Amicus Brief: McGee v. Alger County Treasurer

The Supreme Court ruled in Tyler v. Hennepin County two years ago that the government violates the Takings Clause when it confiscates more property than necessary to collect delinquent property taxes, penalties, interest, and fees. But five states continue to regularly take more than what is owed by requiring owners to follow unusual and unreasonable procedures to collect the compensation due. This case challenges Michigan’s claim statute, which requires owners to preserve their right to be paid while they still possess the property and weeks before the property is sold, and owners must perfectly comply with every aspect of the claim process. As a result, the government is keeping surplus proceeds as a windfall at the expense of 95% of Michigan owners.

The Alger County Treasurer foreclosed on Jacqueline McGee’s home ten days after she unexpectedly died from a weeklong illness at age 53. Her children, mourning the loss of their mother and sorting out her affairs, did not begin probate until after the deadline to preserve the estate’s right to surplus proceeds had passed. When the County sold the property, it kept $34,150 more than it was owed. Co-petitioner Lillian Joseph was one of the few Michiganders who figured out the notice requirement, timely mailing Iron County the notarized notice that she wanted any surplus proceeds from the sale of her foreclosed property. But because she mailed the claim form by express priority mail instead of certified mail, and the treasurer did not retrieve it from the mailroom until after the deadline, the lower court held the county could keep a windfall of $21,755.

The Manhattan Institute has now joined the Buckeye Institute and several other organizations on an amicus brief supporting the McGee/Joseph cert petition, which argues that the Fifth Amendment’s just-compensation requirement is categorical, not to be weaseled out by legislative/executive legerdemain, as evidenced by the vast majority of states that provide reasonable procedures to protect property rights.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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