Amicus Curiae Brief — Geraldine Tyler, Petitioner v. Hennepin County, Minnesota, et al.

No. 22-166

IN THE

Supreme Court of the United States

_________________________________________________

GERALDINE TYLER,

Petitioner,

v.

HENNEPIN COUNTY, MINNESOTA, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

March 6, 2023

i

TABLE OF CONTENTS

Table of Authorities ...................................................... ii

Brief of Amicus Curiae in Support of Petitioner ........ 1

Interest of Amicus Curiae ............................................ 1

Summary of Argument ................................................. 2

Argument ....................................................................... 6

I.

Retention of Surplus Equity Is a Taking

Requiring Just Compensation .............................. 6

A.

Respondents’ Taking Absolute Title to

Petitioner’s Home is a Per Se Physical

Taking Requiring Just Compensation ....... 6

B.

States Cannot, by Legislative Fiat, Sidestep

the Takings Clause .................................... 10

C.

The Takings Clause Protects Historically

Protected Property Interests, Including

Equity Interests in Real Property ............ 13

D.

Nelson Did Not Disavow Centuries of AngloAmerican Property Law ............................ 18

II. Respondents’ Confiscation of Petitioner’s Property

Worth Far More Than The Debt She Owed is a

“Fine” Under the Eighth Amendment................ 19

Conclusion ................................................................... 25

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Austin v. United States,

509 U. S. 602 (1993) .............................................. 21

Baker v. Kelley,

11 Minn. 480 (Minn. 1866) ............................. 13, 17

BFP v. Resolution Tr. Corp.,

511 U.S. 531 (1994) ............................................... 18

Brown v. Crookston Agric. Ass’n,

34 Minn. 545 (1886) .............................................. 10

Browning-Ferris Indus. of Vermont, Inc.

v. Kelco Disposal, Inc.,

492 U.S. 257 (1989) ............................................... 21

Burgess v. Wheate,

28 Eng. Rep. 652 (1759) ........................................ 17

Calder v. Bull,

3 U.S. 386 (1798) ................................................... 15

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) ....................................... 8, 13

Corfield v. Coryell,

6 F. Cas. 546 (C.C.E.D. Pa. 1823) .......................... 7

iii

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) ............................................. 7

Dorce v. City of N.Y.,

No. 19-cv-2216,

2022 U.S. Dist. LEXIS 112281

(S.D.N.Y. June 24, 2022) ...................................... 19

Farnham v. Jones,

32 Minn. 7 (Minn. 1884) ................................. 10, 17

Gibbons v. Ogden,

22 U.S. 1, 9 Wheat. 1 (1824) ................................... 7

Golden Glow Tanning Salon, Inc. v. City

of Columbus,

52 F.4th 974 (5th Cir. 2022) ................................... 8

Griffin v. Mixon,

38 Miss. 424 (Miss. 1860) ..................................... 15

Hall v. Meisner,

51 F.4th 185 (6th Cir. 2022) ........4, 8, 9, 11, 12, 13,

14, 15, 16, 17, 19, 20

Horne v. Dep’t of Agric.,

576 U.S. 351 (2015) ........................................... 8, 13

Hudson v. United States,

522 U.S. 93 (1997) ................................................. 20

Kelo v. City of New London,

545 U.S. 469 (2005) ................................. 7, 9, 10, 15

iv

Kennedy v. Bremerton School District,

142 S. Ct. 2407 (2022) ........................................... 15

Knick v. Twp. of Scott,

139 S. Ct. 2162 (2019) ......................................... 8, 9

Margraff v. Cunningham’s Heirs,

57 Md. 585 (Md. 1882) .......................................... 17

Martin v. Snowden,

59 Va. 100 (Va. 1868) ............................................ 16

McDonald v. Chicago,

561 U.S. 742 (2010) ................................................. 7

Nelson v. City of New York,

352 U.S. 103 (1956) ......................................... 18, 19

Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021) ............................................. 2

N.Y. State Rifle & Pistol Ass’n v. Bruen,

142 S. Ct. 2111 (2022) ..................................... 15, 17

Oil States Energy Servs., LLC v.

Greene’s Energy Grp., LLC,

138 S. Ct. 1365 (2018) ........................................... 14

Pascoag Reservoir & Dam, LLC v.

Rhode Island,

217 F. Supp. 2d 206 (D.R.I. 2002) ........................ 13

Peisch v. Ware,

8 U.S. (4 Cranch) 347 (1807) ................................ 21

v

Phillips v. Wash. Legal Found.,

524 U.S. 156 (1998) ............................................... 12

Rafaeli, LLC v. Oakland Cnty.,

952 N.W.2d 434 (Mich. 2020) ................................. 9

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ........................................... 24

State by Burnquist v. Flach,

213 Minn. 353 (Minn. 1942) ................................. 11

State ex rel. Equity Farms v. Hubbard,

203 Minn. 111 (Minn. 1938) ................................. 11

Stead’s Ex’rs v. Course,

8 U.S. (4 Cranch) 403 (1807) ................................ 16

Stop the Beach Renourishment, Inc. v.

Florida Dep’t of Envtl. Prot.,

560 U.S. 702 (2010) ......................................... 13, 14

Tiernan v. Wilson,

6 Johns. Ch. 411 (N.Y. 1822) ................................ 17

Timbs v. Indiana,

139 S. Ct. 682 (2019) ......................................... 7, 21

Toth v. United States,

143 S. Ct. 552 (2023) ................ 5, 20, 21, 22, 23, 24

United States v. Bajakajian,

524 U.S. 321 (1998) .................. 5, 20, 21, 22, 24, 25

vi

United States v. Gen. Motors Corp.,

323 U.S. 373 (1945) ................................................. 8

United States v. Lawton,

110 U.S. 146 (1884) ............................................. 8, 9

Wayside Church v. Van Buren Cnty.,

847 F.3d 812 (6th Cir. 2017) .................................. 3

Webb’s Fabulous Pharmacies v.

Beckwith,

449 U.S. 155 (1980) ......................................... 12, 13

Whitener v. Dahl,

625 N.W.2d 827 (Minn. 2001) .............................. 14

Constitution

U.S. Const. amend. V ................................................... 7

U.S. Const. amend. VIII ............................................. 20

Statutes

1935 Minn. Laws, ch. 386, § 8 ................................... 14

Minn. Stat. § 279.01 subd.1 ....................................... 20

Minn. Stat. § 281.18 ..................................................... 9

Minn. Stat. § 282.05 ................................................... 11

Minn. Stat. § 282.08 ................................................... 11

Minn. Stat. § 550.20 ................................................... 10

vii

Minn. Stat. § 580.10 ................................................... 10

Other Authorities

1 J. Story,

Commentaries on the Constitution of

the United States (1833)......................................... 7

6 Holdsworth,

A History of English Law (1924) ......................... 17

Steven G. Calabresi & Sarah E. Agudo,

Individual Rights Under State

Constitutions when the Fourteenth

Amendment Was Ratified in 1868,

87 Tex. L. Rev. 7 (2008) ........................................ 18

1 W. Blackstone, Commentaries ................................. 7

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.3, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioner.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society. One

of those ideas is that the Constitution prohibits the

government from arbitrarily confiscating private

property without just compensation.

AFPF has a particular interest in this case because

it believes that it is unjust and unconstitutional for

the government to seize real property, in excess of that

which it is owed to satisfy a tax debt, without

compensating the property owner. AFPF is also

concerned that the Minnesota tax-forfeiture scheme

at issue in this case—much like many civil asset

forfeiture schemes—creates perverse pecuniary

incentives for the government to run roughshod over

citizens’ constitutional rights as a means of funding

its operations, as happened here. This concern is

heightened where, as here, the government exempts

itself from the rules that apply to everyone else, as the

1 No counsel for a party authored this brief in whole or in part

and no person other than amicus made any monetary

contributions intended to fund the preparation or submission of

this brief.

2

Minnesota tax-forfeiture scheme purports to do, even

though in the private law context Minnesota law

recognizes equity interests as property protected

against confiscation. AFPF believes the government

should not be allowed to extinguish property interests

and core constitutional rights in this way through

legislative fiat. After all, “[i]f men must turn square

corners when they deal with the government, it

cannot be too much to expect the government to turn

square corners when it deals with them.” Niz-Chavez

v. Garland, 141 S. Ct. 1474, 1486 (2021).

SUMMARY OF ARGUMENT

The Constitution recognizes two primary means by

which the government can confiscate property worth

more than it is owed for taxes or other bona fide debt:

(1) a taking for public use requiring just

compensation; and (2) imposing a “fine.” Both require

due process to ensure the confiscation comports with

law. And each is subject to the limitations of the Fifth

or Eighth Amendments, respectively.

This case is about whether the government can

expand its power to take from taxpayers without

constitutional scrutiny more than it is owed through

creative labeling and legislative ipse dixit—declaring

the confiscation is neither a taking nor a fine but some

other method of making property disappear from the

owner’s grasp and magically reappear in the state’s

coffers free from constitutional scrutiny. But like any

illusion, a peek behind the curtain reveals the

3

banality of the trick. The usual rules

transportation2 apply, as does the Constitution.

of

State and local governments can fund their

operations through taxation and fees. And states can

pass generally applicable laws for collecting debts. It

does not follow, however, that the taxing power can be

used to supersede constitutional protection of

property rights, allowing states to confiscate surplus

equity interest in taxpayers’ homes simply because

the homeowner owes a tax debt. To claim otherwise,

flies in the face of established precepts of property

law. Indeed, using force to take property valued at

more than is owed is theft—and the government is no

different. Cf. Wayside Church v. Van Buren Cnty., 847

F.3d 812, 823 (6th Cir. 2017) (Kethledge, J.,

dissenting) (“In some legal precincts that sort of

behavior is called theft.”).

But that is what Respondents have done, pursuant

to a Minnesota statute purporting to extinguish

homeowners’ traditional property interest in surplus

equity based on the government’s interest in funding

its operations. Hennepin County sold ninety-threeyear-old Petitioner Geraldine Tyler’s condominium

“for $40,000, although the outstanding taxes and fees

were only $15,000,” and she “did not receive and has

no way to obtain any of the excess funds generated by

the sale of her home.” JA. 5. Instead, the county kept

$25,000 of Petitioner’s property—more than ten times

2 See, e.g., The Prestige, The Transported Man Trick, available

at https://www.youtube.com/watch?v=etsiRLgSrsA.

4

what she owed in delinquent property taxes and more

than double the total amount she owed including fees

and penalties—as a windfall. See Pet. 5 n.1. In short,

Respondents “forcibly took property worth vastly

more than the debts” Petitioner “owed, and failed to

refund any of the difference.” Hall v. Meisner, 51 F.4th

185, 196 (6th Cir. 2022). That is a taking, requiring

the state to pay Ms. Tyler the value of property taken

less any undisputed debt. And Minnesota cannot use

legislation to exempt its taking from the Constitution.

To be sure, the scope of “property” protected by the

Fifth Amendment’s Takings Clause is generally

determined by examining currently applicable state

property law. But under certain circumstances, the

Clause’s protection against takings without just

compensation sweeps more broadly to incorporate

property rights historically recognized under the

common law backdrop of the Constitution. Indeed, as

Judge Kethledge recently explained, “the Takings

Clause would be a dead letter if a state could simply

exclude from its definition of property any interest

that the state wished to take.” Hall, 51 F.4th at 190.

That observation resonates here, particularly because

in the private law context Minnesota law does

recognize a protected property interest in surplus

equity for circumstances in which the government is

not the beneficiary. This dichotomy is not only unjust

and patently unconstitutional but exposes the state’s

appreciation of the property right involved, and

protection of those rights when its own pecuniary

interests are not involved.

5

Nor are Respondents’ actions immune from

scrutiny under the Eighth Amendment. And this

Court should make clear that any government

confiscation exceeding the value of what is properly

owed to the government as compensation, with

reasonable interest and fees, is necessarily a “fine”

subject to constitutional scrutiny under the Eighth

Amendment.

The Excessive Fines Clause, as an original matter,

does not exempt so-called “remedial penalties” from

constitutional scrutiny. Indeed, “the notion of

‘nonpunitive penalties’ is ‘a contradiction in terms.’”

Toth v. United States, 143 S. Ct. 552, 553 (2023)

(Gorsuch, J., dissenting from denial of certiorari)

(quoting United States v. Bajakajian, 524 U.S. 321,

346 (1998) (Kennedy, J., dissenting)). And

Respondents’ insistence below that “[t]he purpose of

the tax forfeiture provision is to encourage the

collection of taxes” and “the ultimate possibility of loss

of property serves as a deterrent to those taxpayers

considering tax delinquency,” JA. 42, is wholly

consistent with this view. If, counterfactually,

“deterrence” could justify the taking without just

compensation, then it would be a fine. To the extent

Bajakajian can be read otherwise, as the district court

seemed to think, see Pet. App. 42a–44a, this Court

should repudiate that precedent. Instead, the key

inquiry to determine whether a sanction or forfeiture

is a “fine” under the Excessive Fines Clause is

whether it is solely compensatory; that is, whether it

is no more than necessary to make the government

whole. If not, then the exaction falls within the Eighth

6

Amendment’s sweep, necessitating a separate inquiry

as to whether it is “excessive.”

Enforcing the original public meaning of the

Constitution’s guarantees of just compensation and

protection against excessive fines would go a long way

to ending the perverse incentive structures various

forfeiture schemes create.

ARGUMENT

I.

RETENTION OF SURPLUS EQUITY IS A TAKING

REQUIRING JUST COMPENSATION.

A. Respondents’ Taking Absolute Title to

Petitioner’s Home is a Per Se Physical

Taking Requiring Just Compensation.

Respondents appear to rationalize retaining the

entire value of Ms. Tyler’s home by trying to

distinguish between physically taking the home and

retaining the portion of her equity interest that

exceeds her debt to the state. See BIO 21–22. But that

equity interest cannot be treated separately from the

physical taking of the home and dismissed as if no

physical taking occurred at all. It is undisputed

Respondents physically dispossessed Ms. Tyler of her

home, extinguishing every property right associated

with her ownership. The only open question is the

measure of what is owed to her—not whether she is

owed anything in the first place. The Fifth

Amendment draws no distinctions that would allow

specious relabeling of sticks in the bundle of property

rights to extinguish those rights when the property

has been physically taken in its entirety. Instead, it

7

commands just compensation for the entire taking

regardless of whether the state was owed a portion of

the value of the property.

“Constitutional analysis must begin with ‘the

language of the instrument,’ which offers a ‘fixed

standard’ for ascertaining what our founding

document means.” Dobbs v. Jackson Women’s Health

Org., 142 S. Ct. 2228, 2244–45 (2022) (quoting

Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 186–89

(1824); 1 J. Story, Commentaries on the Constitution

of the United States § 399, p. 383 (1833)). The Takings

Clause states: “[N]or shall private property be taken

for public use, without just compensation.”3 U.S.

Const. amend. V. As its text makes clear,

“[t]he Takings Clause is a prohibition, not a grant of

power[.]” Kelo v. City of New London, 545 U.S. 469,

511 (2005) (Thomas, J., dissenting). It “is addressed to

every sort of interest the citizen may possess,” United

3 Although not at issue here, it bears noting that, as an original

matter, the Fourteenth Amendment’s Privileges or Immunities

Clause incorporated all rights enumerated in the Bill of Rights.

See McDonald v. Chicago, 561 U.S. 742, 805–58 (2010) (Thomas,

J., concurring in part and concurring in judgment); see also

Timbs v. Indiana, 139 S. Ct. 682, 691 (2019) (Gorsuch, J.,

concurring). “At the time of Reconstruction, the terms ‘privileges’

and ‘immunities’ had an established meaning as synonyms for

‘rights.’ The two words, standing alone or paired together, were

used interchangeably with the words ‘rights,’ ‘liberties,’ and

‘freedoms,’ and had been since the time of Blackstone.”

McDonald, 561 U.S. at 813 (Thomas, J., concurring in part and

concurring in judgment) (citing 1 W. Blackstone, Commentaries

*129). Cf. Corfield v. Coryell, 6 F. Cas. 546, 551–52 (C.C.E.D. Pa.

1823) (discussing scope of “privileges and immunities” protected

by Art. IV, § 2).

8

States v. Gen. Motors Corp., 323 U.S. 373, 378 (1945),

including equity interests in property, see Hall, 51

F.4th at 194–96.

As this Court recently reaffirmed, “[w]hen the

government physically acquires private property for a

public use, the Takings Clause imposes a clear and

categorical obligation to provide the owner with just

compensation.” Cedar Point Nursery v. Hassid, 141 S.

Ct. 2063, 2071 (2021) (citation omitted); see Horne v.

Dep’t of Agric., 576 U.S. 351, 358 (2015) (“The

Government has a categorical duty to pay just

compensation when it takes your car, just as when it

takes your home.”); see also Golden Glow Tanning

Salon, Inc. v. City of Columbus, 52 F.4th 974, 980 (5th

Cir. 2022) (“The physical appropriation of private

property by the government is the ‘clearest sort of

taking.’” (quoting Cedar Point, 141 S. Ct. at 2071)).

This is “a simple, per se rule: The government must

pay for what it takes.” Cedar Point, 141 S. Ct. at 2071.

Respondents’ confiscation of Petitioner’s home is a

per se physical taking. And Respondents are required

to pay just compensation for all property they took at

the time they took it.4 See Knick v. Twp. of Scott, 139

S. Ct. 2162, 2179 (2019) (Thomas, J., concurring) (“[A]

violation of this Clause occurs as soon as the

government takes property without paying for it.”);

see also United States v. Lawton, 110 U.S. 146, 150

4 Here, there is no dispute Ms. Tyler’s condo was worth more than

the debt she owed Respondents. The broader question of how the

government should comply with its constitutional obligation in

other cases in which a surplus equity interest in real property

may exist should generally be left to state legislation.

9

(1884) (“To withhold the surplus from the owner

would be to violate the Fifth Amendment to the

Constitution and to deprive him of his property

without due process of law, or to take his property for

public use without just compensation.”).

Here, the taking occurred the moment the state

took absolute title to Petitioner’s condo, with no right

of redemption.5 See Hall, 51 F.4th at 196 (“‘[T]he act

of taking is the event which gives rise to the claim for

compensation.’ Here, that event was the County’s

taking of ‘absolute title’ to the plaintiffs’ homes.”

(quoting Knick, 139 S. Ct. at 2170 (cleaned up));

Rafaeli, LLC v. Oakland Cnty., 952 N.W.2d 434, 485

(Mich. 2020) (Viviano, J., concurring). And at that

point Respondents had an obligation—subject to other

constitutional constraints such as due process—to

either promptly sell the property for fair market value

and provide Petitioner with any surplus or,

alternatively, to keep the property and provide “just

compensation.”6 Respondents’ failure to do so is

unconstitutional.

5 See generally Minn. Stat. § 281.18 (providing that if an owner

fails to redeem by the end of the redemption period, “absolute

title . . . shall vest in the state”).

6 “[T]he Takings Clause also prohibits the government from

taking property except ‘for public use.’ Were it otherwise,

the Takings Clause would either be meaningless or empty.” Kelo,

545 U.S. at 507 (Thomas, J., dissenting). “The most natural

reading of the [Public Use] Clause is that it allows the

government to take property only if the government owns, or the

public has a legal right to use, the property, as opposed to taking

10

B. States Cannot, by Legislative

Sidestep the Takings Clause.

Fiat,

In Minnesota, an equity interest in a home is a

legally recognized and protected property interest,

except when the government is involved and has a

pecuniary interest in funding its operations through

windfalls generated through its tax-forfeiture scheme.

That is unconstitutional.

Minnesota law recognizes a property interest in

equity for purposes of private law. See, e.g., Minn.

Stat. § 550.20 (“No more shall be sold than is sufficient

to satisfy the execution”); Minn. Stat. § 580.10; see

also Brown v. Crookston Agric. Ass’n, 34 Minn. 545

(1886). Minnesota state court decisions likewise make

clear that under the common law debtors like

Petitioner were entitled to the surplus proceeds from

any tax sale. See, e.g., Farnham v. Jones, 32 Minn. 7,

12 (Minn. 1884) (“[T]he right to the surplus exists

independently of such statutory provision, the

province of which would be merely to regulate the

it for any public purpose or necessity whatsoever.” Id. at 508

(Thomas, J., dissenting); see id. at 521 (Thomas, J., dissenting)

(“I would revisit our Public Use Clause cases and consider

returning to the original meaning of the Public Use Clause: that

the government may take property only if it actually uses or

gives the public a legal right to use the property.”). It is, at best,

unclear whether Minnesota’s tax-forfeiture scheme, as a

categorical matter, runs afoul of the Public Use Clause. What is

certain, however, is that any home sale to a private party for less

than fair market value—thus transferring the equity interest

from a tax debtor to a private party for private use and gain—

would not be for public use and would therefore be

unconstitutional for that independent reason.

11

manner of enforcing the right.”); State by Burnquist v.

Flach, 213 Minn. 353, 356 (Minn. 1942) (“‘It is not the

policy of the state, nor should it be, to deprive owners

of real estate of their interest therein on account of tax

delinquency.’” (quoting State ex rel. Equity Farms v.

Hubbard, 203 Minn. 111, 116 (Minn. 1938)). That

alone should have ended the matter.

But Minnesota, like some other states, grants

itself a different set of rules, including the power to

appropriate equity in real property it could not

otherwise claim.7 Cf. Hall, 51 F.4th at 195 (“The only

context in which Michigan law does not recognize

equitable title as a property interest in land,

apparently, is when the government itself decides to

take it.”). “Unlike a mortgage foreclosure sale, where

amounts realized in excess of the debt owed on the

property may be held for the owner, in a tax forfeiture,

the [State] simply confiscates the homeowner’s

property. The [State] neither returns the property,

7 As

alleged in the Complaint, “Minnesota’s forfeiture statute

requires that any excess proceeds be retained by the State or by

the taxing district.” JA. 21 (citing Minn. Stat. §§ 282.05, 282.08).

Minnesota’s surplus distribution provision, Minn. Stat. § 282.08,

“governs how every dollar of surplus is to be distributed. First,

the net proceeds must cover various expenses related to

improving and maintaining the forfeited property. Second,

remaining net proceeds must be used to discharge any special

assessments charged against the parcel for drainage. The county

board may then allocate remaining funds for forest development

and county parks and recreation areas. Finally, any remaining

balance is to be paid in specified percentages to the county, the

school district, and the city.” Pet. App. 7a–8a (citing Minn. Stat.

§ 282.08(1)–(4)). This means that “[t]he homeowner simply loses

to the State both the property, its value and its equity.” JA. 13.

12

nor any portion thereof, nor any sale proceeds, to the

owner.” JA. 13. Respondents “seize the property of

homeowners with unpaid real property taxes and/or

other charges, title is transferred to the State in trust

for the counties or otherwise; and upon the sale or

disposition of the property, Defendants retain the

excess equity or value in the property even after taxes

and associated charges have been fully satisfied.

[And] Defendants do not provide any means or

mechanism for the owner to reclaim the excess equity

or value, sometimes referred to as the surplus.” JA. 7.

This double standard is not only arbitrary and

illogical but profoundly unfair. Nonetheless, based on

Minnesota’s decision to, by statute, grant itself special

status to further its pecuniary interest to the

detriment of its citizens, the decision below

mistakenly “conclude[d] that any common-law right to

surplus equity recognized in Farnham has been

abrogated by statute.” Pet. App. 7a. That was error of

constitutional dimension. Cf. Hall, 51 F.4th at 189.

This Court should make clear that state

legislatures cannot extinguish, without just

compensation, debtors’ right to equity interest in real

property. For as this Court has previously observed,

“at least as to confiscatory regulations . . . a State may

not sidestep the Takings Clause by disavowing

traditional property interests long recognized under

state law.” Phillips v. Wash. Legal Found., 524 U.S.

156, 167 (1998). “To put it another way: a State,

by ipse dixit, may not transform private property into

public property without compensation . . . . This is the

very kind of thing the Taking Clause of the Fifth

Amendment was meant to prevent. That Clause

stands as a shield against the arbitrary use of

13

governmental power.” Webb’s Fabulous Pharmacies v.

Beckwith, 449 U.S. 155, 164 (1980). Thus, “States

effect a taking if they recharacterize as public

property what was previously private property.” Stop

the Beach Renourishment, Inc. v. Florida Dep’t of

Envtl. Prot., 560 U.S. 702, 713 (2010). “[T]he Takings

Clause would be a dead letter if a state could simply

exclude from its definition of property any interest

that the state wished to take.” Hall, 51 F.4th at 190.

But that is what Minnesota has sought to do here. Cf.

Baker v. Kelley, 11 Minn. 480, 499 (Minn. 1866) (“If

the legislature by this section attempted to do more

than confer on the state the power to take such further

steps as were necessary in the collection of the

delinquent taxes, or in the perfection of tax titles, then

it overstepped the limits which the constitution has

fixed to its authority.”). This cannot be allowed to

stand. “Under the Constitution, property rights

‘cannot be so easily manipulated.’”8 Cedar Point, 141

S. Ct. at 2076 (quoting Horne, 576 U.S. at 365).

C. The Takings Clause Protects Historically

Protected Property Interests, Including

Equity Interests in Real Property.

The decision below erred by exclusively relying on

current Minnesota state law to conclude Petitioner

had no property interest in the surplus equity

8 Cf. Pascoag Reservoir & Dam, LLC v. Rhode Island, 217 F.

Supp. 2d 206, 226 (D.R.I. 2002) (“The government cannot escape

the Takings Clause by opting to sit by until title is transferred to

it, and then claim that it is not subject to the United States

Constitution. The Takings Clause and adverse possession and

prescription statutes cannot be mutually exclusive.”).

14

protected by the Takings Clause. 9 See Pet. App. 8a

(“[E]ven assuming Tyler had a property interest in

surplus equity under Minnesota common law as of

1884, she has no such property interest under

Minnesota law today.”).

To be sure, “the federal Constitution protects

rather than creates property interests, which means

that the existence of a property interest, for purposes

of whether one was taken, ‘is determined by reference

to existing rules or understandings that stem from an

independent source such as state law.” Hall, 51 F.4th

at 189–90 (cleaned up and emphasis added); see also

Stop the Beach, 560 U.S. 702, 707 (2010) (“Generally

speaking, state law defines property interests[.]”

(emphasis added)). But the question whether a

property interest exists is not answered solely by

reference to current state law.10 Cf. Hall, 51 F.4th at

189 (“Where we respectfully disagree with the district

The decision below mistakenly found that by “necessary

implication,” a 1935 Minnesota law “augment[ing] its taxforfeiture plan with detailed instructions regarding the

distribution of all ‘net proceeds from the sale and/or rental of any

parcel of forfeited land” “abrogated any common-law rule that

gave a former landowner a right to surplus equity.” Pet. App. 7a

(quoting 1935 Minn. Laws, ch. 386, § 8). Cf. Whitener v. Dahl,

625 N.W.2d 827, 829 (Minn. 2001) (statutes in derogation of

common law must be strictly construed). It did not, and, in any

event, could not without violating the Takings Clause.

10 It bears noting that there may well be circumstances in which

the source of property rights protected by the Takings Clause is

federal law. See also Oil States Energy Servs., LLC v. Greene’s

Energy Grp., LLC, 138 S. Ct. 1365, 1379 (2018) (“[O]ur decision

should not be misconstrued as suggesting that patents are not

property for purposes of . . . the Takings Clause.”).

9

15

court . . . is in its assumption that the question

whether the County took the plaintiffs’ property is

answered solely by reference to Michigan law.”). Were

it otherwise, a state could confiscate all private

property by simply outlawing it.

That cannot be right. After all, the Constitution’s

“meaning is fixed according to the understandings of

those who ratified it,” N.Y. State Rifle & Pistol Ass’n

v. Bruen, 142 S. Ct. 2111, 2132 (2022), based on its

original public meaning informed by its common-law

backdrop,11 see also Kelo, 545 U.S. at 510 (Thomas, J.,

dissenting) (noting “Constitution’s common-law

background”). Indeed, “[i]t is against all reason and

justice for a people to entrust a legislature” with the

power to enact “a law that takes property from A and

gives it to B.” Calder v. Bull, 3 U.S. 386, 388 (1798).

The Constitution flatly prohibits this. To the contrary,

“[t]he government may not” by legislative fiat “decline

to recognize long-established interests in property as

a device to take them.” Hall, 51 F.4th at 188. Cf.

Griffin v. Mixon, 38 Miss. 424, 438 (Miss. 1860)

(rejecting “the power to appropriate a man’s whole

estate for default in the payment of a few dollars tax

by a simple act of legislation”).

11 Historical practice at the time of ratification is also relevant.

Cf. Kennedy v. Bremerton School District, 142 S. Ct. 2407, 2428

(2022) (“Establishment Clause must be interpreted by reference

to historical practices and understandings[.]” (cleaned up));

Bruen, 142 S. Ct. at 2130 (“The government must then justify its

regulation by demonstrating that it is consistent with the

Nation’s historical tradition of firearm regulation.”).

16

Courts have long recognized the principle that the

government cannot take more property than that

which it is properly owed to satisfy tax debt, both

before and around the time of the Founding and in

1868. For example, as Chief Justice Marshall wrote:

“[T]he collector is authorized to sell land only on the

deficiency of personal estate; and then to sell only so

much as is necessary to pay the tax in arrear. In this

case a sale is made of a whole tract of land, without

specifying the amount of taxes actually due for which

that land was liable and could be sold. This is

proceeding in a manner not strictly regular. The sale

ought to have been of so much of the land as would

satisfy the tax in arrear.” Stead’s Ex’rs v. Course, 8

U.S. (4 Cranch) 403, 414 (1807). English law at the

time of the Founding appears to have been in accord,

protecting debtors’ equity interest in real property.12

See Martin v. Snowden, 59 Va. 100, 137 (Va. 1868)

(“The mode of collecting the land tax in England was

by distress. The statute 4 W. & M. ch. 1, which

established the land tax as it was continued by annual

acts down to the period of the formation of the Federal

constitution, . . . goes on to provide, that if the money

be not paid within four days, the distress so taken

shall be sold for the payment of the money, and the

surplus paid to the owner.” (emphasis added)). Indeed,

“[b]y 1759, Lord Mansfield—among English jurists,

exceeded in eminence perhaps only by Coke and

Hale—would say that the mortgagor’s ‘equity of

redemption is the fee simple in the land.’ Hence the

12 “The forfeiture of land to the Crown does not appear to have

been a means recognized and employed in England, at any period

of its history, for enforcing the payment of taxes or other debts to

the Crown.” Martin, 59 Va. at 136.

17

mortgagor’s ‘equity to redeem’ had itself become ‘a

right of property.’” Hall, 51 F.4th at 191 (quoting

Burgess v. Wheate, 28 Eng. Rep. 652, 670 (1759); 6

Holdsworth, A History of English Law 663 (1924)).

Given this history, it is unsurprising that the

Minnesota Supreme Court concluded shortly before

the Fourteenth Amendment was ratified that “[f]ew

questions are better settled, than that the legislature

cannot thus deprive a person of his property or rights”

by granting the state beyond that “necessary in the

collection of the delinquent taxes, or in the perfection

of tax titles[.]”13 Baker, 11 Minn. at 499. Cf. Farnham,

32 Minn. at 12 (stating in 1884 that “the right to the

surplus exists independently of” statutory source).

Other nineteenth-century decisions appear to have

recognized a similar principle. See, e.g., Tiernan v.

Wilson, 6 Johns. Ch. 411, 414 (N.Y. 1822) (“The

proposition is not to be disputed that a sheriff ought

not to sell at one time more of the defendant’s property

than a sound judgment would dictate to be sufficient

to satisfy the demand . . . . The justice of this rule is

self-evident.”). Cf. Margraff v. Cunningham’s Heirs,

57 Md. 585, 588 (Md. 1882) (Tax collector’s “duty is to

sell no more than is reasonably sufficient to pay the

13 To be sure, “there is an ongoing scholarly debate on whether

courts should primarily rely on the prevailing understanding of

an individual right when the Fourteenth Amendment was

ratified in 1868 when defining its scope (as well as the scope of

the right against the Federal Government).” Bruen, 142 S. Ct. at

2138. But it appears that both at the Founding and in 1868, when

the Fourteenth Amendment was ratified, a real property owner’s

surplus equity interest in the land was considered a form

property that the government could not take as a windfall while

collecting on back taxes. See Pet. Br. 11–15.

18

taxes and charges thereon, where a division is

practicable without injury.”). See generally BFP v.

Resolution Tr. Corp., 511 U.S. 531, 541 (1994) (noting

“development of foreclosure by sale (with the surplus

over the debt refunded to the debtor)” in “19th-century

America” “as a means of avoiding the draconian

consequences of strict foreclosure”). Unsurprisingly,

“[t]hirty-three states out of thirty-seven in 1868 had

takings clauses in their constitutions.’” Steven G.

Calabresi & Sarah E. Agudo, Individual Rights Under

State Constitutions when the Fourteenth Amendment

Was Ratified in 1868, 87 Tex. L. Rev. 7, 72 (2008).

Minnesota cannot sweep away the centuries of

property law forming the backdrop against which the

Fifth Amendment was ratified in 1791 and the

Fourteenth Amendment in 1868. And to the extent its

tax-forfeiture scheme is inconsistent with rights

protected by those core constitutional guarantees,

that statutory scheme must yield to the Constitution.

D. Nelson Did Not Disavow Centuries of

Anglo-American Property Law.

Nor does Nelson v. City of New York, 352 U.S. 103

(1956), control here, as the decision below mistakenly

found. See Pet. App. 8a (“Nelson’s reasoning on the

Takings Clause controls this case despite a modest

factual difference.”). Unlike the statute at issue in

that case, Minnesota’s tax-forfeiture scheme does not

provide any mechanism for Petitioner to recover the

19

surplus equity.14 See Nelson, 352 U.S. at 110 (“[W]e do

not have here a statute which absolutely precludes an

owner from obtaining the surplus proceeds of a

judicial sale”); Pet. App. 8a–9a (“It is true that New

York foreclosure law allowed the plaintiffs in Nelson

to file an action to redeem the property or to recover

the surplus, while Tyler had options only to redeem

the property, confess judgment, or apply to

repurchase the property.”). “That case hardly

disavowed more than two centuries of AngloAmerican property law; the case was about process,

not substantive property rights.” Hall, 51 F.4th at

195.

II.

RESPONDENTS’

CONFISCATION

OF

PETITIONER’S PROPERTY WORTH FAR MORE

THAN THE DEBT SHE OWED IS A “FINE” UNDER

THE EIGHTH AMENDMENT.

Petitioner plausibly alleges in the alternative that

Respondents imposed a “fine” subject to the Eighth

Amendment’s Excessive Fines Clause. How can it be

otherwise? After all, under the logic of this Court’s

precedent, the tax penalties Petitioner owed should be

14 Contrary to the decision below, that

is hardly a distinction

without a difference. See Pet. App. 9a (finding that “that

distinction is immaterial.”). Cf. Dorce v. City of N.Y., No. 19-cv2216, 2022 U.S. Dist. LEXIS 112281, at *36 (S.D.N.Y. June 24,

2022) (“In this case, the plaintiffs adequately allege that no such

process for the recovery of their surplus equity exists, and

therefore they have adequately pleaded a violation of

the Takings Clause at this stage.”).

20

considered “fines” under the Excessive Fines Clause.15

See Hudson v. United States, 522 U.S. 93, 103 (1997)

(“The Eighth Amendment protects against excessive

civil fines[.]”). But cf. Toth, 143 S. Ct. at 553 (Gorsuch,

J., dissenting from denial of certiorari). It makes no

sense to conclude the indisputably larger surplus

equity at issue here ($25,000) is somehow not a “fine”

and thus outside the ambit of Eighth Amendment

proportionality review. Cf. Bajakajian, 524 U.S. at

346 (Kennedy, J., dissenting) (“A sanction

proportioned to potential rather than actual harm is

punitive, though the potential harm may make the

punishment a reasonable one.”). This proposition

holds true regardless of whether the government

chooses to characterize its tax-forfeiture scheme as

“remedial.”16

The Eighth Amendment’s Excessive Fines Clause

bars the government from “impos[ing]” “excessive

fines[.]” U.S. Const. amend. VIII. This Court has

15 See Pet. 5 n.1 (“Because Tyler’s case was dismissed before she

could conduct discovery, the trial court record does not reflect

how much of the $15,000 was penalties, interest, and fees, but

public records indicate that only $2,311 was property taxes.”).

See generally Minn. Stat. § 279.01 subd.1 (due dates; penalties).

And all agree that the actual tax debt plus interest is not a fine.

16 Respondents appear to suggest that Ms. Tyler is to blame for

the government taking her property because she “failed to

redeem during the three-year redemption period.” BIO 21. This

“failure,” of course, was prior to the taking, which occurred when

the state’s title to the property became absolute. See Hall, 51

F.4th at 196. Cf. BIO 21. So as a matter of pure logic, whether

Ms. Tyler could be said to have failed in some way prior to the

taking, has no bearing on the measure of property taken, i.e., the

entirety of the home.

21

“recognized that the Excessive Fines Clause ‘traces its

venerable lineage’ to Magna Carta and the English

Bill of Rights.” Toth, 143 S. Ct. at 553 (Gorsuch, J.,

dissenting from denial of certiorari) (citation omitted);

see also Timbs, 139 S. Ct. at 698 (Thomas, J.,

concurring in judgment) (“The right against excessive

fines traces its lineage back in English law nearly a

millennium, and from the founding of our country, it

has been consistently recognized as a core right

worthy of . . . protection.”).

“Under . . . [this Court’s] cases a fine that serves

even ‘in part to punish’ is subject to analysis under the

Excessive Fines Clause.” Toth, 143 S. Ct. at 553

(Gorsuch, J., dissenting from denial of certiorari)

(quoting Austin v. United States, 509 U. S. 602, 610

(1993) (emphasis in original)). “[T]his Court [has] held

that civil in rem forfeitures fall within the Clause’s

protection when they are at least partially punitive.”

Timbs, 139 S. Ct. at 689 (citing Austin, 509 U.S. 602);

see also Peisch v. Ware, 8 U.S. (4 Cranch) 347, 364

(1807). See generally Browning-Ferris Indus. of

Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265

(1989) (“at the time of the drafting and ratification of

the Amendment, the word ‘fine’ was understood to

mean a payment to a sovereign as punishment for

some offense”).

And as an original matter, any fine or forfeiture—

whether in rem or in personam, whether labeled

criminal or civil—that exceeds the harm caused or the

balance owed is a “fine” within the scope of the Eighth

Amendment’s protections. But cf. Bajakajian, 524

U.S. at 345 (Kennedy, J., dissenting) (“In the

majority’s universe, a fine is not a punishment even if

it is much larger than the money owed. This confuses

22

whether a fine is excessive with whether it is a

punishment.”). This means a sanction is not “beneath

constitutional notice because it serves a ‘remedial’

purpose. Really, the notion of ‘nonpunitive penalties’

is ‘a contradiction in terms.’”17 Toth, 143 S. Ct. at 553

(Gorsuch, J., dissenting from denial of certiorari)

(quoting Bajakajian, 524 U.S. at 346 (Kennedy, J.,

dissenting)). For that matter, no forfeiture of property

or other economic sanction—whether civil or criminal

and regardless of how the government chooses to label

it—that is not solely compensatory in nature should

escape constitutional scrutiny under the Eighth

Amendment.

Application of these principles to Minnesota’s taxforfeiture scheme, as applied to Petitioner, confirms

that stripping Petitioner of $25,000 in home equity

constitutes a “fine” subject to constitutional scrutiny.

Here, the district court agreed with Respondents that

Minnesota’s tax-forfeiture scheme is justified, at least

in part, as advancing the state’s interest in deterring

tax delinquency: “The County further asserts that

Minnesota’s tax‐forfeiture scheme (including the

taxpayer’s loss of the surplus) is rationally related to

that interest because ‘the ultimate possibility of loss

of property serves as a deterrent to those taxpayers

considering tax delinquency.’ The Court agrees.” Pet.

17 To the extent Bajakajian can reasonably by read to exempt

“[s]o-called remedial penalties, most in rem forfeitures, and

perhaps civil fines” from constitutional scrutiny under the

Eighth Amendment’s Excessive Fines Clause, see 524 U.S. at 356

(Kennedy, J., dissenting), that decision should be narrowed or

overruled.

23

App. 48a (citing Dist. Ct. ECF 13 at 30 (JA. 42)).18

Consistent with this, the district court seemed to

implicitly acknowledge that this scheme is not solely

remedial, describing it as “a debt‐collection system

whose primary purpose is plainly remedial: assisting

the government in collecting past‐due property taxes

and compensating the government for the losses

caused by the non‐payment of property taxes.”19 App.

44a (emphasis added). The district court also

acknowledged “the operation of Minnesota’s tax‐

forfeiture system may result in a windfall to the

government[.]” Pet. App. 43a. That arrangement well

describes a “fine” within the meaning of the Eighth

Amendment’s Excessive Fines Clause.

If it were otherwise, “the government could evade

constitutional scrutiny under the Clause’s terms by

the simple expedient of fixing a ‘civil’ label on the fines

it imposes and declining to pursue any related

‘criminal’ case.” Toth, 143 S. Ct. at 553 (Gorsuch, J.,

dissenting from denial of certiorari). And it would

have dire real-world consequences, “incentiviz[ing]

governments to impose exorbitant civil penalties as a

means of raising revenue.” Id. Indeed, as Justice

Gorsuch has observed:

The decision below mistakenly affirmed the dismissal of

Petitioner’s Eighth Amendment claim on the basis of the district

court’s order. See Pet. App. 9a–10a.

18

As alleged in the Complaint: “When Defendants take real

property pursuant to a property tax forfeiture and retain the

value or sale proceeds in excess of the amount owed, such

retention is not purely remedial in nature but rather is

retributive or meant to serve as a deterrent.” JA. 10.

19

24

[T]oday’s civil laws regularly impose

penalties far more severe than those

found in many criminal statutes[.] Ours

is a world filled with more and more civil

laws bearing more and more extravagant

punishments. Today’s “civil” penalties

include

confiscatory

rather

than

compensatory fines, forfeiture provisions

that allow homes to be taken, remedies

that strip persons of their professional

licenses and livelihoods, and the power

to commit persons against their will

indefinitely. Some of these penalties are

routinely imposed and are routinely

graver than those associated with

misdemeanor crimes—and often harsher

than the punishment for felonies. And

not only are “punitive civil sanctions . . .

rapidly expanding,” they are “sometimes

more severely punitive than the parallel

criminal sanctions for the same conduct.”

Sessions v. Dimaya, 138 S. Ct. 1204, 1229 (2018)

(Gorsuch, J., concurring) (citation omitted).

To the extent Bajakajian is to the contrary, it

should be narrowed or overruled. For as Justice

Kennedy warned in Bajakajian:

At the very least, today’s decision will

encourage legislatures to take advantage

of another avenue the majority leaves

open. The majority subjects this

forfeiture to scrutiny because it is in

personam, but it then suggests most in

25

rem forfeitures (and perhaps most civil

forfeitures) may not be fines at all. The

suggestion,

one

might

note,

is

inconsistent or at least in tension with

Austin v. United States. In any event,

these remarks may encourage a

legislative shift from in personam to in

rem forfeitures, avoiding mens rea as a

predicate and giving owners fewer

procedural protections. By invoking the

Excessive Fines Clause with excessive

zeal, the majority may in the long run

encourage Congress to circumvent it.

524 U.S. at 355 (citations omitted). Allowing

Respondents’ confiscation of $25,000 of Petitioner’s

property on top of around $12,000 of fees and

penalties as a consequence for Petitioner’s failure to

pay around $2,300 in property taxes to escape any

constitutional scrutiny under the Eighth Amendment

would further exacerbate the concerns Justice

Kennedy raised in Bajakajian. This Court should not

allow that to happen and should instead return to the

Excessive Fines Clause’s original public meaning.

CONCLUSION

This Court should reverse the judgment of the

court of appeals.

26

Respectfully submitted,

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

March 6, 2023