David Kircher v. City of Ypsilanti ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0206n.06
Case No. 18-1589
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 13, 2020
DAVID KIRCHER, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
CITY OF YPSILANTI, et al., ) MICHIGAN
)
Defendants-Appellees. ) OPINION
)
BEFORE: SUTTON, NALBANDIAN, and READLER, Circuit Judges
NALBANDIAN, Circuit Judge. This litigation between David Kircher and Defendants
began in Michigan state court in the late 1980s as nuisance-abatement suits over three properties
Kircher owned. During the litigation, Kircher lost all three properties. Over a decade later, Kircher
hopes to continue the litigation in federal court and receive compensation for his losses. He asks
this court to give him that chance. But life rarely gives do-overs. And this litigation is no different.
We find the Michigan state courts’ decisions preclude Kircher from raising the federal claims he
wants to now litigate in federal court. So Kircher’s claims fail. We AFFIRM the district court’s
decision granting Defendants’ motion to dismiss and rejecting Kircher’s second motion to amend.
I.
The claims Kircher wants to now raise in federal court relate to events spanning over a
decade and across multiple appeals and remands in state court. To determine the merits of
Kircher’s claims, we must now revisit the long and relevant procedural history.
Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
A.
In the late 1980s, this epic began. See Ypsilanti Fire Marshal v. Kircher, 730 N.W.2d 481,
488 (Mich. Ct. App. 2007). At that time, Kircher owned three properties relevant to this appeal:
(1) the Thompson Building, (2) the Cross Street Property, and (3) the Perrin Street Property. In
Washtenaw County Circuit Court, the City of Ypsilanti sued Kircher over one—the Thompson
Building. It sought to compel him to “make certain repairs and abate certain building-code and
fire-code violations” there. Id. The parties then agreed to a court order (1996 order) appointing
Ypsilanti’s building supervisor as receiver for that property to “bring[] the exterior of the building
into compliance with the building ordinances and the Historic District ordinance.” Id. (quoting
the 1996 order). The order also appointed Kircher as the contractor to perform the specified repairs
at his own cost. If Kircher flouted the order, the receiver could replace Kircher and “take certain
other actions” to complete the required work. Id. And if he failed to pay, the parties agreed that
“a lien shall be imposed upon the property . . . collectible through property taxes.” Id. (quoting
the 1996 order).
Kircher did not comply. So the circuit court entered a second and final order (1997 order).
It directed Kircher “to ‘begin work on the building to complete the repairs and improvements listed
. . . within 120 days.’” Id. at 488–89 (quoting the 1997 order).
A couple of years later, Ypsilanti again sued Kircher to abate nuisances—this time on all
three of the properties. (See R. 95, Ypsilanti’s Resp., PageID 2002 (May 14, 2001 Cross Street
Property Complaint), 2028 (April 11, 2002 Thompson Building Complaint), 2044 (July 30, 2001
Perrin Street Property Complaint).) It started with three complaints, again in Washtenaw County
Circuit Court.
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
In its Thompson Building complaint, Ypsilanti alleged that Kircher had ignored the 1996
and 1997 orders. Kircher, 730 N.W.2d at 489. It asked the court to issue an order to show cause
and requested immediate appointment of a receiver for the property. Id. And Ypsilanti argued all
three properties violated the state Fire Prevention Code and local building and fire codes. Id. at
489 (Thompson Building), 494 (Cross Street Property); see Ichesco v. Rankin, No. 272905, 2008
WL 681856, at *1 (Mich. Ct. App. Mar. 13, 2008) (Perrin Street Property).
B.
The circuit court held show cause hearings for the Thompson Building and for the Cross
Street Property.1
For the Thompson Building hearing, the court heard testimony from the parties’ witnesses.
Ypsilanti’s fire marshal, Jon Ichesco, testified on the building’s problems and how he reached his
findings. For example, Ichesco discussed “problems with [that property’s] roof, . . . and [problems
with its] windowpanes falling into the street.” Ypsilanti Fire Marshal v. Kircher, Nos. 242697,
242857, 2004 WL 895888, at *1 (Mich. Ct. App. Apr. 27, 2004). Kircher “offered only his own
testimony about what he thought was required and what he did to repair the building.” Id. He also
asserted that he could not possibly have completed the repairs in the 1997 order “because he had
not received the grant money” referenced in the 1996 order. Id.
1
Kircher points out that the court held no evidentiary hearing before issuing the Thompson
Building Order.
But he does not dispute (and in fact concedes) that the circuit court held a show cause
hearing after Ypsilanti brought its three nuisance-abatement suits and before the court issued the
Thompson Building Order. Instead, he explains that show cause hearings are not equivalent to
evidentiary hearings. And the state courts confirmed Defendants’ explanation that the court at
least held show cause hearings before issuing its orders for both properties. Kircher, 2004 WL
895888, at *1–2.
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
The court disagreed with Kircher. It found Kircher disregarded the 1996 and the 1997
orders. It “specifically f[ou]nd [] the building [] in dangerous condition” and “a nuisance.” Id.
(quoting the trial court). So it entered the Thompson Building Order. That order appointed Robert
Barnes as receiver for the property and required Barnes to “make the building economically
viable[,]” id. (quoting the Thompson Building Order); it essentially authorized him to “complete
all necessary repairs[,]” Kircher, 730 N.W.2d at 489. It required Barnes to “maintain detailed
records of the costs expended [to] repair[]” that property and directed Barnes to bill Kircher
monthly for those costs. Id. It also directed Kircher to “pay all billed costs within 30 days,” and
to pay Ypsilanti’s attorney fees “incurred in conjunction with the enforcement and supervision of
th[at] order.” Id. And it gave the receiver “a lien on the property at the conclusion of the repairs
for any costs Kircher had not paid.” Id.
The circuit court entered its first order for the Cross Street Property after the show cause
hearing for that property. That order enumerated 224 repair items. Kircher, 2004 WL 895888, at
*2. The court also issued “an order to vacate the premises which also required a certificate of
occupancy before further occupation and inspections.” Id.
The parties later met for an evidentiary hearing where they spoke on the record. Id.
Ypsilanti asserted that the parties agreed Kircher would make repairs “subject to a determination
of workmanship by Harry Hutchinson, head of the city’s building department.” Id. It explained
that the parties were trying to resolve the issues but that the parties would litigate anything
unresolved. Id. Kircher also spoke on the record and “did not object” to Ypsilanti’s testimony.
Id.
“[B]ecause the parties entered a stipulated order[,]” the court did not hear further testimony.
(R. 95, Ypsilanti’s Resp., PageID 2005.) Instead, the court entered another order requiring Kircher
4
Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
to make the repairs within ten days and permitting city officials to inspect the building twenty-one
days after the order’s entry. Kircher, 2004 WL 895888, at *3. It agreed to give Hutchinson
authority to approve the workmanship of Kircher’s repairs. Id. Parties then stipulated to the entry
of one more order that required Kircher to make “several repairs . . . immediately to bring th[e]
[Cross Street Property] into compliance.” Id. (internal quotation marks omitted) (quoting the
additional order).
But Kircher did not comply. Id. The parties again held a show cause hearing for the Cross
Street Property where Ypsilanti moved the court to appoint a receiver to make the repairs. Id.
Kircher responded. So the circuit court held another evidentiary hearing where it considered
testimony from Hutchinson, Ichesco, and Kircher.2 Id. Hutchinson explained that he complied
with the order that permitted him to make “all determinations of workmanship” on repairs made
at that property. Id. Since the court’s entry of that order, Hutchinson had visited the property “and
was not pleased with the workmanship of the repairs” he found. Id. Ichesco testified on the repairs
listed in the complaint and later orders; he specified that “the condition of the chimney posed
threats of collapse and carbon monoxide poisoning.” Id. Kircher responded and explained “the
repairs that he made[.]” Id. And he discussed his “occupancy problems.” Id.
The court ruled in Ypsilanti’s favor; it “entered an order giving the city the exclusive
responsibility and right to make the [five specified] repairs listed in the order” (the Cross Street
Property Order). Id.; see Kircher, 730 N.W.2d at 495. But the Cross Street Property Order did
not appoint a receiver. Instead, it “permit[ted] the city to employ Barnes or other entities to
accomplish this task.” Kircher, 2004 WL 895888, at *6. That order also “directed Ypsilanti or its
contractors to send Kircher regular invoices for the expense of all repairs[.]” Kircher, 730 N.W.2d
2
The parties agree and consider this the “first evidentiary hearing in which testimony was taken
regarding the Cross Street Property[.]” (R. 95, Ypsilanti’s Resp., PageID 2007.)
5
Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
at 495. “[I]n the event Kircher failed to pay, Ypsilanti would have a lien on the apartment building,
which would be subject to foreclosure.” Id. The order also made Kircher “liable for any necessary
attorney fees and costs incurred by Ypsilanti or its contractors.” Id.; see also id. at 498.
So Kircher appealed both orders. The Michigan Court of Appeals consolidated those
appeals. See Kircher, 2004 WL 895888, at *1. But it took two years to render its decision. Id.
During those two years, Barnes and Ypsilanti kept themselves busy improving Kircher’s
property. The pair “had exclusive possession” of the Thompson Building and “were permitted to
repair the property with unlimited authority.” (R. 95, Ypsilanti’s Resp., PageID 2032.) In that
time, Ypsilanti also contracted with Barnes and his company (Barnes & Barnes) to make the Cross
Street Property repairs. But Kircher failed to pay the invoices Barnes submitted for the Cross
Street Property repairs. See Kircher, 730 N.W.2d at 495. So the trial court again held an
evidentiary hearing. Id. After that, it entered another order that directed Kircher to pay those
repair costs within 30 days. Id. That order also explained that Kircher’s payment on the full
amount would terminate Ypsilanti’s right to occupy and repair the Cross Street Property; in that
case, that property “would be fully returned to Kircher.” Id. But in the event Kircher failed to
make those repairs on time, the order gave Ypsilanti authority “to expend money to make further
repairs necessary to bring the building into compliance with local building and fire ordinances.”
Id. Again Kircher failed to pay. Id. at 496.
In 2004, the Michigan Court of Appeals decided the consolidated appeals. It affirmed the
circuit court’s decision to issue its order appointing a receiver for the Thompson Building. But it
objected to parts of the Thompson Building order. It found that the order gave the receiver too
much authority because it allowed him to “spend and charge t[he] defendant unlimited amounts of
money for unspecified repairs.” Kircher, 2004 WL 895888, at *4. The order also improperly
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
allowed the receiver to make repairs “beyond removing the hazards of which plaintiffs originally
complained.” Id. So the court “reverse[d]” the part of that order that allowed the receiver to “make
the building economically viable and functional.” Id. (quoting the Thompson Building Order).
The Cross Street Property Order, however, imposed “sufficient restraints” on Ypsilanti and on
what the city could do to “bring th[at] property into compliance.” Id. at *6 (quoting the Cross
Street Property Order).
The appeals court remanded both orders to the circuit court. For the Thompson Building
Order, the appeals court directed the trial court to “enter an order that more precisely defines the
receiver’s duties.” Id. at *4. And it ordered the circuit court to review the amounts Barnes charged
Kircher for the Cross Street Property work. Id. at *6. “In light of the harsh consequences of
defendant’s failure to pay, the [Cross Street Property] [O]rder must provide that charges to
[Kircher] shall be reviewed by the trial court to determine whether they are appropriate and
reasonable before [Kircher] is required to pay.” Id.
A month later, the circuit court began its evidentiary hearings on remand. At those
hearings, Kircher tried to raise, but the court refused to hear, any constitutional claims because the
appeals court “didn’t deal with it as a constitutional issue.” (R. 95, Ypsilanti’s Resp., PageID
2017–18 (quoting the evidentiary hearing transcript).)
Barnes testified on the Cross Street Property repairs. The five original repairs he made
“related to the abatement of alleged Fire Prevention Code violations[.]” Kircher, 730 N.W.2d at
498. Barnes had also hoped and expected that he would “ultimately receive[] ownership of the
building.” Id. at 499. So he “moved forward” with more repairs to “bring the apartment building
into compliance with [the] city ordinances and to make the building economically viable.” Id. at
498–99. But he testified he never asked a court for permission to go beyond the five specified
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
repairs.3 Id. at 499. He also conceded that Kircher “never received an opportunity to contest or
object to any of the[] additional repairs and modifications.” Id.
Kircher also testified on those repairs. He explained his inability to find financing to pay
the costs he owed Barnes for the five initial repairs on that property. Id. He let the court know
that he believed another contractor “could have [] performed” the five repairs “at a lower cost”
than Barnes charged. Id.
During the Thompson Building remand hearings, the circuit court “expressed its opinion
that the [evidentiary] hearing would ‘satisfy’ th[e] [appeals court’s] remand instructions.” Id. at
490. But Kircher’s counsel argued otherwise. He explained that the appeals court had directed
the circuit court to enter an order that more precisely tailored the receiver’s duties to align with the
original purpose of the receivership and the order. Id. The court also heard Barnes’s testimony
on the Thompson Building repairs.
At the end of the evidentiary hearings, the circuit court largely approved the fees Barnes
charged for work done on both the Thompson Building and the Cross Street Property. Id. at 491,
499. But Kircher still could not pay. So the circuit court “entered a lien against the Thompson
Building[.]” Id. at 491. Barnes then sued to foreclose the Thompson Building lien. Two years
after Barnes filed that foreclosure complaint, the circuit court entered a judgment of foreclosure;
it ordered the sheriff to sell that property. Id. at 491–92. The Thompson Building’s successor
receiver Stewart Beal—appointed on Ypsilanti and Barnes’s joint motion—ultimately bought the
Thompson Building at a 2006 sheriff’s sale for $346,186.39. Id. at 492–93.
3
The Cross Street Property Order did, however, explain that, in the case Kircher failed to make
the payments within the time specified in the order, the city and its contractor could make “further
repairs necessary to bring the building into compliance with local building and fire ordinances.”
Supra, at 6 (quoting Kircher, 730 N.W.2d at 495). And Kircher had failed to pay.
8
Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
Barnes also filed a complaint to foreclose the judicial lien on the Cross Street Property and
to determine interests in real property.4 Id. at 496. Both Barnes and Kircher moved for summary
disposition in the foreclosure proceedings. Id. at 497–98. Barnes asked the court to find Kircher
failed to pay costs associated with the five repairs enumerated in the order for that property.
Kircher counter-claimed and argued that “Barnes had exceeded his authority as Ypsilanti’s
contractor, and . . . [argued that Kircher] did not owe the amounts claimed by Barnes[.]” Id. at
498.
The circuit court ruled in Barnes’s favor. It found Kircher owed Barnes money for the
necessary repairs Barnes made on that property. Id. The trial court then entered a judgment of
foreclosure on that property and “ordered the property sold.” Id. at 499. And Barnes bought that
property at the sheriff’s sale for $244,535.09. Id. Kircher objected to the foreclosure judgment
and the sheriff’s sale because he believed “that statutorily prescribed procedures were not
followed.” Id. But the circuit court found that the sale “had been ‘regular in all respects’” and
entered an order confirming it.5 Id. (quoting the trial court order).
Kircher then appealed a second time. On appeal, he argued that the circuit court failed to
follow the appeals court’s remand instructions. He also raised constitutional claims—takings and
4
During that time, Ypsilanti and Barnes also jointly moved the circuit court and asked it to give
them authority to reconfigure that property into a sorority or a fraternity house. The court refused.
But Barnes was undeterred. He went ahead and applied to Ypsilanti for a “special use permit,”
requesting to use that property as a sorority or fraternity house. (R. 95, Ypsilanti’s Resp., PageID
2013.) And Ypsilanti later approved Barnes’s request for a special use permit to use the Cross
Street Property as a sorority or fraternity house.
5
The Cross Street Property foreclosure proceedings began before the state court decided the first
appeal it consolidated. But the court entered the order resolving the parties’ summary disposition
motions and entered its foreclosure judgment for that property after the appeals court’s decision.
Kircher, 730 N.W.2d at 498–99 (explaining that the state appeals court decided the first
consolidated appeal in April 2004 but the trial court resolved the summary disposition motions in
May 2004 and entered the foreclosure judgment in February 2005).
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
procedural due process claims—based on Ypsilanti and the receivers’ actions up until the appeal.
E.g., Brief for Kircher at 15, Kircher, 730 N.W.2d 481 (Nos. 260970, 260971), 2005 WL 5913373,
at *12 (The “case involving the Thompson Building . . . is an outrage to the constitution . . . [i]t is
nothing less than a taking . . . . [T]he longer it is permitted to go on, the greater is the liability of
the taxpayers of Ypsilanti for taking damages.”); id. (explaining that the Thompson Building
proceedings amounted to “a denial of basic Due Process of Law”); see also, e.g., Brief for Kircher
at 24, Kircher, 730 N.W.2d 481 (Nos. 260972, 260973), 2006 WL 4940881, at *25 (arguing that
the foreclosure on the Cross Street Property “is a taking” because “the city cannot take property
under the guise of administering its building code” (emphasis omitted)); id. at 21–22, 2006 WL
4940881, at *22–23 (asking for a retrial on charges for the Cross Street Property repairs because
the United States Supreme Court “has said: The fundamental requisite of due process of law is
the opportunity to be heard” (internal quotation mark omitted)).6
Ypsilanti and Barnes responded. They argued that the circuit court’s remand proceedings
“satisfied” both “[d]ue process and the law[.]” Brief for Ypsilanti at 19, Kircher, 730 N.W.2d 481
(Nos. 260970, 260971), 2005 WL 5913374, at *19; see also Brief for Barnes at 18, Kircher, 730
N.W.2d 481 (No. 260973), 2005 WL 5886853, at *18 (describing Kircher’s arguments as
presenting a “distorted view of what due process requires”). And “[t]here exists no fundamental
right in our legal system to violate a municipality’s codes and regulations with impunity[.]” Brief
for Barnes, supra, at 18, 2005 WL 5886853, at *18 (internal quotation marks omitted) (quoting
Banks v. City of Whitehall, 344 F.3d 550, 554 (6th Cir. 2003)). So Kircher’s argument that the
charges amounted to “an unconstitutional taking is absurd.” Id. at 20–21, 2005 WL 5886853, at
6
Westlaw dated this brief July 22, 2006—a mistake likely resulting from the smudged court stamp
on the original document. But it’s clear from the Michigan appeals court’s docket and the original
PDF’s signature page that this is Kircher’s July 2005 brief in Nos. 260972, 260973.
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
*20–21 (explaining that “[t]here was no taking” because Kircher “has not been deprived of his
property” and he “only has to pay the costs of the repairs made to abate the nuisance that [Kircher]
created”).
In a 2007 decision, the Michigan Court of Appeals affirmed parts of the circuit court’s
remand decisions on the two properties. It affirmed Ichesco’s authority to bring the nuisance-
abatement action for both properties. Kircher, 730 N.W.2d at 501–02 (Thompson Building); id.
at 511 (Cross Street Property). And it affirmed the court’s decision to “authoriz[e] Ypsilanti to
take possession of, and make necessary repairs to, the apartment building” at the Cross Street
Property. Id. at 517.
But it found the circuit court failed to follow its remand instructions for both orders. And
it found that error was not harmless. It explained that “[v]irtually all individual repairs and
renovations to the [Cross Street Property] were approved after the fact[.]” Id. at 513. So Kircher
“received no meaningful opportunity to contest any of th[ose] costs” before Barnes incurred them.
Id. And he did not get the chance to “separately contest each cost” and the reasonableness of the
Cross Street Property repairs until after Barnes made them. Id.
The circuit court’s evidentiary hearings also failed to cure the Thompson Building Order’s
defects. Those after-the-fact hearings gave Kircher “no meaningful opportunity to contest the
individual costs incurred . . . or to offer evidence in response to the individual proposed projects”
at the property. Id. at 505. And the circuit court did not follow the appeals court’s instruction to
“amend[] its original [Thompson Building] order or issue[] a new order to limit or otherwise
narrow the scope of the receiver’s authority.” Id. at 504. “To make matters worse,” the circuit
court issued an order appointing Beal as successor receiver on remand and allowed Beal “to merely
continue in the shoes of the original receiver and to carry on virtually unlimited repairs and
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
renovations to the Thompson Building without first seeking judicial permission or approval.” Id.
at 504–05.
To remedy the circuit court’s errors, the appeals court vacated the foreclosure judgments
for both properties and invalidated those foreclosure proceedings “to the extent that they involved
the collection of expenses incurred solely under the municipal building and fire codes.” Id. at 517.
But “to the extent that the[] [costs] involved the lien imposed for expenses properly incurred under
the state Fire Prevention Code[,]” the court “affirm[ed] the foreclosure proceedings and
judgment[s] of foreclosure[.]” Id.; see also id. at 507, 513. The court also found that “there
remained no further need for a receiver” once Beal bought the Thompson Building. Id. at 509. So
it ordered the circuit court to “enter an order terminating the receivership” as of the date of the
Thompson Building sheriff’s sale. Id. at 510. As the record owner, Beal alone remained
responsible for almost all costs incurred beyond that date. Id.
For a second time, the appeals court remanded to the circuit court with detailed
instructions.7 For both properties, it ordered the circuit court to determine the purposes for each
expense—either to remedy state Fire Prevention Code violations or to abate violations of Ypsilanti
building and fire codes. Id. at 517–18. For those falling in the first category, the court “shall
include th[o]se expenses in the amount of the foreclosed lien.” Id.; see also id. at 507, 513. But
it “shall exclude the[] expenses” in the latter category “from the lien amount[s] as surplus.” Id. at
7
We interpret the state appeals court’s remand instructions to mean that it mistakenly referred to
the same docket numbers twice for two sets of instructions. For the court’s remand instructions
on both properties, it references the Thompson Building docket numbers—“Docket Nos. 260970
and 260971.” Kircher, 730 N.W.2d at 517. But in its second set of remand instructions, the court
references “the apartment building[,]” its shorthand for the Cross Street Property. Id. The first set
of instructions also referenced the “order[’s] appoint[ment] [of] the receiver.” Id. The Cross Street
Property Order appointed no receiver. See supra, at 5. So we treat the second remand
instructions—the one that references “the apartment building”—as remand instructions for the
Cross Street Property Order. The first set of remand instructions applies to the Thompson
Building.
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517–18; see also id. at 507, 513. “All costs properly incurred to abate violations” in the latter
category “shall be paid out of this surplus, and any remainder left after payment of these expenses
shall be disbursed to Kircher.” Id. at 517–18. And “[i]n light of [the court’s] resolution of” the
consolidated appeals, the state appeals court “decline[d] to address the constitutional issues raised
by Kircher[.]” Id. at 516. But in the footnote immediately following that refusal, the appeals court
addressed Kircher’s takings argument. Id. at 516 n.22.
The court first recounted Kircher’s takings argument. Id. (explaining that Kircher relies
on County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004) to “suggest[] that his properties
have been taken by Ypsilanti without just compensation”). It “assum[ed]” that Kircher “could []
demonstrate[]” the “requisite state action[.]” Id. But a state “has not ‘taken’ anything when it
asserts its power to enjoin [a] nuisance-like activity” because “no individual has the right to use
his or her property . . . to create a nuisance[.]” Id. (first alteration in original) (quoting Keystone
Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491 n.20 (1987)). And “courts have
consistently held that a[]state need not provide compensation when it diminishes or destroys the
value of property by stopping illegal activity or abating a public nuisance.” Id. (alterations in
original omitted) (quoting DeBenedictis, 480 U.S. at 492 n.22). The state court also found that
“Ypsilanti was exercising its legitimate police power to abate the alleged nuisances on Kircher's
property[.]” Id. So the court “disagree[d] with Kircher’s contention . . . [and concluded that] no
unconstitutional taking occurred.” Id.
On remand the circuit court again held evidentiary hearings for costs imposed on both
properties. It upheld the Cross Street Property liens for $211,159.27. And it upheld all Thompson
Building charges made by the receiver. Kircher appealed the circuit court’s decisions three more
times. The first two of those appeals ended with the Michigan Court of Appeals remanding to the
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
circuit court “for more clarification regarding the liens[.]” (R. 95, Ypsilanti’s Resp., PageID
2044.) The state appeals court denied the last appeal.
C.
While the state courts heard the Cross Street Property and the Thompson Building
proceedings, Kircher simultaneously litigated Ypsilanti’s Perrin Street Property complaint. After
Ypsilanti filed its nuisance-abatement suit for the Perrin Street Property, the circuit court held a
show cause hearing with testimony.8 Kircher v. City of Ypsilanti, No. 04-72449, 2018 WL
1811468, at *10 (E.D. Mich. Apr. 17, 2018). And the circuit court entered a consent order “agreed
to” by both parties. Rankin, 2008 WL 681856, at *3. That order directed “[Kircher] and the
receiver [] to formulate a list of the violations requiring repair” and “tasked” both “with executing
the repairs.” Id. And the court appointed Barnes as successor receiver of the Perrin Street
Property. Kircher v. City of Ypsilanti, 458 F. Supp. 2d 439, 443–44, 445 n.7 (E.D. Mich. 2006).
The circuit court eventually dismissed the Perrin Street Property proceedings without
prejudice for “lack of progress[.]” Rankin, 2008 WL 681856, at *1. Kircher appealed. But the
Michigan Court of Appeals dismissed the appeal because it lacked jurisdiction to review a circuit
court’s order dismissing a case for lack of progress without prejudice. Id. A few years later,
Kircher moved the circuit court to reinstate the case for a final adjudication so that he could appeal
the decision. Id. The court refused. Id. And Kircher appealed again.
On appeal, the Michigan Court of Appeals reviewed the circuit court’s decision on
Kircher’s motion to reinstate a claim. Id. Kircher made four arguments for his position and against
8
Kircher explained that the court never held an evidentiary hearing before issuing the Perrin Street
Property Order. Defendants do not dispute that the court never held an evidentiary hearing. But
they explained that the court did hold a show cause hearing “where testimony was taken.” (R. 95,
Ypsilanti’s Resp., PageID 2045.) Kircher does not dispute that fact and instead explained that he
distinguishes between evidentiary and show cause hearings.
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the Perrin Street Property Order: a standing argument, two takings arguments, and a claim that
invoked the Fifth and Fourteenth Amendments.
The Michigan Court of Appeals refused all four arguments. First, it rejected Kircher’s
standing argument. Kircher claimed Ypsilanti lacked standing to bring the nuisance-abatement
suits. To support his position, Kircher argued that Ypsilanti could not sue because Ichesco had no
authority as the city fire marshal. Id. at *2. The court explained that it “ha[d] already addressed
and decided th[at] issue” with “exactly the same parties” in the Cross Street Property and
Thompson Building appeal. Id. It affirmed its earlier decision because Kircher did not bring new
evidence justifying a different outcome. Id.
Second, the appeals court addressed Kircher’s first takings argument. Kircher claimed that
appointing a receiver “constituted an unconstitutional taking because other, less drastic remedies
were available and appropriate.” Id. at *2. Only “extreme cases[,]” in Kircher’s mind, justified
receiverships. Id. (describing receiverships as “extraordinary remed[ies]”). But Kircher cited no
supporting evidence for that position. He did not explain the other remedies more appropriate for
his circumstances. And he did not provide the court with “any evidence from the record
demonstrating that the successor receiver . . . did not act” in a way that “protect[ed] and
benefit[ted] both parties equally.” Id. at *3 (quoting Kircher, 730 N.W.2d at 503). Given Kircher’s
failure to support his assertion, the court “consider[ed] th[e] issue abandoned on appeal.” Id.
In the same argument, Kircher also alleged that the circuit court erroneously approved the
Perrin Property charges submitted by the receiver. Id. Unlike the Thompson Building Order, the
consent order did not allow the receiver to make the property “economically viable” or to make
“unspecified upgrades” for “cosmetic purposes” to the Perrin Property. Id. (contrasting Kircher,
730 N.W.2d at 504). It did not “fail[] to provide for proper judicial supervision and oversight of
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
the receiver’s activities and expenditures[.]” Id. (quoting Kircher, 730 N.W.2d at 504). Instead,
the parties’ “original consent order” for the Perrin Property required Kircher and the receiver to
“formulate a list of the violations requiring repair” and “tasked [them] with executing the repairs.”
Id. Kircher, however, complained that the receiver’s court-approved compensation—“25 percent
of the costs of the repairs”—“disincentiv[ized] [] the receiver to keep the costs of the repairs
down.” Id. The court conceded that Kircher’s arguments “may appeal to logic” but he did not
provide any evidence to how the receiver spent “extraordinary or excessive” amounts for the
repairs. Id. So “[Kircher]’s argument fail[ed].” Id.
Third, the appeals court addressed Kircher’s second takings argument. Kircher explained
that the foreclosure on the Perrin Property amounted to an unconstitutional taking “because
pertinent statutes did not authorize the lien.” Id. at *4. But—for a couple of reasons—that
argument failed as well. The circuit court’s order appointing a successor receiver “entitled” “the
Receiver . . . to legal or equitable relief” including foreclosure of the Perrin Property lien if Kircher
failed to pay for the repairs on time. Id. (quoting the trial court order). The state statutes also
“provide[d] remedies”—including imposing and enforcing liens—“in situations where a defendant
has not complied with a[] [court] order . . . or has allowed an unreasonable amount of time to pass
before making court-ordered repairs on the property.” Id. (citing Mich. Comp. Laws §§ 29.14 and
29.16). And Kircher “d[id] not assert that he complied with the trial court's orders by making the
required repairs in a timely fashion, or at all.” Id. Rather he urged that court to find the lien invalid
“because the case was not properly governed by the Fire Prevention Code due to plaintiffs’ lack
of standing.” Id. The appeals court, however, already found Defendants had standing to sue.
Last, the appeals court addressed Kircher’s argument that “[a]ll plaintiffs are state actors
and thus liable for violations of the 5th and 14th Amendments[.]” Id. (first alteration in original).
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To support that claim, Kircher “provide[d] only two brief references to federal case law.” Id.
“Because [Kircher] neither explain[ed] his position nor ma[de] an argument in enough detail for
th[e] Court to review it, [the state court] consider[ed] th[e] issue abandoned on appeal.” Id.
Kircher asked the Michigan Supreme Court to review the state appeals court’s decision. It
refused. Ichesco v. Kircher, 755 N.W.2d 178 (Mich. 2008). It also refused Kircher’s motion for
reconsideration. Ichesco v. Kircher, 759 N.W.2d 390 (Mich. 2009).
II.
While the parties litigated in state court, Kircher sued in the United States District Court
for the Eastern District of Michigan. He named seven defendants. Five remain in the appeal before
us: (1) the City of Ypsilanti, (2) Cheryl Farmer, Mayor of Ypsilanti, (3) Charles Boulard, Building
Inspector of Ypsilanti, (4) Jon Ichesco, Fire Marshall of Ypsilanti, and (5) Robert Barnes,
receiver.9 Kircher, 2018 WL 1811468, at *1. He alleged that Defendants violated his
constitutional rights in their actions related to the Cross Street Property. A couple of days later,
Kircher filed an amended complaint in the federal suit. His amended complaint included
constitutional claims related to all three properties. Kircher then filed England reservations in
each of the City’s nuisance-abatement cases and foreclosure cases in state court.10 And the federal
9
Kircher also named two judges in his original complaint. But the district court granted the judges’
early Motion to Dismiss on judicial immunity and other grounds. They no longer remain in this
case. See Kircher, 2018 WL 1811468, at *1.
10
“[A] party [that] freely and without reservation submits his federal claims for decision by the
state courts, litigates them there, and has them decided there . . . has elected to forego his right to
return to the District Court.” England v. Louisiana State Bd. of Med. Examiners, 375 U.S. 411,
419 (1964). But that “does not mean that a party must litigate his federal claims in the state
courts[.]” Id. at 420. Instead, he may make an England reservation by “inform[ing] the state
courts that he is exposing his federal claims there . . . [but] that he intends, should the state courts
hold against him on the question of state law, to return to the District Court for disposition of his
federal contentions.” Id. at 421. Doing so, he may reserve his ability to return to federal court and
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
district court stayed Kircher’s federal litigation under the Younger abstention doctrine. Kircher,
458 F. Supp. 2d at 450–52.
After the state supreme court rejected Kircher’s appeal, the federal court lifted its stay in
May 2017. Kircher moved for leave to amend his complaint for the second time and for discovery.
He sought to add five new claims—a substantive due process claim, three takings claims, and a
procedural due process claim. In response, Defendants moved to dismiss Kircher’s claims under
Fed. R. Civ. P. 12(b)(1) and (6). After a hearing on the parties’ motions, the district court denied
Kircher’s motion and granted defendant’s motion to dismiss. Kircher, 2018 WL 1811468, at *1.
It held that both res judicata and collateral estoppel barred the claims Kircher wanted to raise in
his second amended complaint. Id. at *12–14. That required it to dismiss the case. And it found
Kircher’s England reservations failed. Id. at *14–16.
Kircher asked the district court to alter or amend the district court’s judgment and deny
Defendants’ motion to dismiss. In the alternative, he asked the court to stay the case pending the
Supreme Court’s decision in Knick v. Township of Scott, 139 S. Ct. 2162 (2019). But the district
court refused.
Kircher appealed.
litigate his federal claims. The Supreme Court first discussed this concept in the context of federal
courts abstaining under R.R. Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941).
But we need not discuss the effect, if any, of Kircher’s attempt to make England
reservations below because he does not argue before us that the district court inappropriately found
those attempts failed. See, e.g., Pagan v. Fruchey, 492 F.3d 766, 769 n.1 (6th Cir. 2007) (en banc).
18
Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
III.
On appeal, Kircher raises two arguments. He claims that the district court improperly
imposed the stay under Younger abstention. He also urges us to find that the district court
erroneously determined that Michigan res judicata and collateral estoppel barred his federal claims.
So he asks us to find that the lower court should not have granted Defendants’ motion to dismiss
and should have granted his second motion to amend his complaint.
A.
Kircher’s Younger abstention claim is moot. “[A] case is moot when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Aaron v.
O’Connor, 914 F.3d 1010, 1015 (6th Cir. 2019) (alteration in original) (quoting County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979)). But “jurisdiction in this court is not necessarily
defeated simply because the order under review has expired.” In re Commerce Oil Co., 847 F.2d
291, 293 (6th Cir. 1988). “If the underlying dispute between the parties is one ‘capable of
repetition, yet evading review[,]’ we may still hear the case although it is technically moot.” Id.
(citing Davis, 440 U.S. at 631). This “capable of repetition doctrine applies if the challenged action
is too short in duration” for parties to “fully litigate[] prior to its cessation or expiration and there
is a reasonable expectation that the same complaining party would be subject to the same action
again.” Id. (citing Weinstein v. Bradford, 423 U.S. 147, 148 (1975); then citing United States v.
City of Detroit, 720 F.2d 443, 448–49 (6th Cir. 1983)).
Kircher’s Younger abstention claim no longer presents a “live” controversy. The district
court already imposed the stay and provided the “procedural relief of lifting the stay.” Id. at 294.
And the “capable of repetition doctrine” does not apply here. See, e.g., id. at 293–94 (evaluating
a stay after the lower court lifted the stay because the affected party would “continually face[]” the
19
Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
same question and the stay automatically lifted after 45 days so “the state will never be able to
appeal the [stay’s] substance”). So we need not address that claim.
B.
Kircher raises various reasons that he believes support his position that Michigan
preclusion law does not bar the federal claims in his second amended complaint. We disagree.
A party may generally amend his pleadings “once as a matter of course[.]” Fed. R. Civ. P.
15(a)(1). Other than the first time, a party may amend the complaint “only with the opposing
party’s written consent or the court’s leave” and a “court should freely give leave when justice so
requires.” Id. 15(a)(2). A court should deny a motion to amend a complaint “if the amendment is
brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing
party, or would be futile.” Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (quoting Crawford
v. Roane, 53 F.3d 750, 753 (6th Cir. 1995)). An amendment to a complaint is futile “when the
proposed amendment would not permit the complaint to survive a motion to dismiss.” Miller v.
Calhoun County, 408 F.3d 803, 817 (6th Cir. 2005). And a court should grant a motion to dismiss
if the party “fail[s] to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6).
We usually evaluate a district court’s denial of a motion to amend a complaint for an abuse
of discretion. Colvin, 605 F.3d at 294. But the district court rejected Kircher’s motion to amend
because it found Michigan law precluded those new claims and so those claims could not withstand
a motion to dismiss. Kircher, 2018 WL 1811468, at *1, *12–14. For those reasons, it granted
defendants’ motion to dismiss. Id. at *1. In circumstances like Kircher’s, we review the district
court’s decision de novo. Colvin, 605 F.3d at 294.
This court reviews de novo a district court’s decision to grant a motion to dismiss “pursuant
to the same standards that should have been applied in the district court.” Fritz v. Charter
20
Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010); see Fed. R. Civ. P. 12(b)(6). For that
evaluation, this court “accept[s] as true all non-conclusory allegations in the complaint and
determine[s] whether [the allegations] state a plausible claim for relief.” Delay v. Rosenthal
Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662
(2009)).
And “a federal court must give to a state-court judgment the same preclusive effect as
would be given that judgment under the law of the State in which the judgment was rendered.”
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). So to evaluate the district
court’s decision granting Defendants’ motion to dismiss, we must determine the preclusive effect
of the state courts’ judgments on this case. We review a district court’s decision to apply either
res judicata or collateral estoppel de novo. Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812,
816 (6th Cir. 2010); Knox Cty. Educ. Ass'n v. Knox Cty. Bd. of Educ., 158 F.3d 361, 371 (6th Cir.
1998).
Under Michigan law, res judicata precludes a later claim if “(1) the prior action was
decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter
in the second case was, or could have been, resolved in the first[.]” W.J. O'Neil Co. v. Shepley,
Bulfinch, Richardson & Abbott, Inc., 765 F.3d 625, 630 (6th Cir. 2014) (quoting Adair v. State,
680 N.W.2d 386, 396 (Mich. 2004)); Schwartz v. City of Flint, 466 N.W.2d 357, 359 (Mich. Ct.
App. 1991) (explaining that Michigan res judicata bars “claims actually litigated in a prior action
and those claims arising out of the same transaction which plaintiff could have brought, but did
not” (citing Gose v. Monroe Auto Equip. Co., 294 N.W.2d 165 (Mich. 1980))).
Michigan does not have a categorical compulsory counterclaim rule. But Michigan res
judicata can work as a compulsory counterclaim rule. Michigan’s “doctrine of res judicata will []
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
operate to bar a subsequent claim that could have been raised as a counterclaim in the first action.”
Stanton v. Auto Owners Ins. Co., Nos. 327007, 327644, 2016 WL 6269614, at *5 (Mich. Ct. App.
Oct. 25, 2016); see 2 Ronald S. Longhofer, Michigan Court Rules Practice § 2203.1 (7th ed. 2020).
So “a counterclaim arising out of the same transaction or occurrence as the principal claim must
be joined in one action.” Stanton, 2016 WL 6269614, at *5 (quoting Salem Indus., Inc. v. Mooney
Process Equip. Co., 437 N.W.2d 641, 642 (Mich. Ct. App. 1988)). Otherwise, the “failure to assert
a counterclaim stemming from the same issues or subject matter in a prior suit will estop a
defendant from afterwards maintaining a separate action on that counterclaim against the plaintiff
in the prior suit.” Id. (quoting Sahn v. Brisson's Estate, 204 N.W.2d 692, 694–95 (Mich. Ct. App.
1972)).
Michigan law will not, however, bar a party from later bringing a claim that the court in
the first litigation refused to hear. Allen Park Retirees Ass’n v. City of Allen Park, -- N.W.2d --,
2019 WL 3806250, at *6–7 (Mich. Ct. App. Aug. 13, 2019) (finding res judicata did not bar
plaintiffs from raising state constitutional claims in a later proceeding because the appeals court in
the earlier proceeding “expressly declined to decide” those claims and so they “w[ere] not decided
on the merits”). And Michigan law will not bar a party from later bringing a claim that the court
in the first litigation did not decide but only discussed in dicta. See Taylor Commons v. City of
Taylor, No. 206653, 1999 WL 33444318, at *1–2 (Mich. Ct. App. May 21, 1999) (Taylor II)
(finding res judicata did not bar the party from raising constitutional claims that the appeals court
in the earlier proceeding discussed in dicta but did not resolve).
The parties do not dispute whether the proceedings here meet the first two Michigan res
judicata elements. All prior actions were decided on the merits. See Kircher, 2018 WL 1811468,
at *13. And the proceedings involve the same parties or their privies. Id. They dispute whether
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
the federal claims Kircher wants to raise in his second amended complaint “w[ere], or could have
been, resolved in the first[.]” W.J. O'Neil, 765 F.3d at 630 (quoting Adair, 680 N.W.2d at 396).
Substantive Due Process. In Kircher’s second amended complaint, Kircher presented a
substantive due process claim. He contended Defendants violated his substantive due process
rights because their actions violated the Fifth Amendment’s prohibition against “deliberate and
arbitrary use of government power.” (R. 84-2, Second Am. Compl., PageID 1189.) Defendants’
actions “were arbitrary and unreasonable, and either failed to advance a legitimate government
interest or were an unreasonable means of advancing a legitimate government interest.” (Id. at
1189–90.) He asked for damages “in excess of $75,000[.]” (Id. at 1190.)
Although Kircher argues that the state courts refused to address the takings claims he raised
before them and that they were not ripe, for his due process claims (substantive and procedural),
Kircher argues only that those claims were not ripe at the time of the state court’s decisions. In his
general discussion on the state court’s refusal to resolve certain claims, Kircher mentions his due
process claims only once—to support his explanation that “the district court adhered to its prior
ruling that Kircher’s inverse condemnation claims could have been brought in the state court
actions.” (Appellant’s Br. at 41 (emphasis added and omitted).) And he devotes that entire
argument to whether the district court “erred [when it] f[ound] that Kircher ‘could have’ brought
his takings claim” in state court “because . . . the state court refused to hear it.” (Id. (emphasis
added and omitted).) So we consider any similar argument Kircher could raise for his due process
claims—that the state court simply refused to resolve Kircher’s due process claims—waived. See
United States v. Williams, 544 F.3d 683, 690 (6th Cir. 2008).
For his substantive due process claim, Kircher specifically alleges the claim “w[as] not ripe
when the City filed its nuisance abatement case[.]” (Appellant’s Br. at 45.) He supports this
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
position with a FOIA response that he received in 2008. That FOIA response allegedly informed
Kircher that “the City’s fire inspector[, Ichesco,] falsely asserted that . . . the state fire marshal”
“had [] delegated [Ichesco] authority” to begin nuisance-abatement proceedings. (Id.) So even if
the state court let Kircher raise his substantive due process claim, he could not in those
proceedings.
We are not convinced. Ichesco never asserted the state fire marshal delegated to him
authority to begin nuisance-abatement proceedings. In fact, in Ichesco’s 2001 affidavit (the one
that Kircher argues was falsified), he explained that “the state Fire Marshal’s office . . . said that
they were not delegating their authority to me[.]” (R. 91-13, Ichesco Aff., PageID 1835–36
(emphasis added).) Ichesco also explained the office acknowledged his “right to do all other
inspections not done by the State Fire Marshal’s office” because Ichesco “carr[ied] out [his]
enforcement activities pursuant to MCL 29.2(B)[.]” (Id. at 1836.) So Kircher’s allegation—that
the 2008 FOIA response revealed that the state Fire Marshal never delegated authority to
Ichesco—does not raise new facts.
And, importantly, the state appeals court did address, several times and in connection with
all three properties, whether Ichesco could act given that affidavit, and whether he acted reasonably
within that authority. Each time, the court found in Ichesco’s favor. Ypsilanti Fire Marshal v.
Kircher, Nos. 300242, 300243, 300244, 300245, 2011 WL 6187067, at *2–3 (Mich. Ct. App. Dec.
13, 2011); Rankin, 2008 WL 681856, at *2 (Perrin Street Property); Kircher, 730 N.W.2d at 500–
01 (Thompson Building), 511 (Cross Street Property).
Kircher’s substantive due process claim relies only on factual allegations available before
and considered by the state appeals court’s decisions. So Kircher’s substantive due process claim
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
was ripe, and he could have raised it before the state appeals court. Michigan law precludes him
from raising that claim now.
Takings. In Kircher’s second amended complaint, Kircher sought just compensation from
Defendants for three inverse condemnation claims—at least $75,000 under 42 U.S.C. § 1983 for
each claim. For all three, Kircher argued that “Defendants, under color of law, deprived [Kircher]
[] use and ownership of his Property in order to further and promote Defendants’ own plans . . .
and to facilitate the transfer of the [properties] to another owner chosen by Defendants.” (R. 84-
2, Second Am. Compl., PageID 1185–88.) They interfered so greatly with Kircher’s properties,
Kircher alleged, they “t[oo]k” his properties and did so “without just compensation.” (Id.)
Kircher argues that the state courts refused to hear and did not decide takings claims he
raised during the state proceedings. He also claims state courts could not have heard his takings
claims because they were not ripe when Defendants filed their nuisance-abatement suits. So he
contends that Michigan law does not bar him from bringing the three takings claims in his second
amended complaint in federal court. We disagree.
In his second amended complaint, Kircher raised no factual allegations unknown when the
state appeals court reviewed the Perrin Street Property Order. Any takings claims Kircher had in
connection with the Perrin Street Property and raised in his second amended complaint were ripe
when the state appeals court reviewed that order. And in that decision, the state appeals court
reviewed and decided the takings claims Kircher raised before it. Supra, at 15–16. So the state
court either did or could have resolved those claims. And Michigan res judicata bars Kircher from
raising them now.
The state appeals court also resolved or could have resolved Kircher’s takings claims in
connection with the Thompson Building and the Cross Street Property. That court resolved
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
multiple claims from Kircher in connection with those two properties in its 2007 decision. And
Kircher alleged no facts unknown at that time in his second amended complaint. So any takings
claims based on those facts were ripe at the time of that appeal. And Kircher in fact raised multiple
such claims. We must determine whether the state court could and did resolve those claims.
True, the circuit court at first refused to address Kircher’s takings claims in connection
with those two properties. Undeterred, Kircher raised those claims again on appeal. So both
parties litigated those takings claims before the state appeals court. Supra, at 9–11. And the
Michigan Court of Appeals could properly decide them despite Michigan’s usual rule that
precludes parties from raising claims for the first time on appeal. See People v. Heim, 522 N.W.2d
675, 676 (Mich. Ct. App. 1994) (agreeing to review a claim for the first time on appeal as an
exception to the usual rule “because [the claim] involves an important constitutional question”).
Kircher, however, argues that the state appeals court did not resolve those takings claims
because it refused to do so. To support his position, Kircher quotes a statement in the state appeals
court’s decision: “In light of our resolution of these consolidated appeals, we decline to address
the constitutional issues raised by Kircher in these cases.” Kircher, 730 N.W.2d at 516.
If the state court had stopped there, we might agree with Kircher. But that court continued.
In a footnote appended to the language Kircher quotes, the court decided the takings question for
those two properties and found Kircher’s claims meritless. See id. at 516 n.22. Kircher, however,
characterizes the footnote as dicta. We disagree.
Recall that Kircher raised both procedural due process and takings claims before the
appeals court. That fact explains the dissonance between the appeals court’s refusal to address
constitutional issues and its footnote deciding Kircher’s takings claims. The appeals court’s
“resolution of the[] consolidated appeals”—finding flaws in the circuit court’s procedures on
26
Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
remand—made any resolution of Kircher’s procedural due process claims unnecessary. Id. at 516.
So the appeals court’s refusal to resolve the procedural due process claims “[i]n light of” its
resolution on other grounds makes sense. Id. (emphasis added); see also, e.g., Gent v. Pride
Ambulance Co., No. 252912, 2006 WL 66420, at *1 (Mich. Ct. App. Jan. 12, 2006) (per curiam)
(explaining that Michigan appeals courts “generally must examine alternative, nonconstitutional
grounds that might obviate the necessity of deciding [the constitutional questions]” before
resolving constitutional claims (quoting VandenBerg v. VandenBerg, 586 N.W.2d 570, 571 (Mich.
Ct. App. 1998))); People v. Rutledge, 645 N.W.2d 333, 335–36 (Mich. Ct. App. 2002) (resolving
a case on non-constitutional grounds even when the parties only raised constitutional issues on
appeal); Taylor Commons v. City of Taylor, No. 182833, 1996 WL 33324115, at *2 (Mich. Ct.
App. July 9, 1996) (per curiam) (Taylor I) (refusing to address the constitutional issue where the
court “c[ould] [] decide[] [the case] on alternative grounds” despite the fact that the state court
“may review constitutional issues for the first time on appeal”). But the appeals court’s
determination that the lower court failed to follow remand instructions did not affect Kircher’s
takings claims because the court’s footnote is the only mention of Kircher’s takings claims in the
state appeals court’s decision. Accordingly, the court’s “resolution” of the appeal did not make
the court’s resolution of Kircher’s takings claims superfluous.
In fact, the appeals court’s resolution of one constitutional question and not another makes
perfect sense when viewed in the context of the court’s resolution of the appeal. As part of the
case’s resolution, the appeals court vacated the repair charges already imposed and directed the
trial court to reconsider the charges before requiring Kircher to pay. But the trial court permitted
the nuisance-abatement suit’s initiation and the consequences of that suit—the existence of repair
charges, the foreclosure judgments, and sheriff sales—to stand untouched. Supra, at 11–13
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
(affirming Ichesco’s authority to bring the nuisance-abatement action for both properties, vacating
the foreclosure judgments and foreclosure proceedings only “to the extent that they involved”
certain repair charges, and instructing the trial court to deduct repair charges for Fire Prevention
Code violations or to abate violations of Ypsilanti building and fire codes from the sale proceeds
(emphasis added) (quoting Kircher, 730 N.W.2d at 517)). So the appeals court’s resolution of one
constitutional question but not another mirrored its remand instructions: It logically resolved the
constitutional question (whether the nuisance-abatement suit amounted to a taking) for the actions
it permitted on remand (the suit and its consequences). And it logically refused to resolve any
constitutional questions, under either a takings or due process theory, for the actions it vacated and
disallowed on remand (the previously-imposed charges and procedures used to impose them).
Later Michigan Court of Appeals decisions also confirm our understanding of that footnote.
See, e.g., Ypsilanti Fire Marshall v. Kircher, No. 281742, 2009 WL 1607602, at *2 (Mich. Ct.
App. June 9, 2009) (quoting footnote 22 to reject a takings claim in a decision involving another
one of Kircher’s properties); Ypsilanti Charter Township. v. Kircher, 761 N.W.2d 761, 775–76
(Mich. Ct. App. 2008) (citing footnote 22 to reject a takings claim in a decision involving another
one of Kircher’s properties); Wayne Cty. Exec. v. Aggor, No. 266183, 2007 WL 2067936, at *2
(Mich. Ct. App. July 19, 2007) (“[C]ourts have consistently held that a[]state need not provide
compensation when it diminishes or destroys the value of property by stopping illegal activity or
abating a public nuisance.” (alteration in original omitted) (emphasis added) (quoting Kircher,
730 N.W.2d at 516 n.22)). That Michigan later treated that footnote as a holding undermines
Kircher’s dicta argument.
And Kircher’s argument otherwise does not convince us. He cites only Taylor II for his
position. But the footnote’s language does not mirror the dicta in Taylor II. There, the first court
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Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
found the lower court had no jurisdiction to decide a constitutional issue and resolved the case on
alternative grounds. Taylor I, 1996 WL 33324115, at *2. The Taylor I court explained, however,
that “[e]ven if th[e] Court were to address petitioner’s argument, [the court] would conclude that
the act is constitutional.” Id. (emphasis added). Here, the state appeals court did not qualify its
resolution of Kircher’s takings claims; in no uncertain terms, it found that “no unconstitutional
taking occurred.” Kircher, 730 N.W.2d at 516 n.22.
Thus, we find that the state court resolved or could have resolved Kircher’s takings claims
arising from all three properties. Michigan res judicata precludes him from litigating those claims
now.
Procedural Due Process. Because Kircher abandoned any argument on whether the state
appeals court refused to resolve Kircher’s procedural due process claims, we do not resolve that
question.11 Supra, at 23.
11
Had Kircher made those arguments on appeal, however, Kircher very likely could have avoided
the effects of Michigan preclusion law on those claims. Supra, at 26–28. Even so, Kircher has
likely failed to make out a successful procedural due process claim. “At its essence, due process
can be summarized as ‘the requirement that a person . . . be given notice of the case against him
and [an] opportunity to meet it.’” Shoemaker v. City of Howell, 795 F.3d 553, 559 (6th Cir. 2015)
(alterations in original) (quoting Mathews v. Eldridge, 424 U.S. 319, 348–49 (1976)). And that’s
exactly what Defendants and the state courts provided him.
Kircher received notice—starting as early as over twenty years ago—that Michigan law
required him to make repairs on his properties to abate nuisances. The court also held multiple
hearings where the court heard parties’ testimony before resolving grievances in connection with
the nuisance-abatement proceedings, before Defendants took over the repairs, and before
Defendants foreclosed on Kircher’s properties. In fact, before Defendants took over repairing
Kircher’s properties, they and the circuit court gave him opportunity after opportunity to make the
required repairs on his own. Supra, at 2, 4–5.
But time and time again, Kircher failed to do so. Only then and after holding hearings did
Michigan courts allow Defendants to personally step in—to repair the properties and charge
Kircher for those repairs rather than wait for Kircher to repair them. Supra, at 4–6. And while the
court gave Defendants authority to repair Kircher’s properties, on at least one of the properties, the
court simultaneously gave Kircher a chance to terminate that authority to repair his properties.
29
Case No. 18-1589, Kircher v. City of Ypsilanti, et al.
But he does argue that his procedural due process claims were not ripe during the state
litigation. He neither supports that assertion with legal authority nor offers supporting evidence
from the record. So we consider that argument abandoned. See, e.g., Castelvetere v. Messer,
611 F. App’x 250, 255 (6th Cir. 2015) (finding appellant “abandoned th[e] issue” because he
“fail[ed] to cite a single authority [to] support” his “assert[ion]” that the government’s conduct
violated substantive due process and only alleged that the conduct shocks the conscience (citing
Williams, 544 F.3d at 690)).
C.
Because we find Michigan res judicata bars Kircher from litigating the claims in his second
amended complaint in federal court, we need to not address Barnes’s twelfth-hour and unsupported
grasp at immunity.
IV.
We recognize that the state proceedings ended with Kircher losing three of his properties.
And—in a vacuum—that consequence seems devastating. But state courts found Defendants had
abundant reason to begin and continue those proceedings. Kircher continually disregarded
Ypsilanti’s Fire Prevention Code and court orders despite Defendants’ attempts to work with him
towards a mutual solution as early as 1996. And while Kircher may wish for a do-over, he won’t
find one here. So we AFFIRM.
Supra, at 6. Kircher still did not pay. Instead, he appealed and received further evidentiary
hearings on remand.
But still he persistently refused to pay. So Defendants sought to foreclose on the judicial
liens to recover their costs. Supra, at 8–9. And the state courts ruled in Defendants favor only
after holding foreclosure proceedings. Kircher then received hearings again before the state
appeals court and again before the circuit court on remand. Supra, at 9–14.
Thus, the record shows that Kircher received process at every turn of the state proceedings.
So it seems unlikely that Kircher could successfully allege Defendants violated his procedural due
process rights.
30