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 A ppeals for the Eighth Circuit

BRIEF OF AMICUS CURIAE

WISCONSIN COUNTIES ASSOCIATION

IN SUPPORT OF RESPONDENTS

Matthew J. Thome

Counsel of Record

A ndrew T. Phillips

Attolles Law, s.c.

222 East Erie Street, Suite 210

Milwaukee, Wisconsin 53202

(414) 285-0825

mthome@attolles.com

Counsel for Wisconsin Counties

Association as Amicus Curiae

320093

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Petitioner Has Not Plausibly Alleged

a Compensable Taking Under the Takings

Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

A. The Petitioner Did Not Have a Property

Interest Protected by the Takings

Clause at the Time Hennepin County

Sold the Property . . . . . . . . . . . . . . . . . . . . . . 7

B. A Compensable Tak ing Did Not

Occur When Respondents Obtained

Petitioner’s Real Property . . . . . . . . . . . . . . 8

1.

Petitioner did not have a protected

property interest in the value of

the property above its debts . . . . . . . . . 9

2. If Petitioner did have a protected

property interest in “equity,”

Petitioner forfeited that interest

through her own neglect . . . . . . . . . . . 12

ii

Cited Authorities

Page

3. The pu r pose of the Tak ings

Clause does not support finding a

compensable taking under these

circumstances. . . . . . . . . . . . . . . . . . . . 13

C. This Court’s Prior Precedents Support

Respondents . . . . . . . . . . . . . . . . . . . . . . . . . 17

D. This Court Should Avoid Finding

a Protected Property Interest in

“Equity” Independent of State Law . . . . . 20

II. T h is Ca se Does Not Impl ic at e t he

Excessive Fines Clause . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iii

TABLE OF CITED AUTHORITIES

Page

CASES

AllEnergy Corp. v. Trempealeau Cty.

Environmental & Land Use Committee,

375 Wis. 2d 329, 895 N.W.2d 368 (Wis. 2017) . . . . . . . 1

Atkins v. Parker,

472 U.S. 115 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Austin v. United States,

509 U.S. 602 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Ballard v. Hunter,

204 U.S. 241 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Bd. of School Directors of Town of Ashland v.

City of Ashland,

87 Wis. 533, 58 N.W. 377 (Wis. 1894) . . . . . . . . . . . . 23

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) . . . . . . . . . . . . . . . . . . . 14, 15, 21

Concrete Pipe and Products of California, Inc.

v. Construction Laborers Pension Trust for

Southern California,

508 U.S. 602, 113 S. Ct. 2264 (1993) . . . . . . . . . . . . . 14

Continental Resources v. Fair,

311 Neb. 184, 971 N.W.2d 313 (2022) . . . . . . . . . . . . 5-6

iv

Cited Authorities

Page

Dean v. Dep’t of Natural Resources,

399 Mich. 84, 247 N.W.2d 876 (1976) . . . . . . . . . . . . . 10

Gerol v. Arena,

127 Wis. 2d 1, 377 N.W.2d 618

(Wis. Ct. App. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Golden Sands Dairy LLC v. Town of Saratoga,

381 Wis.2d 704, 913 N.W.2d 118 (Wis. 2018) . . . . . . . 1

Hall v. Meisner,

51 F.4th 185 (6th Cir. 2022) . . . . . . . . . . . . . . . . . . 9, 25

Horne v. Dep’t of Agriculture,

569 U.S. 513 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

In re Federated Dep’t Stores, Inc.,

270 F.3d 994 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . 6

In re Golden,

190 B.R. 52, 57 (Bankr. W.D. Pa. 1995) . . . . . . . . . . 27

Jones v. Flowers,

547 U.S. 220 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Knick v. Township of Scott, PA,

139 S. Ct. 2162 (2019) . . . . . . . . . . . . . . . . . . . . . . 19, 20

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

570 U.S. 595 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

v

Cited Authorities

Page

Leigh v. Green,

193 U.S. 79 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 21

Mobile Cty. v. Kimball,

102 U.S. 691 (1880) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Murr v. Wisconsin,

137 S. Ct. 1933 (2017) . . . . . . . . . . . . . . . . . 1, 13, 16, 21

Nat’l Priv. Truck Council, Inc. v.

Okla. Tax Comm’n,

515 U.S. 582 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Nelson v. City of New York,

352 U.S. 110 (1956) . . . . . . . . . . . 4, 8, 17, 18, 19, 20, 22

Oosterwyk v. Milwaukee Cty.,

31 Wis. 2d 513, 143 N.W.2d 497 (1966) . . . 1, 10, 22, 23

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Penn Cent. Transp. Co. v. City of New York,

438 U.S. 104 (1978) . . . . . . . . . . . . . . . . . . . . . 14, 16, 17

Phillips v. Washington Legal Foundation,

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

vi

Cited Authorities

Page

Pulte Home Corp. v. Montgomery Cty., Md.,

909 F.3d 685 (4th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 15

Rafaeli, LLC v. Oakland Cty.,

505 Mich. 429, 952 N.W.2d 434 (Mich. 2020) . . . . 9, 10

Ritter v. Ross,

207 Wis. 2d 476, 558 N.W.2d 909

(Ct. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 18, 24

Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 104 S. Ct. 2862 (1984) . . . . . . . . . . . . . . 5

Schneider v. Cal. Dep’t of Corr.,

151 F.3d 1194 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . 21

Sheehan v. Suffolk Cty.,

67 N.Y.2d 52, 490 N.E.2d 523 (N.Y. 1986) . . . . . . . . 13

Speed v. Mills,

919 F. Supp. 2d 122 (D.D.C. 2013) . . . . . . . . . . . . . . . . 6

Stop the Beach Renourishment, Inc. v.

Florida Dep’t of Env’t Prot.,

560 U.S. 702, 130 S. Ct. 2592 (2010) . . . . . . . . . . . . . . 8

Texaco, Inc. v. Short,

454 U.S. 516 (1982) . . . . . . . . . . . . . . . . . . . . . 12, 13, 16

Town of Rib Mountain v. Marathon Cty.,

386 Wis. 2d 632, 926 N.W.2d 731 (Wis. 2019) . . . . . . . 1

vii

Cited Authorities

Page

United States v. 50 Acres of Land,

469 U.S. 24 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Lawton,

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

United States v. Locke,

471 U.S. 84, 105 S. Ct. 1785 (1985) . . . . . . . . . . . . . . 12

Waukesha Cty. v. Young,

106 Wis. 2d 244, 316 N.W.2d 362 (1982) . . . . . . . . . . 26

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

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

Williamson County Regional Planning Comm’n

v. Hamilton Bank of Johnson City,

473 U.S. 172, 105 S. Ct. 3108 (1985) . . . . . . . . . . . 19, 20

STATUTES

43 U.S.C. § 1744 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Wis. Stat. § 59.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Wis. Stat. § 59.52(22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Wis. Stat. § 75.36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Wis. Stat. § 75.36(2m) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

viii

Cited Authorities

Page

Wis. Stat. § 75.36(2m)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . 2

OTHER AUTHORITIES

1987 Wis. Act 27, § 1560m, available at https://docs.

legis.wisconsin.gov/1987/related/acts/27.pdf . . . . . . 23

1987 Wis. Act 378, §§ 120, 122, available at https://docs.

legis.wisconsin.gov/1987/related/acts/378 . . . . . 23, 24

1

STATEMENT OF INTEREST1

The Wisconsin Counties Association (“ WCA”)

was statutorily authorized in 1935 and is committed

to protecting the interests of Wisconsin counties and

promoting better county government. Wis. Stat.

§ 59.52(22). To meet its mission, the WCA represents

interests common to Wisconsin’s counties. In fact, one

of the primary purposes of the WCA is to monitor and

participate in the legal developments affecting county

governments, and the WCA often appears as amicus

curiae in cases that could affect county interests in the

State of Wisconsin. Some examples of cases in which the

WCA has appeared as amicus curiae, either on its own or

with others, include Murr v. Wisconsin, 137 S. Ct. 1933

(2017); Town of Rib Mountain v. Marathon Cty., 386 Wis.

2d 632, 926 N.W.2d 731 (Wis. 2019); Golden Sands Dairy

LLC v. Town of Saratoga, 381 Wis.2d 704, 913 N.W.2d 118

(Wis. 2018); and AllEnergy Corp. v. Trempealeau Cty.

Environmental & Land Use Committee, 375 Wis. 2d 329,

895 N.W.2d 368 (Wis. 2017).

This is an important case to the WCA because

Wisconsin appellate courts have generally rejected the

proposition that a former property owner may recover

“equity” or “surplus proceeds” from a subsequent sale

when the government obtains title to the property via

an in rem action for unpaid taxes. See Oosterwyk v.

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

part. No party or a party’s counsel contributed money that was

intended to fund preparing or submitting this brief. No other

person, other than WCA, its members, or its counsel, contributed

money that was intended to fund preparing or submitting this

brief.

2

Milwaukee Cty., 31 Wis. 2d 513, 517-18, 143 N.W.2d 497

(1966) (rejecting unjust enrichment claim and stating

that “[i]n our opinion, a former owner … is not entitled

to any surplus unless the legislature chooses to provide

therefor” and “[w]e perceive no basis in equity to hold

that if the property is subsequently sold at a profit it is the

former owner who is entitled to enjoy such excess”); Ritter

v. Ross, 207 Wis. 2d 476, 486, 558 N.W.2d 909 (Ct. App.

1996) (rejecting claim under Takings Clause and stating

“when a state’s constitution and tax codes are silent as to

the distribution of excess proceeds received in a tax sale,

the municipality may constitutionally retain them as long

as notice of the action meets due process requirements”).

Although Wisconsin, by statute, currently provides for the

distribution of any remaining net proceeds to the former

owner, see Wis. Stat. § 75.36(2m)-(3), that has not always

been the case. The WCA is concerned the arguments of

Petitioner, if adopted in this case, could effectively create

a federal property right in “equity” that would prevent

the Wisconsin Legislature from making future changes to

Wisconsin law that might alter procedural mechanisms or

otherwise strike a different balance between the interests

of property owners and the interest of local governments

in speedy and effective property tax collection and

administration. In short, the WCA seeks to maintain its

ability to advocate on behalf of Wisconsin counties for

future legislation at the state level on the issues raised

by this dispute.

SUMMARY OF ARGUMENT

This Court should affirm the decision of the Eighth

Circuit below, as the Petitioner does not allege violations

of the Takings Clause or the Excessive Fines Clause.

3

I. A compensable taking does not occur under the

Takings Clause when a government takes ownership of

real property via an in-rem tax-forfeiture proceeding that

results in the cancellation of the tax debt, even if the real

property is alleged to be worth more than the underlying

debt or subsequently generates surplus proceeds.

A. No unconstitutional taking of the surplus proceeds

generated via a subsequent sale of the forfeited property

occurs when, as here, state law does not provide a right

for the former property owner to receive those surplus

proceeds.

B. There is no traditional property right in equity—

defined as the value of the real property in excess of the

underlying debts—that is “taken” when state laws treat

an owner’s entire interest in land as forfeited when taxes

go unpaid, even if the land is otherwise more valuable than

the taxes. Even if there was such a property right, it is

appropriate to treat such property interests as forfeited

if a property owner, after receiving constitutionally

adequate notice, fails to take available steps to preserve

those interests.

Further, finding a compensable taking under such

circumstances would not be consistent with the purpose

of the Takings Clause. A former property owner whose

real property serves as compensation for an unpaid tax

debt has suffered only a diminishment to the economic

value of the property to the former owner. The forfeiture

of the owner’s entire interest in the property also does not

conflict with reasonable expectations when, as here, the

parameters of the state’s laws have long been in effect.

And, such laws do not have the character of traditional

4

takings but instead represent an exercise of the taxing

power that may burden economic values in some cases but

do not constitute takings.

C. This Court’s prior decision in Nelson v. City of New

York, 352 U.S. 110 (1956), establishes that no compensable

taking occurs when a former property owner receives

constitutionally adequate notice and has an opportunity to

take action to preserve any excess value in the property

by, for example, redeeming the property or selling it.

D. Finally, this Court should avoid issuing a decision

that has the effect of recognizing the “equity interest” or

“surplus proceeds” claimed by Petitioner as a “traditional

property right” entitled to federal constitutional protection

regardless of its treatment under state law. Each state

should be free to strike its own balance of the interests

of property owners and the interest of local governments

in effective and efficient tax administration and to change

its approach to these issues over time.

II. This case also does not implicate the Excessive

Fines Clause because the purpose of in rem tax-forfeiture

statutes like the one at issue here is to ensure the payment

of taxes and collection of revenue, not to punish property

owners.

ARGUMENT

I.

The Petitioner Has Not Plausibly Alleged a

Compensable Taking Under the Takings Clause

A violation of the Takings Clause occurs when (1) there

is a protected property interest, (2) the government has

5

taken that property interest for public use, and (3) the

government has not provided just compensation for the

taking. See Horne v. Dep’t of Agriculture, 569 U.S. 513,

525-26 (2013) (“[A] Fifth Amendment claim is premature

until it is clear that the Government has both taken

property and denied just compensation.” (emphasis in

original)); Ruckelshaus v. Monsanto Co., 467 U.S. 986,

1000-01, 104 S. Ct. 2862 (1984) (asking whether there is

“a property interest protected by the Fifth Amendment’s

Takings Clause”). No violation of the Takings Clause

occurs when, as here, a state or local government obtains

absolute title to real property via an in rem proceeding

that results in the cancellation of tax debt. To the contrary,

no “taking” occurs in such a case because it is the property

itself that serves as payment of the unpaid taxes and

“[i]t is beyond dispute that ‘[t]axes and user fees … are

not takings.’” Koontz v. St. Johns River Water Mgmt.

Dist., 570 U.S. 595, 615 (2013) (quoting Brown v. Legal

Foundation of Washington, 538 U.S. 216, 243 n.2 (2003)

(SCALIA, J., dissenting)); Mobile Cty. v. Kimball, 102

U.S. 691, 703 (1880) (“But neither is taxation for a public

purpose, however great, the taking of private property

for public use, in the sense of the Constitution.”).

Further, local governments are empowered to

seize and sell real property to satisfy unpaid taxes, and

property rights “lost” as a result of such sales are not

government takings that implicate the Takings Clause.

See Continental Resources v. Fair, 311 Neb. 184, 196-97,

971 N.W.2d 313 (2022) (collecting cases and observing

that “[i]f taxes, as the U.S. Supreme Court has held,

are not takings, we do not see how efforts to collect that

tax, whether through the sale of a lien on the property

or sale of the property itself, could be characterized as

6

a taking.”), petition for cert. filed, No. 22-160 (Aug. 18,

2022); see also Speed v. Mills, 919 F. Supp. 2d 122, 129

(D.D.C. 2013) (collecting cases). Rather, in such cases the

real property itself acts as payment of the tax. See Ballard

v. Hunter, 204 U.S. 241, 258 (1907) (“It is from the lands

alone, and not from their owner, that the taxes are to be

satisfied, and each acre bears its part.”), abrogated on

other grounds by Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306 (1950); Leigh v. Green, 193 U.S.

79, 90 (1904) (“The statute undertakes to proceed in rem,

by making the land, as such answer for the public dues.”),

abrogated on other grounds by Mullane, 339 U.S. 306; In

re Federated Dep’t Stores, Inc., 270 F.3d 994, 1003 (6th

Cir. 2001) (describing an “in rem interest” as “a ‘right to

payment’ from the real property itself”). As this Court

has observed, in the context of a Due Process challenge:

“People 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).

Notwithstanding this authority, the Petitioner

nevertheless asserts that a compensable taking occurs

when the real property acquired by a government in

satisfaction of a tax debt exceeds the value of the tax

debt. In such cases, the Petitioner asserts that there is a

protected property interest in the value of the property

above the outstanding debt and that a taking occurs if

the government does not pay for the equity or refund the

surplus proceeds from any subsequent sale of the property.

This Court should reject the Petitioner’s arguments and

affirm the court below.

7

A.

The Petitioner Did Not Have a Property

Interest Protected by the Takings Clause at

the Time Hennepin County Sold the Property

As Respondents point out, the Petitioner’s arguments

in this dispute appear to have shifted. Resp. Br. 14 n.7.

During the proceedings below, Petitioner’s claimed

property interest appears to have been the $25,000

difference between the Petitioner’s unpaid property

tax debt of $15,000 and the $40,000 that was paid to

Respondents for the property in a sale that occurred in

2016, over a year after the Respondents had obtained

absolute title in the property in 2015. Pet. App. 4a, 6a.

In other words, the alleged taking was the government’s

retention of the “surplus” proceeds obtained in the 2016

post-forfeiture sale of the property. See Resp. Br. 14 n.7.

The Eighth Circuit below correctly concluded that no

unconstitutional taking occurred based on the alleged

failure to pay petitioner the surplus proceeds of the

sale that occurred in 2016 because, under Minnesota

law, the petitioner had no property interest in such

proceeds at the time they were generated by the sale.

Pet. App. 8a (“Where state law recognizes no property

interest in surplus proceeds from a tax-foreclosure sale

conducted after adequate notice to the owner, there is no

unconstitutional taking.”).

The WCA supports affirmance of the Eighth Circuit’s

decision on this point. Because Minnesota’s statutes did

not provide a right to Petitioner to receive the excess

proceeds from the 2016 sale of the property for which

Respondents had acquired absolute title in 2015, Resp.

Br. 7, this Court should likewise conclude no protected

property interest existed in such proceeds. See Stop

8

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

Env’t Prot., 560 U.S. 702, 707, 130 S. Ct. 2592, 2597

(2010) (“Generally speaking, state law defines property

interests[.]”). Indeed, it is the absence of a statutory right

to such surplus proceeds that distinguishes this case from

those, like United States v. Lawton, 110 U.S. 146 (1884),

in which this Court observed that it would violate the

Takings Clause for the government to withhold surplus

proceeds to which a former owner is statutorily entitled.

See Nelson, 352 U.S. at 109-10.

B. A Compensable Taking Did Not Occur When

Respondents Obtained Petitioner’s Real

Property

The Petitioner now advances a theory that the relevant

property interest was her “equity”—which she defines

as the difference between the value of her property and

her outstanding debt, Pet. Br. 8—and that Minnesota

engaged in a taking when it acquired fee simple absolute

title to her property without compensating her for this

excess. Pet. Br. 24. The Petitioner argues that Minnesota

law, by failing to provide a mechanism for compensating

her for her alleged equity interest, has impermissibly

transformed private property into public property via

legislation. Pet. Br. 24-27. The United States as amicus

curiae supporting neither party also takes this position,

asserting that the alleged taking occurred in 2015 when

the Respondents acquired title to a property that was

allegedly worth more than the underlying tax debt. U.S.

Br. 14. 2 These arguments are flawed.

2. In making these arguments, the Petitioner and the United

States seem to be echoing the Sixth Circuit’s recent decision

9

1.

Petitioner did not have a protected property

interest in the value of the property above

its debts.

a. First, as the Respondents demonstrate in detail,

there is no legislative taking of a “traditional property

interest” when states craft tax-forfeiture frameworks

that treat an owner’s entire interest in land as forfeited

when taxes go unpaid, even if the land is otherwise

more valuable than the taxes. Resp. Br. 17-29. There is

no uniform common law rule against such forfeitures or

how states treat the issue of surplus proceeds when such

forfeitures occur. On this point, the WCA submits as an

example the contrast between Wisconsin law and Michigan

law, which was the state law at issue in Hall v. Meisner,

51 F.4th 185 (6th Cir. 2022), petition for cert. filed, No.

22-874 (Mar. 9, 2023).

With respect to Michigan law, for example, the

Michigan Supreme Court has held that Michigan’s

“common law recognizes a former property owner’s

property right to collect the surplus proceeds that are

realized from the tax-foreclosure sale of property.”

Rafaeli, LLC v. Oakland Cty., 505 Mich. 429, 470, 952

N.W.2d 434 (Mich. 2020). The Michigan Supreme Court

in Rafaeli relied on prior Michigan Supreme Court

in Hall v. Meisner, 51 F.4th 185 (6th Cir. 2022), petition for

cert. filed, No. 22-874 (Mar. 9, 2023). In that case, the Sixth

Circuit held (1) that property owners have a “traditional property

interest” in “an entitlement to the equity in their homes,” which

the court described as “equitable title,” and (2) that a compensable

taking of a property owner’s “equitable title” occurs when a

local government takes absolute title to homes as payment for

tax delinquencies that are less than the value of the property. 51

F.4th at 190, 194.

10

decisions that implied the existence of the common law

right that the court recognized. One of those cases

was Dean v. Dep’t of Natural Resources, 399 Mich. 84,

247 N.W.2d 876 (1976), in which the Michigan Supreme

Court previously had recognized the right of a property

owner to collect the surplus proceeds from a taxforeclosure sale of the property via a common-law claim

of unjust enrichment. The court in Rafaeli explained that

“[i]nherent in Dean’s holding is Michigan’s protection

under our common law of a property owner’s right to

collect the surplus proceeds that result from a taxforeclosure sale.” 505 Mich. at 470, 952 N.W.2d at 458.

The court explained that “the plaintiff must have had a

common-law right to these surplus proceeds” because

“[o]therwise, her claim of unjust enrichment would not

be actionable because it could not have been said that the

state retained a benefit at her expense.” Id.

In contrast, the Wisconsin Supreme Court has

previously rejected the ability of a property owner to

use a common-law claim of unjust enrichment to collect

the surplus proceeds from the subsequent sale of a

tax-foreclosed property. See Oosterwyk v. Milwaukee

Cty., 31 Wis. 2d 513, 143 N.W.2d 497 (1966). Just as the

Michigan Supreme Court’s recognition of the right of a

property owner to bring an unjust enrichment claim for

the surplus proceeds of a tax-foreclosure sale implied a

common law right to those proceeds under Michigan law,

the Wisconsin Supreme Court’s rejection of the ability of

a former property owner to bring an unjust enrichment

claim under the same circumstances implies the absence

of such a common law right in the State of Wisconsin.

Obviously, this case involves neither Wisconsin nor

Michigan law as the underlying state law. The WCA

11

nevertheless believes this contrast is relevant to the extent

it demonstrates the differences that exist among the states

in how these issues have been treated. Such differences

weigh against the Petitioner’s claim that Minnesota law

interferes with a traditional property right by not allowing

her to recover her alleged equity interest.

b. Next, the WCA respectfully submits that allowing a

former property owner to claim alleged “equity”—defined

as the excess value of the real property over the unpaid

tax debt 3 —as the protected property interest in cases

like this one improperly conflates the issues of whether

a protected property interest exists and whether just

compensation has been provided. A different way to view

this case is as a claim that Petitioner did not receive just

compensation for her real property: i.e., that she only

received $15,000 via the elimination of her tax debt, not

the full market value of the real property, and that she

should be compensated for that excess market value. The

protected property interest in this framing of the dispute

is the real property itself.

When framed this way, however, the Petitioner’s claim

necessarily fails because there was no “taking” of the real

property. As already discussed, there is no taking when

a government obtains absolute title to real property via

an in rem tax-forfeiture proceeding like the one at issue

here. And, the Petitioner does not appear to dispute

that Respondents could take her real property to satisfy

her tax debt. U.S. Br. 7. Thus, the question of whether

3. Pet. Br. 8 (“The private property interest at issue in this

case is Tyler’s home equity, the value she possessed in her property

above the amount of her total debt.”).

12

Petitioner received “just compensation”—the fair market

value of the real property, United States v. 50 Acres of

Land, 469 U.S. 24, 29 (1984)—should be irrelevant.

2.

If Petitioner did have a protected property

interest in “equity,” Petitioner forfeited

that interest through her own neglect.

Next, even if Petitioner did have an “equity interest”

in her real property that would otherwise be recognized

as “property” under the Takings Clause, Respondents are

correct the Takings Clause does not apply to compensate

property owners for the consequences of their own neglect.

See Texaco, Inc. v. Short, 454 U.S. 516, 530 (1982). A

legislature may condition the continued retention of vested

property rights “on performance of certain affirmative

duties” and “[a]s long as the constraint or duty imposed

is a reasonable restriction designed to further legitimate

legislative objectives, the legislature acts within its powers

in imposing such new constraints or duties.” United States

v. Locke, 471 U.S. 84, 104, 105 S. Ct. 1785 (1985). Thus, in

Locke this Court held the Takings Clause did not prevent

Congress from enacting a statute “providing that holders

of unpatented mining claims who fail to comply with the

annual filing requirements of the Federal Land Policy

and Management Act of 1976 (FLPMA), 43 U.S.C. § 1744,

shall forfeit their claims.” 471 U.S. at 86, 107-08. This

Court explained that there was no violation of the Takings

Clause because it was the “failure to file on time—not the

action of Congress—that caused the property right to be

extinguished.” Id. at 107.

Similarly, here there was no taking when Petitioner

failed to preserve her alleged equity interest by taking

13

steps to redeem her property or otherwise answer

Hennepin County’s in rem forfeiture action, despite the

multitude of opportunities she had to do so. Resp. Br. 6.

It is true a state “may not sidestep the Takings Clause

by disavowing traditional property interests,” Phillips

v. Washington Legal Foundation, 524 U.S. 156, 167

(1998), or “ipse dixit … transform private property into

public property without compensation,” Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980). A

state’s imposition of reasonable conditions on the retention

of a property right does not conflict with these principles,

however. And when a property owner, like Petitioner, fails

to comply with reasonable conditions and loses property

as a result, it is the property owner’s own actions, not the

statutes at issue, that result in the loss of the property.

See generally Sheehan v. Suffolk Cty., 67 N.Y.2d 52, 5960, 490 N.E.2d 523 (N.Y. 1986) (applying Texaco, Inc. to

reject claims similar to Petitioner’s).

3.

The purpose of the Takings Clause does

not support finding a compensable taking

under these circumstances.

Rejecting Petitioner’s claim and affirming the court

below would also be consistent with “the purpose of the

Takings Clause, which is to prevent the government from

forcing some people alone to the bear public burdens which,

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

as a whole.” Murr v. Wisconsin, 137 S. Ct. 1933, 1943

(2017) (quoting Palazzolo v. Rhode Island, 533 U.S. 606,

617-18 (2001)). This case does not involve the traditional

situations in which a government is, through regulation,

appropriating property, recharacterizing private property

as public property, or otherwise attempting to sidestep

14

the Takings Clause. This is not a situation, for example,

in which the government has committed a physical taking

by “us[ing] its power of eminent domain to formally

condemn property.” Cedar Point Nursery v. Hassid,

141 S. Ct. 2063, 2071 (2021). Nor is this a case of the

government “physically tak[ing] possession of property

without acquiring title to it.” Id. The Respondents took

physical possession of Petitioner’s property via the in

rem forfeiture of absolute title as compensation for the

taxes due on the property, which the Petitioners do not

challenge.

Nor would finding a compensable taking under these

circumstances be consistent with the standards this Court

applies in the regulatory takings context to determine

whether a taking has occurred. See generally Penn Cent.

Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).

Although this case does not present a regulatory takings

dispute, the WCA respectfully suggests this Court’s

jurisprudence addressing regulatory takings provides

useful principles that, by analogy, indicate no compensable

taking occurs when a government obtains title to real

property via an in rem tax-forfeiture proceeding.

For example, one factor this Court considers in the

regulatory takings context is the economic impact of the

state law at issue. Although Petitioner would likely claim

she has suffered an adverse economic impact because

she did not receive what she alleges is the full value in

her property, it is well-established that “mere diminution

in the value of property, however serious, is insufficient

to demonstrate a taking.” Concrete Pipe and Products

of California, Inc. v. Construction Laborers Pension

Trust for Southern California, 508 U.S. 602, 113 S. Ct.

15

2264 (1993). Yet, that is effectively all that Petitioner is

challenging here—again, she does not argue it is the

transfer of the title that was the taking, but rather the

transfer of the title without providing her a mechanism

for recovering the alleged full value of the property.

One way of looking at disputes like this one is that

the in rem tax-forfeiture framework simply has the

effect of diminishing the value to the property owner

of the property. Such laws do not render the property

valueless, however, because the property still serves

as compensation for the unpaid tax debts—in this case,

Petitioner’s alleged unpaid tax debt of $15,000. Although

Petitioner alleges her property was actually worth $40,000,

in the regulatory takings context, a 62.5% reduction in

value is not the type of loss in value that would typically

demonstrate a compensable taking. See, e.g., Pulte Home

Corp. v. Montgomery Cty., Md., 909 F.3d 685, 696 (4th

Cir. 2018) (eighty-three percent diminution in value does

not establish a taking).

In the regulatory takings context this Court also

looks to “reasonable investment-backed expectations”

as a factor to consider when determining whether a

compensable taking has occurred. Cedar Point Nursery,

141 S. Ct. at 2071. Here, the Petitioner purchased the

condominium at issue in 1999, Pet.App.2a., at which time

the relevant aspects of Minnesota’s tax-forfeiture process

were already well-established. Pet. App. 7a. The Petitioner

“cannot claim” that she “reasonably expected” to keep

her alleged equity interest in the property if she did not

pay her property taxes and took no steps to redeem her

property, given that for decades Minnesota’s laws have not

allowed for the distribution of surplus proceeds to former

16

owners. See Murr, 137 S. Ct. at 1949 (“Petitioners cannot

claim that they reasonably expected to sell or develop their

lots separately given the regulations which predated their

acquisition of both lots.” (ROBERTS, C.J., dissenting)).

Indeed, “[a]ll citizens are presumptively charged with

knowledge of the law.” Atkins v. Parker, 472 U.S. 115, 130

(1985). “Generally, a legislature need do nothing more

than enact and publish the law, and afford the citizenry a

reasonable opportunity to familiarize itself with its terms

and to comply.” Texaco, Inc., 454 U.S. at 532.

Finally, the character of Minnesota’s laws also

supports affirmance. Such laws do not exist to acquire

“resources to permit or facilitate uniquely public

functions.” Penn Cent. Transp. Co., 438 U.S. at 128.

Rather, laws like Minnesota’s are similar to the type of

“public program adjusting the benefits and burdens of

economic life to promote the common good.” Id. at 124.

Whereas in rem tax-forfeiture laws might burden those

property owners whose property is worth more than the

underlying tax debt, such laws benefit others for whom the

tax debt exceeds the value of their properties. Such laws

also serve the common good by “return[ing] abandoned

land to productive use and the tax rolls.” Resp. Br. 17. In

doing so, such laws avoid the need to shift more of the

property tax burden to those property owners who do pay

their taxes. And, as this Court explained in Penn Central,

“in a wide variety of contexts, [the] government may

execute laws or programs that adversely affect recognized

economic values” and “[e]xercises of the taxing power are

one obvious example.” 438 U.S. at 124.

To be clear, it is not WCA’s position that this is a

regulatory takings case that must be governed by the

17

standards set forth in Penn Central. Those standards

may provide useful tools, by analogy, for assessing

whether it would be consistent with the purpose of the

Takings Clause to find a compensable taking under these

circumstances. As discussed above, those standards

would weigh against finding a compensable taking when

a government obtains title to real property via an in rem

tax forfeiture process, even when the property may be

worth more than the underlying tax debt.

C.

This Cour t’s Prior Precedents Suppor t

Respondents

WCA agrees with Respondents that this Court’s

decision in Nelson v. City of New York, 352 U.S. 110

(1956), supports affirmance here. The law at issue in

Nelson allowed for the relevant local official to file with

the relevant clerk’s office a list of parcels with tax liens

that had been unpaid for a certain period of time. 352

U.S. at 104 n.1 (discussing s D17—1.0 et seq.). The list

was treated as the commencement of a legal proceeding

against the parcels, property owners were required to

receive notice, and there was a time period for redeeming

(by paying the unpaid taxes and interest) or answering.

Id. And, if no redemption or answer was made there was

a foreclosure that resulted in the conveyance to the City

of a fee simple absolute in the property. Id.

This Court explained that “[w]hat the City of New

York has done is to foreclose real property for charges

four years delinquent and, in the absence of timely action

to redeem or to recover[] any surplus, retain the property

or the entire proceeds of the sale.” 352 U.S. at 110. This

Court held that “nothing in the Federal Constitution

18

prevents this where the record shows adequate steps were

taken to notify the owners of the charges due and the

foreclosure proceedings.” Id. This is a holding on which

states, including Wisconsin, have relied for decades. See,

e.g., Ritter v. Ross, 207 Wis. 2d 476, 485, 558 N.W.2d 909

(Ct. App. 1996).

The Petitioner attempts to distinguish Nelson by

noting that the New York City law in that case “gave the

owners an opportunity to claim the surplus proceeds from

a judicial sale of the property.” Pet. Br. 30. And, it is true

that the New York City law at issue in Nelson allowed an

owner to file a timely answer in the foreclosure proceeding

asserting that the property had a value substantially

exceeding the tax due. In such a case, the court would then

direct a sale so that surplus moneys could be available to

the answering party. Nelson, 352 U.S. at 110 (discussing

City of New York v. Chapman Docks Co., 1 App. Div.

2d 895, 149 N.Y.S. 2d 679). This opportunity to recover

surplus proceeds applied in cases when there was an

answering party in the foreclosure proceeding, before

passing of title to the state.

What was important in Nelson was not the specific

details of the mechanisms available to the property owner

to preserve his or her interests, however, but that such

mechanisms were available. And here, of course, the

Petitioner had several mechanisms available to her to

preserve her alleged equity interest in her property prior

to the transfer of title. The Petitioner could have redeemed

her property by paying the tax debt, sold the property to

pay the tax debt (in which case she would have kept the

excess proceeds), or entered into a payment plan. Resp.

Br. 6. Even after the transfer of title, the Petitioner had

19

the opportunity to apply to repurchase the property for

the amount of the tax debt, thus preserving her alleged

equity interest. Resp. Br. 7. Under these circumstances,

the Eighth Circuit was correct to conclude that any factual

differences between Minnesota’s statutory framework and

the New York City law in Nelson were “immaterial” and

“not constitutionally significant.” App. 9a. What matters

for constitutional purposes is that a former property

owner received constitutionally adequate notice and had

an opportunity to take action to preserve the alleged

property interest. That clearly happened here.

Finally, WCA submits there is no merit to Petitioner’s

claim that this Court’s decision in Nelson has been

“disproven” by this Court’s subsequent decision in Knick

v. Township of Scott, PA, 139 S. Ct. 2162, 2171 (2019).” The

Court in Knick was addressing the question of whether a

property owner must bring a claim in state court for just

compensation under state law before bringing a federal

takings claim in federal court—the so-called “statelitigation requirement.” This Court had first imposed

the “state-litigation requirement” in Williamson County

Regional Planning Comm’n v. Hamilton Bank of Johnson

City, 473 U.S. 172, 105 S. Ct. 3108 (1985). In Knick this

Court overruled Williamson County and held that “[a]

property owner has an actionable Fifth Amendment

takings claim when the government takes his property

without paying for it” and thus may bring a claim in federal

court without first pursuing remedies under state law.

139 S. Ct. at 2167-68. Notably, Williamson County, which

first imposed the state-litigation requirement at issue in

Knick, was decided almost thirty years after this Court’s

decision in Nelson and there is no indication in Knick that

this Court intended to cast doubt on any of its Takings

20

Clause jurisprudence from before Williamson County was

decided. There is certainly no basis for concluding that

the Supreme Court intended to overrule Nelson.

Indeed, Petitioner’s reliance on Knick is further

mistaken to the extent Petitioner compares the procedures

available to the property owner in Nelson with state law

procedures for seeking just compensation after a taking

has occurred. The ability of a former property owner

to receive any surplus proceeds from the sale of a taxforeclosed property under state law is not the type of

“state law procedure” that was at issue in Knick. Further,

as discussed above, the New York City law at issue in

Nelson allowed property owners to file an answer in the

foreclosure proceeding raising the difference between

the value of the property and the tax due before any

taking had occurred, thereby obtaining a judicial sale and

recovering the surplus proceeds. The holding in Knick that

a property owner may bring a takings claim in federal

court without first exhausting state law remedies for a

taking does not undermine the entirely distinct principle

that no taking occurs when property is transferred to the

state after the property owner failed to take advantage of

state law procedures to avoid forfeiture of the property.

D.

This Court Should Avoid Finding a Protected

Property Interest in “Equity” Independent of

State Law

Finally, WCA respectfully urges the Court not to

issue a decision that would have the effect of recognizing

the “equity interest” or “surplus proceeds” claimed

by Petitioner as a “traditional property right” entitled

to federal constitutional protection regardless of its

21

treatment under state law. Cf. Schneider v. Cal. Dep’t

of Corr., 151 F.3d 1194, 1200 (9th Cir. 1998) (“[T]here

is, we think, a ‘core’ notion of constitutionally protected

property into which state regulation simply may not

intrude without prompting Takings Clause scrutiny.”) As

Respondents ably demonstrate there “has never been a

universal common-law or constitutional rule” regarding

the treatment of the surplus value in excess of the tax

debt of a forfeited property and “forfeiture of an entire

interest in land has a long historical pedigree, including in

the specific context of the failure to pay property taxes.”

Resp. Br. 1, 17-25, 37. In light of this history, this is not an

“exceptional circumstance” justifying a departure from

this Court’s traditional reliance on state law to define

property rights for purposes of the Takings Clause.

Cedar Point Nursery, 141 S. Ct. at 2075-76 (“As a general

matter, it is true that the property rights protected by the

Takings Clause are creatures of state law.”); Murr, 137 S.

Ct. at 1953 (“State laws define the boundaries of distinct

units of land, and those boundaries should, in all but the

most exceptional circumstances, determine the parcel at

issue.” (ROBERTS, C.J., dissenting)). This Court should

avoid a ruling that would effectively federalize an issue

that resides squarely within the realm of one of the core

state powers: tax administration. See Nat’l Priv. Truck

Council, Inc. v. Okla. Tax Comm’n, 515 U.S. 582, 586

(1995); see also Leigh, 193 U.S. at 87.

Rather, this Court should, as it generally does,

assess the existence of a property interest here through

reference to state law. While Minnesota’s statutes and

similar statutes of other states may seem harsh to some,

by allowing for an owner’s entire interest in land to be

forfeited as satisfaction of unpaid taxes when the value

22

of the land may otherwise exceed the amount of unpaid

taxes, to others Minnesota’s approach may represent an

appropriate balance between the interests of property

owners and the government’s interest in ensuring the

collection of tax revenues. Regardless, “relief from the

hardship imposed by a state statute is the responsibility

of the state legislature and not of the courts, unless some

constitutional guarantee is infringed.” Nelson, 352 U.S.

at 110-111.

In this respect, Wisconsin’s treatment of this issue

over the past several decades presents an example of how

a state’s balancing of the interests of property owners and

the interest of local governments in effective and efficient

tax administration can change over time. In Wisconsin

there is no common law right to the surplus proceeds from

the subsequent sale of a tax-foreclosed property. The

Wisconsin Supreme Court has rejected, for example, the

ability of a property owner to use a common-law claim of

unjust enrichment to collect such proceeds. Oosterwyk, 31

Wis. 2d at 516-17. In that case, a former property owner

sought to bring a claim for unjust enrichment against

a county that received the property via a tax deed and

subsequently retained the surplus proceeds after selling

the property. The Wisconsin Supreme Court noted that

Wisconsin’s tax statutes were silent on the question of the

distribution of such surplus proceeds: “Ch. 75 appears to

make no provision whatsoever for distribution of a surplus

upon sale of land as to which a county had obtained a tax

deed.” 31 Wis. 2d at 516, 143 N.W.2d at 498. The court

went on to reject the former property owner’s unjust

enrichment claim, stating that “[i]n our opinion, a former

owner such as Mr. Oosterwyk is not entitled to any surplus

unless the legislature chooses to provide therefor,” 31 Wis.

23

2d at 517, 143 N.W.2d at 499, and that “[w]e perceive no

basis in equity to hold that if the property is subsequently

sold at a profit it is the former owner who is entitled to

enjoy such excess,” 31 Wis. 2d at 518, 143 N.W.2d at 499.4

Approximately two decades after Oosterwyk, in 1987,

Wisconsin’s policymakers enacted legislation requiring

that, when a county obtained fee simple title to real

property via a tax deed, the county needed to notify the

former owner and allow the former owner sixty days

in which to request payment of a share of the proceeds

from any future sale. If the former owner made such a

request, the county was required to send the former owner

any such proceeds minus the delinquent taxes, interest,

penalties, and statutory costs (i.e., the surplus proceeds).

1987 Wis. Act 27, § 1560m (available at https://docs.legis.

wisconsin.gov/1987/related/acts/27.pdf).

Less than a year later, Wisconsin’s policymakers

made further changes by enacting legislation limiting

the statutory right to surplus proceeds to former owners

who “had used the property sold as the former owner’s

homestead at any time during the 5 years preceding the

county’s acquisition of it.” 1987 Wis. Act 378, §§ 120, 122

4. Because in Wisconsin the common law applies when a

statute is silent on a subject, the Wisconsin Supreme Court’s

pronouncements in Oosterwyk represent the common law of

Wisconsin. See Bd. of School Directors of Town of Ashland v.

City of Ashland, 87 Wis. 533, 58 N.W. 377 (Wis. 1894) (“While the

statute has no word applicable to the present case, it seems to be

a casus omissus. It is left to the disposal of the common law ….”);

Gerol v. Arena, 127 Wis. 2d 1, 13, 377 N.W.2d 618, 623 (Wis. Ct.

App. 1985) (common law damages apply when statute “is silent

as to remedy”).

24

(available at https://docs.legis.wisconsin.gov/1987/related/

acts/378). In other words, homestead property owners had

a statutory right to any surplus proceeds remaining after

the sale of a tax-forfeited property, but that statutory right

did not attach to owners of non-homestead property. See

Ritter, 558 N.W.2d at 913 n.9. And, even with respect to

homestead property, the former property owner forfeited

this right if the former property owner did not, within

sixty days of receiving a statutorily required notice of

the former property owner’s potential entitlement to

the surplus proceeds of a future sale, make a request in

writing for payment of such proceeds.

Recently, Wisconsin made further changes to these

statutes. Wisconsin law now requires counties that have

obtained an estate in fee simple absolute as a result of an in

rem foreclosure of a tax lien to notify the former property

owner that the former owner may be entitled to a share

of the proceeds of a future sale. Wis. Stat. § 75.36(2m).

Counties are then required to send any surplus proceeds

from a tax-foreclosure sale to the former property owner

(without regard for whether the property at issue was

homestead property). Id. Only if the county is unable

to locate the former owner within 5 years following the

mailing of the required notice does the former owner

forfeit the right to any remaining equity in the property.

Id.

The WCA has significant concerns that these recent

changes to Wisconsin law create unacceptable burdens for

Wisconsin counties and could prove immensely difficult

to administer. And, the WCA anticipates potentially

advocating for changes to the law in the future. Were

this Court to adopt Petitioner’s arguments, however—by

25

recognizing a novel traditional property right on the part

of a property owner to the “equity” in their property that

cannot be abrogated by state legislation and that is taken

when a government obtains title to the property for unpaid

taxes—this Court would effectively preclude the ability

of the Wisconsin Legislature to strike a different balance

between property owners and local governments on this

topic in the future.

The WCA is also concerned that the arguments of

Petitioner and certain amici, if adopted, could call into

question the constitutionality of Wisconsin’s current

statutory framework, even though Wisconsin law currently

allows for former property owners to receive any surplus

proceeds left over if a county sells property acquired by

the taking of a tax deed. Even under the current statutory

framework, a former owner loses any right to surplus

proceeds if the former owner cannot be located within

5 years. Wis. Stat. § 75.36. Presumably, were this Court

to hold that a former owner has a “traditional property

right” to such proceeds that cannot be diminished by state

legislation, a future former property owner would claim

that such a time-delineated forfeiture of the statutory right

still violates the Takings Clause. Further, the statutory

right to surplus proceeds in Wisconsin only applies if a

county sells the property, and counties are not required

to do so. See Wis. Stat. § 59.01 (authorizing counties “to

acquire and hold, lease or rent real and personal estate for

public uses or purposes, including lands acquired under ch.

75”). Were this Court to adopt the position now advocated

by Petitioner and the United States, and adopted by the

Sixth Circuit in Hall—that a compensable taking occurs

at the moment a local government takes absolute title to

a tax-delinquent property that is worth more than the

26

tax debt—counties would effectively be forced to sell

such properties in order to compensate former property

owners even if it might make more sense for the counties

to retain the properties.

Finally, the WCA shares the concerns of Respondents

that, if this Court concludes a compensable taking occurs

when a government takes absolute title to real property for

unpaid taxes, such a ruling would create “serious practical

problems” relating to when and how such property should

be valued. Resp. Br. 42-43. It is inevitable that disputes

regarding the value of such properties will arise, if not

be the norm, thus introducing more costs, inefficiencies,

and uncertainty to a process that exists in order to

ensure speedy and effective property tax collection and

administration.

II. This Case Does Not Implicate the Excessive Fines

Clause

WCA also supports the Respondents in urging

affirmance of the Eighth Circuit’s determination that this

case does not present an unconstitutional excessive fine. Pet.

App. 9a-10a. To conclude that a forfeiture is subject to the

limitations of the Excessive Fines Clause, this Court “must

determine that it can only be explained as serving in part to

punish.” Austin v. United States, 509 U.S. 602, 610 (1993).

When a government obtains title to real property via an

in rem proceeding due to unpaid property taxes, however,

the intent is not to punish the former property owner.

Rather, the purpose of such proceedings is “to ensure the

payment of taxes and the collection of revenue.” Waukesha

Cty. v. Young, 106 Wis. 2d 244, 249, 316 N.W.2d 362 (1982)

(describing Wisconsin’s in rem foreclosure statute); see

27

also In re Golden, 190 B.R. 52, 57 (Bankr. W.D. Pa. 1995)

(“The purpose of tax sales is not to strip the taxpayer of his

property, but to insure the collection of taxes.”). Although

in some cases in rem forfeiture can result in a government

acquiring property that is worth more than the unpaid

tax liability, resulting in lost value to the former property

owner, in other cases the former property owner benefits

because the property is worth less than the outstanding

debt that is extinguished. As the United States explains:

“A program with those potential benefits to taxpayers—

without any consideration of ‘fault’ or ‘innocence’—cannot

be considered punitive.” U.S. Br. 29.

CONCLUSION

For the foregoing reasons, the Wisconsin Counties

Association respectfully requests that this Court affirm

the decision and judgment of the court of appeals below.

Dated this 5th day of April 2023.

Respectfully submitted,

Matthew J. Thome

Counsel of Record

A ndrew T. Phillips

Attolles Law, s.c.

222 East Erie Street, Suite 210

Milwaukee, Wisconsin 53202

(414) 285-0825

mthome@attolles.com

Counsel for Wisconsin Counties

Association as Amicus Curiae