                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 17a0030p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 WAYSIDE CHURCH, an Illinois Not-For-Profit               ┐
 (Ecclesiastical) Corporation; MYRON W. STAHL;            │
 HENDERSON HODGENS, individually and on behalf            │
 of a class of all others similarly situated,             │
                 Plaintiffs-Appellants/Cross-Appellees,   │
                                                           >     Nos. 15-2463/2525
                                                          │
                                                          │
        v.
                                                          │
                                                          │
 VAN BUREN COUNTY, in its individual Michigan             │
 municipal capacity and on behalf of a class of all       │
 other Michigan counties similarly situated; KAREN        │
 MAKAY, in her individual official capacity as            │
 Treasurer of Van Buren County and on behalf of a         │
 class of all other Treasurers of Michigan counties       │
 similarly situated,                                      │
                                                          │
              Defendants-Appellees/Cross-Appellants.
                                                          │
                                                          ┘

                          Appeal from the United States District Court for
                         the Western District of Michigan at Grand Rapids.
                   No. 1:14-cv-01274—Paul Lewis Maloney, District Judge.

                                   Argued: October 20, 2016

                             Decided and Filed: February 10, 2017

                 Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.
                                  _________________

                                           COUNSEL

ARGUED: Owen Dennis Ramey, LEWIS, REED & ALLEN PC, Kalamazoo, Michigan, for
Appellants/Cross-Appellees. Thomas G. King, KREIS, ENDERLE, HUDGINS & BORSOS,
P.C., Kalamazoo, Michigan, for Appellees/Cross-Appellants. ON BRIEF: Owen Dennis
Ramey, Ronald W. Ryan, LEWIS, REED & ALLEN PC, Kalamazoo, Michigan, James Shek,
Allegan, Michigan, for Appellants/Cross-Appellees. Thomas G. King, KREIS, ENDERLE,
HUDGINS & BORSOS, P.C., Kalamazoo, Michigan, for Appellees/Cross-Appellants. Christina
 Nos. 15-2463/2525              Wayside Church, et al. v. Van Buren Cty., et al.                                  Page 2


M. Martin, PACIFIC LEGAL FOUNDATION, Palm Beach Gardens, Florida, Steven C. Liedel,
Ted Seitz, DYKEMA GOSSETT PLLC, Lansing, Michigan, William H. Horton, GIARMARCO
MULLINS & HORTON P.C., Troy, Michigan, Daniel B. Kohrman, AARP FOUNDATION
LITIGATION, Washington, D.C., for Amici Curiae.

     CLAY, J., delivered the opinion of the court in which DONALD, J., joined.
KETHLEDGE, J. (pp. 14–17), delivered a separate dissenting opinion.
                                                _________________

                                                       OPINION
                                                _________________

         CLAY, Circuit Judge. Plaintiffs Wayside Church, Myron Stahl, and Henderson Hodgens
(collectively “Plaintiffs”) appeal the district court’s order granting Defendants’ motion to dismiss
the complaint, which asserted that Defendant Van Buren County and its Treasurer, Defendant
Karen Makay (collectively “Defendants”), violated Plaintiffs’ Fifth Amendment rights by taking
their property without just compensation. Defendants filed a cross-appeal arguing that the
district court erred in determining that it could exercise jurisdiction over this case. For the
reasons set forth below, we VACATE the judgment of the district court and REMAND with
instructions to DISMISS the case for lack of subject matter jurisdiction.

                                                  BACKGROUND

         Plaintiffs each owned real property in Van Buren County, Michigan in 2011 but failed to
pay property taxes for that year. On March 1, 2012, pursuant to the General Property Tax Act
(the “GPTA”), Mich. Comp. Laws § 211.1 et seq., these properties became subject to forfeiture
and foreclosure. On April 24, 2014, the Van Buren County Circuit Court issued a foreclosure
judgment, and title to these properties passed in fee simple absolute to the Defendant County. 1
A few months later, Defendant Makay, the treasurer for the Defendant County, sold these
properties at an auction, pursuant to Michigan Compiled Laws § 211.78m. The minimum bid for
each of the properties was calculated by totaling “[a]ll delinquent taxes, interest, penalties, and

         1
           The GPTA provides that, after a hearing and a determination that foreclosure is warranted, the county’s
circuit court shall issue a foreclosure order specifying, inter alia, “[t]hat fee simple title to property foreclosed by the
judgment will vest absolutely in the foreclosing governmental unit,” with only limited exceptions. Mich. Comp.
Laws § 211.78k(5)(b); see also id. § 211.78k(5)(d) (explaining that “the foreclosing governmental unit has good and
marketable fee simple title to the property”).
 Nos. 15-2463/2525       Wayside Church, et al. v. Van Buren Cty., et al.                  Page 3


fees due on the property” plus the “expenses of administering the sale, including all preparations
for the sale.” Mich. Comp. Laws § 211.78m(16)(a). Plaintiff Wayside Church’s former property
had a minimum bid of $16,750, but at the public auction held on August 5, 2014, the property
was sold for $206,000, meaning Defendant Van Buren County received surplus proceeds of
$189,250. The minimum bid for the property formerly owned by Plaintiff Stahl was $25,000,
but the property was sold at the same auction for $68,750, resulting in a surplus of $43,750.
Finally, the property that had once been owned by Plaintiff Hodgens required a minimum bid of
$5,900, but was sold for $47,750 at the same auction, meaning the Defendant County received
$41,850 in surplus proceeds.

       In this suit, Plaintiffs seek return of the surplus funds because they allegedly possessed a
cognizable property interest in each of their foreclosed properties and in the surplus proceeds
generated by the sales, in connection with which Defendants were required to pay just
compensation pursuant to the Fifth Amendment. Plaintiffs did not seek to challenge the process
by which these asserted interests were taken; instead, Plaintiffs sought a declaratory judgment
from the district court that, by not returning the surplus funds to the former owner-Plaintiffs,
Defendants effectuated a taking without just compensation in violation of the Fifth Amendment.

       On December 11, 2014, Plaintiffs initiated this suit in federal court by filing a complaint
against Defendants asserting the following claims: Count I asserted that Defendants violated
Plaintiffs’ rights under the Fifth Amendment by taking their property without just compensation;
Count II asserted that Plaintiffs were entitled to monetary damages, pursuant to 42 U.S.C.
§ 1983, for the violation of their Takings Clause rights alleged in Count I; and Count III sought a
declaratory judgment that the Michigan Circuit Court failed to enter judgment in accordance
with a state statute and, thus, that the redemption period should have been tolled. In addition to
asserting these claims against Defendants on their own behalf, Plaintiffs also sought to represent
a class of former Michigan property owners who had lost title to their property for non-payment
of taxes but whose former properties were sold for significantly more than the taxes owed.

       On January 7, 2016, Defendants filed a motion to dismiss the complaint for lack of
jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Federal
Rule of Civil Procedure 12(b)(1) and 12(b)(6), respectively. On November 9, 2015, the district
 Nos. 15-2463/2525            Wayside Church, et al. v. Van Buren Cty., et al.                            Page 4


court issued an opinion denying the motion to dismiss for lack of subject matter jurisdiction but
granting the motion for failure to state a claim. 2

        Plaintiffs filed a timely appeal on November 30, 2015, arguing that the district court erred
in dismissing its claims pursuant to Rule 12(b)(6). This appeal was docketed as No. 15-2463.
On December 9, 2015, Defendants filed a cross-appeal, docketed as No. 15-2525, challenging
the district court’s order denying its motion to dismiss for lack of jurisdiction.

                                                DISCUSSION

        We are “bound to consider the 12(b)(1) motion first, since the Rule 12(b)(6) challenge
becomes moot if this court lacks subject matter jurisdiction.” Moir v. Greater Cleveland Reg’l
Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).

        A.       Standard of Review

        “Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’
and ‘controversies.’” Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997)
(citing U.S. Const. art. III, § 2). This command requires us to dismiss cases that are not ripe for
review. “Ripeness is more than a mere procedural question; it is determinative of jurisdiction.
If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be
dismissed.” Arnett v. Myers, 281 F.3d 552, 562 (6th Cir. 2002) (quoting Bigelow v. Mich. Dep’t
of Nat. Res., 970 F.2d 154, 157 (6th Cir. 1992)).

        “Challenges to subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
‘come in two varieties: a facial attack or a factual attack.’” Carrier Corp. v. Outokumpu Oyj,
673 F.3d 430, 440 (6th Cir. 2012) (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co.,
491 F.3d 320, 330 (6th Cir. 2007)). “A facial attack on the subject-matter jurisdiction”—like the
one Defendants make here—“questions merely the sufficiency of the pleading.” Gentek Bldg.
Prods., Inc., 491 F.3d at 330 (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325
(6th Cir. 1990)). “When reviewing a facial attack, a district court takes the allegations in the

        2
          The district court reached the opposite conclusion on the jurisdictional question as the district court in
Rafaeli, LLC v. Wayne County, No. 14-13958, 2015 WL 3522546 (E.D. Mich. June 4, 2015), which found that the
Tax Injunction Act and the comity doctrine bar plaintiffs from challenging the GPTA in federal court.
 Nos. 15-2463/2525        Wayside Church, et al. v. Van Buren Cty., et al.                  Page 5


complaint as true,” just as in a Rule 12(b)(6) motion. Id. (citing Ohio Nat’l Life Ins. Co.,
922 F.2d at 325). This Court reviews facial challenges to subject matter jurisdiction de novo.
DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (citing Cob Clearinghouse Corp. v.
Aetna U.S. Healthcare, Inc., 362 F.3d 877, 880 (6th Cir. 2004)).

       A factual attack, on the other hand, raises a factual controversy requiring the district court
to “weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or
does not exist.” Gentek Bldg. Prods., Inc., 491 F.3d at 330 (citing Ohio Nat’l Life Ins. Co.,
922 F.2d at 325). “Where a trial court’s ruling on jurisdiction is based in part on the resolution
of factual disputes, a reviewing court must accept the district court’s factual findings unless they
are clearly erroneous.” RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1135 (6th
Cir. 1996) (citing Ohio Nat’l Life Ins. Co., 922 F.2d at 326) (additional citations omitted).
“However, review of the district court’s application of the law to the facts is de novo.” Id.
(citing Ynclan v. Dep’t of Air Force, 943 F.2d 1388, 1390 (5th Cir. 1991); Holt v. United States,
46 F.3d 1000, 1003 (10th Cir. 1995)).

       Because the district court treated the challenge as a facial attack and made no factual
findings in reaching its decision, the appeal is treated the same way. See DLX, Inc., 381 F.3d at
516. This Court thus reviews the judgment of the district court de novo. Moreover “where
subject matter jurisdiction is challenged under Rule 12(b)(1), as it was here, the plaintiff has the
burden of proving jurisdiction in order to survive the motion.” Rogers v. Stratton Indus., Inc.,
798 F.2d 913, 915 (6th Cir. 1986).

       B.      Analysis

       Defendants argue that we lack jurisdiction for two reasons: (1) Plaintiffs’ claims are not
ripe for review; and (2) the Tax Injunction Act and principles of comity prevent jurisdiction from
being exercised in federal court. We address these arguments in turn below.

               1.      Ripeness of Takings Clause Claims

       “Applicable to the States through the Fourteenth Amendment, the Takings Clause of the
Fifth Amendment ‘provides that private property shall not be taken for public use, without just
 Nos. 15-2463/2525            Wayside Church, et al. v. Van Buren Cty., et al.                              Page 6


compensation.’” Wilkins v. Daniels, 744 F.3d 409, 416 (6th Cir. 2014) (quoting Lingle v.
Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005)). “As its text makes plain, the Takings Clause
‘does not prohibit the taking of private property, but instead places a condition on the exercise of
that power.’” Lingle, 544 U.S. at 536 (quoting First English Evangelical Lutheran Church of
Glendale v. Cty. of Los Angeles, 482 U.S. 304, 314 (1987)). The Takings Clause’s purpose is
“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.” Id. at 537
(quoting First English Evangelical Lutheran Church of Glendale, 482 U.S. at 315).
Consequently, “a State does not violate the Takings Clause ‘until it refuses to compensate the
owner.’” Wilkins, 744 F.3d at 417 (quoting Hensley v. City of Columbus, 557 F.3d 693, 695–96
(6th Cir. 2009)).         Such compensation is not required to be “paid in advance of, or
contemporaneously with, the taking.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 194 (1985). Therefore, a takings claim is not ripe “unless
or until the State fails to provide an adequate postdeprivation remedy for the property loss.” Id.
at 195 (quoting Hudson v. Palmer, 468 U.S. 517, 532 n.12 (1984)).

         In Williamson County, the Supreme Court established a two part test to determine when a
takings claim is ripe. “A federal court may hear a takings claim only after: (1) the plaintiff has
received a ‘final decision’ from the relevant government actor; and (2) the plaintiff has sought
‘compensation through the procedures the State has provided for doing so.’” Wilkins, 744 F.3d
at 417 (quoting Williamson Cty., 473 U.S. at 186, 194–95). For plaintiffs to be obligated to seek
redress in the state courts before litigating in federal court, the state procedures must be
“reasonable, certain, and adequate . . . at the time of the taking.” Williamson Cty., 473 U.S. at
194 (quotation omitted).

         This Court has previously acknowledged that the Williamson County test is not strictly
jurisdictional but only “prudential,” and need not be followed “when its application ‘would not
accord with sound process.’” 3 Miles Christi Religious Order v. Twp. of Northville, 629 F.3d
533, 541 (6th Cir. 2010) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1012 (1992)).

         3
           The dissent makes much of the fact that the test set forth in Williamson County is only prudential. Dissent
Op. at 14–15. However, the Tax Injunction Act, discussed infra at 12–13, utilizes substantially the same test and is
jurisdictional, rather than prudential.
 Nos. 15-2463/2525        Wayside Church, et al. v. Van Buren Cty., et al.                   Page 7


However, the requirement that aggrieved parties first seek compensation for the alleged taking in
state court before bringing suit in federal court “will often serve important federalism interests.”
Wilkins, 744 F.3d at 418. These interests are especially strong where, as here, the case “turn[s]
on whether the plaintiff has a property interest as defined by state law.” Id. Therefore, we
engage in the Williamson County analysis to determine whether jurisdiction is proper. See Miles
Christi Religious Order, 629 F.3d at 541 (continuing to follow Williamson County test after
acknowledging that it is not jurisdictional because the Court “fail[ed] to see why this prudential
requirement should be ignored here”).

       Defendants do not contest here that the first part of the test is satisfied and, instead, only
appeal the district court’s determination that no adequate state procedures existed in which
Plaintiffs could challenge the alleged taking. Defendants claim, as they did before the district
court, that Plaintiffs could have challenged the tax law on constitutional grounds in state court or
brought an inverse condemnation action. The district court, however, found that such avenues of
relief were foreclosed by the text of the GPTA.

       Specifically at issue is the provision in the GPTA that addresses actions seeking
monetary damages after foreclosure, codified as Michigan Compiled Laws § 211.78l. This
section provides as follows:

       If a judgment for foreclosure is entered under section 78k and all existing
       recorded and unrecorded interests in a parcel of property are extinguished as
       provided in section 78k, the owner of any extinguished recorded or unrecorded
       interest in that property who claims that he or she did not receive any notice
       required under this act shall not bring an action for possession of the property
       against any subsequent owner, but may only bring an action to recover monetary
       damages as provided in this section.

Mich. Comp. Laws § 211.78l(1). These actions must be brought in a special court, called the
Court of Claims, as “[t]he court of claims has original and exclusive jurisdiction in any action to
recover monetary damages under this section.” Id. § 211.78l(2). That court, however, cannot
hear actions brought against the state of Michigan or any arm thereof if the claimant “has an
adequate remedy upon his claim in the federal courts.” Id. § 600.6440. Therefore, according to
Plaintiffs, there is no adequate state forum for their claims, as they are required to seek redress in
 Nos. 15-2463/2525         Wayside Church, et al. v. Van Buren Cty., et al.                Page 8


the Court of Claims; but that court cannot hear cases where a federal remedy exists.
Consequently, Plaintiffs contend that federal court is the only forum where they can seek relief.

        The district court agreed with Plaintiffs and found that “the only cause of action
permitted by the GPTA is one for lack of notice (due process); specifically, the law allows a
cause of action against a county treasurer for monetary damages only when a property owner
‘claims that he or she did not receive any notice required under this act.’” (R. 38, PageID #409
(quoting Mich. Comp. Laws § 211.78l).) The court went on to note that the Court of Claims was
the only court that could hear any challenges to the GPTA, but that federal claims were barred in
that forum. The district court concluded that because the “Michigan Court of Claims has
exclusive and original jurisdiction over claims under the GPTA against the County Treasurer,”
and because “Michigan absolutely divests jurisdiction from the Michigan Court of Claims where
a plaintiff ‘has an adequate remedy upon his claim in the federal courts,’” the state had failed to
provide an adequate remedy. (Id. at 410 (quoting Mich. Comp. Laws § 600.6440).) Based on
this analysis, the court concluded that the claim was ripe for review under the Williamson County
test.

        This analysis, however, suffers from two fatal flaws. First, and most importantly, in
reading the above quoted section, the district court read subsection (1) to bar all actions
challenging the GPTA except those challenging the notice procedures. However, the plain
language of the text does not require such a restrictive reading. Instead, the statute limits a
plaintiff to monetary damages when two conditions are present: (1) the former owner’s rights
have been extinguished by foreclosure proceedings for failure to pay property taxes; and (2) the
former owner is challenging whether he received the notice required by other provisions in the
GPTA. While the first condition is undoubtedly present in the case at bar, Plaintiffs here have
stated explicitly that they are not challenging the notice provided to them, either on statutory or
constitutional grounds. Because Plaintiffs’ Takings Clause claim does not meet both criteria, the
restrictions on relief do not apply to this action.

        Second, the district court erred in determining that the Court of Claims has exclusive
jurisdiction over all claims challenging the GPTA. In arriving at that conclusion, the court
conflated the terms “section” and “act.” It is clear from the text that the Michigan legislature
 Nos. 15-2463/2525        Wayside Church, et al. v. Van Buren Cty., et al.                   Page 9


used the term “act” to refer to the entire GPTA and the term “section” to refer to the more
specific provisions in the act. For example, in providing definitions for the GPTA, the text states
that “[a]s used in this section and sections 78a through 155 . . . (a) ‘Foreclosing governmental
unit’ means . . . [t]he treasurer of a county.” Mich. Comp. Laws § 211.78(8). This language
makes clear that “section” refers to individual parts of the general statute, and not the entire
GPTA.     See also id. § 211.78l (“If a judgment for foreclosure is entered under section
78k, . . . .”). By contrast, when referring to the entire statutory scheme, the legislature clearly
indicated so, as seen in the provision regarding the purpose of the GPTA, which states,
“Therefore, the powers granted in this act relating to the return of property for delinquent taxes
constitute the performance by this state or a political subdivision of this state of essential public
purposes and functions.” Id. § 211.78(1).

        By the plain reading of the language at issue in this case, then, it is apparent that the word
“section” in the phrase limiting jurisdiction to the Court of Claims—“The court of claims has
original and exclusive jurisdiction in any action . . . under this section”—the legislature was
limiting jurisdiction for claims brought pursuant to § 211.78l, not claims brought pursuant to the
entire GPTA.      As established above, § 211.78l only discusses claims by former owners
challenging the notice provisions, which is not the case here. Therefore, Plaintiffs were not
required to bring their actions in the Court of Claims and therefore were not subject to the bar
that “[n]o claimant may be permitted to file claim in [the Court of Claims] against the state nor
any department, . . . arm or agency thereof who has an adequate remedy upon his claim in the
federal courts.” Id. § 600.6440. Consequently, the district court erred in concluding that the
GPTA provided no remedy for Plaintiffs’ constitutional claims.

        Moreover, reading the statute in the way directed by the district court would mean the
statute would be unconstitutional, which would violate the constitutional avoidance statutory
construction rule. See Carey v. South Dakota, 250 U.S. 118, 122 (1919) (“Where a statute is
reasonably susceptible of two interpretations, by one of which it would be clearly constitutional
and by the other of which its constitutionality would be doubtful, the former construction should
be adopted.” (citations omitted)); see also In re Treasurer of Wayne Cty. for Foreclosure,
732 N.W.2d 458, 462 (Mich. 2007) (requiring courts to “presume a statute is constitutional and
 Nos. 15-2463/2525        Wayside Church, et al. v. Van Buren Cty., et al.                  Page 10


construe it as such, unless the only proper construction renders the statute unconstitutional”
(citation omitted)). If the district court were right in its interpretation, the Michigan legislature
would have created a statutory scheme by which plaintiffs were barred from asserting all but one
federal right—due process notice—in state court. Such a scheme could not stand, as “[a]
jurisdictional rule cannot be used as a device to undermine federal law, no matter how
evenhanded it may appear.” Haywood v. Drown, 556 U.S. 729, 739 (2009); see also Felder v.
Casey, 487 U.S. 131, 138 (1988) (“Under the Supremacy Clause of the Federal Constitution,
‘[t]he relative importance to the State of its own law is not material when there is a conflict with
a valid federal law,’ for ‘any state law, however clearly within a State’s acknowledged power,
which interferes with or is contrary to federal law, must yield.’” (quoting Free v. Bland, 369 U.S.
663, 666 (1962)). The Michigan Supreme Court also recognized the same limitation when
discussing § 211.78l of the GPTA, and held that, in the context of a due process claim to the
statute, “[b]ecause the Legislature cannot create a statutory regime that allows for constitutional
violations with no recourse, that portion of the statute . . . is unconstitutional and unenforceable.”
In re Treasurer of Wayne Cty., 732 N.W.2d at 463. We therefore conclude that § 211.78l of the
GPTA does not bar Plaintiffs from filing their Takings Clause claims in state court.

       Pursuant to Williamson County, we still must determine whether Plaintiffs are generally
allowed to bring their Takings Clause and § 1983 claims in Michigan state court, independent of
§ 211.78l of the GPTA, or whether there were no “reasonable, certain, and adequate” procedures
for challenging a taking, thereby allowing Plaintiffs to seek redress in federal court first. The
Michigan Court of Appeals has previously held that “[t]he Court of Claims is the proper forum in
which to seek redress where a plaintiff alleges an already accomplished inverse condemnation by
the State of Michigan.” Lim v. Mich. Dep’t of Transp., 423 N.W.2d 343, 345 (Mich. Ct. App.
1988) (citing Hill v. State Highway Comm’n, 170 N.W.2d 18 (Mich. 1969)) (additional citations
omitted). Jurisdiction would normally lie in that court as it has exclusive jurisdiction over all
claims “statutory or constitutional, liquidated or unliquidated, ex contractu or ex delicto, or any
demand for monetary, equitable, or declaratory relief . . . against the state or any of its
departments or officers notwithstanding another law that confers jurisdiction of the case in the
circuit court.” Mich. Comp. Laws § 600.6419(1)(a).
 Nos. 15-2463/2525          Wayside Church, et al. v. Van Buren Cty., et al.                       Page 11


        Plaintiffs’ action, however, is not an action against the State of Michigan. Instead,
Plaintiffs have sued Van Buren County and the county treasurer, as the county treasurer is the
one responsible for effectuating the alleged taking of Plaintiffs’ properties. See Mich. Comp.
Laws §§ 211.78(8)(a), 211.78k(5). (See also R.16-2, Judgment & Order of Judicial Forfeiture,
PageID #181–82.) Counties, however, “are never within the jurisdiction of the Court of Claims.”
Doan v. Kellogg Cmty. Coll., 263 N.W.2d 357, 359 (Mich. Ct. App. 1977); see also Cameron v.
Monroe Cty. Probate Court, 579 N.W.2d 859, 862 (Mich. 1998) (determining that the circuit
court had jurisdiction over a complaint against a county court because “[t]he state was not made
a party to the complaint, nor did the court attempt to order the state to pay the complaint”).
Thus, Lim is inapplicable to Plaintiffs’ case and does not require them to file in the Court of
Claims. See Lim, 423 N.W.2d at 345.

        Furthermore, the argument that the Michigan jurisdictional scheme essentially requires
that all claims against political subdivisions of the state be litigated in federal court when there is
an adequate federal remedy ignores the Michigan state courts’ interpretation of its own
jurisdictional statutes. In Gordon v. Sadasivan, 373 N.W.2d 258 (Mich. Ct. App. 1985) (per
curiam), the Court of Appeals of Michigan addressed the situation where a circuit court
dismissed a suit brought pursuant to § 1983 for lack of jurisdiction, as it thought the case
belonged in the Court of Claims. Id. at 259–60. The Gordon court first recognized that “state
courts exercise concurrent jurisdiction over § 1983 claims.” Id. at 261. After determining that
there was an adequate remedy that the plaintiff could have pursued in federal court, as his claim
was not barred by the Eleventh Amendment, the Michigan Court of Appeals determined that the
Court of Claims lacked subject matter jurisdiction over the claim pursuant to Michigan Compiled
Laws § 600.6440. Id. However, the court further determined that the circuit court did, in fact,
have jurisdiction over the plaintiff’s § 1983 claims. Id. Put another way, the Gordon court noted
that, while § 600.6440 may divest the Court of Claims of jurisdiction when there is a remedy
available in federal court, the result is not that no remedy can be sought in state court; instead,
the proper forum to litigate such claims is the circuit court. 4 Id. Based on this interpretation of


        4
         Indeed, the circuit courts of Michigan routinely decide cases involving causes of action for which a
remedy in federal court exists. See, e.g., Mudge v. Macomb Cty., 580 N.W.2d 845 (Mich. 1998); Dampier v. Wayne
 Nos. 15-2463/2525         Wayside Church, et al. v. Van Buren Cty., et al.                    Page 12


the relevant jurisdictional statutes, we find that Plaintiffs were not barred from bringing their
actions in the state circuit court and thus were not deprived of a state forum for vindicating their
federal constitutional rights.

        Because the clearer reading of the relevant statutes allows Plaintiffs to bring their cases,
including their federal claims, in state court, and because this Court is required to read statutes to
be constitutional if possible, we conclude that Plaintiffs have failed to establish that jurisdiction
in federal court is proper because the state provided no “reasonable, certain and adequate
[procedures] at the time of the taking.” Williamson Cty., 473 U.S. at 194 (quotation omitted).
The district court thus erred in finding that it had jurisdiction to entertain this action.

                2.      Tax Injunction Act and Comity

        The district court also determined that the Tax Injunction Act does not bar jurisdiction
here. That Act declares that “[t]he district courts shall not enjoin, suspend or restrain the
assessment, levy or collection of any tax under State law where a plain, speedy and efficient
remedy may be had in the courts of such State.” 28 U.S.C. § 1341. This statute is jurisdictional,
Hedgepeth v. Tennessee, 215 F.3d 608, 611–12 & n.4 (6th Cir. 2000), and prevents federal courts
from awarding declaratory or injunctive relief to plaintiffs who challenge state tax laws. Nat’l
Private Truck Council, Inc. v. Okla. Tax Comm’n, 515 U.S. 582, 586–87 (1995).

        Another similar but distinct limitation on federal court jurisdiction over challenges to
state tax laws is the principle of comity. This principle “prohibits ‘taxpayers . . . from asserting
§ 1983 actions against the validity of state tax systems in [the lower] federal courts.’” Chippewa
Trading Co. v. Cox, 365 F.3d 538, 541 (6th Cir. 2004) (alterations in original) (quoting Fair
Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 116 (1981)). “While this comity
principle reflects some of the same concerns that led Congress to enact the Tax Injunction Act,
28 U.S.C. § 1341, it stands on its own bottom, and extends to cases seeking monetary damages
as well as injunctive or other equitable relief.” Id. (footnote omitted) (citing Fair Assessment,
454 U.S. at 110). Only when the states do not provide a “plain, adequate, and complete” remedy


Cty., 592 N.W.2d 809 (Mich. Ct. App. 1999); Morden v. Grand Traverse Cty., 738 N.W.2d 278 (Mich. Ct. App.
2007) (per curiam).
 Nos. 15-2463/2525         Wayside Church, et al. v. Van Buren Cty., et al.                 Page 13


in their courts should the federal courts be able to exercise jurisdiction despite the principle of
comity. Id. (quoting Fair Assessment, 454 U.S. at 116).

          Plaintiffs here brought an action for both a declaratory judgment and monetary damages,
and, thus, both the Tax Injunction Act and comity are at play. Because the two doctrines only
allow federal courts to exercise jurisdiction when states courts cannot provide “plain, adequate,
and complete” remedies, only one analysis is required. Fair Assessment, 454 U.S. at 116 n.8
(“We discern no significant difference, for purposes of the principles recognized in this case,
between remedies which are ‘plain, adequate, and complete,’ as that phrase has been used in
articulating the doctrine of equitable restraint, and those which are ‘plain, speedy and efficient,’
within the meaning of § 1341.” (citations omitted)). “[S]tate remedies are plain, adequate, and
complete if they provide the taxpayer with a full hearing and judicial determination at which the
taxpayer may raise any federal constitutional objections to the tax.” In re Gillis, 836 F.2d 1001,
1010 (6th Cir. 1988) (footnote omitted). As has already been discussed above in the ripeness
context, the district court and Plaintiffs erred in concluding that Plaintiffs could not challenge the
GPTA on constitutional grounds in state court. In fact, such a plain, adequate, and complete
avenue for redressing their claims was available. We therefore conclude that the district court
erred in finding that the claims were not barred by the Tax Injunction Act and the doctrine of
comity, and as a result, mistakenly determined that it could exercise subject matter jurisdiction
over Plaintiffs’ claims. Consequently, the district court lacked jurisdiction to entertain this
action.

                                          CONCLUSION

          For the foregoing reasons, we VACATE the judgment of the district court and
REMAND with instructions to DISMISS the action for lack of subject matter jurisdiction.
 Nos. 15-2463/2525        Wayside Church, et al. v. Van Buren Cty., et al.                Page 14


                                       _________________

                                            DISSENT
                                       _________________

       KETHLEDGE, Circuit Judge, dissenting. In this case the defendant Van Buren County
took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of the
difference. In some legal precincts that sort of behavior is called theft. But under the Michigan
General Property Tax Act, apparently, that behavior is called tax collection. The question here
is—or at least in my view should be—whether the County’s action is a taking under the federal
Constitution.

       Our court declines to answer that question because it holds—under the Supreme Court’s
decision in Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City,
473 U.S. 172 (1985)—that the plaintiffs here must seek a remedy in state court rather than
federal. I respectfully disagree with that conclusion. To begin with first principles: the federal
courts indisputably have jurisdiction over this case, see 28 U.S.C. § 1331, and the federal courts
“have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.”
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). But Williamson County singles out
takings claims for disfavored treatment so far as the availability of a federal forum is concerned.
Specifically, if a plaintiff alleges that a State has violated the federal Takings Clause, and state
law provides a “reasonable, certain, and adequate” remedy for the violation, then the plaintiff
must pursue that remedy in state court. Williamson County, 473 U.S. at 194. As the majority
points out, however, this doctrine is merely “prudential,” which is to say discretionary and judge-
created. See Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733-34 (1997). Thus we
may dispense with it “when its application ‘would not accord with sound process.’” Miles
Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 541 (6th Cir. 2010) (quoting Lucas
v. S.C. Coastal Council, 505 U.S. 1003, 1012 (1992)).

       We have neither certainty nor sound process here. Whether Michigan substantive law
provides a remedy for the type of taking alleged here is hardly certain. True, Michigan law
provides a cause of action for so-called “inverse condemnations,” in which the government takes
 Nos. 15-2463/2525        Wayside Church, et al. v. Van Buren Cty., et al.                  Page 15


a property interest without a formal exercise of eminent domain. See Merkur Steel Supply, Inc.
v. Detroit, 680 N.W.2d 485, 495 (Mich. Ct. App. 2004). And in adjudicating those claims the
Michigan courts have recognized what they call “de facto” takings, for which “no exact formula”
exists. Id. But the Michigan courts have not yet determined, as a matter of state law, whether a
local government’s appropriation of property pursuant to the taxing power generally, or to the
General Property Tax Act in particular, is a taking to the extent the government takes property
worth more than the amount of taxes owed. Perhaps the Michigan courts will recognize this kind
of inverse-condemnation claim as viable, not least because of the gross injustice—both
equitably, and from the standpoint of the interests protected by takings law—caused by the kind
of governmental action on display here. (In the County’s defense, the Michigan Act appears
actually to require the County to short the taxpayer the difference between the value of the
property forfeited and the amount of taxes and penalties owed. See M.C.L. § 211.78m(8).) But
it overstates matters to say the Michigan courts’ recognition of this type of inverse-condemnation
claim is “certain.”

       Equally problematic is the jurisdictional uncertainty that awaits the plaintiffs in state
court. When they file their inverse-condemnation claim there, they must choose between two
courts: the state circuit court, which is a trial court of general jurisdiction, or the state court of
claims, which (like its federal counterpart) has jurisdiction over monetary claims “against the
state or any of its departments[.]” See M.C.L. §§ 600.605 (circuit court), 600.6419 (court of
claims). But no matter which court the plaintiffs choose, they will face a strong argument that
they chose wrongly. The majority suggests the plaintiffs should file in circuit court, which is
remarkable given the statute’s plain statement that the court of claims’s jurisdiction over
monetary claims against the state or its departments “is exclusive[,]” M.C.L. § 600.6419(1), and
given the Michigan Court of Appeals’s plain holding that “[t]he Court of Claims is the proper
forum in which to seek redress where a plaintiff alleges an already accomplished inverse
condemnation[.]” Lim v. Mich. Dep’t of Transp., 423 N.W.2d 343, 345 (Mich. Ct. App. 1988).
Perhaps, as the majority suggests, the Michigan courts will distinguish Lim on the ground that
the plaintiffs here are suing a subdivision of the State rather than the State itself. But perhaps
not, since counties are instrumentalities of the State. See, e.g., Wayne Cty. Bd. of Comm’rs v.
Wayne Cty. Airport Auth., 658 N.W.2d 804, 828 (Mich. Ct. App. 2002); Pomann, Callanan &
 Nos. 15-2463/2525          Wayside Church, et al. v. Van Buren Cty., et al.                Page 16


Sofen, P.C. v. Wayne Cty. Dep’t of Soc. Servs., 419 N.W.2d. 787, 789 (Mich. Ct. App. 1988).
And the Michigan Court of Appeals has held that a monetary claim against a county agency
belongs in the court of claims, whose exclusive jurisdiction “encompasses all claims against the
state and its instrumentalities for money damages.” Pomann, Callanan & Sofen, 419 N.W.2d. at
789.

        That said, the jurisdiction of the court of claims over this case is likewise uncertain: under
another statutory provision, no claimant “who has an adequate remedy upon his claim in the
federal courts” may bring suit against the state or its departments in the court of claims. M.C.L.
§ 600.6440. Given that the plaintiffs assert a federal constitutional claim and that the federal
courts exist in part to provide a remedy for such claims, § 600.6440 seems to direct these
plaintiffs to litigate their claims in federal court rather than state.

        Thus, as read by the majority, Williamson County sends these plaintiffs to state court,
while state law directs them back to federal. The majority resolves this dilemma by declaring the
state jurisdictional regime unconstitutional to the extent it would require a federal constitutional
claimant to bring suit in federal court. Maj. Op. at 9-12. And thus, contrary to what the
Michigan statutes actually say, the majority opines that the plaintiffs may bring suit in the state
circuit court.

        At this point one senses we have lost our constitutional bearings. The plaintiffs have
asked us to adjudicate a claim arising under the federal Constitution, which is the most important
type of claim that we can adjudicate. The claim itself is substantial: that, when a state takes fee
simple to property in satisfaction of a tax obligation, the state effects a taking to the extent the
property is worth more than the taxes and penalties owed. Complaint ¶ 4. Congress has granted
us jurisdiction over that claim. We have a strict duty to exercise that jurisdiction. Meanwhile,
the state jurisdictional statute, specifically § 600.6440, expresses an affirmative preference that
we adjudicate the claim. And yet—in the interest of “federalism,” no less—we reject the State’s
preference, declare the state jurisdictional regime (as set forth by the statute’s plain terms)
unconstitutional as applied here, disregard our strict duty to exercise the jurisdiction assigned to
us by Congress, and send the plaintiffs back to state court, where they face procedures that as a
 Nos. 15-2463/2525        Wayside Church, et al. v. Van Buren Cty., et al.               Page 17


practical matter are “confusing and uncertain[.]” Kruse v. Village of Chagrin Falls, 74 F.3d 694,
698 (6th Cir. 1996). The result is not “sound process” but a welter of contradictions.

       One further irony remains. The majority cites Haywood v. Drown, 556 U.S. 729 (2009),
as support for its conclusion that Michigan’s jurisdictional regime cannot, consistent with the
federal Constitution, mean what its relevant jurisdictional provisions say. In Haywood, the
Supreme Court held that state jurisdictional statutes that are designed to discriminate against
“disfavored federal claim[s]” or that serve “as a device to undermine federal law” violate the
Supremacy Clause. 556 U.S. at 738-39, 741. But here, in clear contrast to Haywood (which
involved suits brought by inmates against corrections officers), there is no reason at all to think
that, in directing federal takings claims to federal court, the State sought to undermine or
discriminate against those claims in any way. Quite the contrary: if anyone has undermined the
adjudication of federal takings claims against states and local governments, it is the federal
courts—by the application of Williamson County.

       I respectfully dissent.
