Michigan Residents Lose Fight Over Sewage Rule

CINCINNATI (CN) – A Sixth Circuit panel declined Thursday to revive federal takings claims brought by Ann Arbor residents who were required to install sump pumps in their homes after the city experienced sewage overflow problems.

A city ordinance passed in 2000 required some residents to connect their home’s drainage systems to the municipal storm-sewer system and install sump pumps.

In a decision published just over a month after oral arguments, the Cincinnati-based appeals court ruled the residents are precluded from bringing federal claims that are essentially identical to those tossed out in state court.

The consolidated state court case was dismissed when the court found residents could not bring takings claims because they owned the sump pump systems installed in their homes.

The federal lawsuit was filed in 2017 and dismissed by U.S. District Court Judge Stephen J. Murphy III before reaching the merits.

Judge Murphy ruled that both claim and issue preclusion applied because the “Michigan Takings Clause is ‘substantially similar’ to its federal counterpart,” and the state claims had already been litigated.

U.S. Circuit Judge Alice Batchelder authored the Sixth Circuit’s opinion and agreed with the district court’s decision.

The residents had argued that because the city removed the state case to federal court before it was remanded back to state court and eventually dismissed, their federal claims had been preserved, but Batchelder disagreed.

“The procedural posture of removal and remand neither strips nor grants subject-matter jurisdiction,” Batchelder wrote.

“Because … it was the city that removed this case to federal court,” she continued, “the appellants could have litigated their claims in federal court. By moving to remand to state court, they waived that opportunity.”

Judge Batchelder concluded the brief, seven-page opinion by ruling that even if the Michigan Takings Clause was not nearly identical to its federal counterpart, the residents’ claims would still be barred.

“If,” she wrote, “the takings jurisprudence of the two constitutions is ‘coextensive’ … then issue preclusion bars subsequent litigation of the federal takings claim after litigation of the state takings claim on the merits.”

The judge continued, “If the takings jurisprudence of the two constitutions is not ‘coextensive,’ then claim preclusion bars subsequent litigation of the federal takings claim because it should have been brought with the state claim in the first instance in the Michigan court.”

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