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

Supreme Court briefMar 6, 2023

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No. 22-166

In the Supreme Court of the United States

GERALDINE TYLER, PETITIONER

v.

HENNEPIN COUNTY, MINNESOTA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING NEITHER PARTY

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

DAVID A. HUBBERT

Deputy Assistant Attorney

General

CURTIS E. GANNON

Deputy Solicitor General

ERICA L. ROSS

Assistant to the Solicitor

General

ALISA B. KLEIN

JENNIFER M. RUBIN

KEVIN J. KENNEDY

GEOFFREY J. KLIMAS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

Under Minnesota law, the failure to pay property

taxes and then to cure that default over several years

may result in the vesting in the State of “absolute title”

to the taxpayer’s real property. Minn. Stat. § 281.18

(2014). At that point, the relevant county may sell the

property to a third party. Id. § 282.01(1)(a). If, as is

alleged in this case, the tax sale generates proceeds

above what is required to pay the full tax debt, the excess proceeds are not distributed to the taxpayer, but

rather to various government entities and projects. Id.

§ 282.08. The questions presented are:

1. Whether petitioner has stated a claim that respondents’ actions constituted a taking requiring payment of just compensation under the Fifth Amendment,

when they took absolute title to petitioner’s real property and sold it to a third party without returning to petitioner the sale proceeds in excess of the unpaid taxes

plus interest, penalties, and costs.

2. Whether petitioner has stated a claim that respondents’ actions imposed a fine subject to the Excessive Fines Clause of the Eighth Amendment.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 2

Summary of Argument ................................................................ 6

Argument:

I. Petitioner plausibly alleges that respondents

engaged in a compensable taking by obtaining

absolute title to property more valuable than her

tax debt ............................................................................. 9

A. The government’s collection of delinquent

taxes and associated interest, penalties, and

costs does not constitute a taking ............................ 9

B. Tax-collection authority did not entitle

respondents to take absolute title to property

more valuable than petitioner’s tax debt .............. 12

C. Historical practice indicates that taking

absolute title to property more valuable than a

tax debt requires compensation............................. 15

D. This Court’s decisions support the same

conclusion ................................................................. 19

E. Petitioner bears the burden of demonstrating

her entitlement to just compensation on

remand...................................................................... 23

II. The retention of sale proceeds in excess of

petitioner’s tax debt did not constitute a “fine”

subject to the Excessive Fines Clause ........................ 25

A. The Excessive Fines Clause applies only to

punitive actions ........................................................ 25

B. Minnesota’s tax forfeiture program is nonpunitive ..................................................................... 28

Conclusion ................................................................................... 33

(III)

IV

TABLE OF AUTHORITIES

Cases:

Page

Acadia Tech., Inc. v. United States,

458 F.3d 1327 (Fed. Cir. 2006) .................................... 11

Ainsworth v. Dean, 21 N.H. 400 (1850) ......................... 15

Alexander v. United States, 509 U.S. 544 (1993) .......... 26

Armstrong v. United States, 364 U.S. 40 (1960) ..... 10, 13

Austin v. United States, 509 U.S. 602

(1993) ............................................................ 26, 27, 29-32

Avery v. Rose, 15 N.C. (4 Dev.) 549 (1834) .................... 15

Bauman v. Ross, 167 U.S. 548 (1897) ............................ 24

Bennett v. Hunter, 76 U.S. (9 Wall.) 326 (1870) ....... 19-21

Bennis v. Michigan, 516 U.S. 442 (1996) ...................... 10

Brown v. Legal Found., 538 U.S. 216 (2003) ...... 10, 13, 24

Browning-Ferris Indus. of Vt., Inc. v. Kelco

Disposal, Inc., 492 U.S. 257 (1989) ....................... 25, 31

Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663 (1974) ....................................................... 11

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) ................................................... 10

Chicago, Burlington & Quincy R.R. v. Chicago,

166 U.S. 226 (1897) ..................................................... 1, 9

County of Mobile v. Kimball,

102 U.S. 691 (1881) ....................................................... 11

Dobbins’s Distillery v. United States,

96 U.S. 395 (1878) ......................................................... 11

Eastern Enters. v. Apfel, 524 U.S. 498 (1998) ............... 10

Griffin v. Mixon, 38 Miss. 424 (1860) ............................ 18

Hall v. Meisner, 51 F.4th 185 (6th Cir. 2022) ............... 14

Helvering v. Mitchell, 303 U.S. 391 (1938) .................... 28

Houck v. Little River Drainage Dist.,

239 U.S. 254 (1915) ....................................................... 11

V

Cases—Continued:

Page

Hudson v. United States, 522 U.S. 93 (1997) .......... 29, 30

Hurtado v. United States, 410 U.S. 578 (1973) ............. 10

Jones v. Flowers, 547 U.S. 220 (2006)............................ 12

Knick v. Township of Scott, 139 S. Ct. 2162 (2019)....... 14

Koontz v. St. Johns River Water Mgmt. Dist.,

570 U.S. 595 (2013) ................................................. 11, 13

Martin v. Snowden, 59 Va. (18 Gratt.) 100 (1868),

aff ’d sub. nom. Bennett v. Hunter,

76 U.S. (9 Wall.) 326 (1870) .................................... 16, 17

Nelson v. City of New York, 352 U.S. 103

(1956) ............................................................... 6, 8, 22, 23

O’Brien v. Coulter, 2 Blackf. 421 (Ind. 1831) ................ 18

Olson v. United States, 292 U.S. 246 (1934) .................. 24

One Lot Emerald Cut Stones & One Ring v.

United States, 409 U.S. 232 (1972) .............................. 11

The Palmyra, 25 U.S. (12 Wheat.) 1 (1827) ................... 11

Paradissiotis v. United States, 304 F.3d 1271

(Fed. Cir. 2002) ............................................................ 11

Phillips v. Washington Legal Found.,

524 U.S. 156 (1998) ....................................................... 13

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

(Mich. 2020) ............................................................ 12, 24

Stead’s Executors v. Course,

8 U.S. (4 Cranch) 403 (1808) ........................................ 15

Tiernan v. Wilson, 6 Johns. Ch. 411

(N.Y. Ch. 1822) ............................................................. 18

Timbs v. Indiana, 139 S. Ct. 682 (2019) ............... 1, 25, 26

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

(1998) ............................................................ 25-28, 30, 32

United States v. Cors, 337 U.S. 325 (1949) .................... 24

United States v. 564.54 Acres of Land,

441 U.S. 506 (1979) ....................................................... 23

VI

Cases—Continued:

Page

United States v. Halper, 490 U.S. 435 (1989),

abrogated by Hudson v. United States,

522 U.S. 93 (1997) ......................................................... 29

United States v. Jalaram, Inc.,

599 F.3d 347 (4th Cir. 2010) ......................................... 26

United States v. Lawton, 110 U.S. 146 (1884) ........... 8, 21

United States v. Taylor, 104 U.S. 216 (1881) ................ 21

United States ex rel. TVA v. Powelson,

319 U.S. 266 (1943) ....................................................... 24

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

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

Wooddye v. Baily (1595) 74 Eng. Rep. 1027 (Q.B.) ...... 18

Constitution, statutes, and regulation:

U.S. Const.:

Art. I (Necessary and Proper Clause) .......................... 21

Amend. V .......................................................... 1, 6, 8, 9, 11

Double Jeopardy Clause ............................... 11, 28, 29

Due Process Clause ................................................... 22

Just Compensation Clause ......................... 2, 7, 10, 21

Amend. VIII............................................................... 25, 30

Excessive Fines Clause.............. 1, 2, 5, 8, 9, 25, 26, 30

Amend. XIV ....................................................................... 9

§ 1 (Equal Protection Clause) .................................. 22

Act of July 14, 1798, ch. 75, § 13, 1 Stat. 601 ........... 15, 16

Act of Aug. 5, 1861, ch. 45, 12 Stat. 292:

§ 8, 12 Stat. 294 ................................................................ 19

§ 36, 12 Stat. 304 .............................................................. 20

Act of June 7, 1862, ch. 98, § 4, 12 Stat. 423 .................. 20

18 U.S.C. 982(a)(1) .......................................................... 27

21 U.S.C. 881(a)(4) .......................................................... 26

21 U.S.C. 881(a)(7) .......................................................... 26

VII

Statutes and regulation—Continued:

Page

26 U.S.C. 6331 ................................................................... 2

26 U.S.C. 6334(a)(13)(A)-(B) ............................................ 2

26 U.S.C. 6334(e)(1) .......................................................... 2

26 U.S.C. 6335 ................................................................... 2

26 U.S.C. 6337 ................................................................... 2

26 U.S.C. 6342(a) .............................................................. 2

26 U.S.C. 6342(b) .............................................................. 2

26 U.S.C. 7403 ................................................................... 2

31 U.S.C. 5316(a)(1)(A) ................................................... 27

31 U.S.C. 5322(a) ............................................................ 27

1 Del. Laws 1259-1260, §§ 25-26 (1796) ......................... 15

1791 Ga. Laws 9 .............................................................. 15

1845 Ill. Laws 13, § 51 .................................................... 17

1860 Iowa Code Tit. VI, § 766 ........................................ 17

1799 Ky. Acts 89, § 18 ..................................................... 15

1801 Ky. Acts 77:

p. 79, § 4 ............................................................................ 16

p. 80, § 5 ............................................................................ 16

1869 La. Acts 159, § 63 ................................................... 17

1836 Me. Laws 325, § 4 ................................................... 17

1786 Mass. Acts 358 ........................................................ 15

1860 Minn. Laws 58, § 23................................................ 17

Minn Stat. (2014):

ch. 272:

§ 272.31 ......................................................................... 2

ch. 273:

§ 273.01 ......................................................................... 2

ch. 279:

§ 279.01 ......................................................................... 2

§ 279.03(1) ..................................................................... 2

VIII

Statutes and regulation—Continued:

Page

§ 279.05 ......................................................................... 3

§ 279.09 ......................................................................... 3

§ 279.091 ....................................................................... 3

§ 279.092 ....................................................................... 2

§ 279.16 ......................................................................... 3

§ 279.18 ......................................................................... 3

ch. 280:

§ 280.01 ......................................................................... 3

§ 280.41 ......................................................................... 3

§ 280.43 ......................................................................... 3

ch. 281:

§ 281.01 ......................................................................... 3

§ 281.02 ......................................................................... 3

§ 281.17 ......................................................................... 3

§ 281.18 ......................................................................... 3

ch. 282 ................................................................................. 3

§ 282.05 ......................................................................... 3

§ 282.07 ......................................................................... 3

§ 282.08(1)-(3) ............................................................... 3

§ 282.08(4) ..................................................................... 4

§ 282.241(1) ................................................................... 3

1791 N.H. Laws 296 ........................................................ 15

1801 N.Y. Laws 498-499, § XVII .................................... 15

1792 N.C. Sess. Laws 23, § V ......................................... 15

1822 Ohio Laws 23:

p. 27, § 7 ............................................................................ 17

p. 28, § 10 .......................................................................... 17

1787 Vt. Acts & Resolves 125 ......................................... 15

1790 Va. Acts ch. V:

§ II .................................................................................... 16

IX

Statutes and regulation—Continued:

Page

§ V ..................................................................................... 16

26 C.F.R. 301.6342-1(b) .................................................... 2

Miscellaneous:

Henry Campbell Black, A Treatise on The Law of

Tax Titles (2d ed. 1893) ............................................... 17

Robert S. Blackwell, A Practical Treatise on the

Power to Sell Land for the Non-Payment of

Taxes (2d ed. 1864) ....................................................... 19

W.H. Burroughs, A Treatise on the Law of

Taxation as Imposed by the States and their

Municipalities, or Other Subdivisions, and as

Exercised by the Government of the United

States, Particularly in the Customs and

Internal Revenue (1877) .............................................. 17

Thomas M. Cooley, A Treatise on the Law of

Taxation, Including the Law of Local

Assessments (1876) ................................................ 18, 19

Hudson & Goodwin, Acts and Laws of the State of

Connecticut in America (1796) ................................... 15

3 St. George Tucker, Blackstone’s Commentaries

(1803) ............................................................................ 16

In the Supreme Court of the United States

GERALDINE TYLER, PETITIONER

v.

HENNEPIN COUNTY, MINNESOTA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING NEITHER PARTY

INTEREST OF THE UNITED STATES

This case concerns whether certain local government

actions related to tax collection constitute a taking without just compensation, in violation of the Fifth Amendment to the United States Constitution, or a fine subject

to analysis under the Excessive Fines Clause of the

Eighth Amendment, as made applicable to the States.

See Timbs v. Indiana, 139 S. Ct. 682, 689 (2019); Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S.

226, 239 (1897). Specifically, petitioner alleges that respondents took absolute title to real property worth significantly more than her tax debt (including interest,

penalties, and costs); sold the property to a third party;

and provided no mechanism for petitioner to recover

the surplus proceeds from the sale.

Unlike Minnesota law, federal law does not authorize

the taking of absolute title to real property for noncriminal nonpayment of taxes without a process for obtain(1)

2

ing proceeds from a subsequent sale. The two main procedures that the federal government uses for collecting

delinquent taxes are administrative levies and civil suits

to enforce tax liens. See 26 U.S.C. 6331, 6335, 6337,

7403. The Internal Revenue Code makes levying on a

taxpayer’s principal residence a remedy of last resort.

26 U.S.C. 6334(a)(13)(A)-(B) and (e)(1). In the event of

a tax sale, the realized funds are used to pay the sale

expenses, the specific tax liability on the property, and

any remaining tax liabilities of the taxpayer. 26 U.S.C.

6342(a). Any surplus proceeds are then “credited or refunded” to the entitled party, which is generally the delinquent taxpayer. 26 U.S.C. 6342(b); see 26 C.F.R.

301.6342-1(b). Although federal tax-forfeiture laws

thus differ substantially from the Minnesota laws at issue here, the United States has a substantial interest in

the standards that apply to governmental actions under

the Just Compensation Clause and the Excessive Fines

Clause.

STATEMENT

1. This case concerns Minnesota’s statutorilyprescribed program for recovering delinquent propertytax debts. Every January, property taxes are assessed

and become a perpetual lien on the property. Minn.

Stat. §§ 272.31, 273.01.1 Taxpayers must pay those

taxes the following year. Id. § 279.01. Unpaid taxes become delinquent and accrue interest as well as statutory

“penalt[ies]” and a “service fee” to “recover all costs incurred” by the relevant county. Ibid.; id. §§ 279.03(1),

279.092. The county notifies delinquent taxpayers individually and through publication, and it commences a

1

Citations to Minnesota Statutes are to the 2014 edition.

3

civil action to obtain a judgment against the property

for the total tax debt. Id. §§ 279.05, 279.09, 279.091.

If no one answers the filing, or if the court upholds

the tax assessment despite an answer, judgment is entered against the property. Minn. Stat. §§ 279.16,

279.18. The property is then sold to the State by operation of law for an amount equal to the unpaid taxes and

additions. Id. §§ 280.01, 280.43. “[N]o money changes

hands and the taxpayer remains the record owner of the

property.” Br. in Opp. 3. The sale vests title in the

State “subject only to the [statutory] rights of redemption.” Minn. Stat. § 280.41.

In most cases, the redemption period is three years.

Minn. Stat. § 281.17. During that time, the property

owner or anyone else claiming an interest in the land

(e.g., a lienholder) may redeem it by paying the full tax

debt owed (i.e., the delinquent taxes plus interest, penalties, and costs). Id. §§ 281.01, 281.02.

If the property is not redeemed, “final forfeiture occurs.” Pet. App. 4a. “Final forfeiture vests ‘absolute

title’ in the State and cancels all taxes, penalties, costs,

interest, and special assessments against the property.”

Ibid.; see Minn. Stat. §§ 281.18, 282.07. In addition, “final forfeiture” cancels “all other liens against the property held by any party,” Pet. App. 14a, and extinguishes

the taxpayer’s rights in the property, though the taxpayer may apply to repurchase it, Minn. Stat. § 282.241(1).

Once the State has absolute title, the county may use,

sell, or rent the property. See Br. in Opp. 3; see generally Minn. Stat. ch. 282. In the case of a sale or rental,

“[t]he net proceeds * * * shall be apportioned to the

general funds of the state or municipal subdivision

thereof,” Minn. Stat. § 282.05, to cover certain expenses

and assessments related to the forfeited land, id.

4

§ 282.08(1)-(3). “[A]ny balance” that remains “must be

apportioned” for such purposes as “forest development”

and “the acquisition and maintenance of county parks

or recreational areas,” with the remainder going to the

county, town or city, and school district. Id. § 282.08(4);

see Br. in Opp. 3. “Minnesota’s tax-forfeiture plan does

not allow the former owner to recover any proceeds of

the sale that exceed her tax debt.” Pet. App. 4a.

2. Petitioner purchased a condominium in Minneapolis in 1999. Pet. App. 2a. For ten years, she lived in

the condominium and paid Minnesota property taxes.

Ibid. After petitioner moved to a senior community, she

stopped paying property taxes on the condominium.

Ibid.; Pet. 4-5. The 2010 property taxes came due in

January 2011 and became delinquent in January 2012.

Pet. App. 4a. In 2012, the property was sold to the State

by operation of law, commencing a three-year redemption period. Ibid. Although petitioner received notice

of the foreclosure action and of her right to redeem, petitioner took no action. Ibid.

The redemption period ended in 2015, and the State

took absolute title to the property in July of that year,

extinguishing petitioner’s interest in the property and

cancelling her “$15,000 tax debt,” which included all interest, penalties, and costs. Pet. App. 4a. In November

2016, respondent Hennepin County sold petitioner’s

condominium for $40,000. Ibid. The proceeds were distributed to state entities as specified by the statute. Id.

at 5a; see pp. 3-4, supra.

3. In 2019, petitioner filed a putative class-action

complaint in state court against respondents. Pet. App.

5a. As relevant here, petitioner alleged that respondents’ actions in “seiz[ing]” homeowners’ real property,

transferring absolute title to the State, and “retain[ing]

5

the excess equity or value in the property even after

taxes and associated charges have been fully satisfied”

constituted the taking of “private property * * * without just compensation” and “ma[de] or assess[ed] an excessive fine that is in addition to any penalties already

imposed.” J.A. 7-8; see J.A. 13, 21-22, 25-26. Respondents removed the case to the United States District

Court for the District of Minnesota and moved to dismiss for failure to state a claim. Pet. App. 16a.

The district court granted the motion and dismissed

the complaint with prejudice. Pet. App. 49a. As relevant here, the court determined that petitioner had not

plausibly alleged a taking. Id. at 26a-39a. The court

reasoned that the threshold inquiry is whether “the

government took something that belonged to” petitioner. Id. at 28a-29a. The court understood petitioner

to “argue[] that the ‘something’ that the County took

was the surplus equity in her condo,” but the court determined that Minnesota’s statute did not “give the

property owner even a conditional right” to that “surplus equity” “after absolute title” to the property

passed from petitioner to the State. Id. at 29a, 32a. The

court further found that Minnesota had “unambiguously abrogated” any “common-law right” to the surplus value that might have predated the statute. Id. at

37a.

The district court also determined that the complaint

failed to state a claim that respondents had imposed a

“fine” under the Excessive Fines Clause. Pet. App. 39a44a. The court emphasized that “Minnesota’s tax‐

forfeiture scheme bears none of the hallmarks of punishment” because, inter alia, tax forfeiture is not premised “on a criminal conviction—or, for that matter, even

on criminal behavior.” Id. at 44a.

6

4. The court of appeals affirmed. Pet. App. 1a-10a.

Like the district court, the court of appeals focused

on whether petitioner retained any “property interest

in the surplus equity after the county acquired the condominium.” Pet. App. 6a (emphasis added). And the

court of appeals determined that the statute had abrogated any such right. Id. at 7a. “Where state law recognizes no property interest in surplus proceeds from a

tax-foreclosure sale conducted after adequate notice to

the owner,” the court held, “there is no unconstitutional

taking.” Id. at 8a.

The court of appeals found support in this Court’s

decision in Nelson v. City of New York, 352 U.S. 103

(1956), which rejected a takings challenge to a law that

gave “property owners a right to redeem [a forfeited]

property or to recover the surplus” from its sale. Pet.

App. 8a. The court of appeals found Nelson “control[ling],” despite a “modest factual difference” between the New York City and Minnesota provisions.

Ibid.

The court of appeals affirmed the dismissal of petitioner’s excessive-fines claim “on the basis of ” the district court’s opinion. Pet. App. 9a.

SUMMARY OF ARGUMENT

I. Petitioner has stated a claim that respondents

engaged in a compensable taking by obtaining absolute

title to property more valuable than her tax debt.

A. The Fifth Amendment precludes the government

from taking private property for public use without

providing just compensation. U.S. Const. Amend. V. It

is nonetheless well established that the use of certain

powers that affect property rights does not constitute a

taking. Most pertinent here, a government does not engage in a compensable taking by laying or collecting

7

taxes. The taxing power, moreover, necessarily includes the power to forfeit property sufficient to satisfy

a taxpayer’s total tax debt, including interest, penalties,

and costs.

B. Petitioner does not contest that respondents

could lawfully seize her real property to collect her tax

debt. Instead, petitioner more narrowly contends that

respondents violated the Just Compensation Clause

when they “collect[ed] a debt” and kept “more than” petitioner owed. Pet. Br. 8 (capitalization and emphasis

omitted). Properly understood, petitioner has stated a

claim for a taking for which just compensation may be

due. Petitioner’s condominium presumably was indivisible, such that respondents could seize and sell the

entire property to pay petitioner’s debt. But the taxing

power did not entitle respondents to take absolute title

to property more valuable than petitioner’s debt, extinguish her rights, and retain the excess value. Any taking thus occurred when respondents obtained absolute

title, at the close of the redemption period, in 2015. Although the surplus proceeds from the later tax sale may

inform the amount of compensation due, those proceeds

are not themselves the relevant property interest for

takings analysis.

C. Historical practice indicates that taking absolute

title to property more valuable than a tax debt requires

compensation. From the Founding through the Civil

War, Congress and most States expressly limited tax

collectors to selling no more land than necessary to satisfy a landowner’s tax debt. Even in the absence of such

express limitations, courts and commentators stated

that background principles prohibited tax collectors

from selling more land than necessary to pay a tax debt.

8

D. This Court’s decisions support the same understanding. In three late-nineteenth-century cases, the

Court construed federal tax statutes enacted during the

Civil War to protect delinquent taxpayers, and specifically to protect them from the uncompensated sale of

more land than necessary to satisfy a tax debt. The last

of those decisions expressly stated that the government

would violate the Fifth Amendment if it retained the excess value from a tax sale. United States v. Lawton, 110

U.S. 146, 150 (1884). This Court’s more recent decision

in Nelson v. City of New York, 352 U.S. 103 (1956), is

not to the contrary: The law sustained there did not extinguish the taxpayer’s ability to obtain such proceeds.

E. Petitioner has therefore plausibly alleged that

respondents’ actions constituted a taking. On remand,

petitioner bears the burden of demonstrating that just

compensation is due and the amount of such compensation.

II. If this Court holds that petitioner has stated a

takings claim, it need not reach petitioner’s argument

that respondents’ actions imposed a fine subject to the

Excessive Fines Clause. If the Court reaches that contention, however, it should reject it. Minnesota’s taxforfeiture program bears none of the hallmarks of punishment.

A. This Court’s decisions are clear that the Excessive Fines Clause applies only to punitive government

actions. While the form of proceeding, civil or criminal,

is not conclusive, the Court has applied the Clause only

to forfeitures ordered as a sanction for criminal activity

or after the property owner has already been convicted

of a crime involving the forfeited property.

B. The lower courts correctly held that Minnesota’s

tax-forfeiture statute does not impose punishment. It

9

is not linked to any criminal activity or culpable conduct, and it applies regardless of the “fault” or “innocence” of the taxpayer. Forfeiture of absolute title to

the property extinguishes not only the taxpayer’s interest, but also the tax debt and all other liens against the

property held by any party. Thus, the taxpayer may

derive a financial benefit from the tax-forfeiture statute, which demonstrates that it is not punitive.

Petitioner’s contrary arguments lack merit. This

Court’s decisions do not hold that any government action that attaches monetary consequences to conduct

the government seeks to reduce or eliminate is punitive.

And petitioner has pointed to nothing in the history or

original meaning of the Excessive Fines Clause that

would justify treating the Minnesota statute as punishment.

ARGUMENT

I. PETITIONER PLAUSIBLY ALLEGES THAT RESPONDENTS ENGAGED IN A COMPENSABLE TAKING BY

OBTAINING ABSOLUTE TITLE TO PROPERTY MORE

VALUABLE THAN HER TAX DEBT

A. The Government’s Collection Of Delinquent Taxes And

Associated Interest, Penalties, And Costs Does Not Constitute A Taking

1. The Fifth Amendment, which is made applicable

to the States through the Fourteenth Amendment,

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

use, without just compensation.” U.S. Const. Amend.

V; see Chicago, Burlington & Quincy R.R. v. Chicago,

166 U.S. 226, 239 (1897). As this Court has explained,

“[t]he aim of the Clause is to prevent the government

‘from forcing some people alone to bear public burdens

which, in all fairness and justice, should be borne by the

10

public as a whole.’ ” Eastern Enters. v. Apfel, 524 U.S.

498, 522 (1998) (plurality opinion) (quoting Armstrong

v. United States, 364 U.S. 40, 49 (1960)).

This Court’s decisions address different types of takings requiring just compensation. The Court has explained that “[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).

A “physical appropriation[]”—“the ‘clearest sort of

taking’ ”—occurs when the government, for example,

“uses its power of eminent domain to formally condemn

property” or “physically takes possession of property

without acquiring title to it.” Ibid. (citation omitted).

In certain limited circumstances, the Court has recognized takings when the government takes outright

other, less-tangible property interests—such as by destroying a lien or by requiring that interest payments

be transferred to a third party for a public purpose.

See, e.g., Brown v. Legal Found., 538 U.S. 216, 240

(2003); Armstrong, 364 U.S. at 46-47.

2. It is nonetheless well established that the government’s use of certain powers that affect property rights

does not fall within the Just Compensation Clause. For

example, “the Fifth Amendment does not require that

the Government pay for the performance of a public

duty it is already owed,” such as the giving of testimony

or evidence in a criminal case. Hurtado v. United

States, 410 U.S. 578, 588 (1973). Nor does the government engage in a compensable taking when, using its

police powers, it forfeits property that constitutes or

causes a public nuisance or is the instrumentality or

fruit of a crime. See, e.g., Bennis v. Michigan, 516 U.S.

11

442 (1996); Calero-Toledo v. Pearson Yacht Leasing

Co., 416 U.S. 663, 680-688 (1974); Dobbins’s Distillery

v. United States, 96 U.S. 395 (1878); The Palmyra, 25

U.S. (12 Wheat.) 1, 14 (1827). And “a Customs seizure

of goods suspected of bearing counterfeit marks is a

classic example of the government’s exercise of the police power to condemn contraband or noxious goods, an

exercise that has not been regarded as a taking for public use for which compensation must be paid.” Acadia

Tech., Inc. v. United States, 458 F.3d 1327, 1332 (Fed.

Cir. 2006); see Calero-Toledo, 416 U.S. at 680-683 (tracing tradition of customs and other forfeiture laws); cf.

One Lot Emerald Cut Stones & One Ring v. United

States, 409 U.S. 232, 237 (1972) (per curiam) (holding

that the forfeiture of goods involved in customs violations “prevents forbidden merchandise from circulating

in the United States” and does not violate the Double

Jeopardy Clause). The Fifth Amendment likewise requires no compensation when the government imposes

“economic sanctions such as orders blocking transactions and freezing assets” to “serve substantial national

security interests.” Paradissiotis v. United States, 304

F.3d 1271, 1275 (Fed. Cir. 2002).

Most pertinent here, “[i]t is beyond dispute that

taxes and user fees . . . are not takings.” Koontz v. St.

Johns River Water Mgmt. Dist., 570 U.S. 595, 615

(2013) (brackets, citation, and internal quotation marks

omitted). Indeed, more than 140 years ago, this Court

explained that “taxation for a public purpose, however

great,” is not “the taking of private property for public

use, in the sense of the Constitution.” County of Mobile

v. Kimball, 102 U.S. 691, 703 (1881); cf. Houck v. Little

River Drainage Dist., 239 U.S. 254, 265 (1915) (explaining that the government does not “exceed[] its taxing

12

power” unless “the exaction is a flagrant abuse, and by

reason of its arbitrary character is mere confiscation of

particular property”).

And the taxing power necessarily includes the power

to forfeit property sufficient to satisfy a taxpayer’s tax

debt (including interest, penalties, and costs). As this

Court has explained, “[p]eople must pay their taxes, and

the government may hold citizens accountable for tax

delinquency by taking their property.” Jones v. Flowers, 547 U.S. 220, 234 (2006).

B. Tax-Collection Authority Did Not Entitle Respondents

To Take Absolute Title To Property More Valuable

Than Petitioner’s Tax Debt

1. Petitioner does not dispute (Br. 2 & n.1) that respondents could assess “[p]enalties, interests, and

costs” associated with the collection of her delinquent

taxes. Nor does she contest (Br. 7, 23) that respondents’

taxing power necessarily includes the power to seize

property to pay a tax debt. Instead, petitioner contends

(Br. 23-24) that if, in collecting a tax debt, the government “seizes more than it is owed” and does not “refund

the surplus proceeds,” it “violates the Takings Clause.”

Petitioner has stated a claim that respondents’ actions resulted in a taking—and that respondents thus

potentially owed her just compensation—when they obtained absolute title to her property to satisfy a debt for

less money than the property was worth. “The purpose

of taxation is to assess and collect taxes owed, not [to]

appropriate property in excess of what is owed.” Rafaeli, LLC v. Oakland Cnty., 952 N.W.2d 434, 464 (Mich.

2020). Although respondents could forfeit the property

for nonpayment of taxes, to the extent respondents acquired and retained property more valuable than peti-

13

tioner’s debt, petitioner may be entitled to just compensation.

If the government forfeited a hypothetical taxpayer’s bank account containing $100,000 to pay a

$30,000 tax debt, it would seem clear that the government had engaged in a taking. See, e.g., Koontz, 570

U.S. at 614 (finding “a ‘per se [takings] approach’ ” appropriate “when the government commands the relinquishment of funds linked to a specific, identifiable

property interest such as a bank account or a parcel of

property”) (quoting Brown, 538 U.S. at 235) (brackets

in Koontz). The government’s power to assess and collect taxes would not entitle it to the excess $70,000, nor

exempt that taking from the requirement of just compensation.

Analogous reasoning applies to the transfer of real

property to pay a tax debt. Of course, petitioner’s condominium may have been more difficult to divide than

the hypothetical bank account, such that respondents

could seize the entire property as a necessary incident

of their ability to collect the tax debt. But respondents’

tax-collection authority does not justify keeping the entire property or its equivalent monetary value. Petitioner’s ownership interest did not “vanish[] into thin

air,” Armstrong, 364 U.S. at 48, simply because her

property was indivisible when the county took the entire parcel. Cf. Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 164 (1980) (a State cannot, by

“ipse dixit,” define away a property interest).

2. “Because the Constitution protects rather than

creates property interests, the existence of a property

interest is determined by reference to existing rules or

understandings that stem from an independent source

such as state law.” Br. in Opp. 7 (quoting Phillips v.

14

Washington Legal Found., 524 U.S. 156, 164 (1998)).

Here, the lower courts (and at times, the parties)

framed the question as whether petitioner could “show

that” state law provided her a “property interest in the

surplus equity after the county acquired the condominium.” Pet. App. 6a (emphasis added); see Pet. 4; Br. in

Opp. 21-22. That understanding mistakenly assumes

that the taking of absolute title in 2015 could properly

extinguish all of petitioner’s property interest—even

though the transfer was justified only by an allegedly

smaller tax debt.

The pertinent fact, however, is that petitioner remained the “owner” of the condominium until the State

took “absolute title” in 2015. See p. 3, supra; Pet. Br. 4.

If, as petitioner claims, the value of the property exceeded the debt, then respondents’ actions constituted

a compensable taking at that time. See Knick v. Township of Scott, 139 S. Ct. 2162, 2170 (2019) (“[A] property

owner has a claim for a violation of the Takings Clause

as soon as a government takes property for public use

without paying for it.”); Hall v. Meisner, 51 F.4th 185,

196 (6th Cir. 2022) (finding the event triggering takings

analysis was the taking of “ ‘absolute title’ to the plaintiffs’ homes”). A calculation of what the parties and the

lower courts have called “surplus equity”—the difference between petitioner’s total tax debt and the price

for which respondents sold the condominium in 2016—

may inform the amount of compensation due, see pp. 2324, infra, but it is not the relevant property interest for

takings analysis.

15

C. Historical Practice Indicates That Taking Absolute Title To Property More Valuable Than A Tax Debt Requires Compensation

1. a. By 1801, the federal government and ten

States expressly authorized tax collectors to sell the

land of delinquent taxpayers. Those statutes struck a

balance between facilitating tax collection and protecting delinquent taxpayers’ property rights, with most

making a sale of real property the remedy of last resort.

Most pertinent here, the laws of Congress and nine

States provided that tax collectors could sell only as

much land as was necessary to satisfy a landowner’s tax

debt. See Act of July 14, 1798, ch. 75, § 13, 1 Stat. 601;

1 Del. Laws 1259-1260, §§ 25-26 (1796); 1791 Ga. Laws

9, 14; 1799 Ky. Acts 89, § 18; 1786 Mass. Acts 358, 360;

1791 N.H. Laws 296; 1801 N.Y. Laws 498-499, § XVII;

1792 N.C. Sess. Laws 23, § V; 1787 Vt. Acts & Resolves

125, 126; Hudson & Goodwin, Acts and Laws of the State

of Connecticut in America 349, 356-357 (1796) (¶¶ 32,

36).

Courts generally interpreted those provisions to

mean that if a tax collector sold more land than necessary, the sale was void. For example, in Stead’s Executors v. Course, 8 U.S. (4 Cranch) 403 (1808), this Court

considered whether the defendant had title to lands in

Georgia based on a “sale thereof, by the collector of

taxes for the county in which they lie.” Id. at 412. Because the collector sold the “whole tract of land * * *

when a small part of it would have been sufficient for

the taxes,” the Court determined that “the collector unquestionably exceeded his authority” under Georgia law

and the plea of a valid sale “cannot be sustained.” Id. at

414; see, e.g., Ainsworth v. Dean, 21 N.H. 400, 407

(1850); Avery v. Rose, 15 N.C. (4 Dev.) 549, 556 (1834).

16

b. The primary outlier during that period was Virginia’s 1790 statute, which authorized a tax collector to

search the land of a delinquent taxpayer and sell any

personal property. 1790 Va. Acts ch. V, § II. If such

property was insufficient and the landowner failed to

pay the tax within three years, then title to the land was

“lost, forfeited and vested in the Commonwealth,” with

no express provision made for the repayment of any excess to the landowner. Id. § V; see 3 St. George Tucker,

Blackstone’s Commentaries *153 n.3 (1803) (noting the

Virginia statute).2 Although an 1801 Kentucky statute

also authorized forfeiture, it applied only to individuals

who failed to register land by the time taxes were due.

1801 Ky. Acts 77, 80 § 5. An adjacent provision addressed nonpayment of taxes on registered land and allowed the sale of only “so much” of the land “as shall be

sufficient to pay the tax.” Id. at 79, § 4.

The Virginia statute was later acknowledged as an

outlier. In Martin v. Snowden, 59 Va. (18 Gratt.) 100

(1868), aff ’d sub. nom. Bennett v. Hunter, 76 U.S.

(9 Wall.) 326 (1870), the Supreme Court of Appeals of

Virginia explained that the 1790 Virginia statute was

unprecedented and thus had little relevance for determining Founding-era practices. Martin (and later Bennett, which is discussed at pp. 19-21, infra) concerned

the proper interpretation of an 1861 federal statute authorizing forfeiture of real property, and a challenge to

that statute on due process grounds. See id. at 133-134.

The Virginia court began by explaining that “forfeiture

of the land to the Crown does not appear to have been a

Tucker’s footnote also cited Section 13 of the July 14, 1798 federal statute, but that provision authorized sale only of a “dwelling

house, or so much of the tract of land, (as the case may be) as may

be necessary to satisfy the taxes due thereon.” 1 Stat. 601.

2

17

means recognized and employed in England, at any period of its history, for enforcing the payment of taxes or

other debts to the Crown.” Id. at 136. Turning to the

argument that the 1790 Virginia statute provided a historical precedent, the court explained that an “act of a

single State, adopting a new and exceptional mode of

proceeding, could have no weight in the argument.” Id.

at 138; see id. at 141 (interpreting Virginia statute to

apply only where the land had been “abandoned”).

2. Before the Civil War, several additional States

adopted statutes requiring the sale of only the least

amount of land necessary to satisfy the owner’s debt.

See, e.g., 1845 Ill. Laws 13 § 51; 1860 Iowa Code Tit. VI,

§ 766; 1860 Minn. Laws 58 § 23. Ohio, for example, directed a public sale to “the person or persons, who will

pay the [debt] for the least number of acres.” 1822 Ohio

Laws 27, § 7 (emphasis added). If the land was “not sold

for the want of bidders,” then the land was “forfeited to

the [S]tate.” Id. at 28, § 10. Thus, the State took title

only if the market determined that the land was less valuable than the tax debt.

Laws that unambiguously authorized a complete forfeiture, without any excess returned to the taxpayer, remained rare. Although two late-nineteenth-century

treatises describe total forfeiture as a tax-collection

method, they identify only two additional statutes that

authorized forfeiture of more land than necessary to

pay a tax debt without expressly requiring a return of

excess proceeds to the taxpayer: 1836 Me. Laws 325,

§ 4, and 1869 La. Acts 159, § 63.3 Mississippi enacted a

See Henry Campbell Black, A Treatise on The Law of Tax Titles

§§ 194-195, at 242 & nn.1, 3 (2d ed. 1893); W.H. Burroughs, A Treatise on the Law of Taxation as Imposed by the States and their Municipalities, or Other Subdivisions, and as Exercised by the Gov3

18

similar statute, but the State’s High Court of Errors

and Appeals held that it violated provisions of the Mississippi Constitution requiring “due course of law” and

prohibiting the taking of private property for “public

use” “without just compensation first made.” Griffin v.

Mixon, 38 Miss. 424, 439 (1860); see id. at 451-452.

3. Several courts suggested that, even in the absence of a statute’s express limitation, background principles prevented tax collectors from selling more land

than necessary to pay a tax debt. Chancellor James

Kent found it indisputable “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.” Tiernan v. Wilson, 6 Johns. Ch. 411,

414 (N.Y. Ch. 1822). He traced that principle back to a

1595 case that deemed it unlawful for a sheriff to sell

five oxen worth £5 each to satisfy a £2 debt. See id. at

414 (discussing Wooddye v. Baily (1595) 74 Eng. Rep.

1027 (Q.B.)). Kent also discussed Stead’s Executors and

found that the “rule must be the same, without any

[statute],” as it “rests on principles of obvious policy and

universal justice.” Ibid.; see, e.g., O’Brien v. Coulter,

2 Blackf. 421, 425 (Ind. 1831) (per curiam).

Other influential commentators agreed. Thomas

Cooley observed that even if there were no “statute limiting the officer’s right to sell, to so much as would be

requisite to pay the tax and charges, a restriction to this

extent would be intended by the law.” Thomas M. Cooley, A Treatise on the Law of Taxation, Including the

Law of Local Assessments 343 (1876) (Cooley). It was

“not for a moment to be supposed that any statute

would be adopted without this or some equivalent proernment of the United States, Particularly in the Customs and Internal Revenue § 110, at 277-278 (1877).

19

vision.” Ibid.; see Robert S. Blackwell, A Practical

Treatise on the Power to Sell Land for the NonPayment of Taxes 288 (2d ed. 1864) (finding the principle’s application in the absence of a statute was “clearly

the correct rule of law”). Cooley further explained that

“[a] sale of the whole when less would pay the tax is

void, and a sale of the remainder after the tax had been

satisfied by the sale of a part would also be void.” Cooley 343-344 (footnote omitted). “[T]he very plain reason

[was] that the power to sell would be exhausted the moment the tax was collected.” Id. at 344.4

D. This Court’s Decisions Support The Same Conclusion

Although the Court has not squarely addressed the

question presented here, several of its decisions support the conclusion that petitioner has plausibly alleged

a taking.

1. In a trilogy of late-nineteenth-century cases, this

Court considered a federal tax enacted to raise funds

during the Civil War. Those decisions construed the

statutes to protect delinquent taxpayers, including from

the uncompensated sale of more land than necessary to

pay their tax debts.

a. The 1861 statute at issue in Bennett v. Hunter, 76

U.S. (9 Wall.) 326 (1870), “laid a direct tax of twenty millions of dollars upon lands,” which was “apportioned

* * * among the several States.” Id. at 333; see Act of

Aug. 5, 1861 (1861 Act), ch. 45, § 8, 12 Stat. 294. The

statute authorized the sale of personal property to collect the tax and, if that proved insufficient, the sale of

Cooley observed that he was not “aware of any constitutional

principle” that prohibited legislative forfeiture of lands as opposed

to public sale. Cooley 318. But that discussion focused on the differences between procedures. Ibid.

4

20

so much of the land as might be necessary to satisfy the

taxes due. 1861 Act § 36, 12 Stat. 304. If the land was

not divisible, the government could sell the whole parcel, with the surplus proceeds “paid to the [former]

owner of the property” or, if he could not be found, “deposited in the Treasury of the United States, to be there

held for the use of the owner” upon his “application.”

Ibid. Thus, like the statutes discussed above, the 1861

Act protected taxpayers’ interests in the excess value of

land, even during wartime exigencies.

The question in Bennett was whether the 1861 Act

authorized the tax commissioners to “make a sale for

taxes, notwithstanding a previous tender of the amount

due” by an individual acting on the owner’s behalf. 76

U.S. (9 Wall.) at 333. That depended on the proper understanding of an 1862 enactment, which provided that

“title” to any parcel of land with unpaid taxes would be

“forfeited to the United States, and, upon the sale hereinafter provided for, shall vest in the United States or

in the purchasers at such sale, in fee simple, free and

discharged from all prior liens, incumbrances, right, title, and claim whatsoever.” Act of June 7, 1862 (1862

Act), ch. 98, § 4, 12 Stat. 423. If title vested in the United

States at “forfeit[ure],” then the offer to pay the taxes

came too late; but if the owner retained his interest until

the sale, then the offer to pay was timely. Ibid.; see

Bennett, 76 U.S. (9 Wall.) at 337-338.

This Court held that the statute should be read to

permit redemption until the later date. Bennett, 76 U.S.

(9 Wall.) at 335-337. The Court declined to decide a due

process question. Id. at 336. Instead, it interpreted

“the first clause,” providing for forfeiture of title to the

United States, to “declare the ground of the forfeiture

of title, namely, non-payment of taxes, while the second

21

clause was intended to work the actual investment of

the title through” the sale. Ibid.5

b. The Court addressed the same statute in United

States v. Taylor, 104 U.S. 216 (1881), where the question

was whether a property owner could recover the surplus proceeds from a tax sale under Section 36 of the

1861 Act, notwithstanding that the 1862 Act “ma[de] no

mention of the right” to the surplus. Id. at 218. The

Court refused to read the 1862 Act as implicitly repealing the 1861 Act. Ibid. And the Court explained that

the 1861 Act placed “no time within which application

must be made for the proceeds of the sale”; rather,

“[t]he person entitled to the money could allow it to remain in the treasury for an indefinite period without losing his right to demand and receive it.” Id. at 221. Although no constitutional question was presented in Taylor, the decision underscores the importance of not retaining surplus proceeds after seizing real property

worth more than the tax debt being satisfied.

c. This Court’s decision in United States v. Lawton,

110 U.S. 146 (1884), put that understanding in constituThe government’s brief in Bennett unsuccessfully argued that

the owner’s authority to redeem ceased on the earlier date and was

in any event limited to the owner himself. See U.S. Br. at 14-23,

Bennett v. Hunter, supra (No. 74). Addressing the due process

question, the government stated that Congress’s power to “lay and

collect” taxes and the Necessary and Proper Clause afforded it the

authority to “declare a forfeiture of land for the non-payment of

taxes laid thereon, or authorize a sale, by summary proceedings on

the part of the executive branch of the government, of the whole of

such land.” Id. at 9; see id. at 13 (stating that the Just Compensation Clause does not “impose[] any restraint upon the legislative

power in regard to taxation”). In support, the government relied on

different iterations of the Virginia, Maine, Mississippi, Kentucky,

and Ohio statutes discussed above. See id. at 10-12; pp. 16-18, supra.

5

22

tional terms. The facts of Lawton “differ[ed] from”

Taylor “only” in that “the land” in Lawton was “bought

in by the tax commissioners for the United States, and

no money was paid on the sale.” Id. at 149. The Court

nonetheless held that because the land was “ ‘struck off

for,’ and ‘bid in’ for, the United States at the sum of

$1,100” “the surplus of that sum, beyond the $170.50”

tax debt, “must be regarded as being in the treasury of

the United States * * * for the use of the owner.” Ibid.

The Court explained that “[t]o withhold the surplus

from the owner would be to violate the Fifth Amendment of 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.” Id. at 150.

2. The court of appeals in this case relied (Pet. App.

8a-9a) on Nelson v. City of New York, 352 U.S. 103

(1956). In Nelson, this Court considered a law authorizing the city to engage in a judicial foreclosure of tax

liens on real property. Id. at 104 n.1. If the taxpayer

did not answer or redeem the property, a default judgment of foreclosure would be entered, the city would acquire title, and it could sell the property to a private

party. Id. at 105-106.

Although Nelson primarily concerned challenges under the Equal Protection and Due Process Clauses, see

352 U.S. at 107-109, the taxpayers argued in reply that

“the City’s retention of property, in one instance, and

proceeds of sale in the other, far exceeding in value the

amounts due,” constituted “a taking without just compensation.” Id. at 109. In rejecting that argument, Nelson distinguished Lawton on the ground that it had relied on Taylor’s prior statutory-construction holding.

See id. at 110.

23

The Court further explained that the law challenged

in Nelson did not “absolutely preclude[] an owner from

obtaining the surplus proceeds of a judicial sale.” 352

U.S. at 110. Rather, the state courts had construed the

law to mean that if the owner filed a timely answer in a

foreclosure proceeding arguing that the property’s

value far exceeded the tax due, “a separate sale should

be directed so that the owner might receive the surplus.” Ibid. (emphasis added). The Court’s determination that “nothing in the Federal Constitution” rendered the law unconstitutional, ibid., necessarily took

account of that holding. Thus, contrary to the court of

appeals’ suggestion (Pet. App. 9a), the difference between the law at issue in Nelson and the Minnesota statute at issue here is not “immaterial.” The New York

City provision permitted the property owner to obtain

the excess value of her property, while the Minnesota

statute does not.

E. Petitioner Bears The Burden Of Demonstrating Her

Entitlement To Just Compensation On Remand

For the reasons already discussed, to the extent respondents took and retained the value of more of petitioner’s real property than was necessary to satisfy her

total tax debt, they engaged in a taking. Petitioner’s

entitlement to “just compensation” depends on whether

the property taken was worth more than the tax debt

(and any other outstanding interests in the property,

such as liens) when the State obtained absolute title, following expiration of the redemption period, in 2015.

Although just compensation is generally measured as of

the date of the taking, see, e.g., United States v. 564.54

Acres of Land, 441 U.S. 506, 511 (1979), in the taxforfeiture context, the surplus proceeds from a tax sale

may constitute an appropriate measure of just compen-

24

sation. See, e.g., Rafaeli, 952 N.W.2d at 486 & n.86

(Viviano, J., concurring) (stating that by failing to redeem or sell the property, a taxpayer “might be considered to have agreed to the value produced by the taxforeclosure sale”).

The basic principle underlying the constitutional requirement of just compensation is one of indemnity.

The amount is “measured by the property owner’s loss

rather than the government’s gain.” Brown, 538 U.S. at

235-236. “[T]he private party ‘is entitled to be put in as

good a position pecuniarily as if his property had not

been taken. He must be made whole but is not entitled

to more.’ ” Ibid. (quoting Olson v. United States, 292

U.S. 246, 255 (1934)). To award a landowner “less would

be unjust to him; to award him more would be unjust to

the public.” Bauman v. Ross, 167 U.S. 548, 574 (1897);

see, e.g., United States v. Cors, 337 U.S. 325, 332 (1949).

As the landowner, petitioner bears the burden of establishing the proper amount of compensation. United

States ex rel. TVA v. Powelson, 319 U.S. 266, 273 (1943).

Because the district court granted respondents’ motion to dismiss, and the court of appeals affirmed that

judgment, no court has yet considered whether petitioner’s real property in fact was worth more than her

tax debt and other interests in the property when respondents obtained absolute title, or the proper amount

of compensation that might be due. The lower courts

should address those issues on remand.

25

II. THE RETENTION OF SALE PROCEEDS IN EXCESS OF

PETITIONER’S TAX DEBT DID NOT CONSTITUTE A

“FINE” SUBJECT TO THE EXCESSIVE FINES CLAUSE

If the Court holds that petitioner has plausibly alleged a taking, it need not reach petitioner’s argument

that retaining the excess sale proceeds constitutes a

fine under the Excessive Fines Clause. Cf. Pet. Br. 33

n.16 (“[P]aying [petitioner] just compensation should

eliminate the challenged fine.”). But if the Court rejects

the takings claim, petitioner’s Excessive Fines Clause

argument lacks merit.

A. The Excessive Fines Clause Applies Only To Punitive

Actions

1. The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

U.S. Const. Amend. VIII. “Taken together, these

Clauses place ‘parallel limitations’ on ‘the power of

those entrusted with the criminal-law function of government.’ ” Timbs v. Indiana, 139 S. Ct. 682, 687 (2019)

(quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco

Disposal, Inc., 492 U.S. 257, 263 (1989)). The Excessive

Fines Clause, in particular, “limits the government’s

power to extract payments, whether in cash or in kind,

‘as punishment for some offense.’ ” Ibid. (quoting

United States v. Bajakajian, 524 U.S. 321, 327 (1998)).

As this Court has explained, “at the time the Constitution was adopted, the word ‘fine’ was understood to

mean a payment to a sovereign as punishment for some

offense.” Bajakajian, 524 U.S. at 327 (citation and internal quotation marks omitted). “Then, as now,” fines

were typically imposed as punishments in criminal prosecutions. Browning-Ferris Indus., 492 U.S. at 265. But

the Court has found the Clause applicable to some pay-

26

ments that a defendant is ordered to make in civil in

rem forfeiture actions that “are at least partially punitive.” Timbs, 139 S. Ct. at 689; see Austin v. United

States, 509 U.S. 602, 619-622 (1993). The form of proceeding, “civil or criminal,” is therefore not entirely dispositive; the question remains whether a particular payment is “punishment for some offense” against the sovereign. Austin, 509 U.S. at 610, 622 (citation omitted).

Even so, each of this Court’s decisions applying the Excessive Fines Clause has involved a forfeiture ordered

as a sanction for criminal conduct after an adjudication

of guilt in a criminal proceeding, see Bajakajian, 524

U.S. at 325-326; Alexander v. United States, 509 U.S.

544, 547-548 (1993), or a civil action brought after the

property owner had already been convicted of a crime,

seeking forfeiture of property used in the commission

of the crime, see Timbs, 139 S. Ct. at 686; Austin, 509

U.S. at 605. See United States v. Jalaram, Inc., 599

F.3d 347, 354 (4th Cir. 2010) (“[T]he [Supreme] Court

consistently focused on whether the forfeiture

stemmed, at least in part, from the property owner’s

criminal culpability.”).

2. This Court’s decisions in Austin and Bajakajian

are particularly instructive. In Austin, the Court considered the civil in rem forfeiture of properties used in

connection with unlawful drug transactions for which

the owner had already been convicted under state law.

509 U.S. at 604-605; see 21 U.S.C. 881(a)(4) and (7). The

Court explained that a sanction is “subject to the limitations of ” the Excessive Fines Clause if “it can only be

explained as serving in part to punish.” 509 U.S. at 610.

That requirement was satisfied in Austin, where the

federal statute “tie[d] forfeiture directly to the commission of drug offenses” and provided “an ‘innocent

27

owner’ defense,” which focused “on the culpability of

the owner.” Id. at 619-620.

Bajakajian considered a criminal, rather than a civil

in rem, forfeiture. The defendant in that case attempted to leave the United States without reporting

that he was transporting $357,144 in currency—far

more than the $10,000 that triggered the federal reporting requirement. Bajakajian, 524 U.S. at 324; see 31

U.S.C. 5316(a)(1)(A), 5322(a). The United States prosecuted him under criminal laws, which included a provision for forfeiture of “any property, real or personal, involved in such offense, or any property traceable to such

property.” 18 U.S.C. 982(a)(1); see Bajakajian, 524

U.S. at 325.

This Court had “little trouble concluding that the

forfeiture of currency ordered by § 982(a)(1) constitutes

punishment.” Bajakajian, 524 U.S. at 328. Such forfeiture is “imposed at the culmination of a criminal proceeding and requires conviction of an underlying felony”; it also “cannot be imposed upon an innocent owner

of unreported currency, but only upon a person who has

himself been convicted of a § 5316 reporting violation.”

Ibid. The Court further emphasized that the forfeiture

of currency in this context does not “serve the remedial

purpose of compensating the Government for a loss” because failing to report causes the government to lose

only “information.” Id. at 329.

The Court in Bajakajian distinguished that forfeiture provision from a “class of historic forfeitures of

property tainted by crime.” 524 U.S. at 329. The Court

explained that “traditional civil in rem forfeitures”—

such as forfeitures imposed for violations of the customs

laws—were “inapposite” because they were “historically considered nonpunitive” and thus “traditionally

28

were considered to occupy a place outside the domain of

the Excessive Fines Clause.” Id. at 330-331; see id. at

340-341. By contrast, in Bajakajian, the government

had “not proceeded against the currency,” but brought

a criminal prosecution against the defendant. Id. at 332.

As in Austin, the forfeiture was “designed to punish the

offender, and [could not] be imposed upon innocent

owners.” Ibid.

B. Minnesota’s Tax Forfeiture Program Is Non-Punitive

1. Unlike the forfeiture provisions at issue in Austin

and Bajakajian, there is no suggestion that Minnesota’s civil tax-forfeiture program is intended to be, or

is in fact, a penalty for a criminal offense. See Pet. App.

44a. All individuals who owe a tax have several opportunities to pay it, and thus avoid forfeiture. The statute

appears to be designed not to punish the nonpayment of

taxes, but to ensure that the State receives the money

it is due. See Helvering v. Mitchell, 303 U.S. 391, 401

(1938) (holding that a civil tax-fraud penalty is remedial

and therefore not “punishment” for purposes of the

Double Jeopardy Clause).

Under Minnesota’s law, the forfeiture of absolute title does not depend on criminal activity or culpable conduct. See Pet. Br. 40. There is no “innocent owner”

defense; regardless of the reason a landowner failed to

pay taxes due, the provisions apply in the same way. Indeed, forfeiture may sometimes leave landowners better

off from an economic perspective. Final forfeiture not

only “vests ‘absolute title’ in the State”; it also “cancels

all taxes, penalties, costs, interest, and special assessments against the property.” Pet. App. 4a. Thus, if the

property owner owes the State more than the property

is worth, the excess debt is forgiven. In addition, “final

forfeiture” cancels “all other liens against the property

29

held by any party.” Pet. App. 14a; see J.A. 50-53. A

program with those potential benefits to taxpayers—

without any consideration of “fault” or “innocence”—

cannot be considered punitive.

2. Petitioner’s contrary arguments lack merit.

a. Petitioner emphasizes (Br. 36-37) this Court’s

statement in Austin that “a civil sanction that cannot

fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment,” 509 U.S. at

610. Petitioner notes (Br. 38) that respondents have

“admit[ted] that the statute serves” in part “as a deterrent.” See J.A. 42.

Petitioner’s reliance on Austin’s reference to “deterrence” is misplaced. In Austin, 509 U.S. at 610, the

Court was quoting United States v. Halper, 490 U.S.

435, 448 (1989), which had held that the Double Jeopardy Clause encompasses certain types of civil sanctions. But as the Court later explained in rejecting

“Halper’s test for determining whether a particular

sanction is ‘punitive,’ ” “all civil penalties have some deterrent effect.” Hudson v. United States, 522 U.S. 93,

102 (1997). Merely attaching monetary consequences to

conduct that the government seeks to reduce or eliminate is not the kind of deterrent effect to which Austin

referred. In context, the Court was referring to sanctions with the purpose of deterring criminality, such as

the drug-trafficking in rem forfeiture laws at issue in

that case. See 509 U.S. at 622; id. at 627 (Scalia, J., concurring in part and concurring in the judgment) (similarly concluding that such forfeitures “are certainly

payment (in kind) to a sovereign as punishment for an

offense”). Here, respondents invoked only “civil deterrence,” not “deterrence * * * to prevent crime.” J.A. 42.

30

Petitioner’s contrary reading of Austin would

threaten to transform every civil penalty or forfeiture

into a form of punishment for Eighth Amendment purposes, given that every civil penalty or forfeiture presumably deters to some extent the conduct for which it

is assessed. See Hudson, 522 U.S. at 102. Nothing in

the text or original meaning of the Excessive Fines

Clause, or in this Court’s precedent, compels such a

sweeping application.

b. Petitioner next attempts (Br. 37) to analogize

Minnesota’s tax-forfeiture statute to the civil-forfeiture

provisions at issue in Austin. Petitioner asserts the

value of the property forfeited will “[v]ar[y] so dramatically that any relationship between the debt owed and

the amount of the sanction is merely coincidental.”

Ibid. (quoting Austin, 509 U.S. at 622 n.14). But this

Court has rejected the proposition that a penalty or forfeiture is punitive simply because the government may

receive more than necessary to make it whole. See Bajakajian, 524 U.S. at 331; id. at 344-345 (Kennedy, J.,

dissenting). And here, the variability of the government’s recovery (if any) under the Minnesota statute

demonstrates that it is not punitive, because it will

sometimes result in a net benefit to the taxpayer. Cf.

Austin, 509 U.S. at 625 n.* (Scalia, J., concurring in part

and concurring in the judgment) (“[T]he statutory forfeiture must always be at least ‘partly punitive,’ or else

it is not a fine.”).

Petitioner suggests (Br. 38) that the Minnesota statute “presumes that those who fail to make timely tax

payments or redeem their property are culpable for

their loss.” But as petitioner elsewhere observes (Br.

44), a failure to pay taxes or redeem may reflect financial or other constraints that have nothing to do with

31

culpability. In addition, anyone with an interest in the

property (such as a lien) may redeem the property and

avoid its forfeiture, and will lose their interest if “final

forfeiture” occurs, regardless of whether they bear any

responsibility for the failure to pay. The Minnesota

statute thus includes nothing like the “innocent owner”

defense the Court found suggestive of an “intent to punish” in Austin, 509 U.S. at 619.

c. Finally, petitioner suggests that “[t]he history

and original meaning of the Excessive Fines Clause

supports its application” to the Minnesota statute. Br.

39 (capitalization altered; emphasis omitted). But petitioner identifies nothing in that history or original

meaning to support the view that the Minnesota statute

constitutes punishment.

Petitioner points (Br. 39) to the Court’s statement in

Browning-Ferris that when punitive damages are

awarded in a private civil lawsuit, the State “has not

* * * used the civil courts to extract large payments or

forfeitures for the purpose of raising revenue or disabling some individual.” 492 U.S. at 275. But the Court

there was reasoning in the alternative, having first explained that “the text of the Amendment points to an

intent to deal only with the prosecutorial powers of government.” Ibid.; see ibid. (paragraph on which petitioner relies, beginning “even if we were prepared to extend the scope of the Excessive Fines Clause”). That

echoed the Court’s discussion of history, which found

“clear support for reading [the] Excessive Fines Clause

as limiting the ability of the sovereign to use its prosecutorial power, including the power to collect fines, for

improper ends.” Id. at 267.

Petitioner further contends (Br. 40-43) that the

Court erred in Bajakajian when it stated that “tradi-

32

tional civil in rem forfeitures,” including in the customs

context, “traditionally * * * occup[ied] a place outside

the domain of the Excessive Fines Clause.” Bajakajian, 524 U.S. at 330-331; see id. at 340-344. The

Court’s thorough analysis, however, belies petitioner’s

contention. And while petitioner prefers (Br. 42) the

discussion of traditional in rem forfeitures in Austin,

four Justices agreed that the “entire discussion” was

“dictum.” 509 U.S. at 626-627 (Scalia, J., concurring in

part and concurring in the judgment); see id. at 628

(Kennedy, J., joined by Rehnquist, C.J., and Thomas,

J., concurring in part and concurring in the judgment).

More important, the proper understanding of historical forfeiture laws has little bearing on whether forfeitures under Minnesota’s statute “are properly considered punishment today.” Austin, 509 U.S. at 619 (turning to this question after taking the view that at least

some historical forfeiture statutes were punitive); cf.

Pet. Br. 40 (suggesting that the forfeiture here differs

from traditional in rem forfeitures). The factors discussed in Austin (and reiterated in Bajakajian) demonstrate that it is not. The Minnesota statute includes no

“innocent-owner defense[],” and it lacks any “direct[]”

“tie” to the commission of a “crime.” Austin, 509 U.S.

at 619-620. And although the State’s recovery under the

statute “vari[es],” id. at 621, the program permits taxpayers to be made better off by the cancellation of all

tax debts and other liens on the land. Those factors preclude a finding that the tax-forfeiture statute is punitive

in nature.

33

CONCLUSION

The judgment of the court of appeals should be vacated and the case remanded for further proceedings.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

DAVID A. HUBBERT

Deputy Assistant Attorney

General

CURTIS E. GANNON

Deputy Solicitor General

ERICA L. ROSS

Assistant to the Solicitor

General

ALISA B. KLEIN

JENNIFER M. RUBIN

KEVIN J. KENNEDY

GEOFFREY J. KLIMAS

MARCH 2023

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.

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