis analysis is not

the appropriate standard of review
in a regulatory takings case ....................... 12
 – vi –

III. Police power government action

does not categorically invalidate
a takings claim. ...........................................16

IV. The government should be required

to show necessity for the actions
taken as an affirmative defense to
a takings claim ............................................22

Conclusion ................................................................27

APPENDIX
Order of the United States Court of Appeals
for the Sixth Circuit, Bojicic v. DeWine,
No. 21-4123 (August 22, 2022).................................1a

Order of the United States District Court

for the Northern District of Ohio, Bojicic
v. DeWine, No. 3:21-CV-00630-JGC
(January 5, 2022) ...................................................22a

Order of the United States District Court

for the Northern District of Ohio, Bojicic
v. DeWine, No. 3:21-CV-00630-JGC
(October 27, 2021) ..................................................29a

Ohio Dept. of Health, Director’s Order

(March 21, 2020) (Pertinent Portion) ....................71a

Ohio Dept. of Health, Director’s Order

(March 22, 2020) (Pertinent Portion) ....................73a

Ohio Dept. of Health, Director’s Order

(May 22, 2020) (Pertinent Portion)........................79a
 – vii –

TABLE OF AUTHORITIES

FEDERAL CASES

Allen v. Cooper,
555 F. Supp. 3d 226 (E.D.N.C. 2021)................... 22

AmeriSource Corp. v. United States,

525 F.3d 1149 (Fed. Cir. 2008) ...................... 16, 20

Arkansas Game & Fish Comm. v. United States,

568 U.S. 23 (2012) ............................................ 4, 19

Armstrong v. United States,

364 U.S. 40 (1960) ................................................ 10

Ashcroft v. Iqbal,
556 U.S. 662 (2009) .......................................... 6, 23

Baptiste v. Kennealy,
2020 U.S. Dist. LEXIS 176264,
2020 WL 5751572 (D. Mass. Sept. 25, 2020)....... 14

Blackburn v. Dare Cty.,

2020 U.S. Dist. LEXIS 168522, 2020
WL 5535530 (E.D.N.C. Sept. 15, 2020) ......... 14, 24

Barnes v. United States,

538 F.2d 865 (1976) .............................................. 21

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) .......................................... 6, 23

Bowditch v. Boston,
101 U.S. 16 (1879) .......................................... 24, 25
 – viii –

TABLE OF AUTHORITIES
(continued)

Burdick v. Takushi,
504 U.S. 428 (1992) ................................................ 7

Daugherty Speedway v. Freeland,

520 F. Supp. 3d 1070 (N.D.Ind. 2021) ...... 14-15, 24

Edwards v. United States,

371 F.Supp.2d 859 (W.D. Ky. 2005) ...................... 5

First English Evangelical Lutheran

Church v. Cty. of Los Angeles,
482 U.S. 304 (1987) .............................. 8, 10, 13, 21

Guggenheim v. City of Goleta,

638 F.3d 1111 (9th Cir.2010), cert denied
563 U.S. 988 (2011) .............................................. 13

Hawaii Hous. Auth. v. Midkiff,

467 U.S. 229 (1984) .............................................. 17

Hodel v. Virginia Surface Mining & Reclamation

Assn., Inc., 452 U.S. 264 (1981) ........................... 10

Hughes v. Washington,
389 U.S. 290 (1967) .............................................. 22

Hurley v. Kincaid,
285 U.S. 95 (1932) ................................................ 10

Jacobs v. United States,

290 U.S. 13 (1933) ................................................ 22
 – ix –

TABLE OF AUTHORITIES
(continued)

John Corp. v. City of Houston,

214 F.3d 573 (5th Cir. 2000) ................................ 20

Johnson v. Manitowoc County,

635 F.3d 331 (7th Cir. 2011) .......................... 16, 20

Kimball Laundry Co. v. United States,

338 U.S. 1 (1949) .................................................. 18

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) ..................................... 11, 21

Lech v. Jackson,
791 F. App’x 711 (10th Cir. 2019) ................ 9, 6, 20

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) ................................................ 8

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ............................................ 20

Luke’s Catering Serv., LLC v. Cuomo,

2020 U.S. Dist. LEXIS 165907, 2020
WL 5425008 (W.D.N.Y. Sept. 10, 2020) ........ 15, 24

Midkiff v. Adams Cnty. Reg’l Water Dist.,

409 F.3d 758 (6th Cir. 2005) ................................ 23

Mitchell v. Harmony,
54 U.S. 115 (1851) ................................................ 25
 –x–

TABLE OF AUTHORITIES
(continued)

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893) .............................................. 10

Nectow v. Cambridge,
277 U.S. 183 (1928) ................................................ 9

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) .............................................. 13

Pcg-Sp Venture I LLC v. Newsom,

U.S. Dist. LEXIS 137155,
2020 WL 4344631 (C.D. Cal. June 23, 2020) ...... 15

Penn Central Transp. Co. v. New York City,

438 U.S. 104 (1978) ...................... 4, 9, 11-14, 19-20

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) .............................................. 20

Spevack v. Klein,
385 U.S. 511 (1967) ......................................... 26-27

Sugarman v. Dougall,
413 U.S. 634 (1973) ................................................ 7

Tiwari v. Friedlander,
26 F.4th 355 (6th Cir.2022) .................... 6, 8, 11-12

TJM 64, Inc. v. Harris,

475 F. Supp. 3d 828 (W.D. Tenn. 2020) ........ 14, 19
 – xi –

TABLE OF AUTHORITIES
(continued)

TrinCo Inv. Co. v. United States,

722 F.3d 1375 (Fed.Cir. 2013) ........................24-25

United States v. Caltex, Inc.,

344 U.S. 149 (1952) .........................................24-25

United States v. Carolene Prods. Co.,

304 U.S. 144 (1938) .............................................. 23

United States v. Droganes,

728 F.3d 580 (6th Cir. 2013) .................................. 9

United States v. Jones,

109 U.S. 513 (1883) .............................................. 10

Walker v. Bain,
257 F.3d 660 (6th Cir. 2001) ................................ 23

Williamson v. Lee Optical of Oklahoma, Inc.,

348 U.S. 483 (1955) .......................................... 7, 10

Williamson County Regional Planning Comm’n

v. Hamilton Bank of Johnson City,
473 U.S. 172 (1985) ................................................ 6

STATE CASES

Brewer v. State,
341 P.3d 1107 (2014) ................................ 21, 24, 26
 – xii –

TABLE OF AUTHORITIES
(continued)

Crooks v. State,
343 So.3d 248 (La.App. 3 Cir. 2022).................... 21

Customer Co. v. City of Sacramento,

895 P.2d 900 (Cal. 1995) ...................................... 16

Eggleston v. Pierce County,

64 P.3d 618 (Wash. 2003) .................................... 16

In re Abbott,
601 S.W.3d 802 (Tex. 2020) ................................. 25

Kelley v. Story Cty. Sheriff,

611 N.W.2d 475 (Iowa 2000)................................ 16

Smyth v. Conservation Comm. of Falmouth,

94 Mass. App. Ct. 790, 119 N.E.3d 1188
(2019) cert denied, 140 S.Ct. 667 (2019) ............. 13

Valley Hosp. Ass'n v. Mat-Su Coalition for

Choice, 948 P.2d 963 (Alaska 1997) .................... 21

UNITED STATES CONSTITUTION

Fifth Amendment ............ 1, 8, 9, 13, 14, 16, 22, 23, 27

Ninth Amendment................................................. 2, 26

Eleventh Amendment ..................................... 2, 21, 22

Fourteenth Amendment ........................................ 2, 22

 – xiii –

TABLE OF AUTHORITIES
(continued)

FEDERAL RULES

Fed. R. Civ. P. 12 ................................................... 3, 24

STATE REGULATIONS

Ohio Dept. of Health, Director’s Order

(March 21, 2020) ................................................ 2, 3

Ohio Dept. of Health, Director’s Order

(March 22, 2020) ................................................ 2, 3

Ohio Dept. of Health, Director’s Order

(May 22, 2020) .................................................... 2, 3

OTHER AUTHORITIES

Robert H. Thomas, Evaluating Emergency

Takings: Flattening the Economic
Curve, 29 Wm. & Mary Bill Rts. J.
1145 (2021) ............................................... 12, 22, 26
 –1–

PETITION FOR A WRIT OF CERTIORARI

Petitioners Erica Bojicic, et al., respectfully

petition for a writ of certiorari to review a judgment
of the United States Court of Appeals for the Sixth
Circuit.

OPINIONS BELOW

The opinions of the district court are reported at

Bojicic v. DeWine, 569 F. Supp. 3d 669 (N.D. Ohio
2021) (dismissal order), appearing at Appendix C;
and Bojicic v. DeWine, No. 3:21-CV-00630-JGC, 2022
U.S. Dist. LEXIS 2344 (N. D. Ohio, Jan. 5, 2022)
(denial of motion to stay sanctions proceeding),
appearing at Appendix B. The opinion of the court of
appeals is reported at Bojicic v. DeWine, No. 21-4123,
2022 U.S. App. LEXIS 23652 (6th Cir., Aug. 22,
2022), and appears at Appendix A.

JURISDICTION

The judgment of the court of appeals was entered

on August 22, 2022. The jurisdiction of this Court is
invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS AND

REGULATIONS INVOLVED

The FIFTH AMENDMENT of the Constitution of

the United States provides that private property
shall not be taken for public use without just
compensation, stating in relevant part: “nor shall
private property be taken for public use, without just
compensation.”
 –2–

The NINTH AMENDMENT provides that non-

enumerated rights are retained by the people,
stating:

The enumeration in the Constitution, of

certain rights, shall not be construed to deny
or disparage others retained by the people.

The ELEVENTH AMENDMENT provides that

States are immune from suit by citizens of another
State or of foreign citizens or subjects, stating:

The Judicial power of the United States shall

not be construed to extend to any suit in law
or equity, commenced or prosecuted against
one of the United States by Citizens of
another State, or by Citizens or Subjects of
any Foreign State.

The FOURTEENTH AMENDMENT provides that

States may not deny citizens the rights ensconced in
the Constitution, stating in relevant part:

No State shall make or enforce any law

which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any State deprive any person of
life, liberty, or property, without due process
of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

Representative regulations involved — three

Director’s Orders from the Ohio Department of
Health dated March 21, 2020; March 22, 2020; and
May 22, 2020 — are set forth in pertinent part in
Appendices D, E, and F, respectively.
 –3–

STATEMENT OF THE CASE

Petitioners ask the court to consider whether

police powers exercised during a public emergency
equate to a special character or an overriding public
purpose under regulatory takings analysis so as to
foreclose any claims for compensation for government
intrusion into private property rights under the Fifth
Amendment. The circuit courts have reached
different conclusions on this exact issue which is
important to the administration of justice and
preservation of individual rights.
Petitioners challenged statewide orders closing
dance studio businesses during the Covid-19 public
emergency. On March 21, 2020, Petitioners’ busi-
nesses were specifically ordered closed.1 On March
22, 2020, Petitioners’ businesses were shut down as
nonessential, and gatherings of over 10 people were
prohibited.2 On May 22, 2020, Petitioners’ businesses
were ordered reopened only if they operated under
onerous “safety” regulations, including the wearing of
masks and “social distancing” of six feet,3 which
further destroyed Petitioners’ businesses. Petitioners’
dance studios were restricted, destroyed and taken
without compensation by Ohio officials. Dance studio
owners were deprived of the right to work and the
beneficial use of their property, and faced an
indefinite closure and/or restriction. The orders were
enforced with civil and criminal penalties.
The complaint in the district court was dismissed
on Rule 12 motions to dismiss and a motion for
judgment on the pleadings. Bojicic v. DeWine, 569 F.
Supp. 3d 669, 696 (N.D. Ohio 2021). The government
1 Appendix D, 71a.
2 Appendix E, 73a-74a.
3 Appendix F, 79a-81a.
 –4–

Respondents presented no evidence for their defense,

and the district court relied upon rational basis
analysis — which does not require any evidence from
the government to justify its actions — to make its
conclusions. The district court dismissed Petitioners
takings claim, stating that “Where a state
‘reasonably conclude[s] that “the health, safety,
morals, or general welfare” would be promoted by
prohibiting particular contemplated uses of land,’ the
state is not required to provide just compensation to
the citizens affected by the regulation.” Bojicic, 569
F. Supp. 3d at 689-690 (citing Penn Central Transp.
Co. v. City of New York, 438 U.S. 104, 125 (1978)).
App. C, 57a.
The Sixth Circuit reversed on that specific issue,
stating that a mere invocation of police power will
not categorically invalidate a takings claim, Bojicic v.
DeWine, 6th Cir. No. 21-4123, 2022 U.S. App. LEXIS
23652, at *24 (Aug. 22, 2022). However the Sixth
Circuit then ruled that the “character” of the
government action barred compensation all the
same, stating “First, the action was taken to protect
public health by reacting quickly in the face of a fast-
spreading and novel virus. ... Second, the shutdown
orders were in effect for only a little over two
months.” Id., at *26-27. The Sixth Circuit erred in its
ruling. In its first point, the appeals court merely
reiterated the government’s reason for the action,
i.e., a valid police power, which is a precedent, not a
bar, to a takings claim. Its second point does not
invalidate a takings claim either, because temporary
takings are still compensable takings. Arkansas
Game & Fish Comm. v. United States, 568 U.S. 23,
32 (2012).
Courts are charged with a fact-based analysis of
takings claims under Penn Central Transp. Co. v.
New York City, 438 U.S. 104 (1978). Courts should
 –5–

not be permitted, let alone encouraged, to accept any

plausible reason for a government regulation
whether in an emergency or not, without any
evidence whatsoever, as a complete defense to a
taking under the Fifth Amendment.
Courts at this point feel quite comfortable
disparaging any plaintiff who questions the
governmental motives related to Covid-19 regu-
lations. Consider this statement from the Sixth
Circuit in the below appeal:

The Plaintiffs criticize this conclusion [that

the action was taken to protect public health]
as demonstrating “unconscious or implicit
bias towards the official government
narrative on the dangers posed by Covid-19
and the unscientific methods for its
containment.” This extraordinary assertion is
presented without any factual support. And
beyond the fact that it presupposes
conspiratorial bad faith on the part of a
variety of state officials, it ignores the fact
that these orders were issued at the very
beginning of the pandemic, when no
government official could possibly have had
the kind of information about the efficacy of
its particular actions that the Plaintiffs
demand.

Bojicic, 6th Cir. No. 21-4123, 2022 U.S. App. LEXIS

23652, at *26 (emphasis added). App. A, 19a-20a.
The standard of review for appeals from
decisions made upon a motion to dismiss or motion
for judgment on the pleadings is de novo. Edwards v.
United States, 371 F.Supp.2d 859 (W.D. Ky. 2005).
Neither the district court nor the Sixth Circuit
required any evidence to prove the assertions made
 –6–

by government defendants. The Sixth Circuit

accepted the government’s version of the facts whole
cloth. The Sixth Circuit twisted Petitioners’
argument that implicit or unconscious bias may be
present in these Covid-19 cases into what it deemed
to be an extraordinary assertion presented without
any factual support, and a presupposition of
conspiratorial bad faith. Bojicic, 6th Cir., at *26.
Neither the Petitioners nor the court knows what
information the government officials had at the
beginning of the Covid-19 emergency, because no
one was allowed to look at any evidence. Even a blind
man can see the double standard here.
The plausibility pleading standard established
under Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
taken in conjunction with the holdings of Williamson
v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955)
and Tiwari v. Friedlander, 26 F.4th 355 (6th Cir.
2022), discussed below, poses serious legal difficulties
for legitimate civil rights claims, and contravenes
Supreme Court jurisprudence in regulatory takings
cases. Allowing this precedent to stand requires civil
rights plaintiffs to disprove nearly every conceivable
defense of the government for its action without
access to discovery. Now, the government and a split
of circuit courts seek to expand this impossible
pleading standard to regulatory takings claims when
the challenged government actions are ensconced in
a proclaimed emergency. This precedent opens wide
the door to government regulatory overreach.
There is no doubt that these issues are important
and unsettled. The Court should grant this petition.
 –7–

REASONS FOR GRANTING THE WRIT

Neither a public purpose nor police power

invalidates a takings claim. Government defendants
must prove necessity to avoid their obligation to
compensate property owners for takings under the
Fifth Amendment.

I. A public purpose is always a condition

antecedent to a Fifth Amendment Taking.

The government is never permitted take private

property without a proper public purpose.

If a government action intrudes on property

rights without a proper public purpose, then an
action will lie in due process. A due process violation,
i.e., where the government acted with improper
purpose or outside of its police power, has an
analysis separate and different from an analysis for a
takings action. In a due process claim, a strict
scrutiny test will apply if fundamental rights are
infringed upon or if the plaintiff is a member of a
protected class. Burdick v. Takushi, 504 U.S. 428
(1992) (voting rights); Sugarman v. Dougall, 413 U.S.
634 (1973) (resident aliens are a protected class). The
rational basis test applies to all other rights claimed
under a cause of action for violation of due process,
for example, challenges to government regulations.
Despite courts’ assurances that they have not
made it impossible to challenge government
regulations, the burden of proof on plaintiffs pressing
claims for due process violations can be monumental.
Williamson v. Lee Optical of Oklahoma, Inc., 348
U.S. at 488, sets a high bar for plaintiffs: “It is
enough that there is an evil at hand for correction,
and that it might be thought that the particular
 –8–

legislative measure was a rational way to correct it.”

(emphasis added.) Justice Douglas, dissenting, also
stated the inevitable result of such burden of proof —
the “day is gone,” he said, when Fourteenth
Amendment challenges to state licensing laws could
succeed Id.
Tiwari v. Friedlander, 26 F.4th 355 (6th Cir.
2022), gave lip service to plaintiffs’ property rights,
but then proceeded to prove Justice Douglas’ dissent
in Williamson to be prophetic. The Tiwari court
approved Kentucky's certificate-of-need law with the
general rational basis test and ruled exactly as
Justice Douglas predicted. Despite plaintiffs laying
out a “powerful case,” Kentucky’s law passed the
rational basis test, barely. See Tiwari at 363-364;
petition for certiorari filed July 12, 2022, No. 22-42.
Government interferences with private property
rights done with improper purpose and without
police power are due process violations, not takings.
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 548
(2005). Due process analysis, with its rational basis
evidentiary hurdle, does not apply to takings claims.
See also First English Evangelical Lutheran Church
v. Cty. of Los Angeles, 482 U.S. 304, 315 (1987) which
stated that at least since Jacobs v. United States, 290
U.S. 13 (1933), claims for just compensation are
grounded in the Constitution itself. “This basic
understanding of the [Fifth] Amendment makes clear
that it is designed not to limit the governmental
interference with property rights per se, but rather to
secure compensation in the event of otherwise proper
interference amounting to a taking.” First English, at
315.
Petitioners lay out the previous explanation of
the basics of the rational basis test in due process
cases for three reasons. First, to demonstrate how
difficult it is to challenge government regulations in
 –9–

the cases where rational basis analysis does apply.

Second, to point out that this analysis does not apply
at all to takings claims. The third reason is to
provide a background for the explanation below of
how courts are improperly applying the rational
basis test when evaluating regulatory takings.
Multiple courts believe the rational basis
analysis applies in a takings matter. It does not. The
district court in the instant matter held that the
Petitioners were engaged in “fallacy” in an “attempt
to treat a health-related order issued under the
police power as a taking.” Bojicic, 569 F. Supp. 3d at
690. App. C, 56a. To support this holding, the district
court cited a criminal forfeiture case as an example of
police power superseding a takings claim, United
States v. Droganes, 728 F.3d 580, 591 (6th Cir. 2013).
The district court quoted Penn Central, where the
Supreme Court quoted a zoning case based upon a
Fourteenth Amendment due process analysis. See
Penn Central, at 125, citing Nectow v. Cambridge,
277 U.S. 183, 188 (1928). The district court also
relied on Lech v. Jackson, 791 F. App’x 711 (10th Cir.
2019)(unpublished); the Lech court improperly held
that police power superseded takings claims. None of
these legal analyses is applicable to the instant
takings claim.
.
In a takings claim, the plaintiff admits the legitimacy
of the government action and seeks compensation for
intrusion on property rights.

A public purpose is antecedent to any

government taking of private property under the
Fifth Amendment. In a takings action against the
government, the property owner concedes a proper
government purpose, and claims the right to be
compensated for the taking of private property.
 – 10 –

Because the Fifth Amendment Takings clause is self-

executing, First English, 482 U.S. at 315, once a
taking has been found, compensation must follow:

Consideration of the compensation question

must begin with direct reference to the
language of the Fifth Amendment, which
provides in relevant part that “private
property [shall not] be taken for public use,
without just compensation.” As its
language indicates, and as the Court has
frequently noted, this provision does not
prohibit the taking of private property, but
instead places a condition on the exercise of
that power. See Williamson County
[Regional Planning Comm. v. Hamilton
Bank, 473 U.S. 172] at 194; Hodel v.
Virginia Surface Mining & Reclamation
Assn., Inc., 452 U.S. 264, 297, n. 40 (1981);
Hurley v. Kincaid, 285 U.S. 95, 104 (1932);
Monongahela Navigation Co. v. United
States, 148 U.S. 312, 336 (1893); United
States v. Jones, 109 U.S. 513, 518 (1883).
This basic understanding of the
Amendment makes clear that it is designed
not to limit the governmental interference
with property rights per se, but rather to
secure compensation in the event of
otherwise proper interference amounting to
a taking. Thus, government action that
works a taking of property rights
necessarily implicates the “constitutional
obligation to pay just compensation.”
Armstrong v. United States, 364 U.S. 40, 49
(1960).

First English, 482 U.S. at 314-315.

 – 11 –

The Supreme Court has ruled that regulatory

takings claims may be brought into federal courts.
“Federal courts will not invalidate an otherwise
lawful uncompensated taking when the property
owner can receive complete relief through a Fifth
Amendment claim ....” Knick v. Twp. of Scott, 139
S.Ct. 2162, 2179 (2019). A takings claim mostly
admits the public good and seeks compensation.

Once a public purpose is acknowledged, the Penn

Central case lays out the proper analysis for
regulatory takings claims.

The regulatory takings analysis differs greatly

from the analysis used in a due process claim such as
Tiwari v. Friedlander. Penn Central Transp. Co. v.
New York City, 438 U.S. at 124, requires a
multifactor test to determine whether compensation
is owed for the taking of private property under an
economic regulation:

In engaging in these essentially ad hoc,

factual inquiries, the Court's decisions have
identified several factors that have parti-
cular significance. The economic impact of
the regulation on the claimant and,
particularly, the extent to which the regu-
lation has interfered with distinct
investment-backed expectations are, of
course, relevant considerations. So, too, is
the character of the governmental action. A
“taking” may more readily be found when the
interference with property can be charac-
terized as a physical invasion by government
... than when interference arises from some
public program adjusting the benefits and
 – 12 –

burdens of economic life to promote the

common good.

Id. (internal citations omitted).

Each factor must be analyzed. While some
factors can weigh more heavily toward the
government or the plaintiffs, no one factor can be
relied upon to categorically deny compensation for
certain types of takings claims. Economic impact and
investment expectations are fact-based inquiries that
are unlikely to be properly evaluated at the
pleadings stage.
The character prong of the multifactor Penn
Central test is a descriptor for the character of the
government intrusion into private property rights; it
is not a descriptor of the government’s motive for its
actions. Robert H. Thomas, Evaluating Emergency
Takings: Flattening the Economic Curve, 29 Wm. &
Mary Bill Rts. J. 1145 (2021) at 1153 et seq. The
character factor is not an opportunity for the
government defendant to describe its police power,
intention, or public purpose for its action in taking
the plaintiffs’ private property. Nor is it an
opportunity for the court to surmise a rational basis
or public purpose on behalf of the government
defendant. The Penn Central character factor is an
examination of the nature of intrusion into private
property rights caused by the government action. Id.

II. Rational basis analysis is not the

appropriate standard of review in a
regulatory takings case.

The Penn Central multifactor test has been

repeatedly confirmed as law.
 – 13 –

The Penn Central multifactor test is used in

regulatory takings cases where there has been no
direct seizure or physical invasion of private
property. The test has been affirmed as the polestar
providing important guideposts that lead to the
ultimate determination whether just compensation is
required. Palazzolo v. Rhode Island, 533 U.S. 606,
633 (2001) (O’Connor, J., concurring). This Court has
repeatedly declined to review cases where the Penn
Central case has been directly challenged, e.g., Smyth
v. Conservation Comm. of Falmouth, 94 Mass. App.
Ct. 790, 119 N.E.3d 1188 (2019) cert denied, 140
S.Ct. 667 (2019) (asking the court to excise the
“character” factor from Penn Central regulatory
taking analysis). But this Court has also declined to
review cases where the Penn Central factors are
incorrectly applied, e.g., Guggenheim v. City of
Goleta, 638 F.3d 1111 (9th Cir. 2010), cert denied 563
U.S. 988 (2011) (Appeals court failed to weigh all the
Penn Central factors), leading to confusion and
inconsistency in application among the courts.
The three factor fact-based Penn Central inquiry
does not incorporate the levels of scrutiny used in a
due process claim, because regulatory takings are
takings subject to analysis under Fifth Amendment
jurisprudence. As this Court stated in First English,
a landowner is entitled to bring an action in inverse
condemnation as a result of the self-executing
character of the Fifth Amendment with respect to
compensation.

Today’s courts mistakenly apply the rational basis

standard applicable to certain due process claims
when they equate the “character” factor in the Penn
Central multifactor analysis with “police power.”
 – 14 –

Courts across the country have disregarded the

standards delineated in the Penn Central and Fifth
Amendment jurisprudence. The district court for the
Northern District of Indiana lists several cases where
Penn Central is ignored, and proceeds itself to adopt
a similar reason to deny a taking claim:

Unsurprisingly, courts across the country

agree that the final Penn Central factor, the
character of the disputed government action
during the COVID-19 pandemic, weighs
heavily in Defendants’ favor. See e.g.
Baptiste v. Kennealy, 2020 U.S. Dist. LEXIS
176264, at *57-58, 2020 WL 5751572, at *22
(D. Mass. Sept. 25, 2020) (discussing the
landlord-tenant relationship during the
pandemic may burden landlords, but it also
invariably protects tenants and others who
“would be at greater risk of COVID-19
infection if displaced tenants caused or
contributed to the overcrowding of other
dwellings and homeless shelters, or were
required to live on the streets”), TJM 64, Inc.
v. Harris, 475 F. Supp. 3d 828, 839 (W.D.
Tenn. 2020) (“The character of Defendants’
actions and the context in which Defendants
find themselves, here facing a national
public health emergency, cut strongly
against a finding that the COVID-19 Closure
Orders amount to regulatory takings”),
Blackburn v. Dare Cty., 2020 U.S. Dist.
LEXIS 168522, at *18-21, 2020 WL 5535530,
at *8 (E.D.N.C. Sept. 15, 2020) (“[Defen-
dant’s] concededly legitimate exercise of its
emergency management powers under North
Carolina law to protect public health in the
‘unprecedented’ circumstances presented by
 – 15 –

the COVID-19 pandemic, [] weighed against

loss of use indirectly occasioned by preven-
ting plaintiffs from personally accessing
their vacation home for 45 days, [] does not
plausibly amount to a regulatory taking of
plaintiffs’ property”), Luke’s Catering Serv.,
LLC v. Cuomo, 2020 U.S. Dist. LEXIS
165907, at *34, 2020 WL 5425008, at *12
(W.D.N.Y. Sept. 10, 2020) (“Rather, the char-
acter of the government action here is a
temporary and proper exercise of the police
power to protect the health and safety of the
community, which weighs against a
taking”), Pcg-Sp Venture I LLC v. Newsom,
2020 U.S. Dist. LEXIS 137155, at *31-32,
2020 WL 4344631, at *10 (C.D. Cal. June 23,
2020) (“the Orders convert public health
burdens into economic burdens, and reflect a
judgment that the common good is best
promoted by the protection of vulnerable
members of society from a lethal and
contagious disease, rather than the
protection of some proprietary interests”).

Daugherty Speedway v. Freeland, 520 F.Supp. 3d

1070, 1078 (N.D.Ind. 2021).
The cases above conflate police power with the
character prong of the Penn Central analysis, and
categorically deny takings claims by subjecting the
claims to the rational basis burden of proving either
government mal-intent or complete lack of any
plausible reason for the regulation. Most of these
claims are dismissed at the pleadings stage without
discovery, that is, with a paucity of facts with which
to take up the fact-based Penn Central analysis.
 – 16 –

III. Police power government action does not

categorically invalidate a takings claim.

A proper use of police power does not in and of itself

invalidate a claim for a taking, yet courts deny relief
solely on this basis.

Neither the Fifth Amendment nor takings

jurisprudence deems that a taking exists only if the
government action exceeds the bounds of its
authority. Many courts incorrectly conclude that if
the government is properly exercising its police
power, then there has been no taking. See e.g., Lech,
791 F. App’x at 713 (no taking when officers
destroyed the Lechs’ home while attempting to
enforce the state's criminal laws); AmeriSource Corp.
v. United States, 525 F.3d 1149 (Fed. Cir. 2008)
(holding that the Government seized prescription
drug inventory lawfully as part of its power to
investigate and prosecute suspected crimes, and the
distributor was not entitled to compensation under
the Takings Clause when the inventory was returned
after its expiration date); Johnson v. Manitowoc
County, 635 F.3d 331 (7th Cir. 2011) (The Fifth
Amendment taking claim failed because the actions
were taken under the state's police power); Eggleston
v. Pierce County, 64 P.3d 618 (Wash. 2003) (No
compensation when property owner’s home was
rendered uninhabitable by the execution of a
criminal search warrant and preservation order);
Customer Co. v. City of Sacramento, 895 P.2d 900
(Cal. 1995) (Damage caused to appellant's conven-
ience store when police officers fired tear gas into it
to subdue a felony suspect was not a compensable
taking); Kelley v. Story Cty. Sheriff, 611 N.W.2d 475
(Iowa 2000) (damage caused to plaintiff's property
when law enforcement officers executed an arrest
 – 17 –

warrant did not amount to a taking of private

property). Takings jurisprudence does not permit
governments to hide their intrusions into private
property under the banner of police power, yet courts
have so held.

The power of eminent domain is a police power. If the

use of police power invalidates every takings claim,
then the Takings Clause is meaningless.

The power of eminent domain is coterminous

with police powers. The Fifth Amendment’s “public
use” requirement is thus coterminous with the scope
of a sovereign's police powers. Hawaii Hous. Auth. v.
Midkiff, 467 U.S. 229, 240 (1984). In the instant
matter, the Sixth Circuit agreed that the use of police
power does not categorically preclude compensation
for a taking:

In short, no appellate court seems to have

applied the police-power language so broadly
as to categorically declare that no state
response to a public-health emergency could
be a taking. True, this police-power exception
has been applied in the context of criminal
forfeitures and abating nuisances. But to
hold that a regulation intended to benefit
public health can never be a compensable
taking would be an unwarranted extension
of existing precedent.

Bojicic, 6th Cir. No. 21-4123, 2022 U.S. App. LEXIS

23652, at *25. App. A, 19a.
Proper analysis of Petitioners’ takings claims
ended there. The Sixth Circuit then proceeded,
however, to equate police power with the character of
 – 18 –

the government action test under Penn Central. The

court claimed “character” is dispositive:

But the third factor—the character of the

government action—weighs even more
heavily in the Defendants’ favor. This factor
is dispositive for two reasons. First, the
action was taken to protect public health by
reacting quickly in the face of a fast-
spreading and novel virus.

Bojicic, 6th Cir. No. 21-4123, 2022 U.S. App. LEXIS

23652, at *26-27. App. A, 19a. Protecting public
health is simply police power, that is, a reason for its
regulations. A plausible reason for a regulation is not
a bar to a takings claim. Again, the Sixth Circuit
accepted the government’s rationale for its actions at
face value, without analysis of any evidence.
The character test of Penn Central is designed to
ask whether the government action required some
surrender of a fundamental aspect of property rights,
or was the action merely a shifting of economic
benefits and burdens. Given that the plaintiffs were
faced with indefinite closure, there being no end date
on the initial order, and complete loss of income for
more than two months, the regulation did require
surrender of property rights. The effects of the forced
closures lasted well after the closure order was lifted,
and some effects have been permanent. Next the
court determined that the “character” of the
regulation was “temporary” when it stated: “Second,
the shutdown orders were in effect for only a little
over two months.” Id. The temporary nature of the
regulation, again, does not answer the question
asked by the character factor of the Penn Central
analysis. Temporary takings are still takings. See,
e.g., Kimball Laundry Co. v. United States, 338 U.S.
 – 19 –

1, 6 (1949), where temporary takeover of an ongoing

laundry business during wartime was a compensable
taking, and Arkansas Game & Fish Commission, 568
U.S. at 38, which held that the temporary nature of
an invasion does not automatically exempt it from
compensation. The duration of a regulation bears on
compensation amount, not on whether the
government is liable. See Penn Central, 438 U.S at
124.

The Circuit Courts are split on the issue of police

power categorically invalidating takings claims.

While the Sixth Circuit in Bojicic stated that

acting pursuant to police powers will not preclude a
takings claim, other federal courts have reached a
different conclusion, including one in the ambit of the
Sixth Circuit. In TJM 64 Inc., 475 F.Supp.3d at 839,
the district court held that using police power would
likely trump a takings claim:

Defendants, in promulgating the July 8,

2020 Order were acting pursuant to their
broad police powers to address public health
concerns during a national, state, and local
pandemic. ... Defendants’ promulgation of
the July 8, 2020 COVID-19 Closure order
was not for a “public use” but was instead a
valid exercise of the broad police powers
bestowed upon state and local officials to
prevent detrimental public harms by
restricting Plaintiffs’ use of their property. It
is unlikely that such action would require
compensation under the Takings Clause.

The Tenth Circuit has held that “when the state

acts pursuant to its police power, rather than the
 – 20 –

power of eminent domain, its actions do not

constitute a taking for purposes of the Takings
Clause.” Lech, 791 F. App’x at 717. The Seventh and
the Federal Circuits have also held that government
police power actions would invalidate takings claims
in Johnson v. Manitowoc County, 635 F.3d 331 (7th
Cir. 2011) and AmeriSource Corp. v. United States,
525 F.3d 1149 (Fed. Cir. 2008).
The Fifth Circuit follows this Court in stating
that action pursuant to police power can amount to a
taking. As stated in the John Corp. v. City of
Houston, 214 F.3d 573, 578 (5th Cir. 2000):

The Supreme Court's entire “regulatory

takings” law is premised on the notion that a
city’s exercise of its police powers can go too
far, and if it does, there has been a taking.
See Pennsylvania Coal Co. v. Mahon, 260
U.S. 393 (1922) (“The general rule at least is,
that while property may be regulated to a
certain extent, if regulation goes too far it
will be recognized as a taking.”); see also
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992).

This split of authority needs a binding resolution

that preserves Fifth Amendment property rights.

It is improper to use Article III standing, statutory

immunity, and Eleventh Amendment sovereign
immunity to deny takings claims.

Courts rarely consider standing requirements in

takings claims, because it is plain to see when the
government has interfered with property rights
through regulation. The harm must be proximately
caused by the government. Penn Central, at 124. In
 – 21 –

other words, “There need be only a governmental act,

the natural and probable consequences of which
effect such an enduring invasion of plaintiffs’
property as to satisfy all other elements of a
compensable taking.” Barnes v. United States, 210
Ct.Cl. 467, 476, 538 F.2d 865 (1976). Accordingly,
Article III standing analysis is inapplicable to a
takings claim, and was improperly applied to the
instant matter.4
Further, takings claims are not based in tort.
The taking of property without proper exercise of
eminent domain is not a tort but is considered an
appropriation. Crooks v. State, 343 So.3d 248, 264
(La.App. 3 Cir. 2022). State immunity statutes
limiting governmental tort liability do not apply to
takings cases. The viability of a constitutional
takings claim thus is unaffected by tort immunity,
which is not constitutional but statutory. “[W]e
cannot defer to the legislature when infringement of
a constitutional right results from legislative action.”
Brewer v. State, 341 P.3d 1107, 1111 (Alaska 2014),
fn. 12 (quoting Valley Hosp. Ass'n v. Mat-Su
Coalition for Choice, 948 P.2d 963, 972 (Alaska
1997). Likewise, Eleventh Amendment sovereign
immunity does not preclude compensation for
takings. Allen v. Cooper, 555 F. Supp. 3d 226
(E.D.N.C. 2021); and a property owner has a claim
for a violation of the Takings Clause as soon as a
government takes his property for public use without
paying for it. Knick, 139 S.Ct. at 2170. It is “clear
that it is the Constitution that dictates the remedy
for interference with property rights amounting to a
taking.” First English, 482 U.S. at 316, fn. 9.
4This improper application is evident at Bojicic, 6th Cir., at *8;
Bojicic, 569 F. Supp.3d at 681.
 – 22 –

Lastly, the Fifth Amendment Takings Clause is

not trumped by Eleventh Amendment sovereign
immunity. The Fifth Amendment applies to the
states through the Fourteenth Amendment:

But the Constitution measures a taking of

property not by what a State says, or by
what it intends, but by what it does. ...
Because the Due Process Clause of the
Fourteenth Amendment forbids such
confiscation by a State, no less through its
courts than through its legislature, and no
less when a taking is unintended than when
it is deliberate, I join in reversing the
judgment.

Hughes v. Washington, 389 U.S. 290, 298 (1967)

(Justice Stewart, concurring).

IV. The government should be required to

show necessity for the actions taken as an
affirmative defense to a takings claim.

Using necessity as an affirmative defense places the

burden of proof where it belongs, on the government
defendants, not the court or the plaintiff.

Assertions that a taking is not compensable due

to a public emergency should prevail only if the
government can show that its action was necessary
to avoid a real and imminent danger related to the
emergency that would be caused by the owner’s use
of the property, and that the restriction was narrowly
tailored to further the government purpose of
avoiding danger in the face of a public emergency.
See Evaluating Emergency Takings: Flattening the
Economic Curve, supra at 1147.
 – 23 –

When courts mistakenly apply the rational basis

scrutiny to takings claims, they require such a low
level of proof for government defendants that no
actual proof is required of the government to defend
its action. In fact, the rational basis plausibility
standard found in United States v. Carolene Prods.
Co., 304 U.S. 144 (1938), puts the court in the
awkward position of surmising plausible reasons for
the government’s actions, and in effect making the
government’s case for them. A supposed rational
basis for government action need not be supported by
any evidence presented to the court. Midkiff v.
Adams Cnty. Reg’l Water Dist., 409 F.3d 758, 770
(6th Cir. 2005). The government defendant need not
present any reason for its action, and not giving any
reason at all will suffice if the court can conceive of a
plausible reason for the regulation. Walker v. Bain,
257 F.3d 660, 668 (6th Cir. 2001).

Use of the rational basis analysis in takings claims

forecloses an avenue of relief guaranteed by the Fifth
Amendment.

Because plaintiffs are entitled to pursue relief

guaranteed by the Fifth Amendment, the government
must not be permitted to hide behind the mere
assertion of a rational basis for its actions in a public
emergency situation. Further, when a court or
government defendant supplies a rational basis,
unsupported by any evidence, combined with the
plausibility pleading standards in Ashcroft, 556 U.S
at 678, and Twombly, 550 U.S. at 570, takings claims
are improperly subjected to fact-based decisions
made by the court at the pleading stage as if the
Penn Central factors were matters of law. These are
not questions of law, and plaintiffs are regularly
denied the opportunity to develop facts through
 – 24 –

discovery and create a record for appeal. See, e.g.,

Daugherty Speedway v. Freeland, 520 F. Supp. 3d
1070; Blackburn v. Dare Cty., 2020 U.S. Dist. LEXIS
168522, 2020 WL 5535530; and Luke’s Catering
Serv., LLC v. Cuomo, 2020 U.S. Dist. LEXIS 165907,
2020 WL 5425008; all dismissed on Rule 12 motions.

The Government should be required to show

necessity as an affirmative defense.

Police power is not an exception to the just

compensation requirement, whether within or
without a public emergency. Pennsylvania Coal Co.,
260 U.S. at 415-416. There are situations where the
government can assert a necessity defense to avoid
liability for taking or destroying property in an
emergency. Brewer, 341 P.3d at 1117; TrinCo Inv.
Co. v. United States, 722 F.3d 1375, 1377 (Fed.Cir.
2013).
The necessity defense requires both an actual
emergency and an imminent danger met by a
response that was actually necessary. TrinCo, 722
F.3d at 1376. The Brewer court, citing TrinCo,
explained the necessity defense. Supreme Court
precedent requires “that the doctrine of necessity
may be applied only when there is an imminent
danger and an actual emergency giving rise to actual
necessity.” Brewer, 341 P.3d at 1117. Examples of
actual emergency and imminent danger included
nearby raging fires and wartime bombings.

[The TrinCo court] noted that in Bowditch,

the City of Boston was not liable when its
firefighters demolished a building “at a place
of danger in the immediate vicinity [of a
fire], to arrest the spreading of the fire,” and
“the measure . . . stopped the progress of the
 – 25 –

fire.” It noted that in Caltex, the United

States was not liable for the Army's
destruction of privately owned oil facilities in
Manila “in the face of their impending
seizure by the enemy,” where Japanese
troops were marching into the city and their
planes were bombing the area. It cited
another wartime seizure case, Mitchell v.
Harmony [54 U.S. 115 (1851)], involving the
Army's confiscation and loss of a trader’s
goods during the war with Mexico: “[F]or a
taking to be justified during wartime the
‘danger must be immediate and impending’
or the ‘necessity urgent . . . such as will not
admit delay’ because ‘it is the emergency
that gives the right [to the Government to
take private property], and emergency must
be shown to exist before the taking can be
justified.’”

Brewer, 341 P.3d at 1117 (citing Bowditch v. Boston,

101 U.S. 16 (1879); and United States v. Caltex, Inc.,
344 U.S. 149 (1952)). Again, the necessity defense
requires an actual emergency and an imminent
danger met by a response that was actually
necessary. Because it is an affirmative defense,
evidence must be offered to prove the elements of the
defense.
The Constitution is not suspended when the
government declares a state of disaster. In re Abbott,
601 S.W.3d 802, 805 (Tex. 2020). Constitutional
rights continue to exist, even in times of war, and a
pandemic is not a war. Imminent and impending
dangers and actual emergencies as defined in current
case law are situations of grave imminent danger to
life and limb, such as fire and bombing. Even then,
the government must show necessity for its actions
 – 26 –

or compensate for the taking. Respondents in the

instant matter are required to prove the same
necessity for their actions or compensate for the
takings. While Petitioners recognize the Ninth
Amendment has traditionally been viewed as limited
in scope, allowing such unlimited government
intrusions into property rights as imposed by the
public officials of the State of Ohio on its citizens
would result in the final and complete judicial
invalidation of that Amendment. Further, allowing
this precedent to stand obliterates an explicit and
long-recognized right to redress for governmental
taking of property; it invalidates one of the most
important checks and balances in the U.S.
Constitution.
Unfortunately, arguments of necessity have
worked their way into analysis of takings claims, as
a kind of “super public use” justifying denial of
compensation without more. Proper public purpose is
not a defense to a takings claim. Everything the
government does should be done for the health,
welfare, and safety of the public. This erroneous legal
analysis unjustly denies relief in the face of
constitutional violations, and invites governments to
deem everything an emergency. Evaluating
Emergency Takings, supra, at 1169, citing Brewer,
341 P.3d at 1109.
With such permissive treatment by the courts,
the government will be encouraged to declare and
perpetuate states of emergency and accrue greater
control with little or no accountability.

It may be that it is the obnoxious thing in its

mildest and least repulsive form; but illegiti-
mate and unconstitutional practices get their
first footing in that way, namely, by silent
approaches and slight deviations from legal
 – 27 –

modes of procedure. This can only be

obviated by adhering to the rule that
constitutional provisions for the security of
person and property should be liberally
construed. A close and literal construction
deprives them of half their efficacy, and
leads to gradual depreciation of the right, as
if it consisted more in sound than in
substance. It is the duty of courts to be
watchful for the constitutional rights of the
citizen, and against any stealthy encroach-
ments thereon.

Spevack v. Klein, 385 U.S. 511, 515 (1967).

CONCLUSION

Petitioners ask this honorable court not to deny a

takings claim because “the government had a good
reason to do it.” A good reason to do it may be enough
to allow the taking to occur, but the explicit language
of the Fifth Amendment, along with controlling case
law, demand that such a taking must be
compensated.
For the foregoing reasons, Petitioners
respectfully request that their petition for a writ of
certiorari be granted.

Respectfully submitted,

ROBERT J. GARGASZ
Counsel of Record
1670 Cooper Foster Park Road
Lorain, Ohio 44053
Telephone: (440) 960-1670
Email: rjgargasz@gmail.com
 – 28 –

THOMAS B. RENZ
1907 West State Street
Suite 162
Fremont, Ohio 43420