The Volokh Conspiracy

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Property Rights

Unusual Cross-Ideological Agreement in Tyler v. Hennepin County

Takings cases often divide opinion along left-right ideological lines. The home equity theft case argued before the Supreme Court today is a rare exception.


Geraldine Tyler is seen at an assisted living facility
Geraldine Tyler, 94, who had her home seized by the government over a property tax debt. (Courtesy of Pacific Legal Foundation)


This morning, the Supreme Court heard oral arguments in Tyler v. Hennepin County, an important Takings Clause case involving the practice of "home equity theft," under which  local governments can seize the entire value of a property in order to pay off a much smaller delinquent property tax debt.  Geraldine Tyler, the plaintiff in the case, is a 94-year-old widow whose home, valued at $40,000, was seized by the County government after she was unable to pay off $15,000 in property taxes, penalties, interest, and fees. The County then proceeded to keep the entire $40,000 for itself, as Minnesota state law allows it to do. Tyler contends this violates the Takings Clause of the Fifth Amendment, which requires the government to pay "just compensation" anytime it takes private property. I went over the issues in the case here.

Takings Clause cases often divide opinion along predictable left-right ideological lines. Strikingly, however, this case features a broad cross-ideological coalition supporting the property owner. Ilya Shapiro of the Manhattan Institute (reminder: he is a different person from me), has a helpful summary of the wide range of groups filing amicus briefs supporting Tyler:

Progressive groups such as the Constitutional Accountability Center are aligned with conservative groups such as the Claremont Institute's Center for Constitutional Jurisprudence. The American Civil Liberties Union is on a brief with the Cato Institute. The National Taxpayers Union Foundation, AARP, Chamber of Commerce, National Association of Home Builders, National Association of Realtors, National Consumer Law Center, and Public Citizen have all weighed in to help Tyler, as have disability advocates and four of Minnesota's congressional representatives. Hennepin County, meanwhile, is supported mainly by state and municipal governments and related associations.

My organization, the Manhattan Institute, joined the Buckeye Institute, the National Federation of Independent Business, and three other groups on a brief supporting Tyler.

I rarely agree with either the AARP or the right-wing Claremont Institute on much of anything. But in this case, I find myself in the highly unusual position of agreeing with both of them simultaneously. The AARP brief, in particular, is absolutely right to point out that elderly homeowners of modest means are particularly vulnerable to home equity theft, especially those who also suffer from declining health and mental capacity.

Much of the political left has a long history of hostility to judicial protection of property rights. But this issue is clearly an exception. For their part, many conservatives have turned against property rights on a variety of issues, in recent years. But not here.

What accounts for the unusual left-right agreement here? I think progressive groups are willing to back Tyler because home equity theft disproportionately harms the poor, elderly, and minorities, and because curbing it is unlikely to impede various types of land-use regulation that the left favors (except in so far as the latter can be facilitated by allowing government to redefine private property rights out of existence, as the lower court ruling allowed Minnesota to do here).

Many conservatives are willing to set aside their traditional support for property rights when they stand in the way of right-wing culture war causes, such as combating vaccine mandates, preventing private property owners from barring guns from their land, and others. But no such culture war issue is at stake here.

As Shapiro notes, almost all the amicus briefs supporting the government in Tyler were filed by local government and tax collection interests, who have an obvious narrowly self-interested stake in the issue.

It's worth noting that only three states joined an amicus brief supporting Hennepin County, one of which is the state of Minnesota, where the county is located. There are twelve states with laws authorizing home equity theft, plus the District of Columbia. The other nine were apparently unwilling to weigh in to support their own laws. Interestingly, a much larger group of states—eight in all—filed an amicus brief supporting the property owner. It's unusual to see state governments taking the side of property owners in takings cases, as that limits the states' own powers.

I should emphasize that the lopsided division of amicus briefs doesn't by itself prove that Tyler deserves to win. An unpopular minority view can sometimes be right on the merits. In this case, however, the Takings Clause argument for the property owner is very strong, and a decision the other way would set a dangerous precedent.

I will post an analysis of the oral argument later today. But my tentative initial view is that most of the justices seem likely to side with Tyler.

NOTE: Geraldine Tyler is represented by the Pacific Legal Foundation, which is also my wife's employer. She, however, is not one of the attorneys working on the case.