Maryland Shall Issue, Inc., et al. v. Lawrence J. Hogan, Jr., Governor of Maryland

This case is about whether the Takings Clause of the Fifth Amendment and the Takings Clause and Due Process Clause of the Maryland Constitution protect lawfully acquired and lawfully owned personal property that the State legislature subsequently decided to ban totally. In Horne v. Dep’t of Agric., 135 S.Ct. 2419, 2427-28 (2015), this Court held that “direct appropriations of real and personal property” are treated “alike.” Yet, in a published ruling broadly applicable to all types of personal property, the Fourth Circuit has ruled that this holding in Horne applies to personal property only if the regulation in question requires the owner to “turn over” the property to the government or a third party. The Fourth Circuit also construed the Maryland Constitution in such a way as to effectively eliminate any protection for lawfully purchased personal property. The court ignored petitioners’ request to certify basic questions of Maryland property law to Maryland’s highest court. The questions presented are:

1. Whether the Fourth Circuit erred in ruling that this Court’s holding in Horne that appropriations of personal property and real property must be treated “alike” under the Takings Clause applies only where the statute requires that the owner “turn over” the personal property to the government or a third party.

2. Whether the Fourth Circuit erred, under Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), Lehman Brothers v. Schein, 416 U.S. 386 (1974), Elkins v. Moreno, 435 U.S. 647 (1978), and McKesson v. Doe, --- S.Ct. ---, 2020 WL 6385692 (Nov. 2, 2020), in failing to consider whether to certify petitioners’ Maryland constitutional claims to Maryland’s highest court pursuant to a Maryland statute allowing such certifications. (i)