Christina Martin, a Pacific Legal Foundation staff attorney, wrote the amicus brief in the Coleman case. Todd Gaziano is executive director of Pacific Legal Foundation’s D.C. Center.
On Aug. 5, 2011, Benjamin Coleman, a retired Marine sergeant who suffered from dementia, was evicted from the Northeast Washington home he bought decades earlier. The reason? He didn’t pay the District $133.88 in property taxes during a time when neighbors said he also forgot to buy food. To recoup the debt and $183.47 in penalties, the District sold its foreclosure right to a private investor for a handsome profit; the investor sold the home for an even more lucrative $71,000. Its assessed value was almost $200,000. Despite the Fifth Amendment’s maxim that government pay “just compensation” when it takes your property, Coleman never saw a penny from either sale.
Coleman wasn’t alone. The District sold thousands of tax liens before 2013, leading to hundreds of property seizures. As The Post’s investigation two years ago showed, many tax debts were shockingly small. Of the hundreds of properties taken by the District between 2005 and 2013 through the tax-sale foreclosure process, about one-third owed debts of less than $1,000.
The District and private investors reaped a windfall from particularly vulnerable citizens, including the elderly, the sick and a disproportionate number of minority residents in poorer neighborhoods. The law also allowed extortionate fees and tactics. Lien purchasers could add steep legal and other fees. The company that purchased Mr. Coleman’s $317.35 tax lien piled on $4,999 in fees, costs and interest. When Coleman’s son learned about his father’s predicament, he tried to pay off the debt but couldn’t afford to make the final payments in time to redeem his father’s home.
When The Post broke the story in a series of reports, then-Mayor Vincent C. Gray (D) stopped some home sales. In 2014, the D.C. Council amended the law to provide property owners various protections. Now, excess proceeds from the sale of any property must go to the dispossessed. Yet instead of admitting that the former practice unconstitutionally or unfairly took property, the District is doubling down on its abuse of homeowners who lost everything.
On Nov. 18, the District will argue in federal court that Coleman and other foreclosed homeowners suing the District under the Fifth Amendment should get nothing. The suit seeks the return of their equity — the value of their home that exceeded the tax lien and any reasonable costs, fees, penalties and interest. But District officials assert they had the right to take much more than was owed and keep it all, arguing that the homeowners forfeited their constitutional rights by failing to pay their debts on time.
Essentially, the District claims that the government may define the terms under which a homeowner forfeits his constitutional rights to just compensation. That’s dangerously wrong. Our foundation filed an amicus brief explaining as much. The residents may have lost a procedural right to contest the tax, but they didn’t lose every other constitutional right the government finds inconvenient. The excessive-fines clause of the Eighth Amendment would prevent the District from seizing a person’s home for speeding. Likewise, the failure to pay a small tax does not authorize the government to suspend the Fifth Amendment and take whatever it wants in excess of that debt.
The Supreme Court has rightly rejected other government attempts to “shape and define property rights” in a manner that would effectively “put an expiration date on the Takings Clause” or extinguish well-established property rights. Indeed, any forfeiture of a constitutional right is narrowly construed to preserve individual liberty; the government doesn’t get a windfall.
If government officials have the final say on what constitutes a forfeiture of constitutional rights, they could not only take property without paying compensation but also “redefine” when other constitutional rights are forfeit. If so, the failure to shovel snow from your sidewalk could justify the seizure of your home and the denial of your voting rights. Neither is true.
Instead of doubling down on the dispossessed, the District should concede its error and compensate Coleman and the others for what it took in excess of what they owed. The District should do so for the sake of everyone’s rights.