Petition for Writ of Certiorari — Sandra K. Nieveen, Petitioner v. TAX 106, et al.

i

TABLE OF CONTENTS

Opinion of the Nebraska Supreme Court,

dated May 13, 2022 ........................................... 1a

Order of the District Court of Lancaster County,

Nebraska, granting Motion to Dismiss,

signed Dec. 4, 2019 ......................................... 21a

Docket Entry, Appellant’s Motion for Rehearing

overruled, dated June 22, 2022, and Granting

Motion to Stay Mandate,

dated June 28, 2022 ........................................ 53a

Statutory Provisions: Excerpts of the relevant

statutes in effect at the time of the

foreclosure ....................................................... 55a

Amended Complaint, raising federal issues,

dated May 24, 2019 ......................................... 60a

Notice to the Nebraska Court of Appeals that the

case on appeal involves federal constitutional

questions, dated Aug. 17, 2021 ....................... 78a

Docket Entry, Order removing case to the Nebraska

Supreme Court, dated Sept. 7, 2021 .............. 80a

Appendix 1a

SANDRA K. NIEVEEN, APPELLANT, V. TAX 106,

A NEBRASKA GENERAL PARTNERSHIP,

ET AL., APPELLEES.

___ N.W.2d ___

Filed May 13, 2022. No. S-21-364.

1.

Constitutional

Law:

Statutes.

The

constitutionality

of

statutes

and

statutory

interpretation present questions of law.

2. Motions to Dismiss: Pleadings: Appeal and

Error. A district court’s grant of a motion to dismiss

on the pleadings is reviewed de novo by an appellate

court, accepting the factual allegations in the

complaint as true and drawing all reasonable

inferences of law and fact in favor of the nonmoving

party.

3. Actions: Motions to Dismiss: Pleadings:

Appeal and Error. An appellate court reviewing a

dismissal on the pleadings is not obliged to accept as

true legal conclusions couched as factual allegations

or threadbare recitals of the elements of a cause of

action supported by mere conclusory statements.

4. Equity: Quiet Title. A quiet title action sounds in

equity.

5. Equity: Appeal and Error. On appeal from an

equity action, an appellate court tries factual

questions de novo on the record and, as to questions of

both fact and law, is obligated to reach a conclusion

independent of the conclusion reached by the trial

court, provided that where credible evidence is in

conflict in a material issue of fact, the appellate court

considers and may give weight to the fact that the trial

Appendix 2a

judge heard and observed the witnesses and accepted

one version of the facts rather than another.

Appeal from the District Court for Lancaster

County: Kevin R. McManaman, Judge. Affirmed.

Mark T. Bestul, Jennifer Gaughan, and Caitlin

Cedfeldt, of Legal Aid of Nebraska, for appellant.

Christian R. Blunk, of Harris & Associates, P.C.,

L.L.O., for appellees TAX 106 and Vintage

Management, LLC.

Patrick F. Condon, Lancaster County Attorney,

and Eric Synowicki for appellees Lancaster County

and Rachel Garver.

Douglas J. Peterson, Attorney General, and James

A. Campbell, Solicitor General, for appellee Attorney

General.

Heavican, C.J., Miller-Lerman, Cassel, Funke,

Papik, and Freudenberg, JJ., and O’Gorman, District

Judge.

Papik, J.

After Sandra K. Nieveen failed to pay her real

property taxes, the Lancaster County treasurer sold a

tax certificate for the property to a private party. Over

3 years later, when Nieveen had still not paid the

relevant property taxes, the tax certificate holder

applied for and obtained a tax deed to the property.

Nieveen later filed a lawsuit in which she argued that

she should be declared the owner of the property for

various reasons. The district court denied Nieveen

relief, finding that she did not qualify for an extended

redemption period under Neb. Rev. Stat. § 77-1827

(Reissue 2018) and that the tax certificate sale process

did not violate her constitutional rights under the U.S.

Appendix 3a

and Nebraska Constitutions. Nieveen now appeals,

but we find no error on the part of the district court

and, thus, affirm.

BACKGROUND

Tax Certificate Sale and Deed Transfer.

Nebraska utilizes tax certificate sales as one

method of recouping delinquent property taxes. See,

Neb. Rev. Stat. § 77-1801 et seq. (Reissue 2018);

Continental Resources v. Fair, ante p. 184, 971 N.W.2d

313 (2022) (discussing statutes governing tax

certificate sale process). Nieveen did not pay her 2013

property taxes. As a result, the Lancaster County

treasurer, pursuant to Nebraska’s tax certificate sale

statutes, sold a tax certificate for Nieveen’s property

to TAX 106 on March 2, 2015.

Three years after purchasing the tax certificate,

TAX 106 began to take the procedural steps required

by statute to request a tax deed from the Lancaster

County treasurer for Nieveen’s property. See § 771837. On March 2, 2018, TAX 106 sent a notice by

certified mail to Nieveen of its intention to apply for a

tax deed to the property in 3 months’ time if she did

not redeem the property by paying the taxes, interest,

and fees. See § 77-1831.

TAX 106 assigned its interest in the tax certificate

to Vintage Management, LLC (Vintage). In June

2018, after Nieveen failed to redeem the property

within the time period set forth in TAX 106’s notice,

Vintage applied for and received a tax deed to

Nieveen’s property from the Lancaster County

treasurer.

Nieveen’s Quiet Title Action.

Appendix 4a

Nearly a year after the issuance of the tax deed to

Vintage, Nieveen filed this lawsuit in which she

sought to quiet title to the property in her name. The

defendants included Lancaster County and the

Lancaster County treasurer (collectively Lancaster

County), as well as Vintage. Nieveen alleged that TAX

106 obtained the tax certificate by paying $2,390.48

for delinquent property taxes in 2013 and 2014 and

that it paid an additional $1,405.90 in property taxes

for 2015. Nieveen also alleged that at the time

Lancaster County issued the tax deed, her property

was assessed at $61,900, and that there was no deed

of trust securing a mortgage on the property.

Nieveen alleged that the issuance of the tax deed

had violated her rights under the U.S. and Nebraska

Constitutions. Relevant to this appeal, Nieveen

alleged that the issuance of the tax deed had violated

her rights under the Due Process Clauses of the U.S.

and Nebraska Constitutions, the Takings Clauses of

the U.S. and Nebraska Constitutions, and the

Excessive Fines Clauses of the U.S. and Nebraska

Constitutions. She also alleged that she had a

statutory right to a 5-year redemption period under

§ 77-1827 because she had a mental disorder at the

time of the tax certificate sale.

Lancaster County and Vintage filed motions to

dismiss in which they contended that Nieveen’s

complaint failed to state a claim upon which relief

could be granted. The district court granted the

motions to dismiss as to Nieveen’s constitutional

claims.

After the dismissal of Nieveen’s constitutional

claims, her sole remaining claim was that title should

be quieted in her name because she was entitled to an

Appendix 5a

extended redemption period under § 77-1827. The

district court granted summary judgment to

Lancaster County on this claim, because Lancaster

County did not claim an interest in the property at

issue. The district court overruled Vintage’s motion

for summary judgment on that claim, finding that

there remained genuine questions of material fact to

be determined at trial.

Trial Evidence.

At trial, Nieveen offered evidence in support of her

claim that she had a “mental disorder” for purposes of

§ 77-1827 at the time of the tax certificate sale.

Nieveen testified that she had been diagnosed with

“major depressive disorder, recurrent, severe,” and

generalized anxiety disorder.

Nieveen testified that she had dealt with

depression and anxiety for 30 years, but that her

condition had improved in 2018 after she started

taking a new medication. She asserted that she would

have been suffering from symptoms of depression and

anxiety in 2015 because it “was no different than any

other year” prior to beginning her new course of

medication in 2018.

Nieveen testified that she experienced “good days”

and “bad days” with respect to her depression and

anxiety. Before she found an effective medication, she

had more bad days than good days. On a bad day,

Nieveen testified that she would stay at her house and

sleep or watch television. During bad days, she would

not pay bills or pick up her mail. She testified that her

mail would “build up” to such an extent that postal

workers would “bundle it up and throw it on [her] back

porch or . . . take it back to the post office” and warn

Appendix 6a

her that if she did not start “picking up” her mail, they

would no longer deliver to her house. Nieveen claimed

to still have some mail from 2015 that she had not yet

gone through.

Nieveen testified that there was no reason aside

from her mental health that would have prevented

her from responding to the sale of the tax certificate

for her property in March 2015. She also testified,

however, that sometimes she failed to pay bills

because she did not have the money to pay and that

when she did not have the money, she would ignore

the bills. When asked by her counsel why she failed to

pay certain bills, Nieveen initially responded that she

“[j]ust didn’t want to deal with the situation.” When

her counsel followed up to ask if she failed to pay

because of symptoms of her depression and anxiety,

Nieveen responded that it was “because [of]

depression, anxiety, I didn’t want to deal with life in

general. So, looking at my bills was depressing, and

making me anxious. I just didn’t want to deal with it,

and I didn’t deal with it.”

Nieveen acknowledged that several years prior to

trial, she had received a notice from the city that she

needed to make certain repairs to her house and

remove a couch from its front porch. She admitted

that she promptly responded to those notices and,

with the help of her brother-in-law, did what the city

required. She also acknowledged that in 2008, she

received a notice that she had failed to pay her

property taxes, but that her daughter paid the taxes

and, as a result, the situation did not escalate as it did

with respect to the tax certificate sale at issue in this

case.

Appendix 7a

Nieveen admitted that she understood she had to

pay her bills and that there were consequences if she

failed to do so. She also admitted that between 2010

and 2016, neither a guardian, conservator, nor a

power of attorney managed her affairs.

Nieveen’s daughter also testified at trial. Her

daughter testified that she had no reason to doubt

Nieveen’s diagnoses and that she had observed

Nieveen to be “[v]ery withdrawn” and to sleep a lot.

Nieveen’s daughter corroborated Nieveen’s testimony

that she failed to pay taxes and other bills when due.

When asked why Nieveen did not pay her bills,

Nieveen’s daughter responded, “I’d say [it is a]

combination of money and just like—I don’t—denial of

just life, in general of the way life works . . . .”

Nieveen also offered and the district court received

deposition testimony of Sabrina Hellbusch. Hellbusch

is a licensed advanced practice registered nurse in

Nebraska and is board certified in mental health.

Nieveen has been a patient of Hellbusch since

November 2018. Hellbusch confirmed that she had

diagnosed Nieveen with “major depressive disorder,

recurrent, severe,” and generalized anxiety disorder.

Hellbusch testified that Nieveen’s mental disorder

was “severe enough that it could cause a person to

neglect an important activity and could cause a person

to miss important deadlines.” She also testified that,

in her opinion, Nieveen’s symptoms were sufficiently

severe that they explained why her responsibilities

have not always been met. Hellbusch admitted that

she was only able to give opinions concerning

Nieveen’s condition from 2018 forward and thus could

not give an opinion concerning Nieveen’s condition in

2015.

Appendix 8a

In addition to evidence concerning Nieveen’s

mental health, Nieveen offered evidence regarding an

attempt to redeem the property in May 2019. Nieveen

and her daughter testified that her daughter supplied

Nieveen with a blank check and that Nieveen went to

the Lancaster County treasurer’s office to tender

payment for the unpaid taxes. They testified that the

treasurer’s office refused to accept the payment.

Vintage did not present any live testimony at trial.

It did offer and the district court received an affidavit

of Dr. Bruce Gutnik. Dr. Gutnik has practiced

medicine in psychiatry and neurology for more than

46 years. Gutnik stated in his affidavit that he had

reviewed Nieveen’s medical records and prescription

records and concluded there was “no evidence” that at

the time of the tax certificate sale “Nieveen was

unable to manage her own affairs or understand her

then current condition.” He also stated that “[t]here

was no evidence that she could not understand her

legal rights or protect her rights.”

District Court Order.

Following trial, the district court issued a written

order finding that Nieveen was not entitled to the

extended redemption period under § 77-1827 and

dismissing the case. After summarizing the evidence,

the district court explained that the relevant question

was whether Nieveen suffered a mental disorder at

the time of the tax certificate sale in March 2015. The

district court concluded that this court set forth the

definition of “mental disorder” when we said the

following:

[A] person with a mental disorder . . . is

one who suffers from a condition of

Appendix 9a

mental derangement which actually

prevents

the

sufferer

from

understanding his or her legal rights or

from instituting legal action[,] and . . . a

mental disorder . . . is an incapacity

which disqualifies one from acting for

the protection of one’s rights.

Wisner v. Vandelay Investments, 300 Neb. 825, 861,

916 N.W.2d 698, 726 (2018), quoting Maycock v.

Hoody, 281 Neb. 767, 799 N.W.2d 322 (2011) (internal

quotation marks omitted).

The district court determined that Nieveen had

failed to carry her burden to establish a mental

disorder. The district court stated that although it was

clear that Nieveen suffered from depression and

anxiety, “without something more,” it could not find

that her condition was such that she was entitled to

the extended redemption period set forth in § 77-1827.

Nieveen appealed and filed a notice pursuant to

Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) that her

appeal challenged the constitutionality of Nebraska

statutes. We moved the case to our docket. The

Attorney General filed a brief on appeal defending the

constitutionality of the challenged statutes.

ASSIGNMENTS OF ERROR

Nieveen assigns, renumbered and restated, that

the district court erred by (1) finding she did not suffer

from a mental disorder under § 77-1827 at the time of

the tax certificate sale, (2) dismissing her claim that

the issuance of the tax deed violated her rights under

the Due Process Clauses of the U.S. and Nebraska

Constitutions, (3) dismissing her claim that the

issuance of the tax deed violated her rights under the

Appendix 10a

Takings Clauses of the U.S. and Nebraska

Constitutions, and (4) dismissing her claim that the

issuance of the tax deed violated her rights under the

Excessive Fines Clauses of the U.S. and Nebraska

Constitutions.

STANDARD OF REVIEW

[1] The constitutionality of statutes and statutory

interpretation present questions of law. HBI, L.L.C. v.

Barnette, 305 Neb. 457, 941 N.W.2d 158 (2020).

[2, 3] A district court’s grant of a motion to dismiss

on the pleadings is reviewed de novo by an appellate

court, accepting the factual allegations in the

complaint as true and drawing all reasonable

inferences of law and fact in favor of the nonmoving

party. SID No. 67 of Sarpy Cty. v. State, 309 Neb. 600,

961 N.W.2d 796 (2021). However, an appellate court

reviewing a dismissal on the pleadings is not obliged

to accept as true legal conclusions couched as factual

allegations or threadbare recitals of the elements of a

cause of action supported by mere conclusory

statements. Id.

[4, 5] A quiet title action sounds in equity. Wisner

v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d

698 (2018). On appeal from an equity action, an

appellate court tries factual questions de novo on the

record and, as to questions of both fact and law, is

obligated to reach a conclusion independent of the

conclusion reached by the trial court, provided that

where credible evidence is in conflict in a material

issue of fact, the appellate court considers and may

give weight to the fact that the trial judge heard and

observed the witnesses and accepted one version of

the facts rather than another. Id.

Appendix 11a

ANALYSIS

Extended Redemption Period.

Nieveen first argues that the district court erred

by finding that she was not entitled to the 5-year

extended redemption period under § 77-1827. Nieveen

contends that if she was entitled to the extended

redemption period, title to the property should be

quieted in her name, because she attempted to redeem

the property in May 2019 by paying the unpaid taxes.

We will thus consider whether the district court erred

in its determination that Nieveen was not entitled to

the extended redemption period.

Section 77-1827 provides that “[t]he real property

of persons with . . . a mental disorder so sold, or any

interest they may have in real property sold for taxes,

may be redeemed at any time within five years after

such sale.” We have held that an owner of property is

entitled to the 5-year redemption period set forth in

§ 77-1827 if the owner has a mental disorder at the

time of the sale of the tax certificate. See Wisner,

supra. Accordingly, the relevant question in this case

is whether Nieveen had a mental disorder for

purposes of § 77-1827 in March 2015.

Nieveen’s appellate briefs appeared to accept that

the governing definition of mental disorder under

§ 77-1827 was the definition applied by the district

court and set forth in Wisner. That definition, quoted

in the background section above, requires a party

seeking the extended redemption period to establish

that he or she has a mental health condition, but it

also requires that he or she establish that the

condition prevented the person from understanding

his or her legal rights or taking action to protect those

Appendix 12a

rights. See Wisner, supra. At oral argument, Nieveen

seemed to at least implicitly back away from the

Wisner formulation, arguing that Nieveen’s diagnoses

alone should entitle her to the extended redemption

period. To the extent Nieveen has invited us to retreat

from the definition of mental disorder adopted in

Wisner, we decline.

Our adherence to the definition of mental disorder

set forth in Wisner is informed by the history of § 771827 and our interpretation of similar language in a

similar statute. The language of § 77-1827 has not

always used the term “mental disorder.” See § 77-1827

(Reissue 1981). Legislation enacted in 1986 removed

the term “insane” and replaced it with “mental

disorder.” See 1986 Neb. Laws, L.B. 1177, § 34. In the

context of another statute providing for a tolling of the

statute of limitations if a person was “insane,” Neb.

Rev. Stat. § 25-213 (Reissue 1985), we said that “the

word insane means such condition of mental

derangement which actually prevents the sufferer

from understanding his or her legal rights or instituting legal action” and that insanity, for purposes of that

statute, “results in an incapacity which disqualifies

one from acting for the protection of one’s rights.”

Sacchi v. Blodig, 215 Neb. 817, 821, 822, 341 N.W.2d

326, 330 (1983) (emphasis omitted). The same

legislation that changed the terminology of § 77-1827

removed that statute’s reference to the word “insane”

and replaced it with “mental disorder.” 1986 Neb.

Laws, L.B. 1177, § 5. After that amendment, the

Nebraska Court of Appeals held that despite this

change, the statute should have the same meaning.

See Vergara v. Lopez-Vasquez, 1 Neb. App. 1141, 510

N.W.2d 550 (1993). The Court of Appeals relied on

language from this court directing that “[a] mere

Appendix 13a

change of phraseology” will not change the operation

of a statute “unless the intent to make such change is

clear and unmistakable.” Id. at 1146–47, 510 N.W.2d

at 553, quoting Shames v. State, 192 Neb. 614, 223

N.W.2d 481 (1974) (internal quotation marks

omitted). In Maycock v. Hoody, 281 Neb. 767, 799

N.W.2d 322 (2011), we affirmed the Court of Appeals’

interpretation of § 25-213.

All of this history brings us to Wisner v. Vandelay,

300 Neb. 825, 916 N.W.2d 698 (2018), where we held

that the same definition that was once used for

“insane” and was later extended to “mental disorder”

for purposes of § 25-213 should also be used for

“mental disorder” for purposes of § 77-1827. Given the

similarities between the two statutes and between the

respective amendments to the statutes in 1986, we are

not convinced that holding was erroneous.

Furthermore, in the time since our decision in Wisner,

despite making other changes to the tax certificate

sale process, see 2019 Neb. Laws, L.B. 463, §§ 1

through 8 and 10 (amending §§ 77-1802, 77-1831

through 77-1835, 77-1837, and 77-187.01 (Cum. Supp.

2020); repealing § 77-1824.01 (Cum. Supp. 2020)), the

Legislature has not amended § 77-1827. As we often

say, where a statute has been judicially construed and

that construction has not evoked an amendment, it

will be presumed that the Legislature has acquiesced

in the court’s determination of the Legislature’s

intent. Heckman v. Marchio, 296 Neb. 458, 894

N.W.2d 296 (2017). Accordingly, we will analyze

Nieveen’s claim that she had a mental disorder for

purposes of § 77-1827 under the definition adopted in

Wisner.

Appendix 14a

Under the Wisner definition, Nieveen was required

to prove that she had a condition of mental

derangement which prevented her either from

understanding her legal rights or from taking action

to protect her legal rights. We do not believe Nieveen

proved that her condition was such that she was

incapable of understanding her legal rights. Nieveen

acknowledged in testimony that she knew she had to

pay her bills and that there were consequences if she

did not.

We likewise are not persuaded that Nieveen

proved that her mental condition in March 2015

prevented her from taking action to protect her legal

rights. Although Nieveen testified that her mental

health was the only thing that would have prevented

her from responding to the sale of the tax certificate

in March 2015, there was also evidence of other

possible reasons. Nieveen testified that sometimes

she failed to pay bills because she lacked money.

Nieveen’s daughter also testified that Nieveen failed

to pay bills because of a combination of lacking money

and a “denial . . . of the way life works.” Other

evidence also suggested that despite her depression

and anxiety, Nieveen was capable of protecting her

legal rights. Such capacity is indicated by her

testimony that several years prior to trial, she

promptly responded to a notice from the city about the

condition of her house and, with the help of her

brother-in-law, took corrective action. Furthermore,

Nieveen admitted that her affairs were not managed

by a guardian, conservator, or power of attorney.

We also note that Nieveen acknowledged that even

prior to starting a more effective medication in 2018,

she had “good days” and “bad days” with respect to her

Appendix 15a

depression and anxiety. All of Nieveen’s testimony

focused on her claimed inability to tend to

responsibilities during “bad days.” Nieveen provided

no testimony, however, that would have established

what she was experiencing in March 2015 when the

tax certificate was sold. Hellbusch, Nieveen’s expert

witness, could not give an opinion as to Nieveen’s

condition in March 2015. On the other hand, Gutnick,

Vintage’s expert witness, stated in his affidavit that

based on his review of her medical records, he saw no

evidence that she was unable to protect her rights at

that time.

After reviewing this evidence de novo, we find that

the district court did not err in determining that

Nieveen did not have a mental disorder for purposes

of § 77-1827 and thus was not entitled to the extended

redemption period provided for in that statute. While

we have no reason to question that Nieveen suffered

from depression and anxiety in 2015, we do not believe

she proved that those conditions prevented her from

understanding her legal rights or taking action to

protect them. Our decision should not be understood

as a conclusion that depression and anxiety could

never constitute a mental disorder under § 77-1827.

Procedural Due Process.

Nieveen next argues that the district court erred

by dismissing her claim that the issuance of the tax

deed violated her rights to procedural due process

guaranteed by the 14th Amendment to the U.S.

Constitution and article I, § 3, of the Nebraska

Constitution.

The 14th Amendment’s Due Process Clause

provides that States shall not “deprive any person of

Appendix 16a

life, liberty, or property, without due process of law.”

The language in the Nebraska Constitution is similar.

It says, “No person shall be deprived of life, liberty, or

property, without due process of law . . . .” Neb. Const.

art. I, § 3. We have interpreted our state

constitutional provision “coextensive[ly]” with that of

the 14th Amendment. Keller v. City of Fremont, 280

Neb. 788, 791, 790 N.W.2d 711, 713 (2010).

Nieveen alleged in her operative complaint that

her rights to procedural due process were violated in

two ways. First, she asserted that she was provided

inadequate notice because, pursuant to § 77-1831, she

received notice of her right to redeem only 3 months

prior to Vintage’s filing an application for the tax

deed. Second, she asserted that she was denied her

right to procedural due process because there was no

process in place to claim a right to the extended

redemption period under § 77-1827.

We can quickly conclude that the district court did

not err by dismissing Nieveen’s claim she was entitled

to more advance notice of Vintage’s intent to apply for

a tax deed to her property. We very recently rejected

essentially the same argument in Continental

Resources v. Fair, ante p. 184, 971 N.W.2d 313 (2022).

In that case, we held that due process did not require

the delinquent taxpayer to receive notice at the time

of the tax certificate sale and that it was sufficient the

delinquent taxpayer received actual notice that a tax

certificate had been sold, that he had 3 months to

redeem the property, and that if the property owner

failed to do so, the tax certificate holder would apply

for a tax deed. Id. Under the reasoning of Continental

Resources, Nieveen cannot show that she was

constitutionally entitled to earlier notice.

Appendix 17a

As for Nieveen’s claim that she was denied

procedural due process because there was no process

in place to claim a right to the extended redemption

period under § 77-1827, it too encounters an

immediate hurdle. As the district court observed in

dismissing this claim, Nieveen brought this lawsuit to

invalidate the tax deed on the basis of the extended

redemption period and thus it cannot be said that

there was no process by which Nieveen could claim a

right to the extended redemption period. No doubt

aware of this difficulty, Nieveen argues on appeal that

due process required that she be provided with a

hearing in which she could claim a right to the

extended redemption period prior to the issuance of

the tax deed.

We are not persuaded that the district court erred

by dismissing this aspect of Nieveen’s procedural due

process claim. First, it is not clear that Nieveen was

constitutionally entitled to an opportunity for a

hearing prior to the issuance of the tax deed.

Procedural due process is flexible and calls for such

protections as the particular situation demands.

Manning v. Dakota Cty. Sch. Dist., 279 Neb. 740, 782

N.W.2d 1 (2010). And although sometimes

government entities must provide an opportunity for

a hearing before a party is deprived of an interest

protected by the Due Process Clause, that is not

always the case. See id.

Nieveen has not offered any reasons why it was

imperative that an opportunity for a predeprivation

hearing be provided here, and it would seem that at

least some of the relevant factors tilt in the opposite

direction. In order to determine whether an

opportunity for predeprivation process is required,

Appendix 18a

courts consider the “competing interests at stake,

along with the promptness and adequacy of later

proceedings.” United States v. James Daniel Good

Real Property, 510 U.S. 43, 53, 114 S. Ct. 492, 126 L.

Ed. 2d 490 (1993). The competing interests can be

analyzed through the three-part inquiry set forth in

Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47

L. Ed. 2d 18 (1976), which requires a balancing of the

private interest affected by official action, the risk of

an erroneous deprivation through the procedures

used, and the government’s interest. See James

Daniel Good Real Property, supra. Here, although

Nieveen obviously has a great interest in her

property, her operative complaint acknowledged that

even after the issuance of the tax deed, she continued

to reside there. Further, Nieveen can hardly argue

that the process she ultimately received—a full-blown

trial before a district court judge with the power to

invalidate the tax deed issued to Vintage and quiet

title in her name—was somehow inadequate.

In the end, we find it unnecessary to determine

whether Nieveen was constitutionally entitled to the

opportunity for a hearing on the applicability of § 771827’s extended redemption period prior to the

issuance of the tax deed. We reach this conclusion

because Nieveen had such an opportunity. Nieveen’s

operative complaint alleges that she received notice

that the tax certificate holder was applying for a tax

deed on March 2, 2018, but Lancaster County did not

issue a deed to Vintage until June 22. Nieveen could

have filed a lawsuit prior to June 22 seeking to enjoin

Lancaster County from issuing the tax deed on the

grounds that she was entitled to § 77-1827’s extended

redemption period.

Appendix 19a

In other words, Nieveen was not denied a hearing

prior to the issuance of the tax deed; she failed to avail

herself of the opportunity for such a hearing. As we

have previously held, the requirements of due process

are satisfied if a person has reasonable notice and an

opportunity to be heard appropriate to the nature of

the proceeding and the character of the rights which

might be affected by it; if a person has access to the

courts for protection of his or her rights, it cannot be

said that such person was deprived of property

without due process of law. Holste v. Burlington

Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894

(1999). Whether there should be an additional

administrative process—permitting a delinquent

property owner, before the issuance of a tax deed, to

claim the extended right to redeem under § 77-1827—

is a matter properly addressed to the Legislature.

We find that the district court did not err in

dismissing Nieveen’s procedural due process claims.

Takings.

Nieveen also challenges the district court’s

dismissal of her claim that the issuance of the tax deed

violated the Takings Clauses of the U.S. and

Nebraska Constitutions. In support of these claims,

Nieveen alleged in her operative complaint that by

issuing the tax deed to Vintage, Lancaster County

effectuated a taking of her property for a private

purpose. Alternatively, Nieveen alleged in her

operative complaint that even if the issuance of the

tax deed was for a public purpose, she was entitled to

just compensation because her equity in the real

property exceeded her tax debt. Again, however, we

recently rejected identical arguments in Continental

Resources v. Fair, ante p. 184, 971 N.W.2d 313 (2022).

Appendix 20a

In light of that decision, Nieveen cannot show the

district court erred by dismissing her claims under the

Takings Clauses.

Excessive Fines.

Finally, Nieveen argues that the district court

erred by dismissing her claims based on the Excessive

Fines Clauses of the U.S. and Nebraska

Constitutions. Nieveen alleged that because the

issuance of the tax deed resulted in her losing equity

in her property well above her tax debt, it is an

excessive fine. In Continental Resources, supra, we

rejected an identical argument that the issuance of a

tax deed violated the Excessive Fines Clause of the

U.S. Constitution. And although no claim was made

under the Excessive Fines Clause of the Nebraska

Constitution in Continental Resources, Nieveen has

not made an argument that we should ascribe a

different meaning to that provision than its

essentially identical federal counterpart. Accordingly,

we find that the district court did not err in dismissing

Nieveen’s claim under the Excessive Fines Clauses.

CONCLUSION

We find that the district court did not err when it

determined that Nieveen was not entitled to the

extended redemption period under § 77-1827 or when

it dismissed Nieveen’s constitutional claims.

Accordingly, we affirm.

Affirmed.

Stacy, J., not participating.

Appendix 21a

IN THE DISTRICT COURT OF LANCASTER

COUNTY, NEBRASKA

SANDRA K. NIEVEEN,

Case No. CI 19-1433

Plaintiff,

ORDER

TAX 106, a Nebraska

general partnership,

VINTAGE

MANAGEMENT, LLC, a

Nebraska limited liability

company, RACHEL

GARVER, Lancaster

County Treasurer, in her

official capacity,

LANCASTER COUNTY, a

political subdivision in the

State of Nebraska, and

DOUGLAS J. PETERSON,

Attorney General of the

State of Nebraska, in his

official capacity

Defendants.

This matter is before the Court on the Motion to

Dismiss filed by the Defendants Rachel Garver and

Lancaster County Treasurer. On July 30, 2019, the

Court heard argument and received evidence. Sara

Rips and Caitlin Cedfeldt appeared for the Plaintiff

Sandra K. Nieveen. Douglas Cyr appeared for the

Appendix 22a

Defendants Rachel Garver and Lancaster County.

Christian Blunk appeared for the Defendants TAX

106 and Vintage Management, LLC. Phoebe Gydesen

appeared for the Defendant Douglas Peterson. Being

fully advised, the Court sustains in part and overrules

in part the Motion to Dismiss.

1. BACKGROUND

In the Amended Complaint, the Plaintiff claims to

be the lawful owner of residential real property in

Lancaster County, Nebraska. Am. Compl. at ¶¶ 7–8.

She did not pay the 2013 and 2014 property taxes, so

the county treasurer conducted a tax sale. Id. at ¶¶

14,15. On March 2, 2015, the Defendant TAX 106

(“Tax 106”) bought a tax certificate for $2,390.48. Id.

at ¶ 15. On September 19, 2016, Tax 106 paid

$1,405.90 of delinquent property taxes for the 2015

tax year. Id. at ¶ 16.

On March 2, 2018, Tax 106 sent a notice to the

Plaintiff by certified mail stating that Tax 106 would

apply for a tax deed. Id. at ¶¶ 18,20. On June 22, 2018,

Tax 106’s successor in interest. Defendant Vintage

Management, LLC (“Vintage Management”), applied

for a tax deed. Id. at ¶¶ 3, 9. The same day, the county

treasurer issued a tax deed to Vintage Management.

Id. at ¶ 22. The deed was recorded a couple of weeks

later. Id. at ¶ 22.

The assessed value of the Plaintiffs property for

tax purposes was $61,900. Id. at ¶ 23. Her property

was not encumbered by a mortgage or deed of trust.

Id. at ¶ 8. The Plaintiff therefore alleges that Vintage

Management received property with $61,900 in

exchange for paying $3,796.38 of delinquent taxes. Id.

at ¶ 26.

Appendix 23a

The Plaintiff also alleges that she was diagnosed

with major depressive disorder and generalized

anxiety disorder. Id. at ¶ 12. Because she had a

mental disorder, the Plaintiff claims that she has the

right to redeem her property within 5 years of the tax

sale. Id. at ¶ 13.

The Amended Complaint alleges 10 Causes of

Action against Tax 106, Vintage Management,

Lancaster County, and Rachel Garver. The Plaintiff

sues Garver (the Lancaster County Treasurer) in her

official capacity. Am. Compl. ¶ 4. The Amended

Complaint prays for a variety of relief, including a

declaration that the Plaintiff has 5 years to redeem

the property, an order quieting title in the Plaintiff,

and a declaration that the statutes under which the

tax deed was issued are unconstitutional.

On June 18, 2019, the Defendants Lancaster

County and Rachel Garver (collectively the “County

Defendants”) moved to dismiss the Amended

Complaint for lack of subject matter jurisdiction and

failure to state a claim. See Neb. Ct. R. Pldg. §§ 61112(b)(1), (6).

II. STANDARD

To prevail against a motion to dismiss for failure

to state a claim, a plaintiff must allege sufficient facts

that, if true, state a claim to relief that is plausible on

its face. Tryon v. City of N. Platte, 295 Neb. 706, 890

N.W.2d 784 (2017). Even if the plaintiff does not allege

specific facts showing a required element, the factual

allegations are nonetheless plausible if they suggest

that the required element exists and raise a

reasonable expectation that discovery will reveal

evidence of the element. Id.

Appendix 24a

Courts presume that a statute is constitutional

and resolve all reasonable doubts in favor of its

constitutionality. Connelly v. City of Omaha, 284 Neb.

131, 816 N.W.2d 742 (2012). The person attacking a

statute’s validity has the burden of showing that it is

unconstitutional. Id. Courts also presume that the

Legislature acted within its constitutional power even

though, in practice, its laws cause some inequality. Id.

III. STATUTORY OVERVIEW

A. Taxes on real property.

In Nebraska, local governments may levy taxes on

real estate. Neb. Rev. Stat. § 77-3442. Political

subdivisions with the power to levy include school

districts, community colleges, natural resource

districts, cities, and counties. Id. Their maximum

levies are set at a certain sum per $100 of taxable

valuation, which makes the assessed value of real

property of interest to owners. Id.

Real property is assessed as of January 1 each

year. Neb. Rev. Stat. § 77-1301. Starting in January

2014, county assessors in counties with a population

of at least 150,000 must provide notice of the

preliminary valuation by January 15. Id. The

assessors in such counties must complete the

assessment by March 25. Id.

The county board of equalization must send a

notice of the assessed value to the record owner. Neb.

Rev. Stat. § 77-1507(1). The owner may protest the

evaluation with the county board of equalization. Id.

If the owner is dissatisfied with the county board’s

decision, he or she may appeal to the Tax Equalization

Review Commission. Id.

Appendix 25a

B. Collecting delinquent taxes.

Taxes that are not paid become liens on the real

estate and may be sold to third parties in exchange for

something known as a tax certificate or tax sale

certificate. Neb. Rev. Stat. § 771801 et seq.; Neb. Rev.

Stat. § 77-1901 et seq.; Wisner v. Vandelay Invs.,

L.L.C., 300 Neb. 825, 916 N.W.2d 698 (2018). This

certificate represents the transfer of the government’s

lien to the purchaser. Wisner, supra. The Court

pauses to note that tax certificates issued between

January 2010 and December 2016 are governed by the

statutes in effect on December 31, 2009 regarding all

matters relating to tax deed proceedings. Neb. Rev.

Stat. § 77-1837.01(2).

Nebraska gives the holder of a tax certificate two

ways to convert the certificate into a deed for the

burdened property. Adair Asset Mgmt., L.L. C. v.

Terry’s Legacy, LLC, 293 Neb. 32, 875 N.W.2d 421

(2016). Under the “tax deed” method in chapter 77,

article 18, the certificate holder can apply for a tax

deed from the county treasurer. Id. Under the

“judicial foreclosure” method in chapter 77, article 19,

the certificate holder can foreclose the tax lien in court

and obtain a sheriffs deed. Id. Although both article

18 and article 19 involve the recovery of delinquent

property taxes, they are separate and distinct

methods which are neither comparable nor fungible.

Id.

Here, the Plaintiff alleges that Tax 106 and

Vintage Management chose the tax deed method.

Under article 18, the owner of the burdened real

property can redeem the property any time before the

treasurer delivers a tax deed to the holder of the tax

certificate. Neb. Rev. Stat. § 77-1824. An owner

Appendix 26a

redeems the property by paying the county treasurer

the sum stated in the tax certificate, plus interest and

any subsequent taxes paid by the purchaser. Id. The

county treasurer cannot issue a tax deed until the

expiration of three years from the date of the tax sale.

Neb. Rev. Stat. § 77-1837. The certificate holder must

serve notice on the owner at least three months before

the holder applies for a tax deed. Neb. Rev. Stat. § 771831.

A tax deed vests in the grantee title to the

property. Neb. Rev. Stat. § 77-1838. An owner loses

the power to redeem after the treasurer delivers the

tax deed. Wisner, supra. But if the certificate holder

fails to apply for a tax deed within 3 years and 6

months after the tax sale, then the certificate ceases

to be valid and the tax lien is discharged. Id.

Generally, then, an owner has between three years

and three and a half years to redeem the burdened

property. But there is a longer redemption period for

owners with mental disorders under Neb. Rev. Stat. §

77-1827: “The real property of persons with mental

retardation or a mental disorder so sold, or any

interest they may have in real property sold for taxes,

may be redeemed at any time within five years after

such sale.” The 5-year redemption applies if the owner

had a mental disorder when the property was sold.

Wisner, supra. A person with a mental disorder in this

context is one who “suffers from a condition of mental

derangement which actually prevents the sufferer

from understanding his or her legal rights or from

instituting legal action.” Id., 300 Neb. at 861, 916

N.W.2d at 726 (citation omitted).

C. Challenging a tax deed.

Appendix 27a

After the treasurer issues a tax deed to the

certificate holder, the owner may recover the property

by proving that the tax deed is void or voidable.

Wisner, supra. A tax deed may be void or voidable if

the owner had a mental disorder and the treasurer

issued the deed less than 5 years after the sale. See

id.

To successfully challenge a tax deed, the owner

must satisfy the conditions in both Neb. Rev. Stat. §§

77-1843 and 77-1844. Wisner, supra. Section 77-1843

states the conditions precedent to defeat title under a

tax deed. Ottaco Acceptance, Inc. v. Larkin, 273 Neb.

765, 733 N.W.2d 539 (2007). Section 77-1844 states

the conditions precedent to question title. Id. That is,

§ 77-1844 is a matter of standing. Wisner, supra.

Section 77-1844 imposes two requirements for a

plaintiff to have standing to challenge a tax deed:

No person shall be permitted to question

the title acquired by a treasurer’s deed

without first showing that [1] he, or the

person under whom he claims title, had

title to the property at the time of the sale,

or that the title was obtained from the

United States or this state after the sale,

and [2] that all taxes due upon the

property had been paid by such person or

the persons under whom he claims title as

aforesaid. (emphasis added)

Notably, plaintiffs do not have to allege that they

paid the taxes before filing suit. Section 77-1844

requires a “showing,” which is made by evidence and

not the pleadings alone. Ottaco Acceptance, supra. Nor

do plaintiffs have to show that they actually paid the

Appendix 28a

taxes. Wisner, supra. A tender to the treasurer is

enough. Id. Section 78-1844 only requires a party to

show that it paid or tendered payment before or

during the trial, or before final judgment. Id.

Section 77-1843 states four alternative grounds

under which an owner may defeat title acquired under

a tax deed:

the person claiming the title adverse to the

title conveyed by such deed shall be required

to prove, in order to defeat the title, either

(1) that the real property was not subject to

taxation for the years or year named in the

deed; (2) that the taxes had been paid before

the sale; (3) that the property has been

redeemed from the sale ..., and that such

redemption was had or made for the use and

benefit of persons having the right of

redemption under the laws of this state; or

(4) that there had been an entire omission to

list or assess the property, or to levy the

taxes, or to sell the property. (emphasis

added).

The Plaintiff seeks to invalidate Vintage

Management’s tax deed under the third ground.

III. MOTION TO DISMISS FOR LACK OF

SUBJECT MATTER JURISDICTION

In 25 pages of written argument, the County

Defendants devote three sentences to subject matter

jurisdiction. Those sentences are: “On the face of the

Amended Complaint, both Garver and Lancaster

County are entitled to sovereign immunity. ‘It is wellsettled law in Nebraska that sovereign immunity

deprives a trial court of subject matter jurisdiction.’

Appendix 29a

Therefore, Garver and Lancaster County’s sovereign

immunity deprives this Court of jurisdiction.” Brief

for County Defendants at 3 (citation omitted).

The Court understands the County Defendants’

argument to be that they are completely immune from

suit because they are a political subdivision and an

officer of a political subdivision sued in her official

capacity. While the Defendants might enjoy sovereign

immunity from certain claims or theories of relief,

they are not categorically immune from suit. The

takings clauses of the federal and state constitutions,

for example, expressly require the government to pay

just compensation in some circumstances. U.S. Const,

amend. V; Neb. Const, art. I, § 21; see also Project

Extra Mile v. Neb. Liquor Control Comm’n, 283 Neb.

379, 810 N.W.2d 149 (2012) (“state sovereign

immunity does not bar actions to restrain state

officials or to compel them to perform an act they are

legally required to do unless the prospective relief

would require them to expend public funds”).

Considering the issue raised by the County

Defendants, the Court overrules their motion to

dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(1).

IV. MOTION TO DISMISS FOR FAILURE TO

STATE A CLAIM

A. Redemption (First Cause of Action).

The Plaintiff’s First Cause of Action in her

Amended Complaint asks the Court to declare that

she has redeemed her property within the 5-year

period for persons with mental disorders. Am. Compl.

¶¶ 28–29. The Plaintiff alleges that she is “prepared

to tender all taxes that are past due and owing to the

Appendix 30a

Defendant Lancaster County Treasurer, and shall

tender such taxes prior to trial.” Id. at ¶ 27.

The County Defendants argue that the Plaintiff

fails to state a claim for relief because she does not

allege that she already tendered payment to the

treasurer. But § 77-1843 states that a plaintiff must

“prove” that she redeemed the property. Like the word

“showing” in § 77-1844, the word “prove” in § 77-1843

implies an evidentiary finding, not a pleading

requirement. See Black’s Law Dictionary 1480 (11th

ed. 2019).

The Court concludes that the Plaintiff does not

have to plead that she tendered payment to the

treasurer. The Court therefore overrules the County

Defendants’ motion to dismiss the First Cause of

Action. That is not to say, however, that the Plaintiff

does not have to prove that she tendered payment

within the 5-year redemption period. That issue is not

before the Court on the present motion to dismiss. The

Plaintiff alleges that the treasurer sold the taxes on

her home in March 2015, which means that she has

until March 2020 to redeem the property (accepting as

true her allegation that she had a mental disorder).

So time remains for the Plaintiff to tender payment to

the treasurer, if she has not done so already.

B. Unjust enrichment (Second Cause of

Action).

The Court sustains the County Defendants’ motion

to dismiss the Plaintiff’s Second Cause of Action for

unjust enrichment. The purpose of an unjust

enrichment claim is to force a defendant to disgorge a

benefit that he or she has unjustifiably obtained at the

plaintiff’s expense. Bloedorn Lumber Co. v. Nielson,

Appendix 31a

300 Neb. 722, 915 N.W.2d 786 (2018). The Amended

Complaint alleges that Vintage Management (not the

County Defendants) was unjustly enriched by

receiving a property worth $61,900 in exchange for

paying about $3,800 of taxes. Am. Compl. ¶ 35. The

Plaintiff does not claim that the County Defendants

were unjustly enriched by the payment of delinquent

taxes.

C. Taking for a public purpose without just

compensation (Fourth, Fifth, and Ninth Causes

of Action).

Several claims in the Amended Complaint concern

the takings clauses of the federal and state

constitutions. The Fourth Cause of Action alleges that

the County Defendants had “no public purpose for

selling the right to a tax deed on private home equity

when that equity is larger in amount that the tax

liens, interest, and other statutory costs at issue.” Am.

Compl. ¶ 46. The Fifth Cause of Action alleges that

the County Defendants did not justly compensate the

Plaintiff for the equity in her home. The Ninth Cause

of Action asserts a derivative claim that the statutes

in article 18, chapter 77 of the Nebraska Revised

Statutes “result in an unlawful taking under the

constitutions of the United States and State of

Nebraska and therefore violate Article I, § 25 of the

Nebraska Constitution.” Id. at ¶ 68.

The Fifth Amendment to the U.S. Constitution

states that “private property [shall not] be taken for

public use, without just compensation.” Similarly,

Neb. Const. art. I, § 21 states that the “property of no

person shall be taken or damaged for public use

without just compensation therefor.” The takings

clause in Nebraska’s constitution is “coterminous”

Appendix 32a

with federal law. Whipps Land & Cattle Co. v. Level 3

Comms., LLC, 265 Neb. 472, 482, 658 N.W.2d 258, 267

(2003).

Taxes take property. Frye v. Haas, 182 Neb. 73,

152 N.W.2d 121 (1967) (“Taxation takes property.”).

But the takings clause generally does not apply to

taxes. See Richard A. Epstein, Takings: Private

Property and the Power of Eminent Domain 283

(1985) (“the proposition that all taxes are subject to

scrutiny under the eminent domain clause receives

not a whisper of current support”). Consistent with

this rule, courts have held that the takings clause is

not relevant when the government sells property to

satisfy back taxes:

• Speed v. Mills, 919 F. Supp. 2d 122 (D.D.C. 2013)

(“[While the tax sale deprived [the owner] of title to a

portion of property that was lawfully his, it cannot be

considered a ‘taking’ under the Fifth Amendment. The

sale took place pursuant to the [government’s] taxing

power, not its power of eminent domain, its regulatory

power, or any other power enabling it to take or

encumber private property for a public purpose.”).

• In re Murphy, 331 B.R. 107 (Bankr. S.D.N.Y. 2005)

(“A tax sale is not a taking for a public purpose

because such sale is pursuant to the state’s taxing

power and not its power of eminent domain.”).

• In re Golden, 190 B.R. 52 (Bankr. W.D. Penn. 1995)

(“In a tax sale context, the takings clause is not

dispositive nor the appropriate basis for starting an

inquiry.”).

• Industrial Bank of Wash. v. Sheve, 307 F. Supp. 98

(D.D.C. 1969) (“A tax sale is not a government taking

Appendix 33a

for which just compensation must be paid under the

Constitution after judicial proceedings.”).

• Dommel Props., LLC v. Jonestown Bank & Trust

Co., No. 1:11-cv-2316, 2013 WL 1149265, 2013 U.S.

Dist. LEXIS 37343 (M.D. Penn. March 19, 2013) (“A

tax sale, however, is not a taking for a public purpose

pursuant to a state’s power of eminent domain, but is

instead an exercise of the state's taxing power.”).

• Epice Corp. v. Land Reutilization Auth., No.

4:07CV00206, 2010 WL 3270114, 2010 U.S. Dist.

LEXIS 83867 (E.D. Mo. Aug. 17, 2010) (“the

foreclosure of a tax lien involves the taxing power, not

the eminent domain of the government”).

• Fitzgerald v. Neves., Inc., 550 P.2d 52 (Wash. App.

1976) (“We are hard pressed to find that the ‘taking’

was for a public use as opposed to the general purpose

of enforcing payment of justly imposed taxes.”).

• Richardson v. Brunner, 356 S.W.2d 252 (Ky. 1962)

(stating that a takings claim based on a tax sale is

“obviously fallacious” because the “sale is nothing

more than a step in the foreclosure of a lien imposed

under the taxing power”).

• See also Chesney v. Gresham, 134 Cal Rptr. 238

(Cal. App. 1976) (“In exercising its sovereign power as

owner of the property free and clear of any interest in

the taxpayer, the state may sell the property for

whatever amount it will bring on the open market to

the highest bidder, even if that amount exceeds the

amount of the tax liability, or sell the entirety of the

property where the sale of only a parcel of it would

satisfy the tax obligations.”).

Appendix 34a

One federal district court extended this categorical

exclusion to a claim that the government “took” the

difference between the value of the owners’ land and

the outstanding taxes. See Balthazar v. Mari Limited,

301 F. Supp. 103 (N.D. Ill. 1969), aff’d 396 U.S. 114

(1969). Under the Illinois statutes in Balthazar, a tax

purchaser received a certificate and, if the owner did

not redeem, later received a tax deed from the

government. The recipient of a tax deed did not have

to pay the owner for the difference between the

market value of the property and the amount of back

taxes and other encumbrances.

The Balthazar court rejected the owners’

argument that the government had deprived them of

“just compensation” under the takings clause: “These

cases are inapplicable. Rather than taking private

property for a public purpose, Illinois is here collecting

taxes which are admittedly overdue.” Id. at 105, n.6.

The court noted that an owner could cash out their

equity before the government issued a tax deed by

selling the property subject to the tax lien and

retaining the surplus. Further, the legislature was the

appropriate forum to remedy any unfairness in the

law: “Unfortunately, the Illinois system severely

penalizes all real estate owners who fail to redeem.

The total forfeiture seems extremely harsh when

overdue taxes amount to only two or three percent of

the property’s value. But oppressive statutes must be

tempered by the legislature, not the courts.” Id. at

106.

But there are some cases suggesting that the

takings clause could apply if a statute gives owners

the right to recover their equity. These cases arise

from a pair of nineteenth century U.S. Supreme Court

Appendix 35a

decisions. In United States v. Taylor, the federal

government sold a parcel of land for $3,000 to satisfy

a $37 assessment. 104 U.S. 216 (1881). The owner of

the parcel applied for the “residue” of the proceeds

under the Revenue Act of 1861. Section 36 of the Act

provided that the federal tax collector could sell

property to satisfy back taxes but “the surplus of the

proceeds of the sale, after satisfying the tax, costs,

charges, and commissions, shall be paid to the owner

of the property.” Id. at 218. In Taylor, the government

argued that Congress had effectively repealed Section

36. The Court concluded that Congress had not.

Three years later, the Court reached a similar

result when the federal government (rather than a

private party) bought the property. In United States

v. Lawton, the federal government sold land to satisfy

back taxes of $170.50. 110 U.S. 146 (1884). The federal

government itself bought the land with a bid of

$1,100. The owner of the parcel applied for the surplus

proceeds of the sale.

The U.S. Supreme Court began its opinion with

this sentence: “We think that this case is governed by

the rulings of this court in United States v. Taylor."

Lawton, supra, 110 U.S. at 149. This opening suggests

that the Court’s decision in Lawton would be based on

statutory interpretation, as was its decision in Taylor.

But the Court went further in Lawton and suggested

that denying the owner’s claim for the surplus had a

constitutional dimension:

The present case differs from the Taylor

case only in this, that the land was in this

case bought in by the tax commissioners for

the United States, and no money was paid

on the sale.... The land in the present case

Appendix 36a

having been “struck off for,” and “bid in” for,

the United States at the sum of $1,100, we

are of opinion that the surplus of that sum,

beyond the $170.50 tax, penalty, interest

and costs, must be regarded as being in the

treasury of the United States, under the

provisions of section 36 of the act of 1861 ....

If a third person had bid $1,099 in this case,

there would have been a surplus of $928.50

paid into the treasury, and held for the

owner. It can make no difference that the

United States acquired the property by

bidding $1 more. To withhold the surplus

from the owner would be to violate the

Fifth Amendment to the Constitution

and to deprive him of his property

without due process of law, or to take

his property for public use without just

compensation.

Id. at 149–50 (emphasis added).

The Court revisited the matter a final time in

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

There, a city foreclosed a lien for unpaid water

charges on two parcels of land owned by trustees. The

city sold one parcel for $7,000 to satisfy delinquent

charges of $65. The city kept all the proceeds. The city

itself took title to the second parcel (assessed at

$46,000) to satisfy delinquent charges of $814.50. The

trustees later offered to pay the delinquent charges

and, when the city refused, sued to recover the

surplus.

The trustees argued that the city had taken their

property without just compensation, citing Lawton.

But the Court responded that Taylor had also

Appendix 37a

“require[d] that the surplus be paid to the owner, and

there the problem was treated as purely one of

statutory

construction

without

constitutional

overtones.” Id. at 110. At any rate, the trustees could

have, in fact, recovered the surplus under state law

but forfeited that right by not timely responding to the

foreclosure proceedings. The trustees argued that the

result was “harsh,” but the Court explained that

“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.” Id. at 111.

One may read Nelson as clarifying that Taylor and

Lawton are best understood as statutory

interpretation cases. Nevertheless, in reliance on

Lawton, several lower courts have since considered

whether state law created a property interest in the

surplus that was protected by the takings clause.

No court, however, has held that not paying the

owner for his or her equity violates the takings clause.

This is because unlike the Revenue Act of 1861, the

statutes and constitutions of most states do not create

a property right to the surplus. For example, in Ritter

v. Ross, a county foreclosed a tax lien of $84.43 and

sold the property for more than $17,000. 558 N.W.2d

909 (Wis. App. 1996). The county kept all the proceeds

from the sale.

The owners in Ritter argued that the county had

taken their property without just compensation. But

the court explained that the plaintiffs had a takings

claim only if they had a property interest in the excess

proceeds of the sale, which they did not under

Wisconsin law:

Appendix 38a

Cases

considering

constitutional

challenges to state tax foreclosure sales

generally conclude that a taxpayer has a

recognizable interest in the excess proceeds

from such a sale only if the state

constitution or tax statutes create such an

interest....

Thus, 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. We have not been

referred to any applicable provision of the

Wisconsin Constitution, and we see nothing

in chapter 75 either directing or relating in

any way to distribution of surplus funds

after a tax sale. Id. at 485 (citations

omitted).

Because Wisconsin law did not create a property

interest in the surplus, the county had not

unconstitutionally taken the surplus.

A federal district court reached a similar

conclusion in Reinmiller v. Marion County, No. CV-051926, 2006 WL 2987707, 2006 U.S. Dist. LEXIS 75597

(D. Or. Oct. 16, 2006). There, a county in Oregon sold

property at a public auction to satisfy a tax debt of less

than $15,000. The property sold for $167,000. The

county retained all the proceeds.

The law is well-settled that the States have

a very wide discretion in the laying of their

taxes.

Overall,

cases

considering

constitutional challenges to state tax

Appendix 39a

foreclosure sales conclude that a taxpayer

has a recognizable interest in the excess

proceeds from such a sale only if the state

constitution or tax statutes create such an

interest. Here, Oregon law is clear that the

former owner is not entitled to any proceeds

from a tax lien foreclosure sale.

Id., 2006 U.S. Dist. LEXIS at * at 8-9 (cleaned up).

The court suggested that the “appropriate forum to

raise these concerns is the state legislature.” Id. at

*12.

The closest any court has come to recognizing a

takings claim in this context is Coleman v. District of

Columbia, 70 F. Supp. 3d 58 (D.D.C. 2014). There,

consistent with the cases above, the court said that a

takings claim might exist if a statute or constitutional

provision created a property right to the surplus. The

plaintiff in Coleman alleged that he had a property

interest in the surplus “based on principles of D.C. law

and decisions of the D.C. Court of Appeals.” Id. at 81.

Because the District of Columbia did not dispute this

allegation, the court accepted it as true for purposes

of ruling on the District’s motion to dismiss.

Here, the Plaintiff alleges that home equity is

obviously “property.” Am. Compl. ¶ 42. The Court is

not so sure. Depending on the debt load, an owner

might use real property as collateral for a loan

representing the difference between the preexisting

debt and the property’s market value. Alternatively,

an owner could sell the property and retain any

difference between the sale price and the debts

secured by the property. An owner might consider this

potential source of cash as something apart from title

Appendix 40a

to the real property. But the Court is inclined to say

that the relevant “property” is the real property itself,

not a hypothetical sum that an owner might have

received via a sale or loan.

At any rate, the Court’s idea of “property” is not

decisive. Even the handful of cases suggesting that a

takings claim for the surplus is possible have required

that such interest be recognized under state law.

Unlike the Revenue Act of 1861, the statutes in article

18 do not give owners the right to be compensated for

the surplus. In fact, the Plaintiff has not argued that

any statute, constitutional provision, or case in

Nebraska has recognized a property right to the

difference in the fair market value of real property

and the debt secured by the real property. The Court

therefore sustains the County Defendants’ motion to

dismiss the Fourth, Fifth, and Ninth Causes of Action

for failure to state a claim.

D. Procedural due process (Third and Sixth

Causes of Action).

The Plaintiff pleads two procedural due process

claims. In the Third Cause of Action, she alleges that

there is no process for persons with mental disorders

to “claim” the extended redemption period. The

Plaintiff asserts in her written argument that she was

entitled to a hearing before the tax deed was issued.

In the Sixth Cause of Action, she observes that a

certificate holder must give the owner notice three

months before applying for a tax deed. The Plaintiff

argues that three months is too short as a matter of

law.

The Plaintiff cites both the federal and state

constitutions. The Fourteenth Amendment to the U.S.

Appendix 41a

Constitution provides that no state shall “deprive any

person of life, liberty, or property, without due process

of law.” Similarly, Neb. Const, art. I, § 3 states: “No

person shall be deprived of life, liberty, or property,

without due process of law ....” The Due Process

Clause in the Nebraska Constitution is coextensive

with the Due Process Clause in the Fourteenth

Amendment. In re Interest of Jordan B., 300 Neb. 355,

913 N.W.2d 477 (2018).

The Fourteenth Amendment protects individuals

from the arbitrary deprivation of life, liberty, or

property without due process of law. Cain v. Custer

Cnty. Bd. of Equalization, 298 Neb. 834,906 N.W.2d

285 (2018). Due process does not guarantee any

particular form of state procedure. Id. Instead, due

process requires reasonable notice and an opportunity

to be heard appropriate to the nature of the

proceeding and the character of the rights affected by

it. Id.

These two elements—notice and an opportunity to

be heard—have been established for a long time. See

Earle v. McVeigh, 91 U.S. 503 (1875). But courts have

also recognized for a long time that due process for tax

collection is different. Kentucky Railroad Tax Cases,

115 U.S. 321 (1885) (‘“due process of law,’ as applied

to [collecting taxes], does not imply or require the

right to such notice and hearing as are considered to

be essential to the validity of the proceedings and

judgments of judicial tribunals”). For taxation, “there

are no categorical imperatives.” Frye v. Haas, 182

Neb. 73, 75, 152 N.W.2d 121, 124 (1967).

The Plaintiff does have an opportunity to be heard

about whether she is entitled to a 5-year redemption

period. She is exercising that opportunity in this

Appendix 42a

lawsuit. An owner with a mental disorder can sue to

invalidate a tax deed on the ground that the holder of

the tax certificate obtained a tax deed before the 5year right of redemption expired. See Wisner v.

Vandelay Invs., L.L.C, 300 Neb. 825, 916 N.W.2d 698

(2018).

The Plaintiff argues, however, that she was

entitled to a hearing before the treasurer issued the

tax deed. Property owners have the right to an

opportunity to be heard when the government sells

their property for back taxes. See Jones v. Flowers,

547 U.S. 220 (2006). But “for the assessment and

collection of taxes, it is well established that

postdeprivation procedures may satisfy the demands

of due process.” Leger v. Commissioner of Revenue,

654 N.E.2d 927, 930 (Mass 1995) (citations omitted);

see Bomher v. Reagan, 522 F.2d 1201 (9th Cir. 1975)

(noting the “exception in tax matters to prior notice

and hearing”), citing Fuentes v. Shevin, 407 U.S. 67

(1972); Phillips v. Commissioner, 283 U.S. 589 (1931);

see also Chapman v. Zobelein, 237 U.S. 135 (1915)

(due process rights of owner whose land was sold for

back taxes were satisfied by the opportunity to be

heard about the original assessment).

In fact, the Nebraska Supreme Court has held that

a hearing is not required before a county treasurer

issues a tax deed to the certificate holder. In Trainor

v. Maverick Loan & Trust Co., the plaintiffs were the

heirs of a deceased owner of land in Box Butte County.

80 Neb. 626, 114 N.W. 932 (1908). The taxes for 1902

were not paid and the defendant purchased the tax

certificate. After the property was not redeemed, the

defendant applied for and received a tax deed from the

county treasurer. The plaintiffs later sued to cancel

Appendix 43a

the tax deed, arguing that they had tendered the back

taxes sometime before filing the lawsuit.

The Nebraska Supreme Court in Trainor held that

the plaintiffs had received due process even though

they did not have a pre-deprivation hearing:

Plaintiffs do not complain of any illegality in

the tax for which the land was sold, nor of

any irregularity in the sale, or of the

proceedings leading up to the making of the

tax deed. The complaint is that a sale of real

estate made by the treasurer of the county,

for delinquent taxes, in the absence of some

proceeding in court is unconstitutional and

void; that it is an attempt on the part of the

legislature to deprive the plaintiffs of their

property without due process of law. It has

never been held that the state may not adopt

summary or even stringent measures for the

collection of taxes, so long as they are

administrative in their character, and it was

never held that such proceedings are open to

the objection that they divest the citizen of

his property without due process of law.

While one is to be protected in his interests

by the “law of the land,” and to have the

judgment of his peers in those cases in

which it has immemorially existed, or in

which it has been expressly given by law,

there is no decision to be found that it is

necessary for judicial action in every case for

which the property of the citizen may be

taken for the public use. On the contrary, a

legislative act for that purpose, when clearly

within the limits of legislative authority, is

Appendix 44a

of itself of the law of the land. An act for

levying taxes and providing the means of

enforcement is within the unquestioned and

unquestionable power of the legislature.

Due process of law does not necessarily

require a judicial hearing in matters of

taxation. The existence of government

depending on the prompt and regular

collection of revenue must, as an object of

primary importance, be insured in such a

way as the wisdom of the legislature may

prescribe.

Id., 80 Neb. at 627–28, 114 N.W. at 933 (cleaned up);

see also Outlook Irr. Dist. v. Pels, 28 P.2d 996 (Wash.

1934) (“The only limitation appears to be that, at some

stage of the proceedings, the owner shall have an

opportunity to be heard.”).

Trainor is an old case and due process

jurisprudence has changed since then. But more

recent cases from other jurisdictions have reached the

same conclusion. For example, in Associated

Financial Services v. Sorenson, a mortgagee

challenged a tax sale statute because it did not

provide for a hearing or judicial review. 700 A.2d 107

(Conn. App. 1997). The Connecticut appellate court

held that a pre-deprivation hearing was not required:

The procedural due process requirement for

a

hearing

applies only where a

governmental body or official has engaged,

or should have engaged, in factfinding. In a

tax sale pursuant to General Statutes § 12157, the tax collector does not find facts,

other than the fact of nonpayment of taxes.

He merely follows the statutory procedure

Appendix 45a

laid out for the sale of real property. The

power to sell land for delinquent taxes is

strictly construed; the tax collector must

substantially, if not strictly, comply with all

statutory provisions. Where a governmental

official or body executes a ministerial duty,

there is no need for a hearing. Indeed, in

connection with the tax sale, the tax

collector is vested with no discretion save for

the authority, albeit “for any reason,” to

“adjourn such sale from time to time ....”

That, however, is merely incidental to the

ministerial duty to conduct a fair sale in a

responsible manner....

Id. at 111 (cleaned up).

If the taxing authorities misused their authority,

then the mortgagee had a post-deprivation remedy of

a common law action. Id.

The Maine Supreme Court also held that due

process did not require a pre-deprivation hearing in

City of Auburn v. Mandarelli, 320 A.2d 22 (Me. 1974).

There, Maine law required the taxing authority to

mail a notice of delinquency to the owner. If the owner

did not pay the tax within 10 days, then the tax

collector recorded a tax lien certificate. If the owner

did not pay the tax within the next 18 months, then

the lien was foreclosed without any kind of hearing.

The Mandarelli court repeated the principle that

due process applies differently in the taxation context,

where the “very existence of government necessitates

that the tax collection process be not subject to the

delays attendant upon formal judicial proceedings.”

Id. at 29, citing King v. Mullins, 171 U.S. 404 (1898).

Appendix 46a

Specifically, due process does not require a hearing

before the government sells property to satisfy back

taxes:

When an owner of real estate has

allowed the taxes assessed thereon to

remain unpaid and caused the tax collector,

after due notice, to foreclose the tax lien

mortgage in compliance with the statutory

requirements, the Legislature has the

constitutional power to cut off the interest of

the delinquent owner upon his failure to

redeem within the legislatively provided

period of redemption.

The Legislature in carrying out its

property tax program has a right to expect

from all owners of real estate that they will

perform their citizenship duties amongst

which is the duty to pay taxes properly

assessed on their property for a lawful

purpose.

The statute itself gives warning to the

taxpayer that if he does not pay his taxes he

may lose his land.... The taxpayer has a duty

to learn what is being done to enforce the

payment of taxes against his property.

... [A] delinquent taxpayer should not be

entitled to a hearing before foreclosure of his

title, where he has not contested the amount

of the tax through the available abatement

process and where he is given a right of

action for reimbursement and damages in

the case of payment of any tax assessed for

an improper purpose, and, we may add,

Appendix 47a

where he may contest the tax title either in

an independent action of his own or in

defense of the complaint to establish the

validity of the tax title.

Id. at 29 (cleaned up).

The Maine Supreme Court affirmed the validity of

Mandarelli several decades later. See McNaughton v.

Kelsey, 698 A.2d 1049 (Me. 1997).

The Court concludes that due process did not

require the County Defendants to give the Plaintiff a

hearing before issuing a tax deed. The Nebraska

Supreme Court has never overruled Trainor and this

Court cannot say that subsequent caselaw has

impliedly done so. The Plaintiff does not cite any

authority for her position that providing notice to an

owner 3 months before the treasurer issues a tax deed

is unconstitutional. The Court has found none. The

Court therefore sustains the County Defendants’

motion to dismiss the Third and Sixth Causes of

Action.

E. Substantive due process (Seventh Cause

of Action).

The Plaintiff’s Seventh Cause of Action alleges

that the statutes in article 18 of chapter 77 deprived

her of substantive due process. She explains that

article 18 allows a county treasurer to “take a home

and all equity in the home, no matter how valuable

the property or small the tax delinquency, and

transfer ownership and equity above the amount of

Appendix 48a

the delinquency, to a private third party.” Am. Compl.

¶ 61.

The Due Process Clause includes a substantive

component, sometimes called “substantive due

process,” which prohibits certain government action

regardless of how fair the procedure is. Daniels v.

Williams, 474 U.S. 327, 337 (1986). The touchstone of

due process is protecting individuals from arbitrary

government action, whether the fault lies in the denial

of procedural fairness or the unjustified exercise of

power. Davis v. State, 297 Neb. 955, 902 N.W.2d 165

(2017).

The Due Process Clause protects property but does

not create it. Phillips v. Wash. Legal Found., 524 U.S.

156 (1998). Whether something is “property” depends

on an independent source of law, like state law. Id.

The Plaintiff argues that the difference between the

fair market value of real estate and any outstanding

debts or liens is obviously property. But she has not

argued that Nebraska statutes or case law have

recognized such a property interest. This Court has

found no such authority. So it joins other courts which

have rejected similar substantive due process claims.

See Sheehan v. County of Suffolk, 490 N.E.2d 523

(N.Y. 1986); City of Auburn v. Mandarelli, 320 A.2d 22

(Me. 1974). The Court therefore sustains the County

Defendants’ motion to dismiss the Seventh Cause of

Action.

F. Excessive fines (Eighth Cause of Action).

The Plaintiff’s Eighth Cause of Action alleges that

the County Defendants’ [sic] levied an excessive fine

under the state and federal constitutions. She

explains that the statutes in article 18 “allow the

Appendix 49a

government to take and sell property to a private

party, and transfer title and all equity in said property

in excess of the amount owed for taxes, which is in

essence a punishment for the offense of becoming

delinquent in the payment of property taxes.” Am.

Compl. ¶ 64.

The Eighth Amendment to the U.S. Constitution

states: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.” Similarly, Neb. Const, art. I, §

9 states in part: “Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual

punishment inflicted.” This section of Nebraska’s

constitution “mirrors” and “does not require more

than” the Eighth Amendment. State v. Mata, 275 Neb.

1, 33–34, 745 N.W.2d 229, 257 (2008).

The Excessive Fines Clause limits the “power of

those entrusted with the criminal-law function of

government.” Timbs v. Indiana, 139 S. Ct. 682, 687

(2019). It does not apply to civil cases in which the

government “neither has prosecuted the action nor

has any right to receive a share of the damages

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

Disposal, Inc., 492 U.S. 257, 264 (1989). The Excessive

Fines Clause limits “only those fines directly imposed

by, and payable to, the government.” Id. at 264. For

example, the Nebraska Supreme Court held that

requiring a criminal defendant to pay the cost of

outpatient treatment as a condition of probation was

not an excessive fine because the defendant was not

paying the State. See State v. Hynek, 263 Neb. 310,

317, 640 N.W.2d 1, 7 (2002), citing Browning-Ferris,

supra.

Appendix 50a

The County Defendants argue that the Excessive

Fine Clause does not apply here because the

government did not receive the equity in the

Plaintiff’s home. The Court agrees. The Plaintiff

alleges that Vintage Management, not the County

Defendants, received title to the property. The

Plaintiff does not allege that Tax 106 or Vintage

Management paid the County Defendants for the

difference between the fair market value of the

property and the tax lien. The Court therefore

sustains the County Defendants’ motion to dismiss

the Eighth Cause of Action.

G. Injunctive relief (Tenth Cause of Action).

The Plaintiff’s ultimate claim, the Tenth Cause of

Action, asks the Court to enjoin the County

Defendants from issuing tax deeds. Am. Compl. ¶ 73.

The Amended Complaint’s Prayer for Relief also asks

the Court to enjoin the County Defendants from

“enforcing” the tax deed issued to Vintage

Management.

The County Defendants argue that injunctive

relief is barred by Neb. Rev. Stat. § 77-1727, which

provides:

No injunction shall be granted by any

court or judge in this state (1) to restrain the

collection of any tax, or any part thereof, or

(2) to restrain the sale of any property for

the nonpayment of any such tax.

No person shall be permitted to recover

by replevin, or other process, any property

taken or restrained by the county treasurer

for the nonpayment of any tax, except such

tax or the part thereof enjoined in case of

Appendix 51a

injunction, levied or assessed for illegal or

unauthorized purpose.

No injunction shall be granted or

recovery by replevin shall be permitted

unless the person has first successfully

argued before a court of competent

jurisdiction that the tax levied or collected

was levied or assessed for illegal or

unauthorized purpose.

The Plaintiff responds that § 77-1727 does not bar

injunctive relief here because she alleges that article

18 is unconstitutional under the Due Process Clause

and the Excessive Fines Clause. Brief for Plaintiff at

19. The Court has concluded, however, that the

Plaintiff has not stated claims for relief under such

theories.

Further, the Nebraska Supreme Court rejected a

similar argument in Jones v. Department of Revenue,

248 Neb. 158, 532 N.W.2d 636 (1995). There, the

plaintiffs alleged that a statute requiring them to pay

taxes before a protest was unconstitutional on its face

and as applied to them. They sued to enjoin the State

from collecting the tax until they had meaningful

judicial review. The Nebraska Supreme Court held

that § 77-1727 barred the plaintiffs’ request for

injunctive relief notwithstanding their constitutional

claims:

Injunctive relief is available in Nebraska

where a tax is void, that is, where the taxing

body does not have jurisdiction or power to

impose the tax. Thus, injunctive relief is

available only where the tax is void or levied

for an illegal or unauthorized purpose. The

Appendix 52a

Joneses did not claim that the Department

did not have power to impose the taxes,

resulting in a void tax, or that the taxes

were levied for an illegal or unauthorized

purpose. Therefore, pursuant to § 77-1727,

the district court did not have authority to

grant injunctive relief.

Id. at 162–63, 532 N.W.2d at 640 (cleaned up).

So the Court sustains the County Defendants’ motion

to dismiss the Tenth Cause of Action for failure to

state a claim.

V. CONCLUSION

The Court sustains the County Defendants’ Motion

to Dismiss the Second, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth, and Tenth Causes of Action

for failure to state a claim. The Court overrules the

Motion to Dismiss in all other respects.

IT IS THEREFORE ORDERED, ADJUDGED,

AND DECREED that the Motion to Dismiss filed by

Defendants Rachel Garver and Lancaster County is

OVERRULED IN PART and SUSTAINED IN

PART.

DATED this 4th day of December, 2019.

s/ Kevin R. McManaman

District Court Judge

Appendix 53a

Nebraska Appellate and

Supreme Courts Case Search

Official Nebraska Government Website

7/6/22, 2:28 PM

Case Summary

Nieveen v. TAX 106

The Case ID is S 21-364

Appealed on 04/29/2021.

Filed on 05/06/2021.

Classification: Law - Non-advanced

Trial Court: Lancaster County District Court

Trial Case ID: CI19-1433

Trial Judge: Kevin R McManaman Original Court:

Lancaster County District Court

*****

Register of Actions

*****

S 06/28/2022 Disposition

Appellant's Application to Stay Mandate granted.

Appellant shall inform the Clerk of the Supreme

Court of the status of its Petition for a Writ of

Certiorari to the United States Supreme Court.

**CORRECTED ENTRY**

S 06/22/2022 Disposition

Motion of Appellant for rehearing overruled.

*****

S 05/20/2022 Motion Appellant for Rehearing

Appendix 54a

View Image Image ID N22140K80NSC

Filed By Sandra K Nieveen 2 Responses Filed

Submitted 06/03/2022 Disposed 06/22/2022

S 05/20/2022 Application Appellant Stay of Mandate

View Image Image ID N22140K7ZNSC

Filed By Sandra K Nieveen

Submitted 05/20/2022 Disposed 06/28/2022

S 05/13/2022 Disposition

View Image Image ID N22133K48NSC

Affirmed. Papik, Justice. Stacy, Justice, not

participating. O’Gorman, District Judge, sitting.

Appendix 55a

STATUTORY PROVISIONS

Below are excerpts of the relevant statutes in effect

at the time of the foreclosure:

Neb. Rev. Stat. 77-1801. Real property taxes;

collection by sale; when

Except for delinquent taxes on mobile homes, cabin

trailers, manufactured homes, or similar property

assessed and taxed as improvements to leased land,

all real estate on which the taxes shall not have been

paid in full, as provided by law, on or before the first

Monday of March, after they become delinquent, shall

be subject to sale on or after such date.

Neb. Rev. Stat. 77-1807(2)(a)–(c),(f)

(2)(a) This subsection applies beginning January 1,

2015.

(b) If a land bank gives an automatically accepted bid

for real property pursuant to section 19-5217, the land

bank shall be the purchaser and no public or private

auction shall be held under sections 77-1801 to 771863.

(c) If no land bank has given an automatically

accepted bid pursuant to section 19-5217, the person

who offers to pay the amount of taxes, delinquent

interest, and costs due on any real property shall be

the purchaser.

(f) Any property remaining unsold upon completion of

the public auction shall be sold at a private sale

pursuant to section 77-1814.

Appendix 56a

Neb. Rev. Stat. 77-1808. Real property taxes;

delinquent tax sale; payment by purchaser;

resale

The person purchasing any real property shall pay to

the county treasurer the amount of taxes, interest,

and cost thereon, which payment may be made in the

same funds receivable by law in the payment of taxes.

If any purchaser fails to so pay, then the real property

shall at once again be offered as if no such sale had

been made.

Neb. Rev. Stat. 77-1814. Real property taxes;

private tax sale; issuance of certificates

After the sale is closed and the treasurer has made his

or her return thereof to the county clerk as provided

in section 77-1813, if any real property remains

unsold for want of bidders therefor, the county

treasurer is authorized and required to sell the same

at private sale at his or her office to any person who

will pay the amount of taxes, penalty, and costs

thereof and to make out duplicate certificates of sale

and deliver one to the purchaser and the other to the

county clerk. Such certificate shall contain the

additional statement that such real property has been

offered at public sale but not sold for want of bidders

and shall also contain the words “sold for taxes at

private sale”. The treasurer is further authorized and

required to sell all real property in the county on

which taxes remain unpaid and delinquent for any

previous year or years.

Appendix 57a

Neb. Rev. Stat. 77-1818. Real property taxes;

certificate of purchase; lien of purchaser;

subsequent taxes

The purchaser of any real property sold by the county

treasurer for taxes shall be entitled to a certificate in

writing, describing the real property so purchased, the

sum paid, and the time when the purchaser will be

entitled to a deed, which certificate shall be signed by

the county treasurer in his or her official capacity and

shall be presumptive evidence of the regularity of all

prior proceedings. Each tax lien shall be shown on a

single certificate. The purchaser acquires a perpetual

lien of the tax on the real property, and if after the

taxes become delinquent he or she subsequently pays

any taxes levied on the property, whether levied for

any year or years previous or subsequent to such sale,

he or she shall have the same lien for them and may

add them to the amount paid by him or her in the

purchase.

Neb. Rev. Stat. 77-1824. Real property taxes;

redemption from sale; when and how made

The owner or occupant of any real property sold for

taxes or any person having a lien thereupon or

interest therein may redeem the same. The right of

redemption expires when the purchaser files an

application for tax deed with the county treasurer. A

redemption shall not be accepted by the county

treasurer, or considered valid, unless received prior to

the close of business on the day the application for the

tax deed is received by the county treasurer.

Redemption shall be accomplished by paying the

county treasurer for the use of such purchaser or his

or her heirs or assigns the sum mentioned in his or

her certificate, with interest thereon at the rate

Appendix 58a

specified in section 45-104.01, as such rate may from

time to time be adjusted by the Legislature, from the

date of purchase to date of redemption, together with

all other taxes subsequently paid, whether for any

year or years previous or subsequent to the sale, and

interest thereon at the same rate from date of such

payment to date of redemption. The amount due for

redemption shall include the issuance fee charged

pursuant to section 77-1823.

Neb. Rev. Stat. 77-1831. Real property taxes;

issuance of treasurer's tax deed; notice given by

purchaser; contents

Except as otherwise provided in this section, no

purchaser at any sale for taxes or his or her assignees

shall be entitled to a tax deed from the county

treasurer for the real property so purchased unless

such purchaser or assignee, at least three months

before applying for the tax deed, serves or causes to be

served a notice that states, after the expiration of at

least three months from the date of service of such

notice, the tax deed will be applied for. In the case of

owner-occupied property, no purchaser at any sale for

taxes or his or her assignees shall be entitled to a tax

deed from the county treasurer for the real property

so purchased unless such purchaser or assignee, at

least three months and forty-five days before applying

for the tax deed, serves or causes to be served a notice

that states, after the expiration of at least three

months and forty-five days from the date of service of

such notice, the tax deed will be applied for.

Appendix 59a

Neb. Rev. Stat. 77-1837. Real property taxes;

issuance of treasurer’s tax deed; when

At any time within nine months after the expiration

of three years after the date of sale of any real estate

for taxes or special assessments, if such real estate

has not been redeemed, the county treasurer, on

application, on production of the certificate of

purchase, and upon compliance with sections 77-1801

to 77-1863, shall execute and deliver a deed of

conveyance for the real estate described in such

certificate as provided in this section. The failure of

the county treasurer to issue the deed of conveyance

if requested within the timeframe provided in this

section shall not impair the validity of such deed if

there has otherwise been compliance with sections 771801 to 77-1863.

Neb. Rev. Stat. 77-1838. Real property taxes;

issuance of treasurer's tax deed; execution,

acknowledgment, and recording; effect; lien for

special assessments

The deed made by the county treasurer shall be under

the official seal of office and acknowledged by the

county treasurer before some officer authorized to

take the acknowledgment of deeds. When so executed

and acknowledged, it shall be recorded in the same

manner as other conveyances of real estate. When

recorded it shall vest in the grantee and his or her

heirs and assigns the title of the property described in

the deed, subject to any lien on real estate for special

assessments levied by a sanitary and improvement

district which special assessments have not been

previously offered for sale by the county treasurer.

Appendix 60a

IN THE DISTICT COURT OF LANCASTER

COUNTY, NEBRASKA

SANDRA K. NIEVEEN,

Case No. CI 19-1433

Plaintiff,

v.

TAX 106, a Nebraska

general partnership,

VINTAGE

MANAGEMENT, LLC, a

Nebraska limited liability

company, RACHEL

GARVER, Lancaster

County Treasurer, in her

official capacity,

LANCASTER COUNTY,

a political subdivision in

the State of Nebraska,

and DOUGLAS J.

PETERSON, Attorney

General of the State of

Nebraska, in his official

capacity,

AMENDED

COMPLAINT

Defendants.

COMES NOW the Plaintiff, Sandra K. Nieveen, by

and through her attorneys, Legal Aid of Nebraska,

and for her cause of action against the Defendant

states and alleges as follows:

Appendix 61a

FACTS

1. Plaintiff is a resident of Lincoln, Lancaster

County, Nebraska.

2. Defendant TAX 106 is a general partnership

existing under the laws of the State of Nebraska.

3. Defendant Vintage Management, LLC, is a

limited liability company organized and existing

under the laws of the State of Nebraska, and is the

successor in interest to TAX 106, a general

partnership.

4. Defendant Rachel Garver is the Treasurer of

Lancaster County, Nebraska and is named in her

official capacity only.

5. Defendant Lancaster County is a political

subdivision in the State of Nebraska.

6. Defendant Douglas J. Peterson is the Attorney

General for the State of Nebraska and is named in his

official capacity only.

7. Plaintiff Sandra K. Nieveen is the lawful owner

of real property, including a home, legally described

as East Lawn Terrace, Block 11, Lot 19, Lancaster

County, Nebraska, and commonly referred to as 3526

Garfield St, Lincoln, Nebraska.

8. Plaintiff currently resides in the home, has

resided in the home for over the past twenty years,

and has owned the home since 1977. There is no deed

of trust securing a mortgage on the home.

9. On June 22, 2018, Defendant Vintage

Management, LLC sought issuance of a tax deed from

Defendant Lancaster County Treasurer using the

Appendix 62a

procedure outlined in Neb. Rev. Stat. § 77-1801 et.

seq.

10. At the time Defendant Vintage Management,

LLC applied for the tax deed, Sandra K. Nieveen was

seventy years old.

11. The Nebraska statutes concerning the

collection of delinquent real property taxes by sale of

real property provides a redemption period of three

years, except in cases involving minors and those who

have an intellectual disability or mental disorder. See

Neb. Rev. Stat. § 77-1837, -1826, and -1827, emphasis

added.

12. Plaintiff was at all relevant times diagnosed

with major depressive disorder and generalized

anxiety disorder. Plaintiff suffers from the symptoms

of her disorders. The Social Security Administration

and the American Psychiatric Association consider

both of these disorders to be mental disorders.

13. Pursuant to Neb. Rev. Stat. § 77-1827, Plaintiff

was at all relevant times affected by a mental disorder

and as such is entitled to redeem the property at any

time within five years of the tax sale.

14. As a result of Plaintiff’s delinquency in paying

her property taxes, the Defendant Lancaster County

Treasurer conducted a tax sale pursuant to Neb. Rev.

Stat. §§ 77-1801 et. seq.

15. On March 2, 2015, Defendant TAX 106, a

general partnership and predecessor in interest to

Defendant Vintage Management, LLC purchased a

tax certificate issued by the Defendant Lancaster

County Treasurer in the amount of $2,390.48 for

delinquent property taxes for 2013 and 2014.

Appendix 63a

16. On September 19, 2016, Defendant TAX 106

paid the Defendant Lancaster County Treasurer an

additional $1,405.90 for delinquent property taxes for

2015.

17. Neither the Defendant Lancaster County

Treasurer nor Defendant TAX 106 notified Plaintiff of

the sale or any subsequent payment of her taxes until

March 2, 2018.

18. On March 2, 2018, Defendant TAX 106 mailed

a Notice to Plaintiff by certified mail.

19. Pursuant to Neb. Rev. Stat. § 45-104.01, the

interest rate assessed on delinquent payments of

taxes owed to Defendant Lancaster County and paid

by Defendant TAX 106 accrued at a rate of 14% per

annum.

20. Before receiving the notice that Defendant

Vintage Management, LLC was applying for a tax

deed, interest accrued at 14% per annum, and is

included in the amount the Plaintiff would have to pay

to redeem her property. Said interest accrued for

approximately three years.

21. At all relevant times to this action, Plaintiff has

occupied and resided in the real property at issue.

22. The Defendant Lancaster County Treasurer

issued a tax deed to Defendant Vintage Management,

LLC on June 22, 2018 and recorded said deed on July

5, 2018.

23. At the time the Defendant Lancaster County

Treasurer issued the tax deed, the County assessed

Plaintiff’s property at $61,900.

24. Pursuant to Neb. Rev. Stat. §§ 76-214, 771327(2), any grantee who wishes to record a deed to

Appendix 64a

real property must complete and file a Real Estate

Transfer Statement with the Register of Deeds.

25. Defendant Vintage Management, LLC

prepared a Real Estate Transfer Statement (Form

521) prepared pursuant to the tax deed for Plaintiff’s

property. Defendant Vintage Management, LLC

named the Lancaster County Treasurer the grantor

and Vintage Management, LLC as the grantee.

Defendant Vintage Management, LLC entered the

total purchase price as $133,000. Defendant Vintage

Management, LLC’s authorized representative and

registered agent signed below a line that stated,

“Under penalties of law, I declare that I have

examined this statement and that it is, to the best of

my knowledge and belief, true, complete, and correct,

and that I am duly authorized to sign this statement.”

26. Despite Defendant Vintage Management,

LLC’s sworn statement that the purchase price was

$133,000, it in fact received a title to property worth

$61,900 for which Defendant Vintage Management,

LLC only paid $3,796.38. Defendant Vintage

Management, LLC would receive a profit of over

$58,000 if Plaintiff is not allowed to redeem the tax

deed sale.

27. Plaintiff is prepared to tender all taxes that are

past due and owing to the Defendant Lancaster

County Treasurer, and shall tender such taxes prior

to trial.

FIRST CAUSE OF ACTION

(Quiet Title on the Basis of Extended Redemption

Period)

Appendix 65a

Plaintiff hereby incorporates paragraphs 1–27 of

this Complaint into this Cause of Action and further

states:

28. Plaintiff at all relevant times had a mental

disorder entitling her to the five-year extended

redemption period outlined in Neb. Rev. Stat. § 771827.

29. Plaintiff is entitled to an order of this Court

determining that she has redeemed the property, that

Plaintiff is the rightful owner of the property, and a

decree entered identifying the Plaintiff as the rightful

owner of the property.

SECOND CAUSE OF ACTION

(Unjust Enrichment)

Plaintiff hereby incorporates paragraphs 1–29 of

this Complaint into this Cause of Action and further

states:

30. In the alternative, if Plaintiff is not entitled to

an order of this Court determining that she has

redeemed the property and quieting title in her name

pursuant to the five year extended redemption period

outlined in Neb. Rev. Stat. § 77-1827, Plaintiff is

entitled to damages from Defendants on the basis of

unjust enrichment.

31. Defendant Vintage Management, LLC

purchased a tax certificate from the Defendant

Lancaster County Treasurer for $3,796.38 for

delinquent property taxes owed by Plaintiff, on May

2, 2015 and September 19, 2016.

32. The Defendant Lancaster County Treasurer

issued a tax deed transferring Plaintiff’s real

property, which included her home, to Defendant

Appendix 66a

Vintage Management, LLC on June 22, 2018 and

recorded the deed on July 5, 2018.

33. Defendant Vintage Management, LLC received

a title to property assessed at $61,900 for which he

only paid $3,796.38, and would receive a profit of over

$58,000.

34. Plaintiff had no mortgage on the property and

will be stripped of the equity in her home, and the

Defendant Vintage Management, LLC stands to gain

not only title to Plaintiff’s real property, but a windfall

of all the equity therein.

35. As a result of the actions of the Defendants,

Defendant Vintage Management, LLC was unjustly

enriched in the amount of at least $58,000.

36. Plaintiff suffered damages in the amount of at

least $58,000.

THIRD CAUSE OF ACTION

(Violation of Procedural Due Process under the

Fourteenth Amendment to the United States

Constitution and Article I, § 3 of the Nebraska

Constitution)

Plaintiff hereby incorporates paragraphs 1–36 of

this Complaint into this Cause of Action and further

states:

37. No person shall be deprived of life, liberty, or

property without due process of law. U.S. Const.

amend. XIV, § 1; Neb. Const. art. I, § 3.

38. Neb. Rev. Stat. § 77-1827 provides an extended

redemption period for individuals with a mental

disorder but does not provide a process to claim this

extended redemption period.

Appendix 67a

FOURTH CAUSE OF ACTION

(Violation of the Fifth Amendment to the United

States Constitution and Article I, § 21 of the

Nebraska Constitution)

Plaintiff hereby incorporates paragraphs 1–38 of

this Complaint into this Cause of Action and further

states:

39. By directing takings of private property by

county treasurers and counties without a public

purpose, Neb. Rev. State. §§ 77-1801 et seq. violate the

Fifth Amendment to the United States Constitution

and Article I, § 21 of the Nebraska Constitution.

40. Neb. Rev. Stat. §§ 77-1801 et seq. direct the

counties to conduct public auctions or “tax

certificates” pertaining to private properties subject to

property tax deficiencies. Through these auctions, the

county sells the tax certificates to private purchasers.

The certificates permit the certificate holders to apply

for a tax deed subject to the property owner’s right to

redeem. Upon the issuance of a tax deed, the property

owner loses the right to redeem and the tax certificate

purchaser receives title to the property. Upon the

issuance of a tax deed, the tax certificate holder

receives title to and all equity in the property, and the

property owner loses their home and all its equity.

41. Nebraska law allows a county to take and sell

to a purchaser of a tax certificate the right to obtain a

deed to the property, even if the original property

owner has equity in the property. Regardless of how

much equity a property owner has in his or her

property, or how small the tax deficiency the owner

owes a county, Neb. Rev. Stat. §§ 77-1801 et seq.

provide that the county will take and transfer the

Appendix 68a

property and all the equity in it to a private purchaser

for the amount of the tax deficiency.

42. Equity in a home is undeniably a property right

that may not be taken in violation of the Fifth

Amendment to the United States Constitution and

Article I, § 21 of the Nebraska Constitution. Equity is

a partial interest in real property and is subject to

distribution like other forms of property. The

government may not take a citizen’s home equity in

violation of the United States and Nebraska

Constitutions.

43. Neb. Rev. Stat. §§ 77-1801 et seq. direct the

taking and public transfer of private property to other

private purchasers.

44. For over 200 years, it has been recognized by

the Supreme Court of the United States that it is

against all reason and justice to presume that the

legislature has been entrusted with the power to enact

a law that takes property from A and gives it to B.

Calder v. Bull, 3 U.S. 386, 388 (1798).

45. The Fifth Amendment to the United States

Constitution and Article I, § 21 of the Nebraska

Constitution limits the power of the government to

take property by prohibiting such a taking in the

absence of a public purpose. When the government

does take the property for a public purpose, the

government takes title to the property and pays

compensation to the property owner. When there is no

public purpose, the Fifth Amendment and Nebraska

Constitution prohibit such a taking.

46. The government has no public purpose for

selling the right to a tax deed on private home equity

when that equity is larger in amount than the tax

Appendix 69a

liens, interest, and other statutory costs at issue.

Nebraska law allows for the taking and transfer of

amounts of equity that are above and beyond the

amount of the public debt owed, thereby eviscerating

any relationship between the public purpose for these

sales, namely the recovery of property tax deficiencies,

and the final amounts transferred to the purchasers.

The constitutions of the United States and Nebraska

preclude such exercises of government power.

47. For these reasons, Neb. Rev. Stat. §§ 77-1801

et seq. violate the Fifth Amendment to the United

States Constitution and Article I, § 21 of the Nebraska

Constitution facially and as applied.

48. Because Neb. Rev. Stat. §§ 77-1801 et seq. are

unconstitutional, the tax sale and deed issued to the

Defendant Vintage Management, LLC is void.

FIFTH CAUSE OF ACTION

(Claim for Just Compensation under the Fifth

Amendment to the United States Constitution and

Article I, § 21 the Nebraska Constitution)

Plaintiff hereby incorporates paragraphs 1–48 of

this Complaint into this Cause of Action and further

states:

49. The United States and Nebraska Constitutions

provide that neither the States nor their political

subdivisions shall take private property for public use

without just compensation. U.S. Const. amend. V;

Neb. Const. art. I, § 21.

50. Neb. Rev. Stat. §§ 77-1801 et seq. permit a

taking of private property, including the original

owner’s equity in the real property, without any form

of compensation.

Appendix 70a

51. Such takings without compensation, even if

found to have a public purpose, violate the Fifth

Amendment and Nebraska Constitution. By

permitting such seizures without requiring

compensation, Neb. Rev. Stat. §§ 77-1801 et seq.

authorize an unconstitutional action.

52. For the reasons stated, Neb. Rev. Stat. §§ 771801 et seq. violate the just compensation

requirement of the Fifth Amendment of the United

States Constitution and Article I, § 21 of the Nebraska

Constitution facially and as applied.

53. Because Neb. Rev. State. §§ 77-1801 et seq. is

unconstitutional, the tax sale and deed issued to

Defendant Vintage Management, LLC is void.

SIXTH CAUSE OF ACTION

(Violation of Procedural Due Process under the

Fourteenth Amendment to the United States

Constitution and Article I, § 3 the Nebraska

Constitution)

Plaintiff hereby incorporates paragraphs 1–53 of

this Complaint into this Cause of Action and further

states:

54. No person shall be deprived of life, liberty or

property without due process of law. U.S. Const.

amend. XIV; Neb. Const. art. I, § 3.

55. Neb. Rev. Stat. § 77-1831 requires the tax

certificate holder to provide notice to the property

owner of their right to redeem only 3 months prior to

the date the tax certificate holder applies for a tax

deed even though there is a minimum of three year

redemption period.

Appendix 71a

56. Because Neb. Rev. Stat. §§ 77-1801 et seq. is

unconstitutional, the tax sale and deed issues to

Defendant Vintage Management, LLC is void.

SEVENTH CAUSE OF ACTION

(Violation of Substantive Due Process under Article

I, § 3 the Nebraska Constitution)

Plaintiff hereby incorporates paragraphs 1–56 of

this Complaint into this Cause of Action and further

states:

57. Article I, § 25 of the Nebraska Constitution

creates the right to acquire, own, possess, enjoy and

descent property.

58. Article I, § 3 of the Nebraska Constitution

provides that no person shall be deprived of property

without due process of law.

59. Nebraska’s Due Process Clause offers not only

procedural protections, but a substantive component

that protects persons against the arbitrary exercise of

governmental power. In other words, the substantive

component bars certain governmental actions

regardless of the fairness of the procedures used to

implement them.

60. The Nebraska Constitution creates a protected

right to own a home.

61. Neb. Rev. Stat. §§ 77-1801 et seq. permit a

county treasurer to take a home and all equity in the

home, no matter how valuable the property or small

the tax delinquency, and transfer ownership and

equity above the amount of the delinquency, to a

private third party.

Appendix 72a

62. Because Neb. Rev. Stat. §§ 77-1801 et seq. is

unconstitutional, the tax sale and deed issued to

Defendant Vintage Management, LLC is void.

EIGHTH CAUSE OF ACTION

(Violation of Excessive Fines under the Eighth

Amendment to the United States Constitution and

Article I, § 9 of the Nebraska Constitution)

Plaintiff hereby incorporates paragraphs 1–62 of

this Complaint into this Cause of Action and further

states:

63. The Eighth Amendment to the United States

Constitution and Article I, § 9 of the Nebraska

Constitution prohibit the government from imposing

excessive fines.

64. Neb. Rev. Stat. §§ 77-1801 et seq. allow the

government to take and sell property to a private

party, and transfer title and all equity in said property

in excess of the amount owed for taxes, which is in

essence a punishment for the offense of becoming

delinquent in the payment of property taxes.

65. For these reasons, from Neb. Rev. Stat. §§ 771801 et seq. violate the Eighth Amendment to the

United States Constitution and Article I, § 9 of the

Nebraska Constitution.

66. Because Neb. Rev. Stat. §§ 77-1801 et seq. are

unconstitutional, the tax sale and deed issued to

Defendant Vintage Management, LLC is void.

NINTH CAUSE OF ACTION

(Violation of Article I, § 25 of the Nebraska

Constitution)

Appendix 73a

Plaintiff hereby incorporates paragraphs 1–66 of

this Complaint into this Cause of Action and further

states:

67. Article I, § 25 of the Nebraska Constitution

provides, “There shall be no discrimination between

citizens of the United States with respect to the

acquisition, ownership, possession, enjoyment or

descent of property.”

68. Neb. Rev. Stat. §§ 77-1801 et seq. result in an

unlawful taking under the constitutions of the United

States and State of Nebraska and therefore violate

Article I, § 25 of the Nebraska Constitution.

69. For these reasons, Neb. Rev. Stat. §§ 77-1801

et seq. violate Article I, § 25 of the Nebraska

Constitution facially and as applied.

70. Because Neb. Rev. Stat. §§ 77-1801 et seq. is

unconstitutional, the tax sale and deed issued to

Defendant Vintage Management, LLC is void.

TENTH CAUSE OF ACTION

(Injunction)

Plaintiff hereby incorporates paragraphs 1–70 of

this Complaint into this Cause of Action and further

states:

71. Plaintiff will suffer immediate and irreparable

harm if the Court does not enjoin Defendant Vintage

Management, LLC from enforcing the tax sale of

Plaintiff’s property and deed issued by the Defendant

Lancaster County Treasurer and recorded on July 5,

2018.

72. Pursuant to Neb. Rev. Stat. §§ 25-1062 to 1080, Plaintiff moves this Court to enter a temporary

Appendix 74a

and permanent injunction commanding Defendant

Vintage Management, LLC to refrain from enforcing

the tax deed sale.

73. Plaintiff seeks a temporary and permanent

injunction prohibiting the use of Neb. Rev. Stat. §§ 771801 et. seq. as a means for Defendant Lancaster

Counter to take and sell property, including all equity

in a property owner’s home, by issuing tax deeds.

WHEREFORE, Plaintiff respectfully requests that:

A. The Court find and declare that the Plaintiff is

entitled to an extended redemption period pursuant to

Neb. Rev. Stat. § 77-1827;

B. The Court enter an order on her First Cause of

Action that the title to the property be quieted and

confirmed in Plaintiff and against all persons,

including the Defendant Vintage Management, LLC,

claiming any interest in said property;

C. The Court find and declare the relevant

portions of Neb. Rev. Stat. §§ 77-1801 et seq. that

permit the taking and sale of Plaintiff’s property,

including all equity in her property, violates the Fifth

Amendment to the United States Constitution, Article

I, § 21 of the Nebraska Constitution facially and as

applied, and declare relevant portions of the Neb. Rev.

Stat. §§ 77-1801 et seq. causing such sale to be null

and void;

D. The Court find and declare, in the alternative,

that the Plaintiff is entitled to just compensation

under the Fifth Amendment to the United States

Constitution and Article I, § 21 of the Nebraska

Constitution;

Appendix 75a

E. The Court find and declare relevant portions of

Neb. Rev. Stat. §§ 77-1801 et seq. that deprive

property owners of their property, including all equity

therein, without providing adequate notice violates

the Due Process Clause of the Fourteenth

Amendment to the Constitution of the United States,

and Article I, § 3 of the Nebraska Constitution facially

and as applied and declare relevant portions of Neb.

Rev. Stat. §§ 77-1801 et seq. causing such sale to be

null and void;

F. The Court find and declare relevant portions of

Neb. Rev. Stat. §§ 77-1801 et seq. that deprive

property owners of their property, included all equity

therein, violates property owners substantive due

process rights guaranteed by Article I, § 3 of the

Nebraska Constitution facially and as applied and

declare relevant portions of Neb. Rev. Stat. §§ 77-1801

et seq. causing such sale to be null and void;

G. The Court declare, in the alternative, that

taking and transferring Plaintiff’s property and all

equity therein for a relatively minor tax delinquency

constitutes a violation of the rights against excessive

punishment and fines under the Eighth Amendment

to the United States Constitution and Article I, § 9 of

the Nebraska Constitution and declare relevant

portions of Neb. Rev. Stat. §§ 77-1801 et seq. causing

such sale to be null and void;

H. The Court find and declare that Defendants

taking and sale of Plaintiff’s property, including all

equity in her property, violates Article I, § 25 of the

Nebraska Constitution and declare relevant portions

of Neb. Rev. Stat. §§ 77-1801 et seq. causing such sale

to be null and void;

Appendix 76a

I. The Court enter a temporary and permanent

injunction

enjoining

Defendants

Vintage

Management, Lancaster County, Lancaster County

Treasurer from enforcing the tax sale and tax deed

issued by the Defendant Lancaster County Treasurer

and recorded on July 5, 2018;

J. The Court enter a permit injunction prohibiting

the use of Neb. Rev. Stat. §§ 77-1801 et seq. to take

and sell property, including all equity in a property

owner’s home, by issuing tax deeds;

K. The Court enter an order voiding the sale and

issuance of the tax deed to Plaintiff’s home;

L. The Court enter an order, in the alternative,

finding Defendant Vintage Management, LLC was

unjustly enriched and order Defendants pay Plaintiff

the value of equity the Plaintiff had in the property at

the time the tax deed was issued after accounting for

the amount owed pursuant to the tax certificate, or, in

the alternative order that the property be placed in a

constructive trust;

M. The Court award Plaintiff her costs, including

reasonable attorney’s fees, as provided by law; and

N. Other such relief as the Court deems necessary

and proper.

DATED this 24th day of May, 2019.

SANDRA K. NIEVEEN,

Plaintiff

By: /s/ Sara E. Rips

Sara E. Rips #26091

Caitlin C. Cedfeldt #25469

Appendix 77a

Attorneys for Plaintiff

LEGAL AID OF

NEBRASKA

*****

Appendix 78a

FILED

August 18, 2021

CLERK

NEBRASKA SUPREME

COURT

COURT OF APPEALS

IN THE NEBRASKA COURT OF APPEALS

SANDRA K. NIEVEEN,

Case No. A 21-364

Appellant,

TAX 106, et al.

Appellees.

NOTICE THAT CASE

ON APPEAL

INVOLVES

CONSTITUTIONAL

QUESTIONS

COMES NOW the Appellant in the abovecaptioned matter, Sandra K. Nieveen, by and through

her attorney of record, Mark T. Bestul of Legal Aid of

Nebraska, and pursuant to Nebraska Supreme Court

Rule § 2-109(E) hereby gives notice that her appeal to

the Nebraska Court of Appeals will present issues of

Constitutionality of the underlying statutes under

both the Constitution of the United States and the

Constitution of the State of Nebraska.

DATED August 17, 2021.

Appendix 79a

RESPECTFULLY SUBMITTED: Sandra K.

Nieveen, Appellant

By: /s/ Mark T. Bestul

MARK T. BESTUL, #22391

Legal Aid of Nebraska

*****

Appendix 80a

Nebraska Appellate and

Supreme Courts Case Search

Official Nebraska Government Website

7/6/22, 2:28 PM

Case Summary

Nieveen v. TAX 106

The Case ID is S 21-364

Appealed on 04/29/2021.

Filed on 05/06/2021.

Classification: Law - Non-advanced

Trial Court: Lancaster County District Court

Trial Case ID: CI19-1433

Trial Judge: Kevin R McManaman

Original Court: Lancaster County District Court

*****

Register of Actions

*****

S 09/07/2021 Disposition

By order of the Nebraska Supreme Court, case

moved from Court of Appeals docket to Supreme

Court docket.