No.

22-166

In The
Supreme Court of the United States
____________________

GERALDINE TYLER, on behalf of herself

and all others similarly situated,
Petitioner,

v.

HENNEPIN COUNTY, and

DANIEL P. ROGAN, Auditor-Treasurer,
in his official capacity,
Respondents.
____________________

On Writ of Certiorari to
the United States Court of Appeals
for the Eighth Circuit
____________________

BRIEF FOR PETITIONER

____________________

LAWRENCE G. SALZMAN CHRISTINA M. MARTIN

DEBORAH J. LA FETRA Counsel of Record
DAVID J. DEERSON Pacific Legal Foundation
JOSHUA W. POLK 4440 PGA Blvd., Ste. 307
Pacific Legal Foundation Palm Beach Gardens, FL 33410
555 Capitol Mall, Ste. 1290 Telephone: (916) 330-4059
Sacramento, CA 95814 [email protected]
Additional counsel on inside front cover
CHARLES R. WATKINS
Guin, Stokes & Evans, LLC
805 Lake Street, #226
Oak Park, IL 60301

GARRETT D. BLANCHFIELD
ROBERTA A. YARD
Reinhardt Wendorf & Blanchfield
332 Minnesota St., Ste. W-1050
St. Paul, MN 55101

VILDAN TESKE
Teske Law, PLLC
222 South Ninth St., Ste. 1600
Minneapolis, MN 55402

Counsel for Petitioner

 i

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?
2. Whether the forfeiture of property worth far
more than needed to satisfy a debt plus interest,
penalties, and costs is a fine within the meaning of the
Eighth Amendment?
 ii

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ........................................ i

TABLE OF AUTHORITIES ...................................... iv
OPINIONS BELOW ................................................... 1
JURISDICTION.......................................................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS AT ISSUE ........................................... 1
STATEMENT OF THE CASE.................................... 2
A. Factual Background ......................................... 2
1. Geraldine Tyler and her home ................... 2
2. Hennepin County confiscated Tyler’s home
that was worth more than her debt ........... 2
3. The statutory scheme ................................. 3
B. Procedural History ........................................... 5
SUMMARY OF ARGUMENT .................................... 6
ARGUMENT ............................................................... 8
I. Government Takes Property Without Just
Compensation When It Collects a Debt and
Keeps More than It Is Owed ................................. 8
A. Home Equity Is Private Property .................... 9
1. This Court’s decisions support the
recognition of home equity as a
property interest protected by the
Taking Clause ........................................... 10
2. History and tradition confirm that equity
in real estate is private property.............. 14
 iii

3. Current Minnesota law treats equity as

private property in other contexts ........... 19
B. The County Violated the Takings Clause
When It Confiscated Tyler’s Equity .............. 23
1. The state may not use legislation or its
lien to extinguish equity without just
compensation ............................................ 24
2. The taking of equity violates the
purpose of the Takings Clause ................. 27
3. Nelson v. City of New York does not
apply here and its comments about
the Takings Clause are dicta.................... 29
II. The Excessive Fines Clause Limits the
Forfeiture of Tyler’s Equity .............................. 33
A. The County’s Forfeiture Is a Fine Under
This Court’s Existing Precedents ............... 35
B. The History and Original Meaning of the
Excessive Fines Clause Support Its
Application Here.......................................... 39
CONCLUSION.......................................................... 45
 iv

TABLE OF AUTHORITIES
Page(s)
Cases
Armstrong v. United States,
364 U.S. 40 (1960) ............................8–9, 11, 26–27
Austin v. United States,
509 U.S. 602 (1993) ........................8, 35–38, 41–43
Baker v. Kelley,
11 Minn. 480 (1866)............................................. 17
Batsell v. Batsell,
410 N.W.2d 14 (Minn. Ct. App. 1987)................. 19
Bennett v. Hunter,
76 U.S. 326 (1869) ............................. 12–14, 38–39
Bogart v. United States,
169 F.2d 210 (10th Cir. 1948) ............................. 11
Bogie v. Town of Barnet,
129 Vt. 46 (1970)...................................... 16, 23, 28
Brown v. Crookston Agric. Ass’n,
34 Minn. 545 (1886)............................................. 21
Browning-Ferris Indus. of Vermont
v. Kelco Disposal, Inc.,
492 U.S. 257 (1989) ................................. 35, 39–40
Burnquist v. Flach,
6 N.W.2d 805 (Minn. 1942) ................................. 18
Burton Coal Co. v. Franklin Coal Co.,
67 F.2d 796 (8th Cir. 1933) ................................. 21
Byrd v. O’Neill,
309 Minn. 415 (1976)........................................... 19
 v

Cahoon v. Coe,
57 N.H. 556 (1876)............................................... 16
Calder v. Bull,
3 U.S. 386 (1798) ................................................. 29
Canel v. Topinka,
212 Ill.2d 311 (2004) ............................................ 26
Cerajeski v. Zoeller,
735 F.3d 577 (7th Cir. 2013) ............................... 45
Chambers v. Florida,
309 U.S. 227 (1940) ............................................. 45
City of Anchorage v. Thomas,
624 P.2d 271 (Alaska 1981) ................................. 29
City of New York v. Nelson,
309 N.Y. 801 (1955) ............................................. 30
Coleman through Bunn v. D.C.,
70 F.Supp.3d 58 (D.D.C. 2014) ........................... 28
Cone v. Forest,
126 Mass. 97 (1879) ............................................. 16
Cook v. United States,
37 Fed.Cl. 435 (1997)........................................... 10
Crane v. Commissioner,
331 U.S. 1 (1947) ................................................. 10
Douglas v. Roper,
No. 1200503, 2022 WL 2286417
(Ala. June 24, 2022)............................................. 15
Farnham v. Jones,
32 Minn. 7 (1884)............................................. 5, 17
Foss v. City of New Bedford,
No. CV 22-10761-JGD, 2022 WL
3225154 (D. Mass. Aug. 10, 2022) ...................... 29
 vi

The Gertrude,
10 F.Cas. 265 (C.C.D. Me. 1841) ......................... 43
Grand Teton Mountain Invs., LLC
v. Beach Props., LLC,
385 S.W.3d 499 (Mo. Ct. App. 2012) ................... 21
Greer v. Professional Fiduciary, Inc.,
792 N.W.2d 120
(Minn. Ct. App. 2011) .......................................... 19
Griffin v. Mixon,
38 Miss. 424 (1860) ........................................ 16, 28
Hall v. Meisner,
51 F.4th 185 (6th Cir. 2022) ............... 9, 14–15, 20,
.......................................................23–24, 27–28, 30
Harmony v. United States,
43 U.S. 210 (1844) ............................................... 43
Harrison v. Montgomery Cnty., Ohio,
997 F.3d 643 (6th Cir. 2021) ............................... 29
Horne v. Dep’t of Agric.,
576 U.S. 350 (2015) ............................. 8, 14, 32–33
In re Canney,
284 F.3d 362 (2d Cir. 2002) ................................. 20
In re Estate of Rutt,
824 N.W.2d 641
(Minn. Ct. App. 2012) .......................................... 19
In re Stuart,
646 N.W.2d 520 (Minn. 2002) ............................. 19
Jago v. Van Curen,
454 U.S. 14 (1981) ................................................. 9
Kirtsaeng v. John Wiley & Sons, Inc.,
568 U.S. 519 (2013) ............................................. 30
 vii

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) .................................... 31–32
Kokesh v. S.E.C.,
137 S.Ct. 1635 (2017) .............................. 34, 36–37
Koontz v. St. Johns River Water
Mgmt. Dist., 570 U.S. 595 (2013) ............ 10–11, 33
Lake Cnty. Auditor v. Burks,
802 N.E.2d 896 (Ind. 2004) ................................. 29
LaSalle Bank Nat’l Ass’n v. White,
246 S.W.3d 616 (Tex. 2007) ................................. 10
Leonard v. Texas,
137 S.Ct. 847 (2017) ...................................... 41, 44
Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005) ............................................. 32
Louisville Joint Stock Land Bank
v. Radford, 295 U.S. 555 (1935) .......................... 11
Magruder v. Drury,
235 U.S. 106 (1914) ............................................. 30
Martin v. Snowden,
59 Va. 100 (1868) ............................... 14–16, 40–41
Matter of First Colonial Corp. of Am.,
693 F.2d 447 (5th Cir. 1982) ............................... 22
McDuffee v. Collins,
23 So. 45 (Ala. 1898) ............................................ 15
Monroe v. Pape,
365 U.S. 167 (1961) ............................................. 31
Murray’s Lessee v. Hoboken Land &
Improvement Co., 59 U.S. 272 (1855) ................. 23
 viii

Muskin v. State Dep’t of Assessments

and Taxation,
422 Md. 544 (2011) .............................................. 26
Nelson v. City of New York,
352 U.S. 103 (1956) ................................. 13, 29–32
Nelson v. Nelson,
384 N.W.2d 468 (Minn. 1986) ............................. 19
Peisch v. Ware,
8 U.S. 347 (1808) ................................................. 43
Phillips v. Washington Legal Found.,
524 U.S. 156 (1998) ..........................7, 9, 11, 25–26
Polonsky v. Town of Bedford,
173 N.H. 226 (2020)................................. 23, 27, 32
Rafaeli, LLC v. Oakland Cnty.,
505 Mich. 429 (2020) ....................14–15, 27–28, 30
Russello v. United States,
464 U.S. 16 (1983) ................................................. 8
Seaboard Air Line Ry. Co.
v. United States, 261 U.S. 299 (1923) ................. 26
Seekins v. Goodale,
61 Me. 400 (1873) ................................................ 16
Shattuck v. Smith,
69 N.W. 5 (N.D. 1896) ......................................... 17
Shaw Acquisition Co. v. Bank of Elk
River, 639 N.W.2d 873 (Minn. 2002) ............ 21–22
Slater v. Maxwell,
73 U.S. 268 (1867) ......................................... 12, 16
Soldal v. Cook County,
506 U.S. 56 (1992) ............................................... 34
 ix

Staats v. Miller,
150 Tex. 581 (1951) ............................................. 28
Stead’s Ex’rs v. Course,
8 U.S. 403 (1808) ................................................. 12
Syntax, Inc. v. Hall,
899 S.W.2d 189 (Tex. 1995) ................................. 29
Taft v. Wells Fargo Bank, N.A.,
828 F.Supp.2d 1031 (D. Minn. 2011) .................. 19
Thomas Tool Services, Inc.
v. Town of Croydon,
145 N.H. 218 (2000)............................................. 27
Timbs v. Indiana,
139 S.Ct. 682 (2019) ...................................... 34–36
Toro Credit Co. v. Zeytoonjian,
341 Conn. 316 (2021) ........................................... 21
Toth v. United States,
143 S.Ct. 552 (2023) ............................................ 42
Tyler v. Hennepin County,
26 F.4th 789 (8th Cir. 2022) .................................. 1
Tyler v. Hennepin County,
505 F.Supp.3d 879 (D. Minn. 2020) ...................... 1
United States v. 8.0 Acres of Land,
197 F.3d 24 (1st Cir. 1999) .................................. 11
United States v. Bajakajian,
524 U.S. 321 (1998) ......................36, 38, 40–41, 43
United States v. Boyd,
246 F.2d 477 (5th Cir. 1957) ............................... 28
United States v. Dow,
357 U.S. 17 (1958) ............................................... 31
 x

United States v. Gen. Motors Corp.,

323 U.S. 373 (1945) ............................................... 9
United States v. James Daniel Good
Real Prop., 510 U.S. 43 (1993) ............................ 34
United States v. Lawton,
110 U.S. 146 (1884) ....................................... 13–14
United States v. Mitchell,
172 F.3d 1104 (9th Cir. 1999) ............................. 38
United States v. Taylor,
104 U.S. 216 (1881) ....................................... 13–14
United States v. Williams,
504 U.S. 36 (1992) ............................................... 30
Voluntown v. Rytman,
27 Conn.App. 549 (1992) ..................................... 21
Wayside Church v. Van Buren County,
847 F.3d 812 (6th Cir. 2017) ............................... 28
Webb’s Fabulous Pharmacies, Inc.
v. Beckwith, 449 U.S. 155 (1980) ........ 7, 11, 25–26
Weems v. United States,
217 U.S. 349 (1910) ............................................. 39
Williams v. United States,
289 U.S. 553 (1933) ............................................. 30
Wisner v. Vandelay Invs., L.L.C.,
No. A-16-451, 2017 WL 2399492
(Neb. Ct. App. May 30, 2017),
rev’d, 300 Neb. 825 (2018) ................................... 28
United States Constitution
U.S. Const. amend. V........................................ 1, 8, 13
U.S. Const. amend. VIII ............................. 1, 8, 35, 39
 xi

U.S. Const. amend. XIV ........................................ 1, 15

Federal Statutes
11 U.S.C. § 522(d) ..................................................... 10
12 U.S.C. § 1715z-20 ................................................. 10
26 U.S.C. § 6342 ........................................................ 22
§ 7403 ................................................................... 22
28 U.S.C. § 1254(1) ..................................................... 1
§ 1331 ..................................................................... 1
§ 3203(g) ............................................................... 20
§ 3203(h)(1) .......................................................... 20
42 U.S.C. § 1983 .......................................................... 1
State Statutes
Alaska Stat. § 29.45.470 ........................................... 23
§ 29.45.480 ........................................................... 23
Ark. Code § 26-37-205............................................... 23
City of Minneapolis Code of Ordinances,
§ 445.35 .................................................................. 3
Conn. Gen. Stat. § 12-157(h) .................................... 23
Del. Code tit. 9, § 8779 .............................................. 23
§ 8751 ................................................................... 23
Fla. Stat. § 197.522 ................................................... 23
§ 197.582 .............................................................. 23
Ga. Code Ann. § 48-4-5 ............................................. 23
§ 48-4-81 ............................................................... 23
Idaho Code § 31-808(2)(b) ......................................... 23
 xii

Ind. Code § 6-1.1-24-7(c) ........................................... 23

Iowa Code Ann. § 446.16 .......................................... 23
Kan. Stat. § 79-2803 ................................................. 23
Ky. Rev. Stat. § 91.517 ............................................. 23
§ 426.500 .............................................................. 23
La. Stat. Ann. § 47:2153(5) ....................................... 23
Mich. Comp. Laws § 211.78g(2) ............................... 23
Minn. Stat. § 47.58.................................................... 19
§ 270C.40 ............................................................. 22
§ 270C.7101 ......................................................... 22
§ 270C.7108 ......................................................... 22
§ 270C.7108(2) ..................................................... 22
§ 277.21(1)–(3), (13) ............................................. 22
§ 279.01 .................................................................. 3
§ 279.01(1).............................................................. 3
§ 279.03(1a) ............................................................ 3
§ 279.05 .................................................................. 4
§ 279.092 ................................................................ 3
§ 279.16 .................................................................. 4
§ 280.001–280.01 ................................................... 4
§ 280.29 .................................................................. 3
§ 280.43 .................................................................. 4
§ 281.18 .................................................................. 4
§ 281.25 .................................................................. 4
§ 281.70 .................................................................. 4
 xiii

§ 282.01 .................................................................. 4
§ 282.08 .............................................................. 3–4
§ 284.251(5) ............................................................ 3
§ 336.9-602(5), (8), (9) .......................................... 20
§ 336.9-608(a)....................................................... 20
§ 336.9-615(d) ...................................................... 20
§ 429.061(3) ............................................................ 3
§ 429.101 ................................................................ 3
§ 550.08 ................................................................ 20
§ 550.20 ................................................................ 20
§ 558.01 ................................................................ 11
§ 580.10 ................................................................ 20
Miss. Code Ann. § 27-41-77 ...................................... 23
Mo. Rev. Stat. § 140.340 ........................................... 23
N.C. Gen. Stat. § 105-374(k) .................................... 23
§ 105-374(q)(6) ..................................................... 23
N.D. Cent. Code § 57-28-20(1)(a).............................. 23
N.H. Rev. Stat. Ann. § 80:88 .................................... 23
§ 80:89 .................................................................. 23
N.M. Stat. § 7-38-71(A)(4) ........................................ 23
Nev. Rev. Stat. § 361.610(4), (6) ............................... 23
Okla. Stat. tit. 68, § 3125.......................................... 23
§ 3131(C) .............................................................. 23
72 Pa. Cons. Stat. § 5860.205 ................................... 23
§ 5860.601 ............................................................ 23
 xiv

§ 5860.610 ............................................................ 23
§ 5860.613 ............................................................ 23
R.I. Gen. Laws § 44-9-8.1 ......................................... 23
§ 44-9-24 ............................................................... 23
S.C. Code § 12-51-60 ................................................. 23
§ 12-51-130 ........................................................... 23
Tenn. Code § 67-5-2702 ............................................ 23
Tex. Tax Code § 34.04(a) .......................................... 23
Utah Code Ann. § 59-2-1351.1(7) ............................. 23
§ 67-4a-903(1) ...................................................... 23
Va. Code Ann. § 58.1-3967........................................ 23
Vt. Stat. Ann. tit. 12, § 4941 ............................... 20–21
W. Va. Code § 11A-3-65 ............................................ 23
Wash. Rev. Code § 84.64.080 .................................... 23
Wis. Stat. § 75.36(2m)............................................... 23
Wyo. Stat. § 39-13-108(d)(4) ..................................... 23
Other Authorities
72 Am.Jur.2d State and Local
Taxation (1974).................................................... 23
Arlyck, Kevin, The Founders’ Forfeiture,
119 Colum. L. Rev. 1449 (2019) .......................... 42
Black, Henry, Treatise on Tax Titles (1888) ...... 15–16
Black’s Law Dictionary (11th ed. 2019) ................... 10
Blackstone, William,
Commentaries on The Laws of England ....... 14, 43
 xv

Brief for Appellants, Nelson v. City of

New York, No. 30, 1956 WL 89027
(Sept. 14, 1956) .................................................... 29
Colgan, Beth A., Reviving the
Excessive Fines Clause,
102 Cal. L. Rev. 277 (2014) ........................... 35, 43
Cooley, Thomas M.,
A Treatise on the Law of Taxation (1876) ..... 15–16
Erickson, Angela C., “Minnesota,”
End Home Equity Theft,
Pacific Legal Foundation
(last visisted Feb. 24, 2023),
https://homeequitytheft.org/minnesota .............. 37
Erickson, Angela C., Thousands Lose
Their Wealth to Home Equity Theft,
Pacific Legal Foundation
(last visited Feb. 24, 2023),
https://homeequitytheft.org/size-and-
scope ....................................................................... 7
Francis, Jennifer C.H., Comment,
Redeeming What is Lost: The
Need to Improve Notice for Elderly
Homeowners Before and After
Tax Sales, 25 Geo. Mason U. Civ.
Rts. L.J. 85 (2014) ............................................... 44
Herpel, Stefan B., Toward a
Constitutional Kleptocracy: Civil
Forfeiture in America,
96 Mich. L. Rev. 1910 (1998)............................... 41
 xvi

Joint Center for Housing Studies of

Harvard Univ., Housing America’s
Older Adults (2018),
https://www.jchs.harvard.edu/sites/d
efault/files/media/imp/Harvard_JCH
S_Housing_Americas_Older_Adults_
2018.pdf................................................................ 10
Lunney, Glynn S., Jr., A Critical
Reexamination of the Takings
Jurisprudence, 90 Mich. L. Rev. 1892 (1992) ..... 24
McKechnie, William Sharp,
Magna Carta, A Commentary on the
Great Charter of King John (2d ed. 1914) .......... 14
National Council on Aging, Get the
Facts on Home Equity and Seniors
(Mar. 1, 2021),
https://www.ncoa.org/article/get-the-
facts-on-home-equity-and-seniors ....................... 10
Petition for Writ of Certiorari,
Fair v. Continental Resources,
No. 22-160 (filed Aug. 18, 2022) .......................... 41
Rao, John, The Other Foreclosure Crisis,
Nat’l Consumer Law Ctr.
(July 2012),
https://www.nclc.org/images/pdf/forec
losure_mortgage/tax_issues/tax-lien-
sales.pdf ......................................................... 38, 44
Restatement (Third) of Property
(Mortgages) § 7.4 ................................................. 21
5 Tiffany Real Prop. (3d ed. 2022) ............................ 21
 xvii

Uniform Commercial Code § 9-602 .......................... 20

§ 9-615 .................................................................. 20
Waples, Rufus,
A Treatise on Proceedings In Rem (1882) ........... 16
 1

OPINIONS BELOW
The decision of the Eighth Circuit Court of
Appeals is published at Tyler v. Hennepin County, 26
F.4th 789 (8th Cir. 2022), and reproduced in the
Appendix to the Petition for Writ of Certiorari
(Pet.App.1a). The district court opinion is published at
Tyler v. Hennepin County, 505 F.Supp.3d 879 (D.
Minn. 2020), Pet.App.11a. The Eighth Circuit’s order
denying rehearing is reproduced at Pet.App.50a.
JURISDICTION
The lower courts had jurisdiction over this case
under 42 U.S.C. § 1983 and 28 U.S.C. § 1331. On
March 24, 2022, the Eighth Circuit Court of Appeals
denied a timely motion for rehearing en banc. This
Court granted requests to extend the time to file a
petition for writ of certiorari to and including
August 19, 2022. The Petitioner filed the petition on
that date, which was granted on January 13, 2023.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS AT ISSUE
The Fifth Amendment to the U.S. Constitution
provides, “nor shall private property be taken for
public use, without just compensation.”
The Eighth Amendment to the U.S. Constitution
provides, “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.”
The Fourteenth Amendment to the U.S.
Constitution provides, in relevant part, “nor shall any
State deprive any person of life, liberty, or property,
without due process of law.”
 2

The relevant portions of the Minnesota statutes at

issue in this case are reproduced at Pet.App.52a.
STATEMENT OF THE CASE
A. Factual Background
1. Geraldine Tyler and her home
In 1999, Geraldine Tyler, now 94 years old,
purchased a one-bedroom condominium in
Minneapolis and made it her home. Pet.App.2a. She
lived there for more than a decade, and during that
time she timely paid her property taxes. Id. In 2010,
past age 80, she left her home out of concern for her
health and safety and moved to an apartment building
for seniors in a safe and quiet neighborhood. Id.; JA.4–
5. Beginning in 2011, Tyler failed to pay property
taxes on the condominium. Id.; Memo. of Hennepin
County in Support of Mot. to Dismiss, Doc. 13 at 2
(Apr. 24, 2020).
2. Hennepin County confiscated Tyler’s
home that was worth more than her debt
In 2015, Hennepin County and its auditor-
treasurer (collectively “County”) took “absolute title”
to Tyler’s home to satisfy past due property taxes,
extinguishing all interests she had in her property,
including her equity. Pet.App.5a. At the time, Tyler
owed $2,311 in accumulated property taxes. See Pet.
5. Penalties, interest, and costs ballooned Tyler’s total
debt to the County to $15,000. 1 Pet.App.12a. A year
after confiscating Tyler’s title, the County sold the
property at auction for $40,000. JA.12–13, 48.

1 Tyler never challenged the tax collection or foreclosure

procedures or the amount of the $15,000 total debt, and neither
are at issue before this Court. See JA.31–33.
 3

Pursuant to Minnesota’s tax statutes, the County did

not pay Tyler for the excess value of her home—her
equity—when it took absolute title nor when it sold
the property for $25,000 more than what she owed.
See Minn. Stat. § 282.08. Instead, the County kept the
entire $40,000 to fund government operations—a
$25,000 windfall for the public at Tyler’s expense. See
id.
3. The statutory scheme
Minnesota’s tax statutes authorize government to
take this kind of windfall when debtors owe property
taxes or certain other types of government debts
associated with real estate. 2 Once a property owner
misses tax payment deadlines in either May or
October, penalties of roughly 4–8% on the tax accrue
within weeks of delinquency, and then another 1% per
month is added until the end of the calendar year.
Minn. Stat. § 279.01(1). Unpaid taxes become
“delinquent” on January 1, see id. § 279.01, at which
point interest accrues on the outstanding taxes at 10–
28% annually. Id. § 279.03(1a). Counties also assess a
service fee that includes all costs associated with
collecting the debt. Id. § 279.092.

2 Minnesota’s statutes allow other types of debt associated with

the real estate, including utility bills and code enforcement

violations, to be collected in the same manner as delinquent real
estate taxes, including potential foreclosure with attendant loss
of equity. See Minn. Stat. §§ 280.29, 284.251(5), 429.101 (may
treat failure to shovel snow, weed abatement on private property,
etc., as a special assessment); 429.061(3) (may collect special
assessment in same manner as other municipal taxes); see, e.g.,
City of Minneapolis Code of Ordinances, § 445.35 (failure to
shovel snow off sidewalk treated as special assessment).
 4

By February 15 of the year following the missed

payment, the county auditor commences a lawsuit
against the delinquent properties in state court. Id.
§ 279.05. If the property owner does not file an answer
within 20 days, the court enters a judgment
establishing a “lien” on the property. 3 Id. § 279.16.
Then in May of that year, the auditor administratively
transfers limited title to the property to the state for
“the amount of taxes, penalties, interest, and costs
owed.” Id. §§ 280.001–280.01, 280.43. The state’s title
is subject to a right of redemption, allowing the debtor
to regain title by paying the debt, and the debtor
retains the right of possession and most other rights
associated with ownership. See, e.g., id. § 281.70
(describing auditor’s limited right of entry to protect
vacant premises from waste or trespass). If after
notice the property owner fails to redeem the property
by paying all taxes, penalties, and costs due within
three years, “absolute title to such parcel . . . shall vest
in the state.” Id. § 281.18; see also id. § 281.25 (state
holds title in trust for benefit of taxing districts). All
interests of property owners who fail to redeem before
the deadline, like Tyler, are forfeited to the
government. Counties, as subdivisions of the state,
have responsibility for obtaining and managing tax
delinquent properties within their boundaries. A
county may keep the property for a public purpose or
sell it. Id. § 282.01; JA.48 (forfeited property may be
used for public parks, other public uses, or sold at
public auction). When a county sells the property, it
reimburses itself for all expenses and then distributes
the surplus proceeds to the county, city, and school

3 In Tyler’s case, the judgment was entered in April 2012. JA.5.

 5

district. Minn. Stat. § 282.08. The homeowner gets

nothing.
B. Procedural History
In 2019, Tyler filed a putative class action in state
court against the County alleging, inter alia, that the
County took her equity in violation of the federal
Takings Clause and imposed an excessive fine. 4
Pet.App.25a–26a. The County removed the case to
federal court, then moved to dismiss for failure to
state a claim. Pet.App.16a. On December 4, 2020, the
United States District Court for the District of
Minnesota dismissed all claims. Pet.App.49a.
The Eighth Circuit affirmed dismissal on
February 16, 2022. It rejected Tyler’s argument that
the Takings Clause protects her property interest in
the value of her property that exceeded what she owed
in taxes, interest, penalties, and costs on the grounds
that no such property interest exists. The court
acknowledged that Minnesota cases like Farnham v.
Jones, 32 Minn. 7, 11–12 (1884), recognized such an
interest. Pet.App.7a–8a. However, it held that “any
common-law right to equity recognized in Farnham
has been abrogated by statute.” Pet.App.8a. It also
rejected Tyler’s federal excessive fines claim on the
grounds that the forfeiture of Tyler’s equity was not a
fine within the meaning of the Excessive Fines
Clause, adopting in full the district court analysis. Id.
(“We agree with the district court’s well-reasoned

4 The State of Minnesota also was originally named as a

defendant but was dismissed without prejudice because the
County alone takes the property, sells it, and divides the
proceeds. JA.38–39; JA.77–78 (noting that neither the State nor
County objected to the State’s dismissal on this basis).
 6

order and affirm the dismissal of these counts on the

basis of that opinion.”). The district court’s analysis
turned on three points: (1) its belief that the home-
forfeiture scheme’s “primary purpose is to compensate
the government for lost revenues due to the non-
payment of taxes,” (2) the fact that in some cases
forfeited property may be worth less than a property
owner’s debt, and (3) property owners are given
“multiple opportunities . . . to avoid forfeiture.”
Pet.App.41a–42a. Thus, even though the County
conceded that the forfeiture is at least partially “a
deterrent to those taxpayers considering tax
delinquency,” Pet.App.48a, and the County took
substantially more from Tyler than she owed, the
court held that confiscation of Tyler’s equity was not a
punishment and therefore not a “fine.” Pet.App.44a.
This Court granted Tyler’s Petition for Writ of
Certiorari on January 13, 2023.
SUMMARY OF ARGUMENT
Hennepin County took absolute title to Geraldine
Tyler’s home to satisfy a $15,000 debt consisting of
approximately $2,300 in delinquent property taxes
plus $12,700 of accumulated interest, collection costs,
and penalties. It sold the home for $40,000 and kept
the surplus proceeds of $25,000 as a windfall to fund
city, county, and school district operations. The
central issue in this case is whether property owners
indebted to the government are protected by the
Takings and Excessive Fines Clauses when
government confiscates property worth more than it
is owed to collect a debt. A fair application of this
Court’s precedents instructs that one or both of these
clauses must apply. Under no circumstances can
government have an unbounded ability to confiscate
 7

entire properties of any size for even the most minimal

tax debts.
Hundreds of years of Anglo-American legal
tradition, common law, and Minnesota law recognize
that home equity is private property and impose a
general duty on creditors to return to debtors the
excess value of property seized to satisfy debt. See
infra at 14–22. A minority of states, including
Minnesota, have declared by statute that government
creditors alone enjoy an exception to the rule. These
states confiscate hundreds of millions of dollars in
equity from thousands of property owners each year,
falling hardest on the elderly and infirm who, for a
multitude of honest reasons, do not or cannot pay their
debts in time to avoid forfeiture. See Angela C.
Erickson, Thousands Lose Their Wealth to Home
Equity Theft, Pacific Legal Foundation (last visited
Feb. 29, 2023); 5 JA.51–52 (district court noting
“disproportionate impact on the poor, the elderly, the
infirm”). Yet, government may not “sidestep the
Takings Clause by disavowing traditional property
interests long recognized under state law.” Phillips v.
Washington Legal Found., 524 U.S. 156, 167 (1998).
Nor may it “transform private property into public
property without compensation” by mere say-so.
Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449
U.S. 155, 164 (1980). While it is sometimes necessary
for government to seize real property to collect a debt,
its debt-collection authority terminates when the debt
is satisfied; it has no entitlement to more.
Confiscating equity triggers the constitutional duty to

5 https://homeequitytheft.org/size-and-scope.
 8

provide just compensation for taking private property

for public use.
If not remedied by just compensation under the
Takings Clause, then the forfeiture of Tyler’s equity
operates as a punishment for the public offense of
failing to timely pay her property tax. The Excessive
Fines Clause applies when a civil sanction is at least
partially punitive. Austin v. United States, 509 U.S.
602, 622 (1993). Consistent with existing precedent,
and the history and meaning of the Eighth
Amendment, the Court should hold that the forfeiture
of the equity or surplus proceeds is a fine subject to
the Excessive Fines Clause.
ARGUMENT
I. Government Takes Property Without
Just Compensation When It Collects a
Debt and Keeps More than It Is Owed
The Fifth Amendment protects private property
from uncompensated appropriation “without any
distinction between different types” of property.
Horne v. Dep’t of Agric., 576 U.S. 350, 358 (2015). The
private property interest at issue in this case is Tyler’s
home equity, the value she possessed in her property
above the amount of her total debt. It is a property
interest in profits or proceeds left over from the sale of
a physical thing. See, e.g., Russello v. United States,
464 U.S. 16, 22 (1983) (“Every property interest,
including a right to profits or proceeds, may be
described as an interest in something.”). Cf.
Armstrong v. United States, 364 U.S. 40, 48 (1960)
(liens “constitute compensable property”). This
Court’s prior decisions, hundreds of years of Anglo-
American law, and Minnesota’s treatment of equity as
 9

private property in virtually all other contexts confirm

that equity is private property within the meaning of
the Takings Clause. See infra at 11–22.
The government may not take a property owner’s
equity by legislatively redefining it, Phillips, 524 U.S.
at 167, nor does equity simply “vanish[] into thin air”
because the government has a “paramount lien.”
Armstrong, 364 U.S. at 44–45, 48. Yet the County took
Tyler’s former home and extinguished her equity
interest, even though she only owed $15,000. The
County used the $25,000 windfall it realized from that
taking for the public. This violated the Takings
Clause, which was designed to “bar 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 49; Hall v. Meisner, 51
F.4th 185, 194 (6th Cir. 2022).
A. Home Equity Is Private Property
The Takings Clause protects “every sort of
interest the citizen may possess” in a “physical thing.”
United States v. Gen. Motors Corp., 323 U.S. 373, 378
(1945); Jago v. Van Curen, 454 U.S. 14, 17 (1981)
(“‘[P]roperty’ denotes a broad range of interests that
are secured by ‘existing rules or understandings.’”)
(citation omitted). State law is a common but not
exclusive source of constitutionally recognized
property interests. See Phillips, 524 U.S. at 164. Here,
the property interest at issue is Tyler’s home equity. 6

6 The Sixth Circuit used “equity” synonymously with “equitable

title” in Hall, 51 F.4th at 187. But “equity” is the better
understood term in modern America. See id. By contrast,
“equitable title” is broadly used today to refer to property
 10

Equity is an owner’s financial interest in the

property after deducting encumbering liens. Crane v.
Commissioner, 331 U.S. 1, 7 (1947); Black’s Law
Dictionary (11th ed. 2019) (“equity” is “[a]n ownership
interest in property” and “[t]he amount by which the
value of or an interest in property exceeds secured
claims or liens”). Equity bears all the hallmarks of a
property interest. Individuals may possess, use, or
transfer it. See, e.g., 12 U.S.C. § 1715z-20 (regarding
home equity conversion mortgages for elderly
homeowners); LaSalle Bank Nat’l Ass’n v. White, 246
S.W.3d 616, 618 (Tex. 2007) (every state permits loans
using home equity as collateral); National Council on
Aging, Get the Facts on Home Equity and Seniors
(Mar. 1, 2021) 7 (equity is a “useful financial tool”);
Joint Center for Housing Studies of Harvard Univ.,
Housing America’s Older Adults at 3, 7 (2018) (means
of savings); 8 11 U.S.C. § 522(d) (law exempts certain
amount of home equity from a bankruptcy estate).
Thus, under this Court’s definition of property, equity
is “private property” within the meaning of the
Takings Clause. Cf. Koontz v. St. Johns River Water
Mgmt. Dist., 570 U.S. 595, 613 (2013) (Takings Clause
protects money and “a right to receive money that is
secured by a particular piece of property”).

interests of any owner whose name is not on the legal title. See,
e.g., Cook v. United States, 37 Fed.Cl. 435, 442 (1997) (using
equitable title to describe the owner of the property interest even
though the owner is not on the title).
7 https://www.ncoa.org/article/get-the-facts-on-home-equity-and-

seniors.
8https://www.jchs.harvard.edu/sites/default/files/media/imp/Har

vard_JCHS_Housing_Americas_Older_Adults_2018.pdf.
 11

1. This Court’s decisions support the

recognition of home equity as a property
interest protected by the Taking Clause
This Court has repeatedly recognized that the
Takings Clause protects financial property interests,
including money, interest, liens, and mortgages that
require the holder to be paid some share of proceeds
from the sale of that property. See, e.g., Koontz, 570
U.S. at 613 (money); Webb’s, 449 U.S. at 164; Phillips,
524 U.S. at 167 (interest); Armstrong, 364 U.S. at 48
(liens); Louisville Joint Stock Land Bank v. Radford,
295 U.S. 555, 590, 601–02 (1935) (Takings Clause
protects “substantive rights in specific property,”
including the right to collect on a debt in a timely
manner by seizing and selling that property). Equity
falls within the same class as these other protected
financial interests. It doesn’t matter that home equity
represents only a partial interest in the home; the law
routinely recognizes partial interests in property. See,
e.g., Minn. Stat. § 558.01 (allowing certain joint
owners of property to seek partition “according to
the[ir] respective rights and interests”); Bogart v.
United States, 169 F.2d 210, 213 (10th Cir. 1948)
(owners of separate interests in property may
distribute a just compensation award amongst
themselves); United States v. 8.0 Acres of Land, 197
F.3d 24, 33 (1st Cir. 1999) (just compensation fund to
be distributed to heirs both known and unknown).
Although this Court has not directly said that
equity in real estate is a discrete property interest, it
consistently treats it as such. For example, United
States v. Rodgers held that the Internal Revenue
Service could forcibly sell a widow’s home to collect her
late husband’s debts. 461 U.S. 677, 680 (1983).
 12

However, the government was not entitled to take

proceeds from the widow’s share of the estate. Id. (“We
also hold that, if the home is sold, the non-delinquent
spouse is entitled . . . to so much of the proceeds as
represents complete compensation for the loss of the
homestead estate.”). The statute avoided causing a
taking “by requiring that the court distribute the
proceeds of the sale ‘according to . . . the interests of
the parties.’” Id. at 697–98.
Similarly, debtors have obtained relief where an
auctioneer failed to solicit competitive bidding or sold
more than needed to satisfy a debt, based on an
implicit understanding that debtors have a property
interest in the equity value of their property. See, e.g.,
Slater v. Maxwell, 73 U.S. 268, 276 (1867) (“It is
essential to the validity of tax sales . . . that they
should be conducted with entire fairness. Perfect
freedom from all influences likely to prevent
competition in the sale should be in all such cases
strictly exacted.”); Stead’s Ex’rs v. Course, 8 U.S. 403,
414 (1808) (“[I]f a whole tract of land was sold when a
small part of it would have been sufficient for the
taxes . . . the collector unquestionably exceeded his
authority.”). These cases make sense only if equity is
a protected property interest.
This Court construed federal property tax
statutes imposed during the Civil War to avoid a
forfeiture of equity that might otherwise present a
constitutional problem. In Bennett v. Hunter, 76 U.S.
326, 335, 337 (1869), a statute provided “that the title
of, in, and to each and every piece and parcel of land
upon which said tax has not been paid as above
provided, shall thereupon become forfeited to the
United States.” Id. at 335. Because such a forfeiture
 13

strayed from the common law, and it is “proper” to

avoid such a “highly penal” provision where milder
construction is possible, the Court interpreted “forfeit”
to mean that the title of property and not the land
itself was transferred to the government to allow for
public sale. Id. at 335–36. The Court then held the tax
sale in that case was invalid because the government
should have accepted the owner’s attempt to redeem
the “forfeited” property prior to the sale. Id. at 338.
Subsequently interpreting the same act as in
Bennett, the Court held that the law required the
government to adopt the traditional duty of refunding
the surplus proceeds after selling forfeited property.
United States v. Taylor, 104 U.S. 216, 219 (1881). In
Taylor, the federal government sold a property
owner’s land at a tax sale for $3,000 to collect $70.50
in property taxes. Id. at 217. Relying on Bennett, the
Court noted that the tax law “was not a confiscation
act,” and therefore the former owner was entitled to
the surplus proceeds from the sale of the property. Id.
at 221. Moreover, the owner’s recovery of the surplus
could not be barred by the statute of limitations
because a “good faith” construction of the statute
required the government to act as trustee in selling
and holding the funds for the former owner
indefinitely. Id. at 221–22.
Lastly, building upon Bennett and Taylor, this
Court again interpreted the same statutes in United
States v. Lawton, 110 U.S. 146, 150 (1884), and held
that “[t]o withhold the surplus from the owner would
be to violate the fifth amendment to the constitution,
and . . . take his property for public use without just
compensation.” The Court later said in Nelson v. City
of New York, 352 U.S. 103, 110 (1956), that Lawton
 14

did not answer the question presented here because

the statute rather than the Constitution was
interpreted to require a return of the surplus.
Nevertheless, taken together, Bennett, Taylor, and
Lawton show this Court’s unwillingness to allow
government to confiscate equity (or surplus proceeds)
because it is private property that rightfully belongs
to the debtor.
2. History and tradition confirm that equity
in real estate is private property
This nation’s history and tradition confirm that
Tyler’s equity is “private property” within the
meaning of the Takings Clause. See Horne, 576 U.S.
at 358–60 (looking to history and tradition to decide
personal property is protected by Takings Clause).
Magna Carta “recognized that tax collectors could
only seize property to satisfy the value of the debt
payable to the Crown, leaving the property owner with
the excess.” Rafaeli, LLC v. Oakland Cnty., 505 Mich.
429, 463 (2020); see also Hall, 51 F.4th at 193; William
Sharp McKechnie, Magna Carta, A Commentary on
the Great Charter of King John 322–23 (2d ed. 1914).
At common law, the government could not take more
than it was owed. See, e.g., Martin v. Snowden, 59 Va.
100, 136–38 (1868) (discussing protection for debtors
in English history, including specific laws). Sir
William Blackstone wrote that when officials seized
property for delinquent taxes, “they are bound, by an
implied contract in law,” to return it if the debt is paid
before sale, or to sell it and “render back the overplus.”
2 William Blackstone, Commentaries on The Laws of
England *452 (citation omitted).
 15

Consistent with its English roots, the United

States respected debtors’ property rights by selling
tax-indebted property in a public sale and refunding
the surplus over the debt to the former owner. Rafaeli,
505 Mich. at 462–67 (tracing the long and consistent
history of this protection); Douglas v. Roper, No.
1200503, 2022 WL 2286417, at *11–12 (Ala. June 24,
2022) (citing McDuffee v. Collins, 23 So. 45, 46 (Ala.
1898)) (law that a property owner was entitled to
excess funds resulting from a tax sale was “merely
declaratory of the law as it already existed”); Martin,
59 Va. at 138–41; Hall, 51 F.4th at 193 (American
courts’ traditionally have protected equity in
mortgage foreclosures despite contractual
agreements, and tax-debtors enjoy even greater
protection than mortgagors “given the absence of any
agreement by the landowner (as with a mortgage) to
forfeit the land upon default.”).
Shortly after the adoption of the Fourteenth
Amendment, Thomas Cooley wrote that he was
unaware of any jurisdiction that failed to protect
debtors’ equity by either refunding the surplus or
taking only as much property as required by the taxes
owed. Thomas M. Cooley, A Treatise on the Law of
Taxation 343 (1876). Similarly, Henry Black noted
that
where the land is sold for what it will bring,
and the amount of the bid exceeds the
aggregate of charges against it, the owner of
the estate is clearly entitled to the surplus.
For the government is satisfied upon
receiving its dues, with the penalties, and the
expenses incurred in and about the sale.
 16

Henry Black, Treatise on Tax Titles (1888) § 157. Id.

§§ 71–72 (also noting that Louisiana engaged in a
forfeiture of equity, a practice he described as of
questionable constitutionality). The reason for this
limitation on debt collectors is obvious: a tax
collector’s power to take property is “exhausted the
moment the tax [is] collected.” Cooley, A Treatise on
the Law of Taxation 343–44. Indeed, “[a]n indebted
thing cannot be condemned beyond its indebtedness.”
Rufus Waples, A Treatise on Proceedings In Rem § 232
(1882).
The common law imposes a fiduciary duty on
government to sell the property fairly and hold the
surplus proceeds for the benefit of the former owner.
See, e.g., Bogie v. Town of Barnet, 129 Vt. 46, 52 (1970)
(“For the privilege of so proceeding [with a tax sale to
collect a tax], the town must suffer the restraints of
fiduciary duty.”); Cahoon v. Coe, 57 N.H. 556, 597–98
(1876); Slater, 73 U.S. at 276 (tax sales must be
“conducted with entire fairness” free “from all
influences likely to prevent competition in the sale” to
protect debtor’s interest in the property). Tax
collectors who fail to properly sell seized property and
refund the surplus profits have long been held liable
under the common law to pay the former owner or
found in violation of the Constitution. See, e.g., Cone
v. Forest, 126 Mass. 97, 101 (1879) (liable for
conversion); Seekins v. Goodale, 61 Me. 400, 400
(1873) (tax collector who seized and sold more cloth
than necessary to pay debt was liable for trespass for
the excess and had to pay fair market value for extra
cloths that he sold); Griffin v. Mixon, 38 Miss. 424,
436–37 (1860) (uncompensated taking); Martin, 59
Va. at 142–43 (violates due process of law to confiscate
 17

more than owed); Shattuck v. Smith, 69 N.W. 5, 12

(N.D. 1896) (statute would likely be unconstitutional
“if [it] contained no provision that the surplus should
go to the landowner”).
The history and tradition of Minnesota itself, like
the rest of the states, reflects the principle that
property-tax debtors are entitled to be paid for their
equity in property seized to pay a public debt. When
the legislature passed a statute in 1862 providing that
property be “forfeited to the State” for failure to pay
taxes, the Minnesota Supreme Court said that any
attempt to take more than the debt owed would be
unconstitutional:
Few questions are better settled, than that
the Legislature cannot thus deprive a person
of his property or rights. If the Legislature by
this section attempted to do more than confer
on the State the power to take such further
steps as were necessary in the collection of the
delinquent taxes, or in the perfection of tax
titles, then it overstepped the limits which the
constitution has fixed to its authority.
Baker v. Kelley, 11 Minn. 480, 488, 499 (1866).
Minnesota’s high court again affirmed that
government cannot take more than it is owed in
Farnham, 32 Minn. at 11. There, the state seized and
sold a debtor’s 320 acres to collect property taxes.
When the debtor then harvested timber off the land,
the buyer sued for trespass. The Minnesota Supreme
Court held the tax sale invalid because it sold more
property than necessary to collect the tax. Moreover,
it held that any surplus proceeds from a subsequent
sale must be returned to the former owner. Id. It was
 18

“immaterial” that the statute provided no guidance on

the subject. “[T]he right to the surplus exists
independently of such statutory provision.” Id. at 12
(emphasis added).
Similarly, in Burnquist v. Flach, 6 N.W.2d 805,
809 (Minn. 1942), the State of Minnesota took title to
a debtor’s property for failure to pay property taxes.
Id. at 807. Several months later, the state highway
commission brought condemnation proceedings
against the property for a road. Id. at 806. The debtor
tried to redeem the property and claim the
condemnation proceeds. Id. at 807. The county
treasurer denied her attempt because the redemption
period expired upon “sale” of the land and the state
had “purchased” it via condemnation. Id. at 807–08.
The Minnesota Supreme Court disagreed, construing
the state’s tax statute to preserve the tax-delinquent
owner’s right to recover the proceeds, noting “[i]t is not
the policy of the state, nor should it be, to deprive
owners of real estate of their interest therein on
account of tax delinquency.” Id. at 807 (internal quote
omitted). The court protected the debtor’s equity
interest: “True, the title to the property is gone, but in
its place is its value, the price that the state highway
department paid for it; i.e., the money stands in the
place of the property itself.” Id. at 809. Thus, the court
required the proceeds to be paid to the debtor
(presumably offset by the tax due), commenting that
any “unprejudiced mind” would recognize “justice”
demanded that result. Id.
 19

3. Current Minnesota law treats equity as

private property in other contexts
Minnesota, like all states and the federal
government, ordinarily recognizes that equity in real
estate is a property interest. For example, Minnesota
courts treat equity as property to be divided in a
marital dissolution. See, e.g., Batsell v. Batsell, 410
N.W.2d 14, 15 (Minn. Ct. App. 1987); Nelson v. Nelson,
384 N.W.2d 468, 473 (Minn. 1986) (marital homestead
purchased with “partial transfer of equity” from wife’s
premarital home is non-marital property). Home
equity is a factor used to calculate the amount of child
support. Byrd v. O’Neill, 309 Minn. 415, 416 (1976).
The “equity value of real property” may be a “liquid
asset” for purposes of determining whether a criminal
defendant is sufficiently indigent to warrant
appointment of counsel. In re Stuart, 646 N.W.2d 520,
526 (Minn. 2002). Property owners who own their
home free and clear can borrow against their equity.
Minn. Stat. § 47.58 (authorizing “reverse mortgage
loans” on “residential property owned solely by the
borrower”). 9
In other debt collection contexts, Minnesota law
consistently recognizes that debtors have a property
interest in the value of the property that exceeds

9
Reverse mortgages are also known as “Home Equity Conversion
Mortgages” and “are not an uncommon way for older people to
reap the benefits of the equity they have in their homes.” Taft v.
Wells Fargo Bank, N.A., 828 F.Supp.2d 1031, 1032 (D. Minn.
2011); see also Greer v. Professional Fiduciary, Inc., 792 N.W.2d
120, 124 (Minn. App. 2011) (“reverse mortgage” home equity
conversion loan paid for long-term care of elderly homeowner); In
re Estate of Rutt, 824 N.W.2d 641, 644 (Minn. App. 2012) (noting
establishment of line of credit based on home equity).
 20

encumbering debts. For example, property seized as

part of an execution on judgment or collateral
repossessed must be sold fairly and surplus profits
must be returned to the debtor after the debts are
paid. Id. § 550.20 (“No more shall be sold than is
sufficient to satisfy the execution”); id. § 550.08
(creditor only entitled to “so much thereof as will
satisfy the execution);” id. § 336.9-608(a), -615(d)
(following Uniform Commercial Code (U.C.C.) by
returning surplus to former owner); U.C.C. § 9-615.
See also 28 U.S.C. § 3203(g), (h)(1) (Federal Debt
Collection Procedures Act protects a debtor’s equity by
requiring a “commercially reasonable” sale and
refunding any surplus proceeds to the former owner).
This protection for debtors is mandatory and cannot
be waived by agreement. See, e.g., Minn. Stat. § 336.9-
602(5), (8), (9) (following U.C.C. § 9-602). 10
In mortgage foreclosures, Minnesota, like all
states, secures equity as a property interest, requiring
the excess proceeds from the sale of foreclosed
property to be returned to the former owner. Minn.
Stat. § 580.10; see also Hall, 51 F.4th at 195 (noting
the same rule across the country). 11 They require the

10 A comment to U.C.C. Section 9-602 notes that “in the context

of rights and duties after default, our legal system traditionally
has looked with suspicion on agreements that limit the debtor’s
rights and free the secured party of its duties. . . . The context of
default offers great opportunity for overreaching. The suspicious
attitudes of the courts have been grounded in common sense.”
11 Even Connecticut and Vermont, which are sometimes

identified as the only states using strict foreclosure, see, e.g., In

re Canney, 284 F.3d 362, 369 (2d Cir. 2002), protect debtors’
equity interest where the property is worth substantially more
than the debt. Vt. Stat. Ann. tit. 12, § 4941 (strict foreclosure only
 21

property to be sold publicly to the highest bidder.

Restatement (Third) of Property (Mortgages) § 7.4.
“[T]he proceeds of [that] sale are substituted for the
land itself, and become subject to outstanding liens
and claims to the same extent and in the same order
as the land itself was subject thereto.” 5 Tiffany Real
Prop. § 1529 (3d ed. 2022). See, e.g., Shaw Acquisition
Co. v. Bank of Elk River, 639 N.W.2d 873, 877 (Minn.
2002); Brown v. Crookston Agric. Ass’n, 34 Minn. 545,
546 (1886) (“the land is converted into money”). After
paying the debts, the surplus is refunded to the former
owner because it “represents the owner’s equity in the
real estate.” Grand Teton Mountain Invs., LLC v.
Beach Props., LLC, 385 S.W.3d 499, 502 (Mo. Ct. App.
2012) (all the liens and ownership interests that
previously “attached to the land” now attach to the
proceeds from the sale). “The rights of the parties, as
they before existed, are not transposed by the sale,
and the court will apply the fund in accordance with
their rights as they existed in respect to the land.”

allowed where “no substantial value in the property in excess of

the mortgage debt”); Voluntown v. Rytman, 27 Conn.App. 549,
555, 607 (1992) (“when the value of the property substantially
exceeds the value of the lien being foreclosed, the trial court
abuses its discretion when it refuses to order a foreclosure by
sale”); Toro Credit Co. v. Zeytoonjian, 341 Conn. 316, 330 (2021)
(“It may be that the majority of foreclosure judgments are by
strict foreclosure, but, if anything, that would indicate only that
the majority of foreclosures arise in situations in which the value
of the property is less than the debt owed. That hardly makes
strict foreclosure the general rule.”) (emphasis added).
 22

Shaw Acquisition Co., 639 N.W.2d at 877 (citations

omitted). 12
Moreover, when collecting other delinquent taxes
in Minnesota—like income taxes—the state protects
equity in real estate by seizing and selling property at
public auction and refunding the surplus to the former
owner after satisfying the tax debt. Minn. Stat.
§§ 270C.7101, 270C.7108; 270C.40 (refunds for
overpayment are paid with interest). 13 When personal
property taxes are delinquent, the County protects the
owner’s interest in the property’s surplus value by
selling it and refunding the surplus. Id. § 277.21(1)–
(3), (13); id. § 270C.7108(2) (“Any surplus proceeds
remaining . . . shall . . . be credited or refunded . . . to
the person or persons legally entitled thereto.”).
Minnesota’s self-dealing property forfeiture
scheme stands in sharp contrast to the state’s usual
treatment of equity. It fails to recognize the property
status of equity in only one context: when the state
itself is the creditor. There is nothing about property
taxes, utility bills, or code enforcement fines that
justifies this unusual treatment. See JA.53 (district

12
A similar rule generally applies in bankruptcy proceedings.
See, e.g., Burton Coal Co. v. Franklin Coal Co., 67 F.2d 796, 801
(8th Cir. 1933) (“any surplus remaining in the custody of the
trustee should go to the bankrupt without the necessity of a
statutory provision to that effect”); Matter of First Colonial Corp.
of Am., 693 F.2d 447, 451 (5th Cir. 1982) (“In the absence of an
express provision for the orderly devolution of surplus monies or
other assets after payment of all debts and administrative costs,
the courts have relied upon equitable principles in returning
such surplus to the debtor.”).
13 The federal government likewise returns surplus proceeds

when seizing property to collect unpaid income taxes. See, e.g.,

26 U.S.C. §§ 6342, 7403.
 23

court noting that all other creditors “get[] left holding

the bag except the government[]”). Indeed, most states
protect equity when collecting property taxes. 14 See 72
Am.Jur.2d State and Local Taxation § 911 (1974).
B. The County Violated the Takings Clause
When It Confiscated Tyler’s Equity
Because equity is private property that belongs to
the debtor, the government violates the Takings
Clause when it takes equity without compensation.
Hall, 51 F.4th at 195; Bogie, 129 Vt. at 49, 55;
Polonsky v. Town of Bedford, 173 N.H. 226, 239 (2020)
(“[W]hen a municipality acquires property by tax deed
and the equity in the property exceeds the amount
owed, a taking has occurred, regardless of whether the
former owner took steps to correct the consequences of
the tax delinquency.”). Certainly, the government can
seize property to collect a debt. Murray’s Lessee v.
Hoboken Land & Improvement Co., 59 U.S. 272, 277–
78 (1855). But when it seizes more than it is owed, it

14 See Alaska Stat. §§ 29.45.480, 29.45.470; Ark. Code § 26-37-

205; Conn. Gen. Stat. § 12-157(h); Del. Code tit. 9, §§ 8751, 8779;
Fla. Stat. §§ 197.522, 197.582; Ga. Code Ann. §§ 48-4-5, -81;
Idaho Code § 31-808(2)(b); Ind. Code § 6-1.1-24-7(c); Iowa Code
Ann. § 446.16; Kan. Stat. § 79-2803; Ky. Rev. Stat. §§ 91.517,
426.500; La. Stat. Ann. § 47:2153(5); Md. Code Ann., Tax-Prop.
§ 14-818(a)(4); Mich. Comp. Laws § 211.78g(2); Miss. Code Ann.
§ 27-41-77; Mo. Rev. Stat. § 140.340; Nev. Rev. Stat. § 361.610(4),
(6); N.C. Gen. Stat. § 105-374(k), (q)(6); N.H. Rev. Stat. Ann.
§§ 80:88, 80:89; N.M. Stat. § 7-38-71(A)(4); N.D. Cent. Code § 57-
28-20(1)(a); Okla. Stat. tit. 68, §§ 3131(C), 3125; 72 Pa. Cons.
Stat. §§ 5860.205, 5860.601, 5860.610, 5860.613; S.C. Code §§ 12-
51-60, -130; 44 R.I. Gen. Laws §§ 44-9-24, -8.1, Tenn. Code § 67-
5-2702; Tex. Tax Code § 34.04(a); Utah Code Ann. §§ 59-2-
1351.1(7), 67-4a-903(1); Va. Code Ann. § 58.1-3967; Wash. Rev.
Code § 84.64.080; W. Va. Code § 11A-3-65; Wis. Stat. § 75.36(2m);
Wyo. Stat. § 39-13-108(d)(4).
 24

must protect the debtor’s interest either by paying for

the equity or by taking the property subject to the
traditional duty to sell the property in a commercially
reasonable manner and refund the surplus proceeds.
See supra at 16. The County’s uncompensated
confiscation of Tyler’s equity in this case violates the
Takings Clause.
The government here had a $15,000 lien on Tyler’s
property. Prior to its forfeiture, Tyler had equity in her
home that substantially exceeded the amount of the
lien. In 2015, the County extinguished Tyler’s total
interest and converted its lien into fee simple absolute
title for the benefit of the government. This
conveyance transformed Tyler’s equity interest (worth
at least the $25,000 yielded by the subsequent sales
auction) into public property without compensation.
1. The state may not use legislation or its
lien to extinguish equity without just
compensation
The Eighth Circuit rejected Tyler’s takings claim
by holding that the Minnesota Legislature
“abrogated” any property interest Tyler had in her
property. Pet.App.7a. But “the Takings Clause would
be a dead letter if a state could simply exclude from its
definition of property any interest that the state
wished to take.” Hall, 51 F.4th at 190. See also
Glynn S. Lunney, Jr., A Critical Reexamination of the
Takings Jurisprudence, 90 Mich. L. Rev. 1892, 1894
(1992) (“The compensation requirement makes sense
as a constitutional right only if it was intended as a
limit on the legislature’s judgment about the need for
compensation and a check on the legislature’s
authority over private property.”).
 25

Indeed, government cannot by “ipse dixit”

legislatively “transform private property into public
property without compensation.” Webb’s, 449 U.S. at
158–59, 164. Webb’s held that government violated
the Takings Clause by designating the interest earned
on private funds deposited with a court as “public
funds” and keeping the money. The Takings Clause
cannot be avoided by statutorily redefining private
property as public property: “Neither the Florida
Legislature by statute, nor the Florida courts by
judicial decree, may [take the interest] by
recharacterizing the principal as ‘public money’
because it is held temporarily by the court.” Id. at 164.
Nor may the government carve out exceptions to
what qualifies as private property to avoid the
Takings Clause. In Phillips, 524 U.S. 156, the
plaintiffs challenged a Texas State Bar Rule that
required them to give interest on client trust accounts
to fund legal aid nonprofits of the state’s choice. Id. at
159. Relying on Webb’s, the plaintiffs argued that the
forced transfer of interest to fund the charities took
clients’ property (money) without just compensation.
Id. In opposition, Texas claimed that the state’s
property laws exempted the bar’s program from the
general rule that interest follows principal. Id. at 167.
Relying on history and the common law, however, this
Court held that the program was not exempt from the
“firmly embedded” rule that interest belongs to
whomever owns the principal. Id. at 159, 165. By
mandating the diversion of interest for a public use,
the program effected a taking and that “at least as to
confiscatory regulations . . . a State may not sidestep
the Takings Clause by disavowing traditional
property interests.” Id. at 167 (emphasis added);
 26

accord Canel v. Topinka, 212 Ill.2d 311, 332 (2004)

(rejecting state’s “bare assertion of authority” to
redesignate private property as public property);
Muskin v. State Dep’t of Assessments and Taxation,
422 Md. 544, 565 (2011) (“Allowing the ‘mere will of
the Legislature’ to shift drastically the fee simple
ownership of land or cancel contractual obligations
will shake further the confidence of citizens in their
constitutional protections from government
interference.”).
This case is like Webb’s and Phillips, insofar as
history, the common law, and Minnesota law in all
other contexts, support Tyler’s takings claim. See
Phillips, 524 U.S. at 165 & n.5. The County provided
no compensation for its confiscation of Tyler’s home
equity, violating the established rule that “the owner
shall be put in as good position pecuniarily as [s]he
would have been if h[er] property had not been taken.”
Seaboard Air Line Ry. Co. v. United States, 261 U.S.
299, 356 (1923). Prior to confiscation, Tyler owned a
home worth at least $40,000 and owed $15,000. After
confiscation, she owned and owed nothing. No other
type of debt collector, nor the state itself when
recovering any other type of debt, could keep such a
windfall. See supra at 19–22.
The taking of Tyler’s equity interest in her
property also resembles the injustice condemned in
Armstrong, 364 U.S. 40. There, a shipbuilder
contracted by the United States defaulted on its
obligation to build ships, and the United States took
title to the unfinished boats and materials, pursuant
to its contractual and common law rights. Id. at 41.
The United States, however, refused to compensate
the suppliers who had liens in the seized boats and
 27

materials. Id. This Court held that the government

effected a taking because property rights in liens do
not simply “vanish” when the government takes title
to the subject property pursuant to a “paramount
lien.” Id. at 44–45, 48. Before the government took the
property and “destroyed” the liens, the suppliers had
“compensable property” in the boats; “afterwards,
they had none.” Id. The government could only take
the underlying property subject to the “constitutional
obligation to pay just compensation for the value of
the liens.” Id. at 49.
Like Armstrong, here “the government for its own
advantage destroy[ed] the value” of Tyler’s
compensable property, her equity. And like the
destruction of liens in Armstrong, the taking of Tyler’s
equity requires payment of just compensation. See id.
at 48; accord Hall, 51 F.4th at 187–88; Griffin, 38
Miss. at 436–37 (uncompensated taking); Rafaeli, 505
Mich. at 468 (taking under Michigan Constitution);
Bogie, 129 Vt. at 55 (retention of excess funds from
sale of foreclosed land “amounts to an unlawful taking
for public use without compensation”); Thomas Tool
Services, Inc. v. Town of Croydon, 145 N.H. 218, 220
(2000) (statute granting government surplus proceeds
from tax sales violates state constitution’s Takings
Clause); Polonsky, 173 N.H. at 227–28, 239.
2. The taking of equity violates the purpose
of the Takings Clause
The Takings Clause “was designed to bar
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.” Armstrong,
364 U.S. at 49. The government’s actions here were
 28

neither fair nor just, heaping a disproportionate share

of the public’s tax burden onto Tyler by confiscating
her equity to fund local government operations and
school districts. Cf. Staats v. Miller, 150 Tex. 581,
584–85 (1951) (citation omitted) (A cause of action for
taxes or other monies improperly taken is “less
restricted and fettered by technical rules and
formalities than any other form of action. It aims at
the abstract justice of the case, and looks solely to the
inquiry, whether the defendant holds money, which ex
aequo et bono belongs to the plaintiff.”). Courts have a
duty to justly apply foreclosure law even in cases
involving the government’s “insatiable, relentless
pursuit of its tax collection.” United States v. Boyd,
246 F.2d 477, 481 (5th Cir. 1957). Indeed, Judge
Kethledge aptly analogized the confiscation of
“property worth vastly more than the debts” to “theft.”
See Hall, 51 F.4th at 196 (citing Wayside Church v.
Van Buren County, 847 F.3d 812, 823 (6th Cir. 2017)
(Kethledge, J., dissenting)).
Shocking cases are common. In Michigan, a
county foreclosed on an octogenarian’s home to collect
$8 in taxes, plus penalties, interest, and costs, and
kept all $24,500 from its sale. See Rafaeli, 505 Mich.
at 437. In Massachusetts, a similar law took an
indigent senior’s $240,000 home over a $9,626 tax
debt. Foss v. City of New Bedford, No. CV 22-10761-
JGD, 2022 WL 3225154, at *2 (D. Mass. Aug. 10,
2022). Washington, D.C., took the $200,000 home of a
veteran suffering with dementia to recover a $133 tax
debt. Coleman through Bunn v. D.C., 70 F.Supp.3d 58,
62 (D.D.C. 2014). Nebraska took a widow’s million-
dollar farm because she missed an $8,276 tax bill after
she was moved into a retirement home. Wisner v.
 29

Vandelay Invs., L.L.C., No. A-16-451, 2017 WL

2399492, at *1–2 (Neb. Ct. App. May 30, 2017), rev’d,
300 Neb. 825 (2018). Such confiscations “produce
severe unfairness” and violate the Takings Clause.
Lake Cnty. Auditor v. Burks, 802 N.E.2d 896, 899–900
(Ind. 2004). “Taxing authorities are not (nor should
they be) in the business of buying and selling real
estate for profit.” Syntax, Inc. v. Hall, 899 S.W.2d 189,
191–92 (Tex. 1995) (emphasis added), as amended
(June 22, 1995)); City of Anchorage v. Thomas, 624
P.2d 271, 274 (Alaska 1981). Tyler’s takings claim
“rests on the venerable proposition” that taking
private property and giving it to the government
without compensation “‘is against all reason and
justice.’” Harrison v. Montgomery Cnty., Ohio, 997
F.3d 643, 652 (6th Cir. 2021) (quoting Calder v. Bull,
3 U.S. 386, 388 (1798)) (analyzing similar forfeiture
statute that gave property to government-run land
bank).
3. Nelson v. City of New York does not apply
here and its comments about the Takings
Clause are dicta
The Eighth Circuit rejected Tyler’s takings claim
based mainly on a misreading of Nelson, 352 U.S. at
110. In that case, the City of New York foreclosed on
two properties to satisfy delinquent utility bills,
taking property that was worth more than the debt.
The former owners pressed procedural due process
and equal protection claims in the state courts and in
their petition for writ of certiorari. See Nelson, 352
U.S. at 107; City of New York v. Nelson, 309 N.Y. 801,
801 (1955); see also Brief for Appellants, Nelson, No.
30, 1956 WL 89027, *3 (Sept. 14, 1956). But in the
reply brief on the merits before this Court, they
 30

argued—for the first time—that the failure to return

the surplus value of the property violated the Takings
Clause. See Nelson, 352 U.S. at 107. This Court
rejected that eleventh-hour argument, noting that the
New York City law gave the owners an opportunity to
claim the surplus proceeds from a judicial sale of the
property, which the owners failed to request in time.
Id. at 110 (takings claim fails “in the absence of timely
action to . . . recover[ ] any surplus”). The Court
implied that state law could effect a taking if it
“precludes an owner from obtaining the surplus
proceeds of a judicial sale.” Id. Unlike New York City’s
law, Minnesota does not provide any opportunity for
debtors to collect surplus proceeds from the sale of
their tax foreclosed property, therefore Nelson is
inapplicable here. See, e.g., Rafaeli, 505 Mich. at 460
(distinguishing successful challenge to Michigan’s
similar forfeiture statute on that ground); Hall, 51
F.4th at 196.
More importantly, Nelson’s takings discussion is
nonbinding and unpersuasive dicta. See Kirtsaeng v.
John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013)
(court’s “rebuttal to a counterargument” that went
outside the issue before the court was dicta). Claims
“not brought forward” in the lower court “cannot be
made” in the Supreme Court. Magruder v. Drury, 235
U.S. 106, 113 (1914); United States v. Williams, 504
U.S. 36, 41 (1992). The property owners in Nelson did
not argue a takings claim in the lower courts, and
therefore could not raise it in this Court. Because
Nelson’s discussion of the takings issue was
unnecessary to the Court’s resolution of the case, it
was dicta. Kirtsaeng, 568 U.S. at 548; Williams v.
United States, 289 U.S. 553, 568 (1933) (dicta should
 31

not “control the judgment in a subsequent suit, when

the very point is presented for decision”) (citation
omitted).
Nelson’s dicta also conflict with this Court’s
takings decisions. Nelson suggests that an owner
must seek compensation for a taking in a state court
proceeding before the taking occurs. See Nelson, 352
U.S. at 110 (owner should have requested relief in the
in rem foreclosure action, which would have allowed
the owner “to recover the surplus” proceeds from a
subsequent sale). In other words, the lower court’s
interpretation of Nelson transforms the government’s
burden to pay just compensation into a burden on the
owner to seek compensation before she has lost
anything. A property owner who experiences a taking
cannot be required to seek compensation by filing a
claim in state court before the taking has even
occurred. “[T]he act of taking” is the “event which
gives rise to the claim for compensation.” United
States v. Dow, 357 U.S. 17, 22 (1958). “Compensation
under the Takings Clause is a remedy for the
constitutional violation that the landowner has
already suffered at the time of the uncompensated
taking.” Knick v. Twp. of Scott, 139 S.Ct. 2162, 2172
(2019) (emphasis added and internal quotes omitted).
Moreover, a property owner may sue for just
compensation in federal court notwithstanding the
existence of “a state law procedure that will
eventually result in just compensation.” Id. at 2171;
see also Monroe v. Pape, 365 U.S. 167, 183 (1961) (“The
federal remedy is supplementary to the state remedy,
and the latter need not be first sought and refused
before the federal one is invoked.”). This is the
opposite of Nelson’s dicta, which disparaged a federal
 32

takings claim on the grounds that plaintiffs should

have instead pursued a state court procedure to
recover the surplus value of their confiscated
property. 352 U.S. at 109. The Takings Clause does
not allow the government to substitute just
compensation with a state court procedure that might
result in compensation. Knick, 139 S.Ct. at 2175.
Rather than recognize that Nelson’s gratuitous
takings analysis was disproven by Knick, the lower
court expanded its reach, holding that the ability to
avoid a foreclosure by selling or redeeming the
property is essentially the same as a right to claim
surplus proceeds from the sale of the property.
Pet.App.9a (“That Minnesota law required Tyler to do
the work of arranging a sale in order to retain the
surplus is not constitutionally significant.”). The
opportunity to avoid a foreclosure by redeeming the
property is a procedural protection, not just
compensation for property actually taken. Polonsky,
173 N.H. at 239 (“when a municipality acquires
property by tax deed and the equity in the property
exceeds the amount owed, a taking has occurred,
regardless of whether the former owner took steps” to
redeem). Tyler does not challenge the procedures
involved in foreclosing on her property as a matter of
due process; she challenges the County’s taking of her
equity without compensation. See Lingle v. Chevron
U.S.A. Inc., 544 U.S. 528, 543 (2005) (due process and
the Takings Clause both protect property owners,
offering different remedies for different types of
constitutional violations).
Indeed, a window to avoid a taking by paying a
debt does not satisfy the Takings Clause. In Horne,
this Court held that requiring the owners to donate a
 33

portion of their raisin crop to the government was a

taking and that it was irrelevant that the owners had
an opportunity to avoid the taking by selling the
grapes for juice. 576 U.S. at 365. “[P]roperty rights
cannot be so easily manipulated.” Id. (internal quote
omitted). 15
Tyler’s failure to pay her debt does not entitle the
government to take property worth more than what
she owed without paying just compensation for the
difference. This Court should reverse the dismissal of
Tyler’s takings claim.
II. The Excessive Fines Clause Limits the
Forfeiture of Tyler’s Equity
Because the County did not pay just compensation
for Tyler’s equity, its forfeiture operated as a fine
subject to the limitations of the Excessive Fines
Clause. 16 This is true under a straightforward

15 Like selling raisins in Horne, the equity in one’s home is “not

a special governmental benefit that the Government may hold

hostage, to be ransomed by the waiver of constitutional
protection.” Id. at 366. See also JA.49 (district court describing
Minnesota’s scheme: “what the state sort of does is when they
take a $100,000 condo because, I don’t know, $5,000 in taxes are
owed, is they’re basically like holding the condo hostage, saying
pay us our 5,000 or we’re taking your 100,000”). Preventing this
sort of ransom is the premise that underlies the unconstitutional
conditions doctrine in the takings context, which “refuse[s] to
attach significance to the distinction between conditions
precedent and conditions subsequent.” Koontz, 570 U.S. at 607
(citations omitted).
16 Tyler acknowledges that likely only one remedy will be

necessary, because paying her just compensation should

eliminate the challenged fine. But the question at this stage is
only whether she has stated viable claims. “Certain wrongs affect
 34

application of this Court’s existing precedents.

Further, the history and original meaning of the
Clause support its application here.
The County took Tyler’s entire home, worth far
more than the $15,000 she owed. The $15,000 liability
included her unpaid tax, plus penalties, interest, and
collection costs added by the County to compensate for
all its expenses in pursuing the debt. Pet.App.3a. The
forfeiture of Tyler’s substantial excess property
“cannot fairly be said solely to serve a remedial
purpose, but rather can only be explained as also
serving either retributive or deterrent purposes [].”
Austin, 509 U.S. at 610–11 (quotation omitted). The
County itself admits that “[f]orfeiture also deters non-
payment of property taxes; this deterrence is not to
prevent crime, but rather a civil deterrence that
encourages the positive behavior of paying one’s
property taxes.” JA.42; see also id. (“[T]he ultimate
possibility of loss of property serves as a deterrent to
those taxpayers considering tax delinquency.”). A civil
sanction that is “at least partially punitive” is subject
to scrutiny under the Excessive Fines Clause. Timbs
v. Indiana, 139 S.Ct. 682, 690 (2019). As this Court
explained in Kokesh v. S.E.C., 137 S.Ct. 1635, 1643–
44 (2017), “[s]anctions imposed for the purpose of

more than a single right and, accordingly, can implicate more

than one of the Constitution’s commands.” Soldal v. Cook
County, 506 U.S. 56, 70 (1992). Here, as in Soldal, the seizure of
property implicates two constitutional commands. See id. Where
multiple constitutional violations are alleged, “[t]he proper
question is not which Amendment controls but whether either
Amendment is violated.” United States v. James Daniel Good
Real Prop., 510 U.S. 43, 50 (1993); Soldal, 506 U.S. at 70 (court
does not identify which claim is “dominant,” but rather examines
each “provision in turn”).
 35

deterring infractions of public laws are inherently

punitive.”
The historical genesis of the Clause and the public
understanding of its terms at the time of ratification
buttress the conclusion that the forfeiture at issue
here is a fine within the meaning of the Eighth
Amendment. The prohibition of excessive fines traces
its lineage to English law where it served, among
other purposes, as protection against the sovereign
“raising revenue in unfair ways.” Browning-Ferris
Indus. of Vermont v. Kelco Disposal, Inc., 492 U.S.
257, 272 (1989). Moreover, the terms “fine” and
“forfeiture” were used interchangeably when
referencing both civil and criminal economic sanctions
in early American history, suggesting an original
public meaning of the Clause consistent with its
application to the forfeiture at hand. See Austin, 509
U.S. at 623 (Scalia, J., concurring in part)
(“‘Forfeiture’ and ‘fine’ each appeared as one of many
definitions of the other in various 18th-century
dictionaries.”); Beth A. Colgan, Reviving the Excessive
Fines Clause, 102 Cal. L. Rev. 277, 302 (2014).
A. The County’s Forfeiture Is a Fine Under
This Court’s Existing Precedents
This Court has recognized that the “[p]rotection
against excessive punitive economic sanctions secured
by the [Excessive Fines] Clause is . . . both
fundamental to our scheme of ordered liberty and
deeply rooted in this Nation’s history and tradition.”
Timbs, 139 S.Ct. at 689 (citation and quotation
omitted). In determining whether an economic
sanction falls within its protection, the Court
considers “whether it is punishment,” not whether it
 36

is criminal or civil. Austin, 509 U.S. at 610. Most

recently, the Court reaffirmed that the Clause applies
to forfeitures that are “at least partially punitive.”
Timbs, 139 S.Ct. at 690; see also United States v.
Bajakajian, 524 U.S. 321, 327–28 (1998) (the Clause
“limits the government’s power to extract payments,
whether in cash or in kind [like forfeiture of an
interest in real property] as punishment for some
offense”). A forfeiture or fine has the hallmark of
punishment when it “cannot fairly be said solely to
serve a remedial purpose, but rather can only be
explained as also serving retributive or deterrent
purposes.” Austin, 509 U.S. at 610–11.
A straightforward application of these principles
indicates that government must be limited by the
Excessive Fines Clause when it responds to the public
offense of failing to timely pay property taxes, and
seeks to deter future offenses, by confiscating property
of substantially greater value than the debt owed. The
courts below disagreed, holding that Minnesota’s
home-forfeiture scheme fell outside the protection of
the Excessive Fines Clause because “its primary
purpose is to compensate the government for lost
revenues due to the non-payment of taxes.”
Pet.App.44a (district court); Pet.App.9a (adopting
district court analysis). But this cannot account for
the fact that in Tyler’s circumstance and most other
tax-forfeiture actions by the County in recent years,
far more property is taken than needed to compensate
for lost revenues and costs. 17 “When an individual is

17 Annual property taxes in Minnesota typically represent

approximately 1.05% of a home’s value. JA.11. Moreover, an
investigation of public records between 2014 and 2021 indicates
 37

made to pay a noncompensatory sanction to the

Government as a consequence of a legal violation, the
payment operates as a penalty.” Kokesh, 137 S.Ct. at
1644 (citation omitted).
The analysis provided by this Court in Austin is
apt. It perceived that forfeitures under the statute at
issue in that case looked like punishment because
they were neither fixed in amount nor linked to the
public harm caused by the property owner’s actions.
Austin, 509 U.S. at 621. They “var[ied] so dramatically
that any relationship between the Government’s
actual costs and the amount of the sanction is merely
coincidental,” defying description as “remedial.” Id. at
622 n.14. The same is true of Minnesota’s home-
forfeiture scheme. Tyler lost her property, worth at
least $40,000, to satisfy $2,300 in taxes, plus $12,700
in penalties, interest, and costs. The County kept the
difference, which was worth at least $25,000 over and
above the statutory penalties and compensatory
sums. Had her property been worth twice as much
with the same debt, the penalty would have been
capriciously greater. As in Austin, the relationship
between the debt owed and the sanction imposed is
coincidental. Deterrence or punishment for the offense
of not making timely tax payments is the only
plausible rationale for taking the whole property
when its value goes beyond compensation for the
government’s loss.

that Hennepin County foreclosed on at least 326 homes worth

approximately $60 million to recover $6.8 million in delinquent
taxes, interest, and fees. See Angela C. Erickson, “Minnesota,”
End Home Equity Theft, Pacific Legal Foundation (last visited
Feb. 29, 2023), https://homeequitytheft.org/minnesota.
 38

Moreover, the County presumes that those who

fail to make timely tax payments or redeem their
property are culpable for their loss and merit no
further protection. See JA.47 (blaming owners’
“inaction”); Brief in Opposition to Pet. 26–27 (same).
But property owners often miss the opportunity to
avoid forfeiture due to mistakes of law or
circumstances of extreme poverty, ill-health, cognitive
disability, and other factors that lack culpability
meriting punishment. See John Rao, The Other
Foreclosure Crisis, Nat’l Consumer Law Ctr. 5, 9, 33,
38 (July 2012). 18 “Being poor is not a crime.” United
States v. Mitchell, 172 F.3d 1104, 1107 (9th Cir. 1999).
Thus, the scheme here at least partially serves to
punish or deter property owners who do not make
timely tax payments. See Bennett, 76 U.S. at 336
(forfeiture of title and all value in tax-delinquent
property would be “highly penal”). The County admits
that the statute serves as a deterrent. App.50a (“The
County further asserts that . . . ‘the ultimate
possibility of loss of property serves as a deterrent to
those taxpayers considering tax delinquency.’”
(quoting County’s district court brief)). “Deterrence
. . . has traditionally been viewed as a goal of
punishment.” Bajakajian, 524 U.S. at 329.
Accordingly, if compensation for a taking is not paid,
a straightforward application of this Court’s existing
precedents should bring the forfeiture of Tyler’s equity
“within the purview of the Excessive Fines Clause.”
Id. at 331 n.6.

18 https://www.nclc.org/images/pdf/foreclosure_mortgage/tax_

issues/tax-lien-sales.pdf.
 39

B. The History and Original Meaning of the

Excessive Fines Clause Support Its
Application Here
This Court’s most extended discussion of the
history of the Excessive Fines Clause occurred in
Browning-Ferris, where it observed that “[t]he Eighth
Amendment received little debate in the First
Congress and the Excessive Fines Clause received
even less attention.” 492 U.S. at 264 (citing Weems v.
United States, 217 U.S. 349, 368 (1910)). In that case,
the Court surveyed historical sources to determine
whether the Clause was meant to limit punitive
damages awarded by juries in cases between private
parties. In answering no, the majority noted that
damages awards were distinguished from what it
perceived to be more historically evident applications
of the Clause to government-imposed punishments in
the criminal context or government’s use of “civil
courts to extract large payments or forfeitures for the
purpose of raising revenue.” Id. at 275. Justice
O’Connor, writing separately about the history and
origins of the Clause, expressed her view that the
Clause should apply to punitive damage awards. “A
chronological account of the Clause and its
antecedents demonstrates that [it] derives from
limitations in English law on monetary penalties
exacted in civil and criminal cases to punish and deter
misconduct.” Browning-Ferris, 492 U.S. at 298
(O’Connor, J., concurring in part, dissenting in part).
Under either view, the Court’s discussion of
history supports the application of the Clause to the
forfeiture of Tyler’s equity in this case. Here, the
County used its “civil courts to extract [a] forfeiture[]
for the purpose of raising revenue” and imposed a
 40

monetary penalty to punish and deter misconduct. See

id. at 275.
The courts below did not take that path, however,
adverting to Bajakajian and its brief commentary on
the history of traditional in rem forfeitures (e.g.,
forfeitures for importing goods in violation of customs
laws, in which the government confiscated property or
ships worth more than evaded duties). The district
court wrongly concluded that this Court “rejected the
notion that a penalty or forfeiture must be deemed
punitive if the government receives more than is
necessary to make it whole.” Pet.App.42a. It thereby
held that the County’s home-forfeiture scheme passed
muster as a “debt-collection system whose primary
purpose is plainly remedial” despite confiscating
property worth more than its indebted owners owed.
Pet.App.44a.
Forfeiture in this case is easily distinguishable
from the forfeitures cited in Bajakajian. Tyler’s
property is not involved in any criminal violation,
making it impossible to describe as guilty property
“tainted by the offense.” See Austin, 509 U.S. at 613–
14. As the Virginia Supreme Court noted in the tax
foreclosure context,
This forfeiture cannot be sustained as a
forfeiture for crime, like the forfeitures which
take place under the revenue and navigation
laws, or under the act of August 6, 1861. In
such cases, the thing forfeited is the
instrument by which the offence was
committed, or was the fruit of the offence, and
is treated as being itself, in some sort, the
offender. But the land of a delinquent tax-
 41

payer cannot be brought within the principle

of this class of cases; it is neither the
instrument nor the fruit of any offence.
Martin, 59 Va. at 142. Neither is the forfeiture of
Tyler’s whole property “justified by necessity,” as has
been said about customs forfeitures where persons
responsible for the offense were “frequently located
overseas and thus beyond the personal jurisdiction
United States courts.” Leonard v. Texas, 137 S.Ct. 847
(2017) (Thomas, J., statement respecting denial)
(citing Stefan B. Herpel, Toward a Constitutional
Kleptocracy: Civil Forfeiture in America, 96 Mich. L.
Rev. 1910, 1918–20 (1998)). Indeed, Tyler is an elderly
woman living in the same apartment in Minnesota
where she’s resided for more than a decade since
moving out of the property at issue in this case. 19
Moreover, Bajakajian’s discussion of the
historical status of civil in rem forfeitures was dicta
and is unpersuasive. The question in the case was
whether the Excessive Fines Clause properly limited
the amount of an in personam criminal forfeiture.
Bajakajian, 524 U.S. at 332. Likely because it was not
at issue in the case, Bajakajian incorrectly posited
that “[t]raditional in rem forfeitures were [] not
considered punishment against the individual for an
offense,” and “because they were viewed as
nonpunitive, such forfeitures traditionally were
considered to occupy a place outside the domain of the
Excessive Fines Clause.” Id. at 331. In dissent, Justice

19 Other debtors who lose homes because of delinquent taxes may

remain living in the property when the homes are foreclosed. See,
e.g., Br. of Amici Curiae David Wilkes, et al. in Support of
Petitioner Geraldine Tyler 17–20; Fair v. Continental Resources,
No. 22-160, Petition for Writ of Certiorari (filed Aug. 18, 2022).
 42

Kennedy criticized the majority’s reading of the

history and expressed concern that its conclusions
“remove[d] important classes of fines from any
excessiveness inquiry at all,” treating “many fines as
‘remedial’ penalties even though they far exceed the
harm suffered.” Id. at 345 (Kennedy, J., dissenting).
“In the majority’s universe, a fine is not a punishment
even if it is much larger than the money owed. This
confuses whether a fine is excessive with whether it is
a punishment.” Id.; see also Toth v. United States, 143
S.Ct. 552, 553 (2023) (Gorsuch, J., dissenting from
denial of certiorari) (“[T]he notion of ‘nonpunitive
penalties’ is a ‘contradiction in terms.’”) (citing Justice
Kennedy’s dissent). Five years earlier, in Austin, this
Court held that those same traditional in rem
forfeitures were at least partly a form of punishment.
509 U.S. at 614–18 (“[F]orfeiture generally and
statutory in rem forfeiture in particular historically
have been understood, at least in part, as
punishment.”); id. at 625 (Scalia, J., concurring in
part) (“[I]t seems to me that this taking of lawful
property must be considered, in whole or in part,
punitive.”) (citation omitted).
Consistent with Austin’s view, recent scholarship
confirms that traditional in rem forfeitures were
considered punishment during the Founding era. See
Kevin Arlyck, The Founders’ Forfeiture, 119 Colum. L.
Rev. 1449, 1498–99 (2019). In fact, the Founding
generation sought to constrain them with
proportionality principles embodied by the Excessive
Fines Clause. For instance, a study of the effects of the
1790 Remission Act, which authorized the owners of
forfeited goods or ships to petition the government for
their return where the forfeiture was not justified by
 43

“wilful negligence or any intention of fraud,” shows

that nearly 91% of petitioners received their property
back. Id. at 1485, 1487–88. Early cases also explain in
rem forfeitures as punishment. See, e.g., Peisch v.
Ware, 8 U.S. 347, 364 (1808) (“[T]he act punishes the
owner with a forfeiture of the goods” and therefore
cannot be interpreted as applying where customs
violation occurs without the owner’s “consent or
connivance, or with that of some person employed or
trusted by him.”); Harmony v. United States, 43 U.S.
210, 235 (1844) (describing an in rem forfeiture
statute as “confessedly penal”); The Gertrude, 10
F.Cas. 265, 267–68 (C.C.D. Me. 1841) (in rem
forfeitures “highly penal” and not applicable where
unintentional violation of customs law occurred); see
also, 3 Blackstone, supra at *261 (forfeiture statutes
are “penal”).
Moreover, scholarship after Austin and
Bajakajian demonstrates that the Founding
generation had a more expansive understanding of
“fines” than this Court’s precedents have yet explored.
See generally, Colgan, Reviving the Excessive Fines
Clause, 102 Cal. L. Rev. at 310–19. “At a minimum,”
historical records show “that the concept of
nonpunitive penalties cannot fairly be treated as
historical truth.” Id. at 319. The history and meaning
of fines support treating the forfeiture of Tyler’s
equity as a “fine” subject to scrutiny under the
Excessive Fines Clause.
***
Windfall statutes like Minnesota’s can be
profitable for the government, but have devastating
consequences for homeowners who fall behind on their
 44

taxes. This is especially pernicious for owners who

have non-blameworthy reasons, including cognitive
decline, physical or mental illness, or simple poverty.
See Rao, The Other Foreclosure Crisis at 5, 9, 33, 38.
Elderly property owners, like Tyler, are especially
susceptible to losing their property in this way when
they leave their residences for senior living or medical
facilities and fail to recognize the consequence of
allowing a foreclosure to occur. See Jennifer C.H.
Francis, Comment, Redeeming What is Lost: The Need
to Improve Notice for Elderly Homeowners Before and
After Tax Sales, 25 Geo. Mason U. Civ. Rts. L.J. 85, 86
(2014).
As Justice Thomas wrote about other types of
forfeitures, “[t]hese forfeiture operations frequently
target the poor and other groups least able to defend
their interests in forfeiture proceedings. Perversely,
these same groups are often the most burdened by
forfeiture.” Leonard v. Texas, 137 S.Ct. 847, 848 (2017)
(Thomas, J., concurring in denial of certiorari)
(citations omitted). The County has acknowledged the
disproportionate effect, noting that “it would be a very
rare occasion where the county would forfeit a
$500,000 parcel . . . as a practical matter that just
would be very unusual.” JA.49. At bottom, the
County’s position is that if a property owner is not
clever or capable enough to sell encumbered property
before the imposed deadline, then the government
may ignore constitutional protections and confiscate
more than it is owed. But the Constitution does not
only protect the clever, deserving, and the diligent; it
protects the weak, poor, and the unfortunate alike.
See, e.g., Chambers v. Florida, 309 U.S. 227, 241
(1940) (“Under our constitutional system, courts stand
 45

against any winds that blow as havens of refuge for

those who might otherwise suffer because they are
helpless [or] weak . . . .”). See also Cerajeski v. Zoeller,
735 F.3d 577, 583 (7th Cir. 2013) (chastising state for
taking property from “inattentive” or “incapable”
property owners “who may be incompetent to
safeguard [their] property”). Property owners like
Tyler are entitled to the protection of the Excessive
Fines Clause.
CONCLUSION
Petitioner Tyler respectfully requests this Court
to reverse the judgment below and remand the case
for further proceedings on her takings and excessive
fines claims.
DATED: February 2023.
Respectfully submitted,
LAWRENCE G. SALZMAN CHRISTINA M. MARTIN
DEBORAH J. LA FETRA Counsel of Record
DAVID J. DEERSON Pacific Legal Foundation
JOSHUA W. POLK 4440 PGA Blvd., Ste. 307
Pacific Legal Foundation Palm Beach Gardens, FL
555 Capitol Mall, Ste. 1290 33410
Sacramento, CA 95814 Telephone: (916) 330-4059
[email protected]
 46

CHARLES R. WATKINS VILDAN TESKE

Guin, Stokes & Evans, LLC Teske Law, PLLC
805 Lake Street #226 222 South Ninth St.
Oak Park, IL 60301 Ste. 1600
Minneapolis, MN 55402
GARRETT D. BLANCHFIELD
ROBERTA A. YARD
Reinhardt Wendorf &
Blanchfield
332 Minnesota St.
Ste. W-1050
St. Paul, MN 55101

Counsel for Petitioner