The necessity of judicial review
Legislative and executive bodies exhibit a propensity for tyranny
If you are skeptical about the wisdom of judicial review, the case of Tyler v. Hennepin County, Minnesota pending in the United States Supreme Court should dispel any skepticism. James Madison was spot on in observing in Federalist 55: “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”
In 1999, Geraldine Tyler, a retired county worker, bought a one-bedroom condo in Minneapolis. She resided there for 10 years punctually paying real estate taxes. Ms. Tyler moved across town seeking a safer neighborhood. But paying bills for both premises became prohibitive. By 2015, Tyler owed the county $15,000 in unpaid property taxes, interest, costs and penalties.
Hennepin County seized the her condo and sold it for $40,000. But rather than keep $15,000 and refund $25,000 to Ms. Tyler, the county absconded with the entire $40,000. If a bank or private individual lender did that in a foreclosure proceeding, they would be criminally prosecuted for theft. But the Minnesota legislature legalized government thievery. The law authorizes counties in collecting property taxes to obtain absolute title over properties on which taxes are owing. Absolute title entitles them to retain 100 percent of the proceeds of sale irrespective of the amount of real estate taxes due plus interest, costs, and penalties to deter scofflaws.
Ms. Tyler’s case is not the worst. From 2014-2020 in Minnesota, more than 4,300 properties were seized and sold for property tax deficiencies. Of that number, more than 1.200 were family homes. A tiny 8 percent of the sales proceeds of the family homes were used to make the counties whole and 92 percent were legally stolen.
Minnesota is not an outlier. 12 States and the District of Columbia authorize government seizures and sales of property over tax debts, code enforcement fines, or obligations to government agencies and to retain all the sales proceeds no matter how disproportionate to the money owed—even ratios as high as 1,000,000 to one.
By any standard, such seizures and sales are punitive. They have no remedial purpose. They are indistinguishable from a law that would empower the IRS to confiscate your entire wealth to satisfy an income tax deficiency of $1.00. But the victims are denied the multiple benefits of a criminal trial, including jury unanimity, proof beyond a reasonable doubt, and the right of cross-examination and presentation of exculpatory evidence. They are classic examples of unconstitutional bills of attainder, i.e., the legislative infliction of punishment.
The Supreme Court is certain to lower the curtain on this legalized government theft by late spring or early summer. A decision cannot come too soon.