Petition for Writ of Certiorari — Fred Lohr Fouse, et ux., Petitioners v. Saratoga Partners L.P., et al.
Supreme Court briefFeb 24, 2021
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------FRED LOHR FOUSE AND JOLENE K. FOUSE,
Petitioners,
v.
SARATOGA PARTNERS L.P.,
AND
HUNTINGDON COUNTY TAX CLAIMS BUREAU,
Respondents.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The Supreme Court Of Pennsylvania
---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦--------------------------------GENNADY L. LEBEDEV
Counsel of Record
SAM HELMI
LEBEDEV, MICHAEL & HELMI, APLC
10999 Riverside Dr., Suite 201
Studio City, CA 91602
(818) 757-7677
gennady@lmhlawyers.com
Counsel for Petitioners
RICHARD J. GERACE
GERACE LAW OFFICE
1515 Market St., Suite 1200
Philadelphia, PA 19102
(215) 854-6345
rgerace14@comcast.net
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Does Pennsylvania law violate the Due Process
and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution by
denying homeowners in the least populous counties
any right to redeem their home after a municipal tax
sale to pay delinquent property taxes while allowing
homeowners in the most populous counties a three
month to nine month right of redemption?
ii
PARTIES TO THE PROCEEDING
Petitioners Fred Lohr Fouse (incorrectly identified
in the state courts as “Fred Lohr”) and his wife Jolene
K. Fouse, were Petitioners in the Huntingdon County
Court of Common Pleas, Huntingdon, Pennsylvania
seeking the right to redeem their residential property
which was sold at a Municipal tax sale to pay for delinquent taxes. As such the Fouses were Petitioners in the
common pleas court, Appellants in the intermediate
appellate court for this matter, i.e., the Pennsylvania
Commonwealth Court, and Appellants in the Pennsylvania Supreme Court.
Saratoga Partners L.P., was the high bidder at the
tax sale and was therefore named in the common pleas
court action as a Respondent, Appellee in the Commonwealth Court, and Appellee in the Pennsylvania Supreme Court.
The Huntingdon County Tax Claims Bureau was
the government entity through which the Municipal
tax sale was conducted. As such, the Bureau was
named as a Respondent in the common pleas court,
Appellee in the Commonwealth Court, and Appellee in
the Pennsylvania Supreme Court.
iii
RELATED CASES
Fouse et al., Petitioners v. Saratoga Partners, L.P., and
Huntingdon County Tax Claims Bureau, Respondents,
Huntingdon County Court of Common Pleas, No.
CP-31-CV-1701-2016, Order entered October 23, 2017.
Fouse et al., Appellants v. Saratoga Partners, L.P., and
Huntingdon County Tax Claims Bureau, Appellees,
Commonwealth Court of Pennsylvania, 204 A.3d 1028,
judgment and order entered March 7, 2019.
Fouse et al., Appellants v. Saratoga Partners, L.P., and
Huntingdon County Tax Claims Bureau, Appellees,
Pennsylvania Supreme Court No. 67 MAP 2019 judgment and order entered October 1, 2020.
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
PARTIES TO THE PROCEEDING ......................
ii
RELATED CASES ...............................................
iii
TABLE OF CONTENTS ......................................
iv
TABLE OF AUTHORITIES .................................
vi
PETITION FOR A WRIT OF CERTIORARI .......
1
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
2
STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED...........................................
3
INTRODUCTION AND STATEMENT OF THE
CASE ................................................................
3
REASONS FOR GRANTING THE PETITION .....
10
I.
There is No Rational Basis to Support the
Laws that Grant Homeowners in the Most
Populous Counties Three Months to Nine
Months to Redeem their Home after a Municipal Tax Sale but Deny Homeowners in
the Least Populous Counties Any Right of
Redemption Whatsoever ............................ 10
CONCLUSION..................................................... 22
v
TABLE OF CONTENTS – Continued
Page
APPENDIX
Opinion, Pennsylvania Supreme Court No. 67
MAP 2019 (October 1, 2020) ............................ App. 1
Order and Opinion, Commonwealth Court of
Pennsylvania (March 7, 2019) ....................... App. 30
Order, Court of Common Pleas of Huntingdon
County, Pennsylvania (October 23, 2017) ..... App. 55
vi
TABLE OF AUTHORITIES
Page
CASES
Am. Exp. Travel Related Serv’s, Inc. v. SidamonEristoff, 669 F.3d 359 (3d Cir. 2012) .......................11
Appeal of Gault, 33 Pa. 94 (Pa. 1859) .........................15
Bull v. United States, 295 U.S. 247 (1935) .................16
Cedarbrook Realty, Inc. v. Nahill, 399 A.2d 374
(Pa. 1979) .................................................................16
City of Cleburne v. Cleburne Living Center, 473
U.S. 432 (1985) ........................................................11
Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d
159 (3d Cir. 2006) ....................................................11
Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998) ......11
Fouse v. Saratoga Partners, L.P. and Huntingdon County Tax Claim Bureau, 204 A.3d 1028
(Pa.Cmwlth. 2019)........................................... passim
Fred Lohr and Jolene K. Fouse v. Saratoga Partners, L.P. and Huntingdon County Tax Claim
Bureau, No. 67 MAP 2019 (Pa. 2020) ...... 1, 8, 12, 14, 18
Hill v. Borough of Kutztown, 455 F.3d 225 (3d
Cir. 2006) .................................................................11
Hurtado v. California, 110 U.S. 516 (1884) ................11
Mathews v. Lucas, 427 U.S. 495 (1976) ......................11
Pace Resources, Inc. v. Shrewsbury Twp., 808
F.2d 1023 (3d Cir. 1987) ..........................................12
Romer v. Evans, 517 U.S. 620 (1996) ..........................11
Shapiro v. Thompson, 394 U.S. 618 (1969)........... 14, 21
vii
TABLE OF AUTHORITIES – Continued
Page
United States v. Carolene Products Co., 304 U.S.
144 (1938) .......................................................... 14, 21
Village of Willowbrook v. Olech, 528 U.S. 562
(2000) .......................................................................10
STATUTES
Federal
U.S. Const. amend. XIV § 1 ................................ passim
28 U.S. Code § 1257(a) ..................................................3
State
Pa. Const. Art. I, § 1 ............................................ 8, 9, 13
Pa. Const. Art. I, § 26 ....................................................8
Pa. Const. Art. III, § 20 .................................................9
Municipal Claims and Tax Liens Act (“MCTLA”)
53 P.S. §§ 7101-7505 ........................................ passim
Real Estate Tax Sale Law (“RETSL”) 72 P.S.
§§ 5860.101-5860.803 ...................................... passim
1
PETITION FOR A WRIT OF CERTIORARI
Fred Lohr Fouse and Jolene K. Fouse, husband
and wife, petition for a writ of certiorari to review the
judgment of the Pennsylvania Supreme Court which
held that denying individuals any right at all to redeem residential property in the least populous counties of Pennsylvania while allowing individuals in the
most populous counties three to nine months to redeem, is permissible under the due process and equal
protection clauses of the Fourteenth Amendment to
the United States Constitution.
---------------------------------♦---------------------------------
OPINIONS BELOW
The Pennsylvania Supreme Court’s opinion affirming the Pennsylvania Commonwealth Court order
upholding the Huntingdon County Court of Common
Pleas order denying the “Petition to Redeem Property
Sold at Tax Sale” is reported at Fred Lohr and Jolene
K. Fouse v. Saratoga Partners, L.P. and Huntingdon
County Tax Claim Bureau, No. 67 MAP 2019, October
1, 2020, and reproduced at App. 1-29. The Pennsylvania Commonwealth Court opinion and order upholding
the Huntingdon County Court of Common Pleas order
denying the “Petition to Redeem Property Sold at Tax
Sale” is reported at Fouse v. Saratoga Partners, L.P.
and Huntingdon County Tax Claim Bureau, 204 A.3d
1028 (Pa.Cmwlth. 2019) and reproduced at App. 30-54.
---------------------------------♦---------------------------------
2
JURISDICTION
This case involves the Pennsylvania Supreme
Court’s interpretation of the due process and equal
protection clauses of the Fourteenth Amendment to
the United States Constitution. On October 1, 2020,
the Pennsylvania Supreme Court upheld a state law
that prohibits homeowners in Pennsylvania’s lesser
populated counties, Huntingdon County in particular,
any right to redeem their home once it is sold by the
municipality to collect delinquent property taxes,
while a nearly identical law allows homeowners in the
state’s two most populous counties a three to ninemonth right of redemption. The high court concluded
“the dichotomy between those landholders . . . does not
violate equal protection, under either the federal or
state constitution.”
Because the state’s highest court has rendered a
decision that determines “right, privilege, or immunity” under the federal constitution, this Court has the
jurisdiction to review the decision:
Final judgments or decrees rendered by the
highest court of a State in which a decision
could be had, may be reviewed by the Supreme Court by writ of certiorari where the
validity of a treaty or statute of the United
States is drawn in question or where the validity of a statute of any State is drawn in
question on the ground of its being repugnant
to the Constitution, treaties, or laws of the
United States, or where any title, right, privilege, or immunity is specially set up or
3
claimed under the Constitution or the treaties
or statutes of, or any commission held or authority exercised under, the United States.
28 U.S. Code § 1257(a) – State courts; certiorari.
---------------------------------♦---------------------------------
STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
This Petition involves the due process and equal
protection clauses in the Fourteenth Amendment to
the United States Constitution:
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
state wherein they reside. No state shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any state deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the
laws.
U.S. Const. amend. XIV § 1.
---------------------------------♦---------------------------------
INTRODUCTION AND
STATEMENT OF THE CASE
The Pennsylvania Supreme Court granted the
Fouses discretionary review to consider whether they,
as individual homeowners in the state’s low population
4
Huntingdon County, deserve the same right to redeem
their home after a tax delinquency sale as other homeowners in the state’s two most populous counties,
namely Philadelphia County and Allegheny County,
which includes Pittsburgh.
According to the Pennsylvania Supreme Court the
answer is “No”. App. 2.
Pennsylvania is divided into 67 counties. The 67
counties are grouped by population into essentially
eight county classes with the most populous county,
Philadelphia County, classified as a county of the first
class. Allegheny County, which includes Pittsburgh, is
a county of the second class. App. 4. Less populous
counties are grouped into successive county classes
from counties of the third class down to counties of the
eight class. App. 13. Huntingdon County where the Petitioners live is a sixth-class county. App. 3.
Tax sales of real estate are governed under two
state laws. Philadelphia and Allegheny County are
governed under the Municipal Claims and Tax Liens
Act (“MCTLA” or the “Tax Lien Act”), 53 P.S. §§ 71017505. App. 4. Under the Tax Lien Act and modification
thereto, an individual has the right to redeem real
property for at least three months and as much as nine
months after a municipal tax sale of property to pay
for delinquent taxes. App. 4-5. Generally, the other
counties classes, including Huntingdon County, are
governed by Real Estate Tax Sale Law (“RETSL” or
“Tax Sale Act”), 72 P.S. §§ 5860.101-5860.803. App. 4.
5
The Tax Sale Act prohibits any redemption of property
after a municipal tax sale. App. 1-2.
Petitioners fell behind in their residential tax payments for 2014 and 2015 owing approximately
$16,000. The property, which they owned since the late
70s and 80s, was subsequently listed and sold by the
Huntingdon County Tax Bureau for approximately
$26,000. App. 2. Three months after the sale in December 2016, the Fouses filed a “petition to redeem property sold at tax sale” under MCTLA, the Tax Lien Act,
53 P.S. § 7293 in the Huntingdon County Court of
Common Pleas, even though Huntington County, as a
sixth-class county, is governed by the Tax Sale Act Real
Estate Tax Sale Law or RETSL, 72 P.S. §§ 5860.1015860.803 which prohibits post-sale redemption. App. 2.
Still, the Fouses asserted a right to redeem under the
Tax Lien Act. However, the common pleas court denied
the petition. App. 55.
The Fouses appealed to the Commonwealth Court.
A divided three-judge panel of the Commonwealth
Court affirmed the common pleas court order denying
the Fouses’ petition to redeem. See Fouse v. Saratoga
Partners, L.P. and Huntingdon County Tax Claim Bureau, 204 A.3d 1028, 1039 (Pa.Cmwlth. 2019)
McCullough, J., dissenting. App. 30-54. However, the
dissent in the Commonwealth Court noted, “If the
property was located in Philadelphia County or Allegheny County, counties that proceed solely and exclusively under . . . [MCTLA], the Fouses would have
possessed a right to redeem their property ‘within nine
months . . . upon payment of the amount bid at such
6
sale[.]’ However, the Fouses’ place of residence and the
property is sited in Huntingdon County, a sixth-class
county, and . . . [RETSL] applies to this county.” App. 3.
The dissent finds the prohibition of any right to
redeem for the Fouses “a violation of the principles of
equal protection” noting: “Our case law indicates that
there are no significant substantive or procedural differences between the RETSL and the MCTLA, except
for the automatic right to redemption in the MCTLA
[for the most populous counties].” See Fouse, 204 A.3d
1028, 1040. App. 49. The dissent concluded that the
right of redemption is “a personal, individual right that
provides a homeowner with an extra or final chance to
reclaim property following the completion of an upset
tax sale or judicial sale”. Id., 204 A.3d at 1041.
Moreover, the dissent was “unable to decipher how
the exclusion of a right of redemption from the RETSL
bears a reasonable relationship to a legitimate state
purpose, or how the denial of this right promotes the
purpose of classification based upon county size.” App.
53. According to the dissent: “It should be beyond dispute that, no matter where a homeowner resides, that
homeowner shares the same interest in redemption as
any other homeowner located anywhere else in the
Commonwealth.” App. 52-53. Thus, with the Commonwealth Court majority upholding the prohibition
against redemption, the Fouses petitioned the Pennsylvania Supreme Court for discretionary review,
which was granted.
7
In the Pennsylvania Supreme Court, the Honorable Justice Max Baer, joined by all other justices, affirmed the Commonwealth Court judgment. App. 2.
However, in its attempt to summarize the dissent in
the Commonwealth Court, the supreme court completely missed the dissent’s main point: that granting
the right of redemption based solely on county population is arbitrary. As such, the Supreme Court failed to
address the following important point made by the dissent:
Since [all] counties . . . can elect to use the additional and alternative procedure of the
MCTLA, along with its right of redemption,
there is no apparent basis relating specifically
to differences in population that would rationalize excluding the right of redemption from
the RETSL. . . . Hence, contrary to the stance
of the [Commonwealth Court] Majority, the
right of redemption seems to be wholly disconnected from the concept of population, some
other characteristic unique to Philadelphia
County or Allegheny County, or the ability or
goal of collecting taxes in general.
Fouse v. Saratoga Partners, L.P. and Huntingdon
County Tax Claim Bureau, 204 A.3d 1028, 1040-1041
(Pa.Cmwlth. 2019) McCullough, J., dissenting (emphasis added). App. 51.
Instead of addressing this important point, the
high court avoided discussion on the irrational aspects
of virtually identical state laws that allow a right of
redemption in some counties but not others, and to
8
consider whether the right “to acquire, possess, and
protect property [i]s a fundamental right” under Article I, Section 1 [of the Pennsylvania Constitution]”.
Fred Lohr and Jolene K. Fouse v. Saratoga Partners,
L.P. and Huntingdon County Tax Claim Bureau, No. 67
MAP 2019 (Pa. October 1, 2020). App. 16.
If the right to “acquire, possess, and protect property” is determined to be as fundamental a right as
“reputation,” then strict scrutiny should be applied and
“the differentiation between taxpayers who have access to a remedy of redemption under the MCTLA and
those who do not under the RETSL must be narrowly
tailored to support a compelling government interest.”
App. 16 (“Fundamental rights and suspect classifications trigger strict scrutiny, whereas important rights
and sensitive classifications require intermediate scrutiny. [Citations omitted]. All other legislative classifications are subject to rational basis review.”)
However, the high court disregarded the text of
Pennsylvania’s Constitution which expressly declares
the right of acquiring, possessing and protecting
property an “inherent and indefeasible right.” App.
16. See id., citing the “right to acquire, possess, and
protect property,” as an “inherent and indefeasible
right” under Article I, Section 1 of the Pennsylvania
Constitution; see also id., at footnote 16 (“Pennsylvania
provides similar protection through Article I, Section
1, addressing, inter alia, equal rights, and Section 26,
providing protection against discrimination: All men
are born equally free and independent, and have certain inherent and indefeasible rights, among which are
9
those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. Pa. Const.
Art. I, § 1”). App. 22.
Instead, the high court concluded that “the asserted right is not a fundamental constitutional right
but, instead, a statutory remedy, provided as part of a
legislative tax collection process.” App. 24. The court
continued that “the right of redemption within a tax
collection statute is not a vested right but rather
merely a right subject to the control of the Legislature.”
Thus, by completely disregarding the fundamental nature of property rights that are expressly identified in
the Pennsylvania Constitution, the court concluded,
“rational basis review applies to the equal protection
challenge raised herein.” App. 24-25.
In affirming the Commonwealth Court, the supreme court concluded, “the dichotomy between those
landholders subject to the RETSL rather than the
MCTLA does not violate equal protection, under either
the federal or state constitution, because the choice is
rationally related to the legislative determination of
which system will maximize the collection of delinquent taxes for different types of counties. See Pa.
Const. Art. III, § 20 (expressly granting the Legislature
the “power to classify counties . . . according to population”). Id., at App. 28.
However, the Fouses do not challenge the government’s right to tax or take property, just the lack of rationality in arbitrarily treating some homeowners
10
differently than others, as was the case here, where the
government grants some homeowners a right of redemption but not others. Moreover, even if the right to
own and protect property is not a fundamental right
under the state constitution, this gift or right of redemption allowed some individuals but not other similarly situated individuals, must be, but is certainly not
“reasonably related to accomplishing th[e] articulated
state interest or interests.”
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE WRIT
I.
There is No Rational Basis to Support the
Laws that Grant Homeowners in the Most
Populous Counties Three Months to Nine
Months to Redeem their Home after a Municipal Tax Sale but Deny Homeowners in
the Least Populous Counties Any Right of
Redemption Whatsoever
The Equal Protection Clause of the Fourteenth
Amendment forbids the states to “deny to any person
within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV. Where a plaintiff with an
equal protection claim does not allege that distinctions
were made on the basis of a suspect classification such
as race, nationality, gender or religion, the claim arises
under the “class of one” theory. Village of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000). To prevail on such
a claim, the plaintiff must demonstrate: 1) the defendant treated him differently than others similarly situated; 2) the defendant did so intentionally; and 3)
11
there was no rational basis for the difference in treatment. Hill v. Borough of Kutztown, 455 F.3d 225, 239
(3d Cir. 2006). As explained above, the rational basis
test is forgiving, but not without limits. Distinctions
cannot be arbitrary or irrational and pass scrutiny.
City of Cleburne v. Cleburne Living Center, 473 U.S.
432, 446 (1985) (“The State may not rely on a classification whose relationship to an asserted goal is so
attenuated as to render the distinction arbitrary or
irrational.”)
Substantive due process challenges to a legislative
act are reviewed under the rational basis test. Am. Exp.
Travel Related Serv’s., Inc. v. Sidamon-Eristoff, 669
F.3d 359, 366 (3d Cir. 2012). The Supreme Court of the
United States has recognized that the “core of the concept” of substantive due process is the protection
against arbitrary government action. Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (citing Hurtado v. California, 110 U.S. 516, 527 (1884)) (“[T]he
touchstone of due process is protection of the individual against arbitrary actions of government”).
Rational basis review is a forgiving standard for
government acts, but it “is not a toothless one[.]”
Mathews v. Lucas, 427 U.S. 495, 510 (1976). As a general matter, the rational basis test requires only that
the governmental action “bear[ ] a rational relationship to some legitimate end.” Romer v. Evans, 517 U.S.
620, 631 (1996). Conversely, actions which are irrational, arbitrary or capricious do not bear a rational relationship to any end. Cty. Concrete Corp. v. Town of
Roxbury, 442 F.3d 159, 169 (3d Cir. 2006) (quoting
12
Pace Resources, Inc., v. Shrewsbury Twp., 808 F.2d
1023, 1035 (3d Cir. 1987)). Accordingly, for the Petitioners to successfully challenge an ordinance, “they must
‘allege facts that would support a finding of arbitrary
or irrational legislative action by the Township.’ ”
In Pennsylvania, two state laws, similar in virtually every aspect save one (i.e., a right of redemption)
govern the sale of residential homes sold by the municipality for non-payment of delinquent property taxes.
App. ___. One law provides a right of redemption while
the other prohibits redemption. See generally Fouse v.
Saratoga Partners, L.P. and Huntingdon County Tax
Claim Bureau, 204 A.3d 1028, 1039 (Pa.Cmwlth. 2019)
McCullough, J., dissenting. App. 48-54.
The law that grants a right of redemption is said
to be limited to counties of the first and second class;
i.e., the most populous counties in Pennsylvania, which
includes Philadelphia County in the east, and Allegheny County in the west, which includes Pittsburgh.
App. 50. All other county classes, third through eighth
class counties, have no right of redemption. Thus, Petitioners who are residents of Huntingdon County, a
sixth-class county in Pennsylvania, had no right to redeem their property after a tax sale. App. 48.
Unequal treatment of state citizens similarly situated is by definition a violation of the “equal protection” clause of the Fourteenth Amendment. Thus, the
tax law here is a blatant violation of the right to equal
protection certainly under a strict scrutiny analysis
but also under the rational basis test. Cf., Fred Lohr
13
and Jolene K. Fouse v. Saratoga Partners, L.P. and
Huntingdon County Tax Claim Bureau, No. 67 MAP
2019 (Pa. October 1, 2020) (“[T]he dichotomy between
those landholders subject to the RETSL [the Tax Sale
Act] rather than the MCTLA [Tax Lien Act] does not
violate equal protection, under either the federal or
state constitution, because the choice is rationally related to the legislative determination of which system
will maximize the collection of delinquent taxes for different types of counties.]”). App. 28.
Despite the Pennsylvania Supreme Court’s decision in this case, in Pennsylvania, a Commonwealth
whose Constitution was framed and written by some
of the same men who framed and wrote the federal
constitution, the right “of acquiring, possessing and
protecting property” is an “inherent and indefeasible
right”. See Pa. Const., Article I, Section 1. Property
rights defined as “inherent and indefeasible” constitutional rights had a self-evident meaning when used by
the 18th century authors of the Pennsylvania and federal constitutions. To the 21st century stewards of the
state constitution “inherent and indefeasible” constitutional rights suffer declining importance and meaning.
Hence, rights described as “inherent and indefeasible”
give no more than a momentary pause in a 21st century supreme court. See id. Legislative greed for taxes
renders the carefully chosen words of our earliest and
actual patriots infirmed. Now, “inherent and indefeasible” constitutional rights are trumped by “the classification adopted in the legislation when reasonably
14
related to accomplishing [an] articulated state interest.” See id.
The articulated state interest and rationalization
provided by the Pennsylvania Supreme Court fails to
satisfy any practical consideration of the rational basis
standard. See Shapiro v. Thompson, 394 U.S. 618, 639,
89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (rejecting proffered justification for a statute where the justification
was “completely refuted by the legislative history”);
and see United States v. Carolene Products Co., 304
U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) (stating that “the existence of facts supporting the legislative judgment is to be presumed . . . unless in the light
of the facts made known or generally assumed it is of
such a character as to preclude the assumption”); see
also, Fouse, 204 A.3d 1028, 1040-1041 (Pa.Cmwlth.
2019) McCullough, J., dissenting:
Since [all] counties . . . can elect to use the additional and alternative procedure of the
MCTLA, along with its right of redemption,
there is no apparent basis relating specifically to differences in population that
would rationalize excluding the right of
redemption from the RETSL. . . . Hence,
contrary to the stance of the [Commonwealth
Court] Majority, the right of redemption
seems to be wholly disconnected from the
concept of population, some other characteristic unique to Philadelphia County
or Allegheny County, or the ability or goal
of collecting taxes in general.
15
Fouse, 204 A.3d 1028, 1040-1041, McCullough, J., dissenting (emphasis added).
Try as it might, the state supreme court could not
rationalize discrimination against homeowners by
denying them a right of redemption based on their residence in lower class counties, while allowing the same
right to those in the higher class counties that include
Pittsburgh and Philadelphia. Indeed, the high court’s
reasoning (quoted below) defies logic, while bending
over backwards to find against the Fouses. Thus, if the
high court’s explanation somehow satisfies the “rational basis” test, then any explanation is rational and
there is no practical standard available to protect
rights which our framers originally declared “inherent
and indefeasible”:
[T]he legislative branch has broad discretion
in regard to tax collection, based in part on the
“importance of the tax collection process to the
perpetuation and continuing vitality of government.” [Citations omitted.] Indeed, we
have opined that statutes “authorizing the assessment of municipal taxes, the creation of
liens therefor, the sale of lands to satisfy the
liens, and the time of redemption given to
owners, constitute together [a] system of remedies for enforcing the taxing power – [of ]
which there is no clearer power in the constitution.” . . . Appeal of Gault, 33 Pa. 94, 100 (Pa.
1859). This Court has additionally opined
that the right of redemption within a tax collection statute is not a vested right but rather
merely a “right subject to the control of the
16
Legislature.” . . . Under rational basis review,
the relationship between the classification
and the legitimate state interest need not be
set forth expressly by the Legislature. [Citations omitted.] Moreover, courts have recognized that legislative classifications are
enacted to address complex issues that may
not have clear cut solutions. Accordingly,
courts have opined that “[a] classification does
not fail rational-basis review because it is not
made with mathematical nicety or because in
practice it results in some inequality.” [Citations omitted.] . . . As noted above, we recognize that tax collection statutes serve the
legitimate and, indeed, critical purpose of
funding government by providing “prompt
and certain availability” of assessed taxes. Cedarbrook Realty, Inc., 399 A.2d at 377 (quoting
Bull v. United States, 295 U.S. 247, 259-60
(1935) (observing that “taxes are the life-blood
of government, and their prompt and certain
availability an imperious need”)[.] In regard
to the RETSL specifically, this Court has
opined that the purpose of the RETSL is “to
expedite the collection of delinquent real estate taxes, to retain the productivity of the
real estate, and to maintain economic value.”
[Citations omitted.] . . . We next consider
whether the legislative decision to include a
redemption remedy in the MCTLA but exclude it from the RETSL is rationally related
to the legitimate government purpose of expediting the collection of delinquent real estate
taxes. We agree with the courts below . . .
that the lack of a redemption provision in
17
the RETSL promotes the legislative interest in facilitating the collection of delinquent taxes by ensuring certainty and
finality for tax sales, which, in turn,
likely encourages higher bids based on
the greater security provided to the purchaser. We additionally reject the implicit suggestion that the MCTLA
provides greater protection to delinquent
taxpayers than the RETSL. Rather than
looking myopically at the inclusion or exclusion of a redemption remedy, a broader consideration shows that both statutes offer
protections to the delinquent taxpayer, with
the RETSL utilizing greater pre-sale protections, whereas the MCTLA focuses on postsale remedies. Most significantly, while the
MCTLA allows delinquent taxpayers nine
months to pay their taxes to regain ownership
of their properties, the RETSL grants delinquent taxpayers twelve months to pay their
taxes to prevent the loss of ownership, so long
as they pay twenty-five percent of the taxes
prior to the date of sale. Compare 53 P.S.
§ 7293 (MCTLA redemption provision) with
72 P.S. § 5860.603 (RETSL removal from sale
provision). These provisions contain trade-offs
for all stakeholders. For the delinquent taxpayer, one system provides twelve rather than
nine months from the scheduled sale to satisfy
the delinquent taxes, but requires a quarter of
the total to be paid prior to the scheduled sale.
The purchaser takes on greater risk in buying
a property under the MCTLA, given the potential post-sale redemption, but likely pays a
18
lower price to compensate for the higher risk.
The taxing district under the RETSL must
wait a year to determine if the taxpayer will
meet its obligation to repay the full amount of
delinquent taxes, but is provided twenty-five
percent in advance and likely receives higher
bids for those properties which go to sale, due
to the lower risk given the prohibition on redemption in the RETSL. Moreover, various
reasons have been proposed for why one system is more advantageous for rural or urban
counties in maximizing the collection of delinquent taxes[.] . . . The rationality of these explanations are not undermined . . . by the
statutory provision allowing tax bureaus in
the less populated counties to opt into the
MCTLA. That an individual county deems one
of the systems more advantageous to that
county’s specific situation does not undermine
the legislative determination that, generally,
the RETSL system is better suited for more
rural counties.
See Fred Lohr and Jolene K. Fouse v. Saratoga Partners, L.P. and Huntingdon County Tax Claim Bureau,
No. 67 MAP 2019 (Pa. Oct. 1, 2020) (emphasis added).
App. 27-28.
As residents of Huntingdon County and holders of
“inherent and indefeasible [Constitutional] rights,” Petitioners are nevertheless victims of irrational and unequal treatment which prohibits them the same right
to redemption as residents of Philadelphia and Pittsburgh. As the dissent in the Commonwealth Court
aptly pointed out:
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[T]here are no significant substantive or procedural differences between the RETSL and
the MCTLA, except for the automatic right to
redemption in the MCTLA. . . . Additionally,
“[w]hether the judicial sale is effected under
the MCTLA or the RETSL the intent of the
legislature is the same: to return real property
to productive use under new ownership.” [citation omitted]. Against this background, the
Majority discerns a rational basis for the General Assembly’s differential classification of
the RETSL and MCTLA by focusing on the
fact that Pennsylvania’s first and second class
counties, Philadelphia County and Allegheny
County, have greater populations than the
other counties. From this, the Majority posits
that Philadelphia County and Allegheny
County “have larger pools of prospective buyers at tax sales,” which “make it more likely
that a property will be sold at a tax sale.” Maj.
op. at 1038. Therefore, according to the Majority, “the need for owner protection is greater”
and this “need is met” with the right of redemption found in the MCTLA. Maj. op. at
1038. The Majority also asserts that, by virtue
of having comparatively higher population
figures, Philadelphia County and Allegheny
County contain “a larger taxable base from
which to derive revenue” and, as such, “the
General Assembly could have reasoned that
these counties can afford a less efficient process for collecting delinquent taxes by providing a post-tax-sale right of redemption.” Id.
However, the justifications conceived by
the Majority are refuted and rendered
20
implausible in light of section 39.5 of the
MCTLA, which provides that “[t]he tax
claim bureaus of the several counties may
adopt and use the procedures set forth in
this act in addition to the procedures set
forth in the [RETSL].” 53 P.S. § 7193.5.
Since the counties that are covered under
the RETSL, including the least populous
eighth class county, can elect to use the
additional and alternative procedure of
the MCTLA, along with its right of redemption, there is no apparent basis relating specifically to differences in
population that would rationalize excluding the right of redemption from the
RETSL. . . . Hence, contrary to the stance
of the Majority, the right of redemption
seems to be wholly disconnected from the
concept of population, some other characteristic unique to Philadelphia County
or Allegheny County, or the ability or goal
of collecting taxes in general. [Footnote 6]
[This point is buttressed by the fact that, under the Treasurer’s Act, residents in the City
of Pittsburgh, the largest municipality in Allegheny County, can only redeem property
within 90 days or three months after the date
of the treasurer’s sale, 53 P.S. § 27304, while
residents of the smaller townships and boroughs of Allegheny County have a guaranteed
right to redeem property within nine months
of acknowledgement of the sheriff ’s deed . . .
under the MCTLA, 53 P.S. § 7293(a). [Citations omitted.] . . . If there were a positive
correlation between population size and
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the right of redemption, then, ostensibly,
the residents of Pittsburgh would have at
least the same amount of time to redeem
property as the surrounding townships
and boroughs that are located in Allegheny County.]
Fouse, 204 A.3d at 1040-1041 (Pa.Cmwlth. 2019)
McCullough, J., dissenting (emphasis added). App. 49-52.
The dissent in the Commonwealth Court recognized that the rationalization makes no sense because
the correlation makes no sense and is illogical reasoning. App. 52. See id., at footnote 6 (“If there were a positive correlation between population size and the right
of redemption, then, ostensibly, the residents of Pittsburgh would have at least the same amount of time to
redeem property as the surrounding townships and
boroughs that are located in Allegheny County”); see
also, United States v. Carolene Products Co., 304 U.S.
144, 152 (1938) (stating that “the existence of facts
supporting the legislative judgment is to be presumed
. . . unless in the light of the facts made known or generally assumed it is of such a character as to preclude
the assumption”); Shapiro v. Thompson, 394 U.S. 618,
639 (rejecting proffered justification for a statute
where the justification was “completely refuted by the
legislative history”).
As the dissent in the Commonwealth Court also
explains, “the right of redemption seems to be wholly
disconnected from the concept of population, some
other characteristic unique to Philadelphia County or
Allegheny County, or the ability or goal of collecting
22
taxes in general.” Id. (“I am simply unable to decipher
how the exclusion of a right of redemption from the
RETSL bears a reasonable relationship to a legitimate
state purpose, or how the denial of this right promotes
the purpose of classification based upon county size.”)
App. 53.
Consequently, the explanation attempted by the
state supreme court fails the rational basis test and
as the dissent further recognizes: “All counties in the
Commonwealth [should] utilize the MCTLA (which
they are already authorized to do) as the sole procedure through which to conduct tax sales, thereby ensuring that all the homeowners in this Commonwealth
are treated alike and are vested with the right to redeem their property.” App. 53-54. Therefore, the basis
upon which Fred and Jolene Fouse of Huntingdon
County Pennsylvania were denied the due process and
equal protection guarantees found in the Fourteenth
Amendment to the United States Constitution fails the
rational basis test.
---------------------------------♦---------------------------------
CONCLUSION
The Supreme Court should grant this petition for
writ of certiorari in order to declare an individual’s
right to redeem property in one county equal to an individual’s right to redeem property in another county
and that favoring one over the other denies an individual the equal protection of the law under the Fourteenth Amendment to the United States Constitution.
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Petition for a writ of certiorari should therefore be
granted.
Respectfully submitted,
GENNADY L. LEBEDEV
SAM HELMI
LEBEDEV, MICHAEL & HELMI, APLC
10999 Riverside Dr., Suite 201
Studio City, CA 91602
(818) 757-7677
Fx (818) 757-7047
gennady@lmhlaywers.com
sam@lmhlawyers.com
www.lmhlawyers.com
Counsel for Petitioners
RICHARD J. GERACE
GERACE LAW OFFICE
1515 Market St., Suite 1200
Philadelphia, PA 19102
(215) 854-6345
Fx (484) 472-8749
rgerace14@comcast.net
www.geracelawfirm.com
February 24, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.