Argumentum interruptum — live on Fox News!

Yesterday I worked all day preparing for what was to be a three-minute segment with Lawrence Jones on Fox News last night. The segment was to discuss the case of Geraldine Tyler v. Hennepin County that is pending in the United States Supreme Court. The Court held oral argument on April 26. It is likely to decide the case in June.

I anticipated that more urgent news would result in the cancellation of the segment, but Fox News confirmed it was a go and booked the Minneapolis studio for it. I did not anticipate that breaking news would interrupt the segment just as I got rolling. Yet that is what happened. Breaking news cut me down in midsentence. That was frustrating. It’s an interesting case.

In 1999, Geraldine Tyler, now 94 years old, purchased a one-bedroom condominium in Minneapolis and made it her home. She lived there for more than a decade, and during that time paid her property taxes. 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. Beginning in 2011, Tyler failed to pay property taxes on the condominium. She ultimately fell behind $2,300 in property taxes on her condo — with interest and penalties she owed Hennepin County $15,000.

In 2015 the county foreclosed on her condo and sold it for $40,000. What happened next has brought the case to the Supreme Court.

What happened next? Here are my bullet points:

Unbelievably — Hennepin County kept the change — $25,000 — that is, $25,000 more than Ms. Tyler owed the county. Is that legal? It is under Minnesota law and the law of 12 states.

Ms. Tyler decided to fight city hall. She connected with the Pacific Legal Foundation to bring a lawsuit on her behalf against the county on the ground that it had unconstitutionally taken her equity in the condo — PLF calls it “home equity theft.” (The PLF’s Christina Martin took up the theme in her April 22 Wall Street Journal column “The Supreme Court Takes Up ‘Home-Equity Theft.’”)

Ms. Tyler lost in the district court and on appeal because the courts felt bound to apply the 1956 Supreme Court case Nelson v. City of New York. In the Supreme Court hearing, however, Hennepin County and attorney Neal Katyal took a beating. I think they are going to lose the case (my guess is 8-1). The Supreme Court justices do not think the Nelson case applies and they see Ms. Tyler as the victim of a Minnesota statute that authorized the county’s unconstitutional taking. I look forward to a happy ending to this chapter of the story.

Beyond my bullet points:

The federal district court case was decided by my friend and former colleague Judge Patrick Schiltz. It is posted online here. Judge Schiltz clerked for Justice Scalia for two years — his last year on the D.C. Circuit Court of Appeals and his first year on the Supreme Court. There is no one in the profession whom I respect more. His opinion in the case demonstrates his characteristically high level of care and analysis. The Eighth Circuit decision in the case is posted online here. Invoking the Nelson case, the Eighth Circuit opinion is cursory in nature.

Going back through the facts of Ms. Tyler’s case, I thought that Mark Twain’s famous assessment of the music of Richard Wagner might apply: it’s not as bad as it sounds (but it’s bad).

The Pacific Legal Foundation has taken up a series of cases against state statutes like Minnesota’s. PLF held a webinar on the Tyler case in advance of the oral argument. Video of the webinar is posted online here.

In the Minnesota federal district court and in the Eighth Circuit attorneys from the Hennepin County Attorney’s office represented Hennepin County. When the case reached the Supreme Court the county turned to Neal Katyal. I wonder who is paying his bills or if he is representing the county pro bono.

The Office of Solicitor General of the United States appeared in support of Ms. Tyler. Assistant Solicitor General Erica Ross was allotted 10 minutes of the oral argument. Her appearance in support of Ms. Tyler surprised me.

The oral argument of the case before the Supreme Court went nearly two hours. I thought the justices were incredibly impressive. I found the oral argument inspirational. Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, Justice Barrett, Justice Kagan, and Justice Jackson all impressed me favorably. Justice Sotomayor had one point to make and it wasn’t bad. Justice Kavanaugh’s presence was less noticeable to me.

Listening to the oral argument, I was most struck by the beating Katyal took. One has to listen to the whole thing to get the gist. By far the best account of the hearing is Amy Howe’s SCOTUSblog post “Justices appear likely to side with homeowner in foreclosure dispute.” I disagree only with her assessment of the prospects of the excessive fines issue posed in the case. The Court is not going to reach the excessive fines issue.

Thinking about the oral argument overnight, it occurred to me that Christina Martin is a little like the guys tracking down Butch Cassidy and the Sundance Kid in the movie. She lacks Katyal’s presence and résumé, but she is formidable and relentless in her own way.

The Star Tribune published an editorial on the case this past January. It isn’t bad. The Star Tribune also published a story by reporter Dave Orrick on the oral argument. I think Orrick missed the dynamics. Orrick drew on the AP story, which did a better job.

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