Amicus Curiae Brief — Michael Pung, Personal Representative of the Estate of Timothy Scott Pung, Petitioner v. Isabella County, Michigan

Supreme Court briefDec 8, 2025

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No. 25-95

IN THE

MICHAEL PUNG, Personal Representative of the

Estate of Timothy Scott Pung,

Petitioner,

ISABELLA COUNTY, MICHIGAN,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

BRIEF OF CITIZEN ACTION DEFENSE FUND,

MANHATTAN INSTITUTE, REASON

FOUNDATION, AND OREGON PROPERTY

OWNERS ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF PETITIONER

ILYA SHAPIRO

TREVOR BURRUS

Manhattan Institute

52 Vanderbilt Ave.

New York, NY

212.599.7000

ishapiro@manhattan.

institute

JACKSON MAYNARD

SAM SPIEGELMAN

Counsel of Record

Citizen Action Defense Fund

111 21st Avenue SW, Ste. 13

Olympia, Wash., 98112

201.314.9505

jackson@citizenactiondefense.org

sam.spiegelman1@gmail.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................................... ii

INTEREST OF AMICI CURIAE ............................1

QUESTIONS PRESENTED ...................................2

INTRODUCTION AND SUMMARY OF

ARGUMENT .....................................................3

ARGUMENT ...........................................................6

I. THE TAKINGS CLAUSE ENTITLES OWNERS OF

FORECLOSED PROPERTIES TO ANY EQUITY

LOST DUE TO THE GOVERNMENT’S ARTIFICIAL

DEPRESSION OF A PROPERTY’S VALUE ................6

A. The Takings Clause Focuses on Just

Compensation for What Is Taken, Not

the Value That Is Received or Given .......6

B. An Unfair Fire Sale Auction Does Not

Determine Fair Market Value,

Which Courts Regularly Employ to

Determine Just Compensation ................8

II.

IN REM FORECLOSURES ARE NOT

CATEGORICALLY IMMUNE TO THE

EXCESSIVE FINES CLAUSE........................ 10

CONCLUSION ...................................................... 13

TABLE OF AUTHORITIES

Page(s)

Cases

Armstrong v. United States, 364 U.S. 40 (1960) ........7

Austin v. United States,

509 U.S. 604 (1993)...................................... 5, 10, 12

Coleman v. Dist. of Columbia, 2016 U.S. Dist.

LEXIS 200937 (D.D.C. June 11, 2016) ...................5

First English Evangelical Lutheran Church of

Glendale v. L.A. Cnty., 482 U.S. 304 (1987) ...........8

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992)................................................4

Palazzolo v. Rhode Island, 533 U.S. 606 (2001).........7

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922)..................................................3

Polizzi v. Schoharie Cnty., 720 F. Supp. 3d 141

(N.D.N.Y. 2024)........................................................5

Rafaeli, LLC v. Oakland Cnty.,

952 N.W.2d 434 (Mich. 2020) ........................ 8, 9, 11

Tyler v. Hennepin County,

598 U.S. 631 (2023).................................. 3, 8, 10, 11

United States v. Bajakajian,

524 U.S. 321 (1998).................................... 11, 12, 13

United States v. Causby,

328 U.S. 256 (1946)..................................................8

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

449 U.S. 155 (1980)..................................................6

iii

Other Authorities

Beth A. Colgan, Of Guilty Property and

Civil/Remedial Punishment: The Implications

and Perils of “History” for the Excessive Fines

Clause and Beyond, 3 J. Am. Const. Hist. 697

(2025)...................................................................... 12

Jonathan Klick & Gideon Parchomovsky,

Restraining “Theft by the State”,

REGULATION 12 (Spring 2025) .................................5

INTEREST OF AMICI CURIAE 1

The Citizens Action Defense Fund (“CADF”) is

an independent, nonprofit organization based in

Washington State that supports and pursues

strategic, high-impact litigation in cases to advance

free markets, restrain government overreach, or

defend constitutional rights. As a government

watchdog, CADF files lawsuits, represents affected

parties, intervenes in cases, and files amicus briefs to

support constitutional rights, including, inter alia,

protections against the uncompensated taking of

private property without just compensation and the

imposition of excessive fines.

The Manhattan Institute for Policy Research

(“MI”) is a nonprofit public policy research foundation

whose mission is to develop and disseminate new

ideas that foster greater economic choice and

individual responsibility. To that end, MI has

historically sponsored scholarship and filed briefs

supporting constitutional protections for property

rights and meaningful judicial review of government

actions that violate those protections.

The Reason Foundation (“Reason”) is a

national, nonpartisan, nonprofit think tank founded

in 1978. Reason’s mission is to advance a free society

by applying and promoting libertarian principles and

policies—including free markets, individual liberty,

and the rule of law. Reason supports dynamic marketbased policies that allow and encourage individuals

and voluntary institutions to flourish. Reason

1 Pursuant to Rule 37, counsel for amici affirm that no counsel

for any party authored this brief in whole or part, and no person

or entity, other than amici, their members, or counsel, made any

monetary contribution to fund its preparation or submission.

advances its mission by publishing Reason magazine,

as well as commentary on its websites, and by issuing

policy research reports.

The Oregon Property Owners Association

(“OPOA”) is a nonpartisan, nonprofit public interest

organization focused on legislation and litigation to

protect the constitutional rights of landowners

against excessive federal, state, and local regulations.

OPOA, which is the assumed business name for

Oregonians in Action, successfully represented the

petitioner in Dolan v. City of Tigard, 512 U.S. 374

(1994). OPOA has filed other cert. petitions in this

Court and has appeared as amicus in many land use

and property rights cases in state and federal courts

in the last two decades.

Amici have a strong interest in the outcome of this

case because they are committed to the protection of

property rights throughout the United States.

Specifically, amici worry that if the lower court’s

opinion stands, it will incentivize other state and local

governments to further erode the constitutional

protections afforded to private property.

QUESTIONS PRESENTED

1. Whether taking and selling a home to satisfy a

debt to the government, and keeping the surplus

value as a windfall, violates the Takings Clause of the

Fifth Amendment when the compensation is based on

the artificially depressed auction sale price rather

than the property's fair market value?

2. Whether the forfeiture of real property worth

far more than needed to satisfy a tax debt but sold for

fraction of its real value constitutes an excessive fine

under the Eighth Amendment, particularly when the

debt was never actually owed?

INTRODUCTION AND

SUMMARY OF ARGUMENT

In 1991, Timothy Scott Pung purchased a home in

Isabella County’s Union Township for $125,000.00.

He died in 2004, but immediate family members have

continued occupying the home ever since. There was a

legal dispute over whether Pung’s next-of-kin

properly recorded the deed transfer from Pung’s

estate and thus maintained a state property tax

exemption, resulting in a judgment that the estate

owed a mere $2,241.93. The County rushed to

foreclose to collect that amount, an action the estate’s

representative, petitioner here, learned of too late to

redeem the property. The County auctioned the

property for $76,000 (far less than its market value)

and retained all proceeds. The buyer then resold the

property for $195,000.

The petitioner sued in federal court, alleging a

Fifth Amendment taking and an Eighth Amendment

excessive fine. The district court dismissed the fines

claim but awarded $73,766 in surplus proceeds under

Rafaeli, LLC v. Oakland Cnty., 505 Mich. 429 (2020).

The Sixth Circuit affirmed. Petitioner filed in this

Court to recover the difference between the depressed

auction price and the fair market value, and this

Court granted cert. to examine the question under

both the Fifth and Eighth Amendments.

That dispute is well-documented in the record and

thoroughly argued by the parties. Amici limit this

brief to discussing the implications of a ruling against

the petitioner. The County’s arguments, if allowed to

stand, could serve as a roadmap for future

governments to freely sell taken properties at

artificially depressed prices and to avoid the

constraints of the Excessive Fines Clause by not using

words like “crime” or “convicted.”

Many of the core issues in this case were generally

resolved in Tyler v. Hennepin County, 598 U.S. 631

(2023) (holding that when a government sells a home

to satisfy a debt it cannot retain proceeds exceeding

the amount owed). Yet the County argues that it

merely sold the property for less than it was worth,

rather than keeping any windfall proceeds, and thus

is under no obligation to further compensate the

owner. But the text of the Takings Clause is not

limited to situations when the government benefits

from the property that is taken. Neither language,

precedent, nor background principles of law suggest

that the Takings Clause hinges on governmental

gains rather than property owners’ losses. If it were

otherwise, this Court’s takings jurisprudence would

look markedly different, with numerous cases

focusing on whether and how much a government has

gained instead of what was taken from the owner.

The Takings Clause facially makes no distinction

between a seizure of property and the total

destruction of its value depending upon cui bono, or

based on what form that benefit manifests. This Court

has long recognized that a taking can occur when “a

regulation goes too far,” Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393, 415 (1922), such as when

a regulation “denies all economically beneficial or

productive use of land,” Lucas v. S.C. Coastal Council,

505 U.S. 1003, 1015 (1992). Yet, in those situations,

the focus is not on the value of what government

purportedly gained, but what the property owner lost.

The rule should be the same here.

This case shows that, despite federal and state

legislation requiring local tax authorities to diligently

pursue fair market value for auctioned properties, the

system is still rife with corner-cutting at best and

official circumvention at worst. The reasons for this

are myriad, but at the core is state courts’ inability—

or even unwillingness—to properly interrogate local

authorities’ conduct around foreclosures. Tyler sent a

clear statement: no longer may counties and

municipalities hide behind technicalities to avoid

making a foreclosed owner as whole as feasible, and

efforts to secure as close to fair market value as

plausible must be bona fide and in good faith. But

apparently that message was not loud enough. The

only lasting remedy, at this late juncture, is to extend

Tyler’s logic to the case at hand: depriving a foreclosed

owner of his equity in excess of the tax owed

constitutes a taking unless the local government has

met all its common law and statutory obligations.

In addition to the Takings Clause violations, the

County’s failure to make a bona fide, good-faith effort

to recover a foreclosed owners’ remaining equity also

violates the Excessive Fines Clause. As this Court has

held, excessive fines are not limited to whether the

word “crime” is invoked. See, e.g., Austin v. United

States, 509 U.S. 604, 610 (1993). Moreover, the Pungs’

saga to recover the full value of their taken home—

one that displays the County’s peculiar doggedness in

enforcing the disputed tax assessment—is an example

of the type of moral hazard the Clause was designed

to prevent. The County moved quickly in a fire-sale

auction and had little incentive to get fair market

value for the Pungs’ home, which is all too typical.

Counties across the United States continue initiating

forced sales to enrich themselves at the expense of

owners, some of whom might owe a relative pittance

in unpaid taxes. See Jonathan Klick & Gideon

Parchomovsky, Restraining “Theft by the State”,

REGULATION 12 (Spring 2025) (summarizing research

on home-equity theft that found systemic abuse,

including a forced sale on a tax debt of $8.41 that

netted the local government $24,000).

And while recent favorable rulings outside the

Sixth Circuit have shown promise, it is still far too

early to gauge their practical and precedential impact.

See, e.g., Polizzi v. Schoharie Cnty., 720 F. Supp. 3d

141 (N.D.N.Y. 2024) (recognizing a property interest

in “surplus equity”); Coleman v. Dist. of Columbia,

2016 U.S. Dist. LEXIS 200937, at *5 (D.D.C. June 11,

2016) (same regarding “home equity”). Too many

homeowners are still left to the whims of local tax

officials. A ruling in petitioner’s favor here will send a

strong message in Tyler’s wake that state and local

governments cannot drape destruction of owners’

equity beneath layers of legal contrivances.

ARGUMENT

I. THE TAKINGS CLAUSE ENTITLES OWNERS OF

FORECLOSED PROPERTIES TO ANY EQUITY LOST

DUE TO THE GOVERNMENT’S ARTIFICIAL

DEPRESSION OF A PROPERTY’S VALUE

A. The Takings Clause Focuses on Just

Compensation for What Is Taken, Not the

Value That Is Received or Given

Equity is property. Government is not absolved of

paying for its destruction simply by following its own

prescribed rules for doing so. See Webb’s Fabulous

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

(“[A] State, by ipse dixit, may not transform private

property

into

public

property

without

compensation.”). Throughout this litigation, the

County has vastly overstated the “strictures” of “stateprescribed procedures” that, by its lights, explains the

entire $118,000 discrepancy between the Pung home’s

fair market value and its “forced sale” price at auction.

Resp. Cert. Br. at 6.

The “forced sale” may explain some of the

discrepancy in the same way that selling a Picasso at

a flea market will not bring the highest price. Yet the

County incredibly suggests that “the goals of timely

recovery of delinquent tax revenue . . . and prompt

clearing of title” are per se shields against any

consideration of fair market value. Id. at 9. Such a

rule ignores the “takings” part of the Takings

Clause—it’s not the “Receivings Clause”—and allows

the government to create the conditions for the

disparity between a property’s assessed value and its

depressed price at auction—i.e., it can choose to sell

the Picasso at the flea market. As petitioner aptly puts

it, the County has “sought refuge in the fiction that

justice was limited by the outcome of its own inferior

auction processes.” Pet. Br. at 13.

Taken to its (il)logical conclusion, the county’s

argument would permit a local government to

confiscate title to collect a simple tax lien, “attempt” a

public sale at a swap meet, and—after that sale

predictably fails—claim it did everything in its power

to secure any price, let alone a fair-market-value one.

Once the dust settles, the government could then

resell at a steep profit without the former owner’s

pesky equity stake eating into that margin.

In Palazzolo v. Rhode Island, 533 U.S. 606 (2001),

this Court emphasized that proper analysis should “be

informed by the purpose of the Takings Clause, which

is to prevent the government from ‘forcing some

people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as

a whole.’” Id. at 617–18 (quoting (Armstrong v. United

States, 364 U.S. 40, 49 (1960)). Here, the Pungs are

bearing a significant loss to raise the County’s

revenues. Squeezing a small subset of property

owners to raise general revenues flies in the face of

the principle articulated in Armstrong and affirmed in

Palazzolo.

The parties already jointly stipulate that the

home’s appraised value was $194,000 (it did, after all,

immediately re-sell after auction for $195,000). Pet.

Cert. Br. at 5. That is the value that was taken. The

County is not excused for having had the minimal

foresight to stage an auction that netted just twofifths of the property’s fair market value. Id. at 9.

B. An Unfair Fire-Sale Auction Does Not

Determine Fair Market Value, Which

Courts Regularly Employ to Determine

Just Compensation

In a situation like this one, fair market value is

not accurately gauged via the price the government

obtains in a market it controls. “It is the owner’s loss,

not the taker’s gain, which is the measure of the value

of the property taken.” United States v. Causby, 328

U.S. 256, 261 (1946). Had the Pungs sold the property

in a normal sale, they would have realized a “[m]arket

value fairly determined” as a normal measure of just

compensation. Id. If “depreciation of value . . . by

reason of preliminary activity” does not factor into the

calculation of just compensation, neither, surely, can

inaccurate auctions. See First English Evangelical

Lutheran Church of Glendale v. L.A. Cnty., 482 U.S.

304, 320 (1987).

On this, Justice Viviano’s concurrence in Rafaeli is

instructive, clarifying that “the property right at

issue” in fire-sale auctions “[i]s the taxpayer’s equity

in the property.” 952 N.W.2d at 486. Justice Viviano

noted also that he could not find a single case in which

a court has held that “the right to surplus proceeds is

a freestanding property interest independent of the

underlying equity interest.” Id. at 511.

From this perspective, fair market value is the

obvious starting point for any compensation calculus

in the tax-foreclosure context. In such cases, the

government has an outsized role in setting the price

at auction. Petitioner’s briefing goes into detail on the

various entry barriers and carrying costs that render

the foreclosure market largely inaccessible to the

general public.

Even in jurisdictions that recognize an owner’s

equity interest in his foreclosed property, the

government would have no real incentive to reduce

private actors’ high transaction costs of participating

in the foreclosure market. Nor, of course, do the select

few (mostly financial institutions) participating in

such auctions have any reason to push for broader

access. This system will not change unless and until

this Court expressly confirms that the amount of an

owner’s equity interest is measured by a property’s

fair market value, or the closest approximation

thereof, at the time government takes title. No actor

in these fire sales—not the government and certainly

not the small number of bidders—have any incentive

to ensure a higher, market-based sale price.

II. IN

REM

FORECLOSURES

ARE

NOT

CATEGORICALLY IMMUNE TO THE EXCESSIVE

FINES CLAUSE

The County argues that it did not violate the

Excessive Fines Clause when it seized the Pungs’

$194,000 home to settle a $2,241 tax debt, insisting

the Court does not extend the scope of the Eighth

Amendment beyond the “protection of persons

‘convicted of crimes.’” Resp. Cert. Br. at 11 (quoting

Austin, 509 U.S. at 620). This is incorrect; an honest

reading of the caselaw plainly shows the opposite.

The County first bypasses the ethical implications

its conduct here generates—ethical improprieties the

Excessive Fines Clause was adopted to curtail. The

County rests its case on the argument that “[a]

compensation claim arising from tax foreclosure falls

categorically outside the scope of the Eighth

Amendment.” Resp. Cert. Br. at 13. It makes no

attempt to explain what it is about tax foreclosures

that make them singularly impermeable to the moral

hazards against which prohibitions on excessive fines

were, in the first place, imposed. Indeed, the County’s

willful oversight is itself a product of this moral

hazard (discussed in Part I, infra), betraying

government’s ready propensity to push the limits of

its power as far as it will, not as far as it ought go.

The Court in Austin noted that its “cases also have

recognized that statutory in rem forfeiture imposes

punishment.” Austin, 509 U.S. at 614. Nothing in

Austin or its progeny suggests that “punishment”

requires there be an underlying criminal offense. In

fact, Austin clearly says that “the question is not . . .

whether forfeiture . . . is civil or criminal, but rather

whether it is punishment.” Id. at 610. See also Tyler,

598 at 648–49 (Gorsuch, J., concurring) (“Nor, this

Court has held, is it appropriate to label sanctions as

‘remedial’ when (as here) they bear ‘no correlation to

any damages sustained by society or to the cost of

enforcing the law,’ and ‘any relationship between the

Government’s actual costs and the amount of the

sanction is merely coincidental.’”) (cleaned up).

The County further brushes aside the fact that the

plain text of the Eighth Amendment separates

“excessive fines” from “cruel and unusual

punishments,” implying that an excessive fine by

itself is not the same as a cruel and unusual

punishment. While punishment is relevant, as stated

in Austin, “this Court has said a statutory scheme

may still be punitive where it serves another ‘goal of

punishment,’ such as ‘[d]eterrence.’” Tyler, 598 U.S. at

650 (Gorsuch, J., concurring) (quoting United

States v. Bajakajian, 524 U.S. 321, 329 (1998)). The

County is hung up on the fact that Austin, Bajakajian,

and Timbs arose from cases concerning underlying

criminal charges and therefore highlight the words

“convicted”

and

“some

offense,”

conflating

“punishment” with “crime” to the exclusion of the

former’s broader meaning. Opp. Br. at 11. The County

also makes hay of that the Michigan Supreme Court’s

description of tax indebtedness as “not a criminal

offense.” Rafaeli, 952 N.W.2d at 447–48. Again, “the

question is not . . . whether forfeiture . . . is civil or

criminal, but rather whether it is punishment.”

Austin, 509 U.S. at 610.

The Framers of both the Fifth and Fourteenth

Amendment did not limit excessive-fines analysis only

to those contexts displaying crime-y words, and this

Court’s jurisprudence on the matter more than bears

this out. While “it is true that early in rem forfeitures

were adjudicated without the full panoply of

procedural protections,” it would be an “anachronistic

misstep” to suggest, from this, that such forfeitures

are always (and forever) only remedial. Beth A.

Colgan, Of Guilty Property and Civil/Remedial

Punishment: The Implications and Perils of “History”

for the Excessive Fines Clause and Beyond, 3 J. Am.

Const. Hist. 697, 740 (2025). Such formalism invites—

and would readily permit—local governments to

escape excessive-fines scrutiny via clever branding

alone (as the County has attempted here). And while

debate “rages” (at least by legal historians’ standards)

over whether “early in rem forfeitures were

understood to be punishment”—no interpretation of

the historical record answers what to make of a

scheme that “serves in part to punish.” Austin, 509

U.S. at 610. 2 That is, the question of when a

government’s pursuit of remediation becomes

punitive necessarily requires a case-specific answer.

On this, Justice Gorsuch reminds us that “[s]o long as

the law ‘cannot fairly be said solely to serve a remedial

purpose,’ the Excessive Fines Clause applies.” Id. at

648 (Gorsuch, J., concurring).

The Court in Bajakajian clarified that the legal

fiction depicting in rem forfeitures as actions against

“guilty property” does not shield it from excessive2 Of course, this historical debate has colored—and muddled—

excessive-fines jurisprudence, with Professor Colgan noting,

perhaps with this (then-pending) case in mind, that “[t]he

divergent treatment of the history of early forfeitures between

Austin and Bajakajian created confusion, and has ultimately led

the lower courts to split,” among other things, “on whether civil

fines constitute fines.” Colgan, Of Guilty Property and

Civil/Remedial Punishment, supra, at 702–03.

fines analysis; only that, “because they were viewed

as nonpunitive, such forfeitures traditionally were

considered to occupy a place outside of the domain of

the Excessive Fines Clause.” 524 U.S. at 331. “It does

not follow, of course, that all modern civil in rem

forfeitures are nonpunitive and thus beyond the

coverage of the Excessive Fines Clause.” Id.

So where is the tipping point? As with much in the

law, it depends. But at a minimum the Court should

not agree with the County’s simplistic suggestion that

“an object in rem stays in rem.” The precise formula

for determining whether and to what extent a

remedial action becomes punitive depends, of course,

on the input variables. But if the Pungs’ saga teaches

us anything, it is that nomenclature cannot possibly

be among them.

CONCLUSION

For the reasons discussed above and in

petitioner’s briefing, the Court should hold that the

County’s forced sale at an artificially depressed price

far below fair market value violated Petitioner’s Fifth

and Eighth Amendment rights, and remand the case

accordingly.

Respectfully submitted,

DECEMBER 2025