No.

22-166

In the Supreme Court of the United States

__________

GERALDINE TYLER, on behalf of herself and all oth-

ers similarly situated,
Petitioner,
v.

HENNEPIN COUNTY, and DANIEL P. ROGAN, Au-

ditor-Treasurer, in his official capacity,
Respondents.
__________
On Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit
__________
BRIEF OF THE CATO INSTITUTE, AMERICAN
CIVIL LIBERTIES UNION, ACLU OF
MINNESOTA, NATIONAL ASSOCIATION OF
HOME BUILDERS, AND OWNERS’ COUNSEL
OF AMERICA
AS AMICI CURIAE IN SUPPORT OF
PETITIONER
__________
Thomas J. Ward Clark M. Neily III
Zachary C. Packard Counsel of Record
NATIONAL ASSOCIATION Thomas A. Berry
OF HOME BUILDERS Isaiah McKinney
OF THE U.S. CATO INSTITUTE
1201 15th Street, N.W. 1000 Mass. Ave., N.W.
Washington, D.C. 20005 Washington, DC 20001
(202) 266-8200 (202) 425-7499
[email protected]

(Additional Counsel Listed on Inside Cover)

David D. Cole Teresa Nelson
AMERICAN CIVIL LIBERTIES ACLU OF MINNESOTA
UNION FOUNDATION P.O. Box 14720
915 15th St. NW Minneapolis, MN 55414
Washington, DC 20005

March 2, 2023
 i

QUESTION PRESENTED
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?
 ii

TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
TABLE OF AUTHORITIES ....................................... iii
INTEREST OF AMICI CURIAE................................. 1
SUMMARY OF ARGUMENT ..................................... 3
ARGUMENT ................................................................ 7
I. THIS COURT’S PRECEDENTS SHOW
THAT STATE REDEFINITIONS OF
PROPERTY CAN CONSTITUTE
TAKINGS .......................................................... 7
II. ENGLISH COMMON LAW
SCHOLARS AND EARLY AMERICAN
FOUNDERS BELIEVED THAT
LEGISLATIVE TAKINGS VIOLATED
PROPERTY RIGHTS ...................................... 13
III.MINNESOTA’S TAX LIEN STATUTE
IS A LEGISLATIVE TAKING ........................ 17
CONCLUSION .......................................................... 21
 iii

TABLE OF AUTHORITIES
Page(s)
Cases
Ayer v. Stewart, 14 Minn. 97 (1869) ............................ 4
Board of Regents v. Roth, 408 U.S. 564 (1972)
.................................................................................. 5
Cedar Point v. Hassid, 141 S. Ct. 2063 (2021)
........................................................................ 6, 8, 18
District of Columbia v. R. P. Andrews Paper
Co., 256 U.S. 582 (1921) ......................................... 20
Eastern Enters. v. Apfel, 524 U.S. 498 (1998) ........... 19
Farnham v. Jones, 19 N.W. 83 (Minn. 1884) ................
4, 11, 12, 18
Hall v. Meisner, 51 F.4th 185 (6th Cir. 2022) ..... 4, 6, 7
Hughes v. Washington, 389 U.S. 290 (1967) ..... 8, 9, 12
Inhabitants of Medford v. Learned, 16 Mass.
(15 Tyng) 215 (1819) .............................................. 15
Kaiser Aetna v. United States, 444 U.S. 164
(1979) ...................................................................... 18
Koontz v. St. Johns River Water Mgmt. Dist.,
570 U.S. 595 (2013) .................................... 12, 19, 20
Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992) ..................................... 9, 10, 11, 19
Minn. Debenture Co. v. Scott, 106 Minn. 32
(1908) ...................................................................... 12
Mugler v. Kansas, 123 U.S. 623 (1887) ....................... 7
Munn v. Illinois, 94 U.S. 113 (1876) ..................... 9, 10
Newland v. Marsh, 19 Ill. 376 (1857)........................ 15
 iv

Owensboro v. Cumberland Tel. & Tel. Co.,

230 U.S. 58 (1913) .................................................. 20
Parking Ass’n of Ga., Inc. v. City of Atlanta,
515 U.S. 1116 (1995) ................................................ 8
Phillips v. Wash. Legal Found., 524 U.S. 156
(1998) ........................................................................ 7
PruneYard Shopping Center v. Robins, 447
U.S. 74 (1980) ......................................................... 10
Ruckleshaus v. Monsanto Co., 467 US. 986
(1984) ...................................................................... 19
Smith’s Lessee v. Devecmon, 30 Md. 473
(1869) ...................................................................... 15
Stromberg v. Lindberg, 25 Minn. 513 (1879) .............. 4
United States ex rel. Tenn. Valley Auth. v.
Powelson, 319 U.S. 266 (1943) ............................... 20
Webb’s Fabulous Pharmacies, Inc., v.
Beckwith, 449 U.S. 155 (1980) ....................... 7, 8, 18
Statutes
1858 Minn. Laws 645 .......................................... 19, 20
1881 Minn. Laws 176 .................................................. 4
Minn. Laws Ch. 11, § 1576 (1891) ............................. 12
Minn. Laws Ch. 11, § 1617 (1894) ............................. 12
Minn. Laws Ch. 11, § 939 (1905)............................... 12
Minn. Laws Ch. 135 (1881) ....................................... 11
Minn. Stat. § 280.29 (2021) ................................... 5, 17
Minn. Stat. § 939 (1905) .............................................. 4
 v

Other Authorities
1 William Blackstone, Commentaries (1765) ..... 13, 14
Bernard H. Siegan, Property Rights: From
Magna Carta to the Fourteenth
Amendment (2001) ................................................. 13
Caleb Nelson, Adjudication in the Political
Branches, 107 Colum. L. Rev. 559 (2007). ............ 14
Federalist No. 10 (James Madison) (Clint
Rossiter ed., 1961) .................................................. 14
Federalist No. 80 (James Madison) .......................... 16
Felix S. Cohen, Dialogue on Private Property,
9 Rutgers L. Rev. 357 (1954) ................................. 18
George Van Cleve, The Antifederalist’s
Toughest Challenge: Paper Money, Debt,
Relief, and the Ratification of the
Constitution, 34 J. Early Republic 529
(2014) ............................................................ 5, 15, 16
James Madison, Property, in 14 Papers of
James Madison (William T. Hutchinson et.
al., eds. 1973) (Mar. 29, 1792) ................................. 6
Jennifer Nedelsky, Reconceiving Autonomy:
Sources, Thoughts and Possibilities, 1 Yale
J.L. & Feminism 7 (1989) ...................................... 15
John Locke, 2 Treatise of Civil Government ............ 13
Lee Nelson, What Is a Pre-Foreclosed
Property, and How Do You Buy One?,
MyMortgageInsider (April 29, 2022) ..................... 20
 vi

Letter from William Grayson to James

Madison, Mar. 22, 1786, in 8 The Papers of
James Madison (William T. Hutchinson, et
al. eds.) (1973) ........................................................ 16
Magna Carta ................................................................ 4
Thomas Merrill, The Landscape of
Constitutional Property, 86 Va. L. Rev. 885
(2000) ................................................................ 19, 20
Thomas Paine, Dissertations on Government,
the Affairs of the Bank, and Paper Money,
in Political Writings of Thomas Paine
(1869) .......................................................... 15, 16, 17
 1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy
research foundation founded in 1977 and dedicated to
advancing the principles of individual liberty, free
markets, and limited government. Cato’s Robert A.
Levy Center for Constitutional Studies helps restore
the principles of constitutional government that are
the foundation of liberty. Toward those ends, Cato
publishes books and studies, files amicus briefs, con-
ducts conferences, and produces the annual Cato Su-
preme Court Review.
This case interests the Cato Institute because
when property is taken by the government, the right
to just compensation is fundamental. The taking of
home equity without any compensation, as occurred in
this case, is incompatible with the Fifth Amendment.
The American Civil Liberties Union (ACLU) is a
nationwide, nonprofit, nonpartisan organization with
nearly 2 million members dedicated to the principles
of liberty and equality embodied in the Constitution
and our nation’s civil rights laws. The ACLU of Min-
nesota is the ACLU’s Minnesota affiliate. Since its
founding in 1920, the ACLU has frequently appeared
before this Court in cases challenging government ac-
tion for transgressing individual rights and liberties.
The ACLU is devoted to defending the rights of all, but
especially those, like petitioner here, who lack the po-
litical power to protect their rights through the politi-
cal process.
The National Association of Home Builders

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than amici funded
its preparation or submission.
 2

(NAHB) is a Washington, D.C. based trade association

whose mission is to enhance and promote housing
availability and the building industry. Chief among
NAHB’s goals is providing and expanding opportuni-
ties for all people to have safe, decent, and affordable
housing. Founded in 1942, NAHB is a federation of
more than 700 state and local associations. NAHB is
comprised of approximately 140,000 members consist-
ing of home builders, remodelers, suppliers, and other
professionals supporting the home building industry.
NAHB is a vigilant advocate in the nation’s
courts. It frequently participates as a party litigant
and amicus curiae to safeguard the constitutional and
statutory rights and economic interests of its members
and those similarly situated.
NAHB has nearly 1,100 Minnesota members en-
gaged in home building in the state; thus, NAHB mem-
bers have a vested interest in the application of Min-
nesota’s draconian tax law. Minnesota is helping itself
to windfalls at the expense of its citizens, all under the
color of state law. The law extinguishes the fundamen-
tal right to equity in one’s property. This is a monu-
mental alteration to the common understanding of
property rights and a threat to Minnesota homeown-
ers.
Owners’ Counsel of America (OCA) is an invita-
tion-only national network over two decades old of the
most experienced eminent domain and property rights
attorneys in the country. They have joined together to
advance, preserve and defend the rights of private
property owners, and thereby further the cause of lib-
erty, because the right to own and use property is “the
guardian of every other right,” and the basis of a free
society. See James W. Ely, The Guardian of Every
 3

Other Right: A Constitutional History of Property

Rights (2d ed. 1998). OCA is a non-profit 501(c)(6) or-
ganization sustained solely by its members. Only one
member lawyer is admitted from each state. Since its
founding, OCA has sought to use its members’ com-
bined knowledge and experience as a resource in the
defense of private property ownership, and OCA mem-
ber attorneys have been involved in landmark prop-
erty law cases in nearly every jurisdiction nationwide.
As the lawyers on the front lines of property law
and property rights OCA understands well the “tak-
ing” issue that is central to this case. Simply stated,
when property is taken by the government, the pay-
ment of just compensation is fundamental to the tak-
ing, a constitutional right that cannot be denied or ab-
rogated by a mere legislative enactment.
SUMMARY OF ARGUMENT
The Fifth Amendment guarantees that no “pri-
vate property [shall] be taken for public use, without
just compensation.” U.S. Const. amend. V. But today,
some local governments assert the authority to seize
all the equity in a home, after first confiscating that
home and selling it to pay off de minimis tax bills.
These seizures of equity often target poorer communi-
ties—and often the elderly within those communi-
ties—who own their homes but have no disposable in-
come with which to pay their taxes. Unlike in most
states, where the surplus proceeds from such sales are
returned to the owners, these governments keep all
the proceeds for themselves. The result can leave im-
pecunious families even more destitute.
94-year-old Geraldine Tyler is just one victim
among many of this unjust practice. Tyler owed $2,300
in taxes on a condominium worth around $40,000. Pet.
 4

at 5. When she did not pay her property taxes, she ac-
cumulated almost $12,700 in fees and interest. Id.
Hennepin County, Minnesota, seized her home, sold it
for $40,000, paid off her tax debt, and then kept the
$25,000 in remaining equity. Id. Tyler was left with
nothing.
Allowing the government to profit from the sei-
zure of private property is not only unjust—it is uncon-
stitutional. The Fifth Amendment’s protections apply
not only to real property but also to intangible property
interests, such as an owner’s equity in her home. Since
Magna Carta, English and American common law has
required governments to return any surplus from
property taken to pay tax debts. See Magna Carta
Clause 26; Hall v. Meisner, 51 F.4th 185, 190–94 (6th
Cir. 2022) (discussing the history of treating surplus
home equity as the homeowner’s property after a tax
foreclosure). Nevertheless, today 14 states have ab-
jured English and American common law, allowing lo-
cal authorities to seize surplus equity and deposit it in
government treasuries. Minnesota, at issue in this
case, took legislative action to change the state’s law
and create a tax-debt recovery scheme that allows the
government to keep any surplus from the property
taken to pay off the debt. Compare 1881 Minn. Laws
176–77, with Minn. Stat. § 939 (1905).
Before this legislative change, the Minnesota Su-
preme Court had held that homeowners possess a
right to the surplus equity of their homes, in the con-
texts of satisfying both unpaid tax debt and mortgage
payments. Farnham v. Jones, 19 N.W. 83, 85 (Minn.
1884) (taxes); Ayer v. Stewart, 14 Minn. 97, 98 (1869)
(mortgages); Stromberg v. Lindberg, 25 Minn. 513,
514–16 (1879) (same). But the Minnesota legislature
then changed the rules, codifying a predatory tax
 5

scheme that permits the government to keep any sur-

plus from the property taken to pay off the debt. Minn.
Stat. § 280.29 (2021).
When Minnesota’s legislature decreed that delin-
quent taxpayers’ remaining equity would go to the gov-
ernment’s treasuries rather than back to the home-
owner, the state committed a legislative taking under
this Court’s precedents.2
States can define property rights and legislatures
can change common-law rules, but when a state di-
vests a common-law property right via legislation and
without compensation, the state takes the property
contrary to the Fifth Amendment. The Founders were
wary of legislatures taking away property rights—one
of the arguments for ratifying the Constitution empha-
sized that it would prohibit state legislatures from tak-
ing away certain property rights. George Van Cleve,
The Antifederalist’s Toughest Challenge: Paper Money,
Debt, Relief, and the Ratification of the Constitution,
34 J. Early Republic 529, 534–59 (2014). Although
state law (among other principles and customs) may
define the contours of property,3 legislatures cannot

2 The term “legislative taking” usually refers to a statute that de-

prives the property owner of value at the moment of the statute’s
passage, such as in Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992). That has not happened here, but the County is
claiming that Tyler’s surplus home equity was not her property
after she failed to redeem it, by operation of a statute. Resp. to
Pet. Br. at 21; Minn. Stat. § 281.23. See also Minn. Stat. § 280.29.
Since the County is claiming it did not take her property, but ra-
ther that the operative force of the statute eliminated her prop-
erty interest in the equity, amici believe this is best analyzed as
effectively equivalent to a legislative taking.
3See Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (“Property
interests, of course, are not created by the Constitution. Rather,
 6

define away property rights without just compensa-

tion. And home equity has historically been recognized
as protected property. See Hall, 51 F.4th at 190–94.
All takings of private property for a public pur-
pose require just compensation under the Fifth
Amendment. As this Court recently recognized in Ce-
dar Point v. Hassid, 141 S. Ct. 2063 (2021), a takings
analysis considers whether the government has com-
pletely seized a property interest, or merely restricted
it. Here, the state legislature seized all the remaining
equity in Tyler’s home, leaving her nothing. This is not
an instance of a state defining property, but rather of
a legislature unconstitutionally eliminating a property
interest without just compensation. Because this tak-
ing violates the Fifth Amendment and contravenes
basic property principles, this Court should reverse
the Eighth Circuit’s decision.

they are created and their dimensions are defined by existing

rules or understandings that stem from an independent source
such as state law . . . .”); James Madison, Property, in 14 Papers
of James Madison 266–68 (William T. Hutchinson et. al., eds.
1973) (Mar. 29, 1792), https://tinyurl.com/5fj3v6x3 (distinguish-
ing the property interest in the conscience, which comes from nat-
ural law, from “other property depending in part on positive law
. . . .”).
 7

ARGUMENT
I. This Court’s Precedents Show that State
Redefinitions of Property Can Constitute
Takings
This Court has held that it is the role of courts to
constrain legislatures when they commit Fifth Amend-
ment takings: “If, therefore, a statute . . . is a palpable
invasion of rights secured by the fundamental law, it
is the duty of the courts to so adjudge, and thereby give
effect to the Constitution.” Mugler v. Kansas, 123 U.S.
623, 661 (1887). And when a legislature changes a
property interest from private to public, it can commit
a compensable taking. See, e.g., Stop the Beach Re-
nourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S.
702, 715 (2010) (plurality op.) (“If a legislature . . . de-
clares that what was once an established right of pri-
vate property no longer exists, it has taken that prop-
erty, no less than if the State had physically appropri-
ated it or destroyed its value by regulation.”); Phillips
v. Wash. Legal Found., 524 U.S. 156, 167 (1998) (“‘[A]
State, by ipse dixit, may not transform private prop-
erty into public property without compensation’ simply
by legislatively abrogating the traditional rule . . . .”)
(quoting Webb’s Fabulous Pharms., Inc., v. Beckwith,
449 U.S. 155, 164 (1980)); see also Hall, 51 F.4th at 190
(“But the Takings Clause would be a dead letter if a
state could simply exclude from its definition of prop-
erty any interest that the state wished to take.”) (hold-
ing unconstitutional a state statute allowing the gov-
ernment to take surplus equity after a tax lien sale).
This Court recently affirmed that courts must
protect property against not only executive but also
legislative action. In Cedar Point Nursery v. Hassid,
the Court explained that it does not matter which
 8

branch of government impinged the property interest

when “the government has physically taken prop-
erty[.]” 141 S. Ct. at 2072. Members of this Court have
similarly explained why there is no constitutional dif-
ference between a taking via legislative act and a par-
ticularized ad hoc administrative taking. See, e.g.,
Parking Ass’n of Ga., Inc. v. City of Atlanta, 515 U.S.
1116, 1118 (1995) (Thomas, J., dissenting). Thus, a leg-
islature is just as capable of committing a taking as
agencies or officers of an executive branch.
When a legislature defines an extant property
right to no longer be private property, the legislature
has committed a taking. In Webb’s, this Court consid-
ered the property status of interest from a private
trust fund operated temporarily by the county court
registry, interest that the court registry had attempted
to take as its own. 449 U.S. at 155. Per traditional,
common-law trust rules, the interest follows the trust.
Therefore, because the trust was private property, the
Court held that the interest was as well. Id. at 162.
Neither the legislature nor the court registry could re-
characterize common-law private property as public
property to fill its coffers. Id. at 164.
A few years earlier, in Hughes v. Washington,
Justice Stewart similarly concluded that states cannot
recharacterize property interests to avoid the Takings
Clause, writing that “a State cannot be permitted to
defeat the constitutional prohibition against taking
property without due process of law by the simple de-
vice of asserting retroactively that the property it has
taken never existed at all.” 389 U.S. 290, 296–97
(1967) (Stewart, J., concurring). Although that case
asked whether a state court opinion interpreting a
state constitutional provision was a taking, the analy-
sis is applicable when any branch of a state
 9

government strips a previously held right. See id. Jus-

tice Stewart urged that the test for determining if a
state action takes a property interest should be
whether the action created an “unpredictable change
in state law.” Id. at 297.
More recently, this Court looked at the relation-
ship between common law and legislation in defining
property rights. See Lucas v. S.C. Coastal Council, 505
U.S. 1003 (1992). The issue in Lucas was whether a
statute prohibiting new construction close to the tidal
line on the beach “took” the Lucas family’s property,
since the property was left without any economic use.
Id. at 1007. The Court emphasized that “[a]ny limita-
tion so severe cannot be newly legislated or decreed
(without compensation), but must inhere in the title
itself, in the restrictions that background principles of
the State’s law of property and nuisance already place
upon land ownership.” Id. at 1029.
Justice Stevens dissented, raising concerns that
the Court had cabined legislative freedom, binding leg-
islatures to long-held common-law rules. Id. at 1068–
69 (Stevens, J., dissenting). Referencing Munn v. Illi-
nois, 94 U.S. 113, 123 (1876), Stevens argued that the
majority had abandoned this Court’s prior holding
that legislatures could alter “the law governing the
rights and uses of property.” Lucas, 505 U.S. at 1029.
But in fact, Munn’s holding is not in tension with
Lucas. First, Munn concerned the Due Process Clause,
not the Takings Clause, which specifically applies to
“private property.” Further, this Court’s decision in
Munn explicitly differentiated between common-law
property rights—which cannot be taken away without
due process or just compensation—and common-law
rules, which can be changed. In Munn, the Court
 10

examined whether a statutory limit on the prices a

warehouse could charge for grain storage deprived the
warehouse owners of property under the Due Process
Clause. 94 U.S. at 123. The Court held that it did not,
even though there was a general common-law rule
that sellers could price products and services at their
own discretion. Id. at 133–34. The Court reasoned that
“[r]ights of property which have been created by the
common law cannot be taken away without due pro-
cess; but the law itself, as a rule of conduct, may be
changed at the will, or even at the whim, of the legis-
lature, unless prevented by constitutional limitations.”
Id. at 134. The Court further discussed the limits of
property protection in common-law rules, stating that
a “person has no property, no vested interest in any
rule of the common law.” Id.
The Munn Court thus recognized that merely
modifying a common-law rule is very different from re-
moving a “right of property . . . created by the common
law.” Id. Munn’s holding is limited, applying only
when a rule change “establishes no new principle in
the law, but only gives a new effect to an old one.” Id.
Thus, Munn does not apply when a “newly legislated
or decreed” rule takes away a property right. Lucas,
505 U.S. at 1029.
In PruneYard Shopping Center v. Robins, Justice
Marshall cited Munn in a concurrence positing that
“[q]uite serious constitutional questions might be
raised if a legislature attempted to abolish certain cat-
egories of common-law rights in some general way.”
447 U.S. 74, 93–94 (1980) (Marshall, J., concurring).
Munn’s principle has thus been recognized as a limited
one. Viewed in context alongside this Court’s other
precedents, Munn does not permit a state legislature
 11

to deprive individuals of common-law property rights

without due process or just compensation.
This overview of the Court’s decisions demon-
strates its commitment to protecting common-law
property rights against legislative takings. Although
legislatures can alter common-law rules, they cannot
eliminate private property rights.
In this case, Tyler had a common-law property
right in the equity of her home, established both in the
“background principles” of property law stemming
back as far as Magna Carta and in Minnesota common
law. See Lucas, 505 U.S. at 1031; Farnham, 19 N.W.
at 85. The seizure of the surplus equity in Tyler’s home
was a taking under Lucas because the entirety of the
property interest—her remaining equity—was taken,
leaving her nothing. Lucas, 505 U.S. at 1006. This was
no less a complete taking than if the Minnesota legis-
lature had turned every fee simple in the state into a
life estate and transferred the future interests to the
state. The government cannot seize property worth
$25,000 without compensation simply because the leg-
islature sought to effectuate that result by eliminating
a common-law property right rather than exercising
eminent domain or other valid state process.
Further, looking to other tests besides Lucas, the
forced transfer here would also likely be a taking un-
der Justice Stewart’s analysis in Hughes. Justice
Stewart’s test asks whether the legislature created an
“unpredictable change in state law.” Minnesota did ex-
actly that when it removed a common-law property
right over the course of fifteen years via statute. Ini-
tially, in 1881, the tax-lien statute was silent regard-
ing the surplus. Minn. Laws Ch. 135 (1881); Farnham,
19 N.W. at 85 (explaining that the right to surplus
 12

came from a non-statutory source). In 1884, the Min-

nesota Supreme Court explained that the homeowner
had a right to the remaining equity after a tax lien had
been satisfied and that this right “exists inde-
pendently” of any statute. Farnham, 19 N.W. at 85.
In 1891, the statute directed that all proceeds be
channeled to state tax funds, and since the statute ex-
plained what to do when the proceeds were insufficient
but not when there was a surplus, this statute implied
that any surplus was to be treated like normal tax pro-
ceeds. Minn. Laws Ch. 11, § 1576 (1891). In 1894, any
proceeds exceeding the amount owed were distributed
as normal tax monies. Minn. Laws Ch. 11, § 1617
(1894). And finally, in 1905, the statute directed that
“the excess, if any, above the taxes, penalties, interest,
and costs . . . be paid in like manner for the benefit of
the state.” Minn. Laws Ch. 11, § 939 (1905). Thus by
1905 the legislature had completely done away with
the homeowner’s property right in the surplus. See id.;
Minn. Debenture Co. v. Scott, 106 Minn. 32, 35–36
(1908). This statutory removal (over the course of fif-
teen years) of a common-law right that “exist[ed] inde-
pendently of such statutory provision” certainly consti-
tuted an “unpredictable change in state law” and is un-
constitutional. Farnham, 19 N.W. at 85; Hughes, 389
U.S. at 296–97 (Stewart, J., concurring).
Finally, as in Webb’s, the property here is an in-
tangible monetary asset, which this Court has recog-
nized as property under the Fifth Amendment. See
Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S.
595, 613–14 (2013). This Court should follow its prior
precedents and hold the seizure of Tyler’s equity to be
an unconstitutional taking of property.
 13

II. English Common-Law Scholars and Early

American Founders Believed That Legis-
lative Takings Violated Property Rights
It is not just this Court’s precedents that estab-
lish that a state legislature cannot redefine away prop-
erty at will; English and American common law also
establish this principle. Traditionally at English and
early American common law, property was seen as a
natural right and thus not subject to elimination by
mere legislative will without just compensation.
John Locke averred that property is one of the
common gifts given to mankind. See John Locke, 2
Treatise of Civil Government §§ 25–26. The foundation
of property, according to Locke, is the labor one puts
into obtaining or maintaining a thing outside of the
state of nature. Id. §§ 27–30. If one invests her labors
into an item to take it from the state of nature, it be-
longs to her. Id. And if she barters that first item for
another, the acquired item likewise belongs to her. Id.
§ 46.
Similarly, William Blackstone explained that leg-
islatures could not deprive individuals of their prop-
erty rights. In his Commentaries, he defined property
as “the free use, enjoyment, and disposal of all his ac-
quisitions, without any control or diminution, save
only by the laws of the land.” 1 Commentaries 134–35
(1765). The “laws of the land” clause refers to the
proper course of legal proceedings—Blackstone was
not leaving an opening for legislatures to abolish prop-
erty rights via mere legislative act. See Bernard H.
Siegan, Property Rights: From Magna Carta to the
Fourteenth Amendment 31–32 (2001). Indeed, Black-
stone explained that a legislature cannot eliminate a
property right without paying just compensation:
 14

In [eminent domain] . . . the legislature

alone, can, and indeed frequently does . . .
compel the individual to acquiesce. But how
does [the legislature] interpose and compel?
Not by absolutely stripping the subject of his
property in an arbitrary manner; but by giv-
ing him a full indemnification and equiva-
lent for the injury thereby sustained.
Blackstone, supra, at 1335. If a legislature took
away a property right, it had to pay for it. Blackstone
would not have countenanced legislatures “abrogat-
ing” property rights at their pleasure without compen-
sation.
In America, the Founders were also acutely con-
cerned with legislatures removing property rights. In
Madison’s words, “democracies . . . have ever been
found incompatible with . . . the rights of property,”
and legislatures must be constrained from
“trampl[ing] on the rules of justice.” Federalist No. 10,
at 80–81 (James Madison) (Clint Rossiter ed., 1961).
The founding generation distinguished between
privileges—which could be removed by legislatures—
and private rights, which could not. Legislatures could
create public privileges, like use of public roads and
waterways, or ownership of the public treasury, and
they could remove those privileges at will. Caleb Nel-
son, Adjudication in the Political Branches, 107
Colum. L. Rev. 559, 567–68 (2007). Legislatures could
also create and remove private privileges, which could
be enforced against other parties but were merely en-
titlements granted by the legislature. Id. But legisla-
tures could not strip away private “core” rights, like
the right to property, which descended from natural
rights, without just compensation. Id. at 568–69. This
 15

principle, that legislatures cannot remove private

property rights without just compensation, continued
through the nineteenth century. See Inhabitants of
Medford v. Learned, 16 Mass. (15 Tyng) 215, 217
(1819) (“[N]o legislator could have entertained the
opinion, that a citizen, free of debt by the laws of the
land, could be made a debtor merely by a legislative
act, declaring him one.”); Newland v. Marsh, 19 Ill.
376, 382 (1857) (“The legislative power . . . cannot di-
rectly reach the property or vested rights of the citizen,
by providing for their forfeiture or transfer to another
. . . .”); Smith’s Lessee v. Devecmon, 30 Md. 473, 481
(1869) (“The Legislature has no power to pass laws im-
pairing or divesting vested rights . . . .”).
The role of legislatures in changing property in-
terests also came up during the Articles of Confedera-
tion era regarding the issue of paper money. States
were combatting post-war economic instability by
passing debtor-relief plans and issuing printed
money—measures that were widely considered in-
fringements on private property rights. Jennifer
Nedelsky, Reconceiving Autonomy: Sources, Thoughts
and Possibilities, 1 Yale J.L. & Feminism 7, 16 (1989).
These paper-money emissions devalued debts and al-
lowed debtors to pay off loans without giving creditors
real value. Thomas Paine, Dissertations on Govern-
ment, the Affairs of the Bank, and Paper Money, in Po-
litical Writings of Thomas Paine, at 404–08 (1869). Pa-
per money was seen as a deprivation of property
rights, and many, especially propertied individuals,
were frustrated with these legislative debt-reduction
policies. See Paine, supra, at 404–08; Van Cleve, su-
pra, at 542–43. As William Grayson, a congressman
and leading Anti-Federalist wrote, “If . . . an act
against the Constitution is void, surely paper money
 16

with a tender annexed to it is void, for [is it] not an

attack upon property, the security of which is made a
fundamental in every State in the Union.’’ Letter from
William Grayson to James Madison, Mar. 22, 1786, in
8 The Papers of James Madison 508, 509 (William T.
Hutchinson, et al. eds.) (1973); Van Cleve, supra, at
543.
Thomas Paine wrote against these legislative ac-
tivities and the use of paper money, arguing that leg-
islation eliminating property and contract rights was
unlawful. Paine, supra, at 376–77; Van Cleve, supra,
at 539. In Paine’s view, such legislation would be an
“actless act, an act that goes for nothing.” Paine, supra,
at 377.
One of the major incentives for ratifying the Con-
stitution was the inclusion of Article I, Section 10,4
which prohibited states from issuing paper money.
Van Cleve, supra, at 546, 551–55. See also Federalist
No. 80, at 475 (James Madison) (describing the Consti-
tution’s prohibition on issuing paper money).
The inclusion of Article I, Section 10 in the Con-
stitution largely alleviated concerns with respect to
property rights and paper money, and the Takings
Clause was not specifically designed to address those
property-rights violations. But when the Founders
used the term “private property” in the Takings
Clause, it stands to reason that they understood that
state legislatures, which they had just prohibited from
taking away creditors’ property rights via Section 10,
could not change the definition of property to take
away other property rights. Legislatively eliminating

4
U.S. Const. art. I, § 10, cl. 1 “No state shall . . . emit Bills of Credit; make
any Thing but gold and silver Coin a Tender in Payment of Debts . . . .”
 17

other property rights would also be an “actless act.”

Paine, supra, at 377. The fight over paper money
shows the founders’ vigilance against legislative at-
tempts to devalue property rights.
Throughout American history, legislatures could
not strip away property rights without just compensa-
tion. The Founders expected legislatures to pay for any
property rights they took, and many people supported
the Constitution because it prevented states from de-
valuing property rights. The Court should follow the
early English and American respect for property and
reject the legislative takings of home equity in Minne-
sota and other states via “actless acts.”
III. Minnesota’s Tax Lien Statute is a Legis-
lative Taking
Minnesota, contrary to both this Court’s prece-
dents and English and American history, legislatively
took Tyler’s vested property interest in her surplus eq-
uity.
Minnesota’s statute, Minn. Stat. § 280.29 (2021),
took away the homeowner’s property interest in her
surplus home equity after the tax lien had been paid
off. The County claims that because “no Minnesota
statute create[d] the property interest [Tyler] seeks,”
and because a Minnesota statute abrogated any prop-
erty interest, she has no property right in her remain-
ing equity. Resp. to Pet. Br. at 21–22. In other words,
the argument goes that since Minnesota did not give
her a property right, she has no property right.
The County claims that Tyler’s property was not
taken “since, under Minnesota law, [Tyler] held no in-
terest in the property after absolute title vested in the
state.” Resp. to Pet. Br. at 22. This is not a taking, the
 18

County says, because “state law had extinguished any

interest [Tyler] once had . . . .” Resp. to Pet. Br. at 25.
In other words, Tyler had no property interest after
the state took it. But of course, that is the very defini-
tion of a legislative taking—the transformation of “pri-
vate property into public property” via “ipse dixit.”
Webb’s, 449 U.S. at 164.
In fact Tyler did have a property interest in her
home equity. Not only did state common law give her
a property right in the surplus, see Farnham, 19 N.W.
at 85, but the surplus equity also met many of the
longstanding historical hallmarks for what constitutes
property. Specifically, the equity was excludable, a dis-
crete asset, and irrevocable.
Tyler’s surplus equity was excludable and thus
“property,” as this Court has reiterated multiple times.
The ability to exclude someone from one’s property is
a fundamental hallmark of ownership. Cedar Point v.
Hassid, 141 S. Ct. 2063, 2072 (2021); Kaiser Aetna v.
United States, 444 U.S. 164, 176, 179–80 (1979). Ex-
cludability is the idea that one can declare a certain
property to be one’s own against anyone else in the
world. See Felix S. Cohen, Dialogue on Private Prop-
erty, 9 Rutgers L. Rev. 357, 374 (1954).5 And excluda-
bility is a feature of multiple types of property

5Cohen writes, “that is property to which the following label can

be attached:

To the world:

Keep off X unless you have my permission, which I may grant

or withhold.

Signed: Private citizen

Endorsed: The state.”

 19

ownership—the owner of a fee simple can exclude eve-

ryone at all times and use the property as he will; the
owner of a leasehold owns exclusion rights from the
landlord and can exclude for the length of the lease;
the possessor of intellectual property can exclude all
others from using certain ideas. See Thomas Merrill,
The Landscape of Constitutional Property, 86 Va. L.
Rev. 885, 972 (2000).
Here, Tyler could exclude anyone else from her
surplus equity. If this had been a foreclosure action,
the bank could not have taken her property—Tyler’s
possession was exclusive of all others. See 1858 Minn.
Laws 645 (a mortgagor is entitled to “any surplus
money, after satisfying the mortgage on which such
real estate was sold.”). She had an excludable property
interest, under both state law and this Court’s prece-
dents, which the Minnesota legislature and Hennepin
County took unconstitutionally.
Further, Tyler’s property interest was also a dis-
crete asset—one that could be sold in the economic
market. Definable assets, like land, intellectual prop-
erty, and money, can be transferred in the market and
receive Fifth Amendment protection. Lucas, 505 U.S.
at 1006 (land); Ruckleshaus v. Monsanto Co., 467 US.
986, 1001–04 (1984) (intellectual property); Koontz,
570 U.S. at 613–14 (money). Compare this to financial
liabilities, which are not discrete and do not qualify as
property under the Takings Clause. See Eastern En-
ters. v. Apfel, 524 U.S. 498, 540 (1998) (Kennedy, J.,
concurring in the judgment) (making five votes for the
premise that statutorily imposed liabilities did not
take property) (“The Coal Act does not appropriate,
transfer, or encumber an estate in land (e. g., a lien on
a particular piece of property), a valuable interest in
an intangible (e. g., intellectual property), or even a
 20

bank account or accrued interest.”). But money, or fi-

nancial accounts, are discrete and measurable and
thus can be property. See Koontz, 570 U.S. at 613–14.
Similar to the monetary payment in Koontz, Ty-
ler’s interest is definable—she had $25,000 in surplus
equity after the taxes and fees were paid. Pet. at 5. Her
equity is also the type of asset that is sold in the mar-
ketplace—if Tyler had been facing a foreclosure rather
than a tax lien she could have sold her home to a third
party, paid off the loan, and kept the surplus equity.
Lee Nelson, What Is a Pre-Foreclosed Property, and
How Do You Buy One?, MyMortgageInsider (April 29,
2022).6 And if the foreclosure action had already oc-
curred, under state law she would have been given the
remaining $25,000. See 1858 Minn. Laws 645. Her eq-
uity was a discrete asset that was private property and
could not be taken without just compensation.
Finally, property interests are also irrevocable, at
least for a period of time. There must be an expectation
that the owner will possess the property interest ex-
clusively for a given period. Merrill, supra at 978. Un-
less specified otherwise at their creation, property
rights are irrevocable. Owensboro v. Cumberland Tel.
& Tel. Co., 230 U.S. 58, 74 (1913). If the interest can
be revoked at any time, then it is merely a license, not
property. District of Columbia v. R. P. Andrews Paper
Co., 256 U.S. 582, 587 (1921). Similarly, “promises of a
gratuity” or privileges are not irrevocable, and thus
are not compensable. See United States ex rel. Tenn.
Valley Auth. v. Powelson, 319 U.S. 266, 280–81 (1943).
But distinct from a license, a lease is irrevocable for its
duration, and thus could be a protected property right.

6 https://tinyurl.com/sdfn6tke.
 21

Here, Tyler’s home equity could not be swept

away at the discretion of another—it was irrevocable.
If the dispute at issue had been over a mortgage, the
bank could not have simply voided her equity in the
home. This interest is irrevocable and is private prop-
erty, and Hennepin County cannot claim it for its own.
Tyler has a property interest in her surplus eq-
uity, and the County’s assertions otherwise flout this
Court’s precedents and centuries of common-law prac-
tice and principle. The definition of property rests in
the states, but states cannot “extinguish[] any interest
[Tyler] once had.” Resp. to Pet. Br. at 25. That is a tak-
ing, and without just compensation it is unconstitu-
tional.
CONCLUSION
The taking of home equity is unconstitutional
and unjust. For the foregoing reasons, and those de-
scribed by the Petitioner, this Court should reverse
the Eighth Circuit.

Respectfully submitted,

Thomas J. Ward Clark M. Neily III

Zachary C. Packard Counsel of Record
NATIONAL ASSOCIATION Thomas A. Berry
OF HOME BUILDERS Isaiah McKinney
OF THE U.S. CATO INSTITUTE
1201 15th Street, N.W. 1000 Mass. Ave., N.W.
Washington, D.C. 20005 Washington, DC 20001
(202) 266-8200 (202) 425-7499
[email protected]
 22

David D. Cole Teresa Nelson

AMERICAN CIVIL LIBERTIES ACLU OF MINNESOTA
UNION FOUNDATION P.O. Box 14720
915 15th St. NW Minneapolis, MN 55414
Washington, DC 20005

March 2, 2023