Lex Fori PLLC and Carson J. Tucker File Brief Challenging Michigan’s Property Foreclosure Tax System and Constitutionality of Property Acquisition

Lex Fori, PLLC and Carson J. Tucker recently filed a brief in the Court of Appeals seeking to overturn a property tax foreclosure in which a contracted third-party was sending notices of the tax foreclosure proceedings to a post office box which was no longer in operation. The contractor had access to the property owner’s proper home address, as did the County Treasurer, yet, the only “notice” that was sent to our client regarding the tax foreclosure proceedings was the judgment, by which time it was too late to redeem the property.

Interesting sub-issues in this case have to do with challenging the constitutionality of taking private property for a failure of the property owner to pay a single year’s property tax bill of a couple thousand dollars, and yet allowing the county to resell the property taken on the open market for a windfall – taking the value of the property without compensation or any reimbursement to the property owner. In this case, several parcels and lake front property were taken this way and sold where the client had maintained this property for decades making the coefficient between the tax bill and the value of the property extremely high.

Read the brief here: Mitchell.Brief.on.Appeal.01.17.2020

Supreme Court Asked to Reconsider Chevron Doctrine of Broad Discretion to Federal Agency Interpretation of the Law

The Law Offices of Carson J. Tucker has asked the United States Supreme Court to reconsider giving overbearing government agencies broad discretion to interpret otherwise unambiguous law.

I previously posted our United States Supreme Court petition in  DCV Imports, LLC v. Bureau of Alcohol Tobacco Firearms and Explosives (BATFE).

We swing for the fence and go directly after Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), to ask the Court to restore the core power of the judicial branch to interpret and say what the law is.

If an unambiguous provision in a statute can be interpreted and applied by the court then that should be the end of the matter. Federal agencies have little more than executive prerogative to act unchecked by the representative branch of government and beyond the careful and considered oversight of the judiciary. This is a recipe for overburdening regulatory abuses. As it stands today, federal agencies exercise all three powers explicitly, and purposefully, separated by the Constitution. Agencies exercise legislative power in passing rules and regulations providing their interpretations of the law; executive powers in determining how the law should be administered; and judicial powers in holding “administrative” hearings and rendering “final” decisions that are given great deference by federal courts. Indeed, in this posture, and especially as applied in this case, the federal agency is jury, judge and executioner.

We do not feel the ATF fairly interpreted “wilfully violated” in our case because it used our client’s prior knowledge and his prior history with another company (S&N Fireworks, his parents’ company), and the fact of his bare knowledge of the existence of the regulations to determine that a first time violation at his facility of the inventory / recordkeeping requirements was sufficient to charge him with wilfully violating 18 USC 843 (the pendant of 18 USC 923 in the Gun Control Act, similarly interpreted and administered by ATF).

There were no prior violations, and no long history of assisting with coming into compliance. Importantly, the ultimate factual findings of the agency dispelled the claims that DCV and the prior company, S&N were one and the same, and also ultimately found only the one instance of inventory mistakes on the daily summary of magazine transactions. DCV had no knowledge that the records were being improperly maintained until they were inspected for the first time.

Yet, DCV did not get a second chance, and the regulations allow the director to refuse a second chance if there is a determination of “willfulness”. Obviously, if ATF can conclude that a first time violation is “willful” then it means little to have a regulation that allows a second chance. This is where the ATF’s broad (indeed unbridled) discretion is most abusive.

It will be interesting to see what we can accomplish with this petition. For any regulated business that understands the frustrations and demands of dealing with federal agencies day in and day out, the outcome of this case could be significant.