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Continental Resources, appellee, v. Kevin L. Fair, 

defendant and third-party plaintiff, appellant, 

and Heather Hauschild, Scotts Bluff County 

Treasurer, and Doug Peterson, Attorney 

General for the State of Nebraska, in their 

official capacities, and the County 

of Scotts Bluff, third-party 

defendants, appellees.

___ N.W.2d ___

Filed March 18, 2022. No. S-21-074.

1. Standing: Jurisdiction: Parties. Standing is a jurisdictional component 

of a party’s case because only a party who has standing may invoke the 

jurisdiction of a court.

2. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court.

3. Constitutional Law: Statutes: Judgments: Appeal and Error. The 

constitutionality of a statute presents a question of law upon which 

appellate courts have an obligation to reach an independent conclusion 

irrespective of the decision of the court below.

Appeal from the District Court for Scotts Bluff County: Leo 

P. Dobrovolny, Judge. Affirmed.

Michael W. Meister, Jennifer Gaughan, and Mark T. Bestul, 

of Legal Aid of Nebraska, for appellant.

Gregory C. Scaglione and Casandra M. Langstaff, of Koley 

Jessen, P.C., L.L.O., for appellee Continental Resources.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/20/2022 08:07 AM CDT
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Douglas J. Peterson, Attorney General, and James A. 

Campbell, Solicitor General, for appellee Attorney General.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Thompson, District Judge.

Papik, J.

If an owner of real property in Nebraska fails to pay property taxes, a statute allows the county in which the property 

is located to sell a tax certificate for the property to a private 

party. If, after a period of time, the owner of the real property 

fails to pay the taxes owed and the tax certificate purchaser 

complies with certain requirements, the tax certificate purchaser can obtain a deed to the property, free of any encumbrances. This appeal presents a multipronged challenge to the 

constitutionality of the statutes that authorize this process. The 

appellant contends that the statutes, both facially and as applied 

to him, violate the state and federal Takings Clauses; the state 

and federal Due Process Clauses; the federal Excessive Fines 

Clause; article I, § 25, of the Nebraska Constitution; and article 

III, § 18, of the Nebraska Constitution. We hold that these 

claims of unconstitutionality lack merit and, thus, affirm.

BACKGROUND

Nebraska Tax Sale Statutory Process.

Before reviewing the facts of this particular case, we believe 

it beneficial to provide an overview of Nebraska’s tax certificate sale process. Because tax certificate sale proceedings are 

governed by the law in effect at the time the tax sale certificate 

is sold, see HBI, L.L.C. v. Barnette, 305 Neb. 457, 941 N.W.2d 

158 (2020), we cite the statutes that were in effect in March 

2015, when the tax certificate for the property at issue in this 

case was sold.

The tax sale process has been a part of Nebraska law since 

at least 1879. See 1879 Neb. Laws, §§ 1-184, pp. 276-349. 

In that year, the Legislature passed an act “[t]o provide a 

system of revenue” for the growing state. 1879 Neb. Laws, 
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p. 276. Located within the revenue act of 1879 was a method 

of recouping unpaid property taxes—a tax sale process which 

allowed investors to purchase tax certificates on tax-delinquent 

properties, then to request a tax deed from the county treasurer 

after a certain amount of time had passed if the property owner 

had not redeemed the property. See, §§ 109-111, pp. 320-21; 

§ 119, pp. 324-25; § 126, p. 327.

The process operates in largely the same manner today as 

it did in 1879. See Neb. Rev. Stat. § 77-1801 et seq. (Reissue 

2018). Each county has an automatic lien on property within 

its boundaries for the property taxes that are due to the government. Neb. Rev. Stat. § 77-1901 (Reissue 2018). The county 

has the authority to sell its lien to a private party via a tax 

certificate when the taxes on the property become delinquent. 

See § 77-1818.

To facilitate the sale of the lien, the county treasurer creates 

a list of all the properties in the county that have delinquent 

property taxes. See § 77-1802. The list must then be published 

in a local newspaper once a week for 3 consecutive weeks. 

See § 77-1804. The tax certificate is then offered for sale. 

See § 77-1807(2)(b), (e), and (f). A statute sets the cost of the 

certificate as “the amount of taxes, interest, and cost thereon.” 

§ 77-1808.

If a county sells a tax certificate on a property, the property 

owner is not without recourse. The statute provides the owner 

the right to redeem the property by paying the county treasurer 

the amount listed in the tax certificate plus all other taxes paid 

by the tax certificate purchaser, any interest, and other fees. 

See § 77-1824. Interest accrues at 14 percent per year. Neb. 

Rev. Stat. § 45-104.01 (Reissue 2021).

So, what happens if the property owner does not redeem the 

property? The tax certificate holder can eventually apply for 

a tax deed, but must first wait at least 3 years after purchasing the tax certificate. See § 77-1837(1). Before applying for 

the tax deed, the tax certificate holder must provide a period 

of notice to the property owner of its intention to do so. See 
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§ 77-1831. If a tax deed is issued to the tax certificate purchaser, title to the property passes free and clear of any encumbrances. See SID No. 424 v. Tristar Mgmt., 288 Neb. 425, 850 

N.W.2d 745 (2014).

With this statutory background established, we turn to the 

facts and procedural history of this case.

Factual and Procedural History.

Kevin L. Fair and Terry A. Fair, a married couple, owned 

real property in Scotts Bluff County, Nebraska. The Fairs lived 

in a house on the property and owned the property free of 

any encumbrances.

In 2014, the Fairs failed to pay the property taxes they owed. 

In compliance with §§ 77-1801 and 77-1804, in February 2015, 

the county treasurer published a list of tax-delinquent properties in an area newspaper. The list included the legal descriptions of many properties, one of which was the Fairs’ home. 

The list was published three times: February 5, 12, and 19.

The county treasurer sold a tax certificate for the property’s 

unpaid taxes to Continental on March 11, 2015, for $588.21. 

Continental then paid the subsequent property taxes as if it 

were the owner of the property. Once Continental began paying the property’s taxes, the County did not send any further 

communications or tax bills to the Fairs. Nor did the Fairs 

attempt to make any payments to the county treasurer for the 

delinquent property taxes.

Three years later, on April 13, 2018, Continental served the 

Fairs a “Notice of Expiration of Right of Redemption.” The 

notice informed the Fairs that they had 3 months from the date 

the notice was served to redeem the property and that redemption would cost $5,268—the total value of the unpaid taxes, 

fees, and interest. The notice also indicated that if the property 

was not redeemed, Continental would apply for a tax deed and 

the right of redemption would expire.

The Fairs did not make any payment to the county treasurer 

after receiving the notice from Continental. True to its word, 

in July 2018, Continental applied for a tax deed. The county 
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treasurer issued the tax deed to Continental. At the time the tax 

deed was issued, the county assessed the value of the property 

at $59,759.

Continental thereafter filed a quiet title action against the 

Fairs. The Fairs eventually filed an amended answer, counter

claim, and third-party complaint, which added Scotts Bluff 

County and the county treasurer in her official capacity as 

third-party defendants. Relevant to this appeal, the Fairs 

alleged that the tax certificate sale process violated their constitutional rights in a number of respects. Because the Fairs 

sought to have statutes declared unconstitutional, the Nebraska 

Attorney General exercised his right “to be heard” regarding 

the Fairs’ constitutional claims. See Neb. Rev. Stat. § 25-21,159 

(Reissue 2016).

In response to a motion filed by Continental, the district 

court granted summary judgment against the Fairs and quieted 

title to the property in Continental’s favor. The district court 

found that the tax certificate sale statutes were not unconstitutional in the manner alleged.

Terry Fair died while the lawsuit was pending in the district 

court. Kevin Fair (hereinafter Fair) filed a timely appeal.

On the same day he filed his opening brief, Fair filed a 

notice pursuant to Neb. Ct. R. App. § 2-109(E) (rev. 2014) that 

his appeal challenged the constitutionality of Nebraska statutes. 

We moved the case to our docket. The Attorney General filed 

a brief on appeal defending the constitutionality of the challenged statutes.

ASSIGNMENTS OF ERROR

Fair assigns that the district court erred in granting 

Continental’s summary judgment motion to quiet title because 

the tax sale process set forth in § 77-1801 et seq. violates (1) the 

Takings Clauses of the U.S. and Nebraska Constitutions; (2) the 

Due Process Clauses of the U.S. and Nebraska Constitutions; 

(3) the Excessive Fines Clause of the U.S. Constitution; (4) 

article I, § 25, of the Nebraska Constitution; and (5) article III, 

§ 18, of the Nebraska Constitution.
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STANDARD OF REVIEW

Although this case comes to us as an appeal from an order 

granting summary judgment, the parties do not disagree about 

any of the relevant facts. The sole issues on appeal are Fair’s 

standing to assert his various constitutional challenges and the 

merits of those constitutional challenges.

[1,2] Standing is a jurisdictional component of a party’s case 

because only a party who has standing may invoke the jurisdiction of a court. Adair Holdings v. Johnson, 304 Neb. 720, 936 

N.W.2d 517 (2020). The question of jurisdiction is a question 

of law, upon which an appellate court reaches a conclusion 

independent of the trial court. Id.

[3] The constitutionality of a statute also presents a question 

of law upon which appellate courts have an obligation to reach 

an independent conclusion irrespective of the decision of the 

court below. See State v. Boche, 294 Neb. 912, 885 N.W.2d 

523 (2016).

ANALYSIS

Standing.

Before we can address the merits of Fair’s constitutional 

challenges, we are confronted with a challenge to his standing. 

Because standing is a jurisdictional issue, we address it first. 

See Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 

664 (2020).

The Attorney General contends that because Fair failed 

to comply with § 77-1844, he lacks standing to assert certain constitutional challenges. Section 77-1844 provides that 

“[n]o person shall be permitted to question the title acquired 

by a treasurer’s deed without first showing that . . . all taxes 

due upon the property had been paid by such person . . . .” 

We have held that this statute sets forth conditions that must 

be met in order to obtain standing to challenge a tax deed. 

See, e.g., Wisner v. Vandelay Investments, 300 Neb. 825, 916 

N.W.2d 698 (2018). See, also, Griffith v. Nebraska Dept. of 

Corr. Servs., 304 Neb. 287, 297, 934 N.W.2d 169, 177 (2019) 
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(“just as the Legislature can provide for standing that is 

broader than common-law standards, so too can it provide for 

more specific or more restrictive standing requirements”). And 

while we have held that a party may comply with the requirement that all taxes due must be “paid” by merely showing 

that it has tendered the necessary payment to the treasurer, see 

Wisner, supra, that holding is of no consequence here because 

it is undisputed that Fair has neither paid nor tendered payment of the taxes due upon the property.

Fair contends that he has standing to assert his constitutional 

challenges despite his failure to pay or tender payment of the 

tax debt. He contends both that § 77-1844 does not apply in 

this instance and that even if it does, it is unconstitutional 

as applied to him. We, however, find that we may consider 

the merits of Fair’s constitutional challenges to the tax sale 

certificate process without resolving his arguments regarding 

§ 77-1844.

Section 77-1844 sets forth conditions that must be met in 

order to “question title.” See Ottaco Acceptance, Inc. v. Larkin, 

273 Neb. 765, 772, 733 N.W.2d 539, 547 (2007) (emphasis 

omitted). And while Fair did question Continental’s title in 

this case by seeking an order declaring the deed it was issued 

void, he also sought alternative relief in the event that title was 

quieted with Continental. In his counterclaim and third-party 

complaint, Fair sought both damages and an order directing 

that either Continental or the county pay him the value of the 

equity he had in the property, less the tax debt.

We need not, for purposes of our standing analysis, determine whether Fair would actually be entitled to damages or an 

order directing Continental or the county to make a payment 

that would return some of the equity in his property to him. 

As we have previously explained, because standing focuses 

“on the party” and not “the claim itself,” when considering 

standing, “the legal and factual validity of the claim presented 

must be assumed.” Heiden v. Norris, 300 Neb. 171, 174, 912 

N.W.2d 758, 761 (2018) (internal quotation marks omitted). 
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And assuming that Fair’s constitutional claims have merit and 

that he would be entitled to the alternative relief he requested, 

he is the proper party to assert those claims and request such 

relief. Property Fair owned is at issue, and § 77-1844 imposes 

no conditions precedent to the alternative relief requested. 

Accordingly, we find that we may consider the merits of Fair’s 

constitutional challenges even if he lacks standing to question 

Continental’s title. We turn to the merits of those constitutional 

challenges now.

Procedural Due Process.

Fair first argues that the tax certificate sale violated his right 

to procedural due process guaranteed by the 14th Amendment 

to the U.S. Constitution and article I, § 3, of the Nebraska 

Constitution. The 14th Amendment to the U.S. Constitution 

prohibits the states from “depriv[ing] any person of life, liberty, or property, without due process of law.” The Nebraska 

Constitution states, “No person shall be deprived of life, liberty, or property, without due process of law . . . .” Neb. Const. 

art. I, § 3. “We have interpreted the Nebraska Constitution’s 

due process and equal protection clauses to afford protections coextensive to those of the federal Constitution.” Keller 

v. City of Fremont, 280 Neb. 788, 791, 790 N.W.2d 711, 

713 (2010).

The parties to this case do not appear to dispute that before 

a deed to the property could be conveyed to Continental pursuant to the tax certificate statutes, procedural due process 

principles required that an attempt be made to provide Fair 

with advance notice. See Jones v. Flowers, 547 U.S. 220, 

223, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006) (“[b]efore a 

State may take property and sell it for unpaid taxes, the Due 

Process Clause of the Fourteenth Amendment requires the 

government to provide the owner notice and opportunity for 

hearing appropriate to the nature of the case”) (internal quotation marks omitted). See, also, HBI, L.L.C. v. Barnette, 305 

Neb. 457, 941 N.W.2d 158 (2020). There is also no dispute 

in this case that Fair received actual notice in April 2018 that 
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Continental had purchased a tax certificate for the property; 

that Fair had 3 months to redeem the property by paying the 

delinquent taxes along with interest and fees; and that if Fair 

failed to redeem the property, Continental intended to apply for 

a tax deed. The parties disagree, however, about whether this 

notice was constitutionally sufficient.

In many instances in which a party challenges the adequacy 

of notice on due process grounds, the issue is whether adequate 

steps were taken to attempt to provide notice that ultimately 

failed to reach its intended recipient. See Oneida Indian Nation 

of New York v. Madison County, 665 F.3d 408, 432 (2d Cir. 

2011) (referring to “the much more common due-process challenge in which a plaintiff contests the sufficiency of a notice 

that failed to reach its intended recipient”). That was the issue 

this court addressed in HBI, L.L.C., where it was held that 

certified mail that did not reach a property owner was nonetheless constitutionally adequate because it was “reasonably 

calculated” to provide actual notice. 305 Neb. at 470, 941 

N.W.2d at 169 (internal quotation marks omitted). Fair’s challenge is different. He concedes that in April 2018, he received 

actual notice his right to redeem his property would expire in 3 

months, but he argues that due process required that he receive 

earlier notice. Specifically, Fair contends that due process 

required that he receive actual notice of the sale of the tax certificate to Continental in March 2015.

A party asserting that he or she was, as a matter of constitutional due process, entitled to earlier notice than that actually 

provided faces a difficult challenge. As a general matter, due 

process is a “flexible” concept, Gilbert v. Homar, 520 U.S. 

924, 930, 117 S. Ct. 1807, 138 L. Ed. 2d 120 (1997) (internal 

quotation marks omitted), and thus resistant to an interpretation that “would impose a rigid requirement as to the precise 

timing with which notice must be given,” Oneida Indian 

Nation of New York, 665 F.3d at 434. Consistent with that 

understanding, the U.S. Supreme Court recognized long ago 

that only in a “clear case” will a notice be found inadequate 
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on due process grounds because it did not provide a party with 

enough time to assert its rights. See Bellingham Bay &c. Co. 

v. New Whatcom, 172 U.S. 314, 318, 19 S. Ct. 205, 43 L. Ed. 

460 (1899) (“it is certain that only in a clear case will a notice 

authorized by the legislature be set aside as wholly ineffectual 

on account of the shortness of the time”).

As we will explain, we do not believe Fair has shown that 

this is a “clear case” in which the notice was obviously provided too late. First, we disagree with Fair’s contention that 

state and federal Constitutions required that he receive notice 

upon the sale of the tax certificate to Continental. Fair claims 

that a property owner is entitled to notice of the sale of a tax 

certificate concerning his or her property because it is then 

that “the property begins to be wrested from the control of 

the one who owns it.” Brief for appellant at 26. Fair points to 

no authority, however, that requires that notice be provided as 

soon as the possibility emerges that property may be subject 

to forfeiture.

Fair also, in our view, overstates the significance that the 

sale of the tax certificate has on the property owner’s interests. 

Prior to the sale of a tax certificate, the county already possesses 

a lien on the property for the unpaid taxes. See § 77-1901. A 

tax sale certificate purchaser obtains only the county’s lien 

at the time the certificate is sold. Compare § 77-1818 and 

§ 77-1901. See, also, HBI, L.L.C. v. Barnette, 305 Neb. 457, 

461, 941 N.W.2d 158, 164 (2020) (“[t]he tax sale purchaser 

acquires a lien on the property, which is represented by a tax 

certificate”); John v. Connell, 61 Neb. 267, 271, 85 N.W. 82, 

84 (1901), modified on rehearing 64 Neb. 233, 89 N.W. 806 

(1902), on rehearing, 71 Neb. 10, 98 N.W. 457 (1904) (quoting Grant v. Bartholomew, 57 Neb. 673, 78 N.W. 314 (1899)) 

(“‘if taxes were due and delinquent against the land, then the 

owner of a tax-sale certificate was declared to be the assignee 

and the owner of the liens which the public had against 

that land and for which the public had sold or attempted to 

sell it’”).
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A tax sale certificate purchaser has no immediate right to 

enter the property, use the property, or dispossess the owner 

of the property. Further, if the property is redeemed within the 

subsequent statutory period, the tax sale certificate purchaser 

never obtains the right to do those things. And if the tax certificate holder does not act on the right to request a deed within 3 

years 9 months from the date of the tax certificate sale, he or 

she loses the opportunity to do so. See § 77-1837(1). Simply 

put, a property owner is not deprived of his or her property at 

the time the tax certificate is issued. Rather, the property owner 

is deprived of the property when the county treasurer issues the 

tax deed. Consequently, we see no basis to hold that Fair was 

constitutionally entitled to notice of the tax certificate sale at 

the time it occurred.

Neither do we see a basis to hold that Fair was constitutionally entitled to be notified more than 3 months before the 

redemption period expired. “[D]ue process requires the government to provide ‘notice reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency of 

the action and afford them an opportunity to present their objections.’” Jones v. Flowers, 547 U.S. 220, 226, 126 S. Ct. 1708, 

164 L. Ed. 2d 415 (2006) (quoting Mullane v. Central Hanover 

Tr. Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950)). 

In this case, Fair received a notice by certified mail informing 

him of Continental’s intent to apply for a tax deed to the property in 3 months if Fair did not redeem the property. Fair was 

apprised “of the pendency of” Continental’s intentions. He was 

also afforded an “opportunity to” redeem the property. We see 

no basis to say that this is a “clear case” in which the 3 months 

Fair was provided to assert his rights was plainly inadequate. 

See Bellingham Bay &c. Co. v. New Whatcom, 172 U.S. 314, 

318, 19 S. Ct. 205, 43 L. Ed 460 (1899). We therefore find no 

procedural due process violation.

Takings Clause.

Fair also contends that the issuance of a tax deed to Con

tinental pursuant to the tax sale certificate statutes violated 
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the Takings Clauses of the U.S. and Nebraska Constitutions. 

The Fifth Amendment to the U.S. Constitution states, “[N]or 

shall private property be taken for public use, without just 

compensation.” The Nebraska Constitution states, “The property of no person shall be taken or damaged for public use 

without just compensation therefor.” Neb. Const. art. I, § 21. 

We have held that because Nebraska’s constitutional right to 

just compensation includes just compensation where property 

has been “taken or damaged,” it is broader than the corresponding federal right. See Henderson v. City of Columbus, 

285 Neb. 482, 827 N.W.2d 486 (2013). But aside from giving 

effect to that difference in language, we have treated the federal and state rights as “coterminous.” Id. at 490, 827 N.W.2d 

at 493. Because Fair does not allege any damage to his property, we will apply the same analysis to both his federal and 

state takings claims.

Fair makes two arguments regarding the Takings Clauses. 

He first contends that the issuance of a tax deed to Continental 

violates the Takings Clauses, because it effects a taking of his 

property for a private, rather than public, purpose. Alternatively, 

he argues that, at a minimum, the issuance of the tax deed 

brought about a taking of the equity in his property in excess 

of the tax debt and that he is entitled to compensation for that 

surplus equity.

Fair’s first argument depends upon his contention that the 

State’s power to impose and collect taxes is subject to the 

Takings Clauses. In support of this argument, Fair relies on 

a case from the U.S. Supreme Court, Cole v. La Grange, 113 

U.S. 1, 5 S. Ct. 416, 28 L. Ed. 896 (1885), and a case from 

this court, Bradshaw v. City of Omaha, 1 Neb. 16 (1871). Fair 

argues that these cases establish that a government’s power to 

tax is subject to the Takings Clauses. And, Fair continues, if 

the power to tax is subject to the Takings Clauses, the county’s 

sale of a tax certificate and subsequent issuance of a deed to 

Continental, even if pursuant to an effort to collect a tax debt, 

is subject to a takings analysis.
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Fair’s argument, however, encounters a number of problems. First, the two 19th century cases upon which he relies 

involved challenges to the use of tax revenues. In Cole, the 

U.S. Supreme Court relied on the principles of the federal 

Takings Clause to conclude that a municipality could not raise 

revenue through taxation solely to aid a private iron and steel 

corporation. The focus on the government’s use of tax revenue 

in Cole is reflected in its statement that “the taking of property 

by taxation requires no other compensation than the taxpayer 

receives in being protected by the government to the support of 

which he contributes.” 113 U.S. at 8. Similarly, in Bradshaw, 

this court invoked Takings Clause language in the course of 

holding that a city could not impose taxes on lands that were 

previously outside the boundaries of the city and beyond “the 

settled part of the town,” reasoning that the owners of that 

property would not benefit from the city’s use of those taxes. 1 

Neb. at 27. Fair, however, does not contend that the county is 

using taxes he paid for some improper purpose. He is instead 

challenging the government’s method of tax collection. Thus, 

even assuming these cases remain good law, we do not read 

them to shed much light on this one.

Further, more recent cases cast considerable doubt on the 

notion that a government’s sale of its lien on tax-delinquent 

property, or sale of the property itself, is subject to a takings 

analysis. Within the last decade, the U.S. Supreme Court has 

said, “It is beyond dispute that [t]axes and user fees . . . are not 

takings.” Koontz v. St. Johns River Water Managegment Dist., 

570 U.S. 595, 615, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013) 

(internal quotation marks omitted).

If taxes, as the U.S. Supreme Court has held, are not takings, 

we do not see how efforts to collect that tax, whether through 

the sale of a lien on the property or sale of the property itself, 

could be characterized as a taking. See, also, Jones v. Flowers, 

547 U.S. 220, 234, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006) 

(“[p]eople must pay their taxes, and the government may 

hold citizens accountable for tax delinquency by taking their 
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property”); Leigh v. Green, 64 Neb. 533, 544, 90 N.W. 255, 

259 (1902) (“[t]he power of the state to levy taxes obviously 

carries with it the power to collect them, and to provide all 

means necessary or appropriate to insure and enforce their collection”). We are far from alone in reaching that conclusion. 

See, e.g., Speed v. Mills, 919 F. Supp. 2d 122, 129 (D.D.C. 

2013) (holding that tax sale could not be considered a Fifth 

Amendment taking because it “took place pursuant to [the 

government’s] taxing power, not its power of eminent domain, 

its regulatory power, or any other power enabling it to take or 

encumber private property for a public purpose”); Industrial 

Bank of Washington v. Sheve, 307 F. Supp. 98, 99 (D.D.C. 

1969) (“[a] tax sale is not a government taking for which just 

compensation must be paid under the Constitution”); In re 

Murphy, 331 B.R. 107, 128 (S.D.N.Y. 2005) (“[a] tax sale is 

not a taking for a public purpose because such sale is pursuant to the state’s taxing power and not its power of eminent 

domain”); In re Golden, 190 B.R. 52, 57 (W.D. Pa. 1995) (“[i]n 

a tax sale context, the takings clause is not dispositive nor the 

appropriate basis for starting an inquiry”); Fitzgerald v. Neves, 

Inc., 15 Wash. App. 421, 550 P.2d 52 (1976) (holding sale of 

land at tax foreclosure sale was not a taking).

Our conclusion that the county’s tax collection efforts were 

not subject to the Takings Clauses undercuts any argument 

by Fair that the county could not use the tax sale certificate 

process to collect Fair’s undisputed tax debt. Fair’s alternative 

argument, however, is that even if the county could take steps 

to transfer his property to satisfy his tax debt, he is entitled 

to receive as “just compensation” the difference between the 

assessed value of his property and the tax debt, interest, and 

fees he owes, an amount he refers to as the “surplus equity” 

in his property. Brief for appellant at 34, 35. We turn to that 

argument now.

Continental and the Attorney General contend that we need 

not engage in any heavy lifting to address Fair’s alternative argument. They claim that binding U.S. Supreme Court 
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precedent stands in the way of Fair’s claim that he is entitled to 

compensation for surplus equity. In support of their argument, 

both Continental and the Attorney General direct us to Nelson 

v. New York City, 352 U.S. 103, 77 S. Ct. 195, 1 L. Ed. 2d 

171 (1956). In Nelson, a property owner failed to pay certain 

water bills to a municipality. After the municipality notified the 

property owner and the property owner failed to redeem the 

property by paying the amounts owed, the municipality exercised its right to sell the property. The property was sold for an 

amount that significantly exceeded the property owner’s debt. 

The property owner then challenged the municipality’s retention of the entire proceeds of the sale as a taking without just 

compensation. The U.S. Supreme Court rejected the argument. 

It distinguished prior cases in which statutes guaranteed the 

property owner the right to any proceeds in excess of the debt, 

and it also observed that the property owner in Nelson failed 

to make use of a mechanism that would have allowed him to 

recover any surplus value.

The Attorney General also claims Fair’s argument is precluded by Balthazar v. Mari Ltd., 396 U.S. 114, 90 S. Ct. 397, 

24 L. Ed. 2d 307 (1969). In Balthazar, a three-judge district 

court panel rejected a constitutional challenge to an Illinois tax 

sale process much like the Nebraska statutory system at issue 

in this case. See Balthazar v. Mari Ltd., 301 F. Supp. 103 (N.D. 

Ill. 1969). The district court found no constitutional deficiency 

despite the fact that the Illinois process did not guarantee that 

the property owner would receive compensation in the event 

the value of the property exceeded the tax debt. The U.S. 

Supreme Court summarily affirmed the district court’s determination in one sentence without analysis.

Unlike Continental and the Attorney General, we have 

doubts about whether Fair’s argument can be resolved with 

only a cursory citation to Nelson or Balthazar. The Nelson

court appeared to rely, at least in part, on the fact that the 

property owner in that case failed to take advantage of a statutory mechanism that would have entitled him to the proceeds 
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of the sale in excess of the tax debt. In our case, however, all 

appear to agree that there is no similar mechanism that would 

have entitled Fair to the surplus equity in his property. As for 

Balthazar, we hesitate to place too much reliance on a summary affirmance. The U.S. Supreme Court has explained that 

its summary affirmances are a “rather slender reed” on which 

to base future decisions, because the precedential effect of such 

a decision extends only to “the precise issues presented and 

necessarily decided by those actions.” Anderson v. Celebrezze, 

460 U.S. 780, 784 n.5, 103 S. Ct. 1564, 75 L. Ed. 2d 547 

(1983) (internal quotation marks omitted).

Furthermore, the U.S. Supreme Court has made clear that 

“[b]ecause the [Takings Clause] protects rather than creates 

property interests, the existence of a property interest is determined by reference to existing rules or understandings that 

stem from an independent source such as state law.” Phillips 

v. Washington Legal Foundation, 524 U.S. 156, 164, 118 S. 

Ct. 1925, 141 L. Ed. 2d 174 (1998) (internal quotation marks 

omitted). So while the U.S. Supreme Court may have concluded there was no constitutional problem in Nelson and 

Balthazar when the respective property owners did not receive 

the surplus equity from their property, that conclusion would 

seem to partially hinge on whether the property owner had a 

right under state law to the value of the property in excess of 

the tax debt. And because Fair claims Nebraska law recognizes 

such a property right, we will proceed to consider whether that 

is the case.

Fair cannot contend that the tax certificate sale statutes he 

challenges create a right to receive compensation equal to the 

value of the property in excess of the tax debt. They make no 

mention of such a right. Instead, Fair relies on several other 

Nebraska statutes and a provision in the state constitution that 

he claims recognize a property interest in the equity of his 

property. In support of this argument, Fair cites the definition of property in Nebraska’s Uniform Property Act, Neb. 

Rev. Stat. § 76-101 (Reissue 2018); the definition of property 
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for purposes of statutes governing revenue and taxation, Neb. 

Rev. Stat. § 77-102 (Reissue 2018); Nebraska law providing 

a homestead exemption, Neb. Rev. Stat. § 40-101 (Reissue 

2016); and article I, § 25, of the Nebraska Constitution, which 

prohibits “discrimination between citizens . . . in respect to” 

property rights. These general provisions, however, do not recognize a property interest in the surplus equity value of property after a tax certificate has been sold, the redemption period 

has expired, and a tax deed is requested and issued.

Fair also asks us to recognize a common-law property right 

in the value of property in excess of the tax debt when a tax 

deed is issued. Here, Fair asks us to follow the lead of the 

Michigan Supreme Court in Rafaeli, LLC v. Oakland County, 

505 Mich. 429, 952 N.W.2d 434 (2020) (Rafaeli). In Rafaeli, 

the Michigan Supreme Court held that if a tax foreclosure 

sale yields proceeds in excess of the tax debt, the original 

property owner has a property interest in the surplus proceeds under Michigan common law. The Michigan Supreme 

Court reached this conclusion in reliance on the writings of 

Sir William Blackstone and former Michigan Supreme Court 

Justice Thomas M. Cooley, as well as English common-law 

cases. But the Michigan Supreme Court also found that some 

of its opinions in the early days of Michigan’s statehood held 

that when land was sold for delinquent taxes and the proceeds exceeded the tax debt, the original property owner had 

a right to the surplus proceeds under the common law. Id. at 

465-66, 952 N.W.2d at 456 (“in the early years of this state, 

it was commonly understood that the delinquent taxpayer, not 

the foreclosing entity, continued to own the land at the time 

of the tax-foreclosure sale and would have been entitled to 

any surplus”).

Fair asks us to follow Rafaeli and find that if a tax deed is 

issued pursuant to the tax sale certificate statutes and the value 

of the property for which the tax deed is issued exceeds the tax 

debt, the original owner has a common-law right to a payment 

equal to the difference between the value and the tax debt. 
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We note initially that the Michigan Supreme Court recognized 

a former property owner’s right to surplus proceeds generated 

in a tax foreclosure sale while Continental obtained a deed to 

Fair’s property by another method (contrasting tax deed procedure under chapter 77, article 18, with the foreclosure process 

under chapter 77, article 19). See, e.g., Neun v. Ewing, 290 

Neb. 963, 863 N.W.2d 187 (2015). Further, even if that difference could be set aside, unlike the challenger in Rafaeli, 

Fair cannot point us to any Nebraska cases recognizing such a 

common-law property right. In fact, this case appears to stand 

in stark contrast to Rafaeli in that regard. While Rafaeli relied 

on early Michigan cases recognizing a property owner’s right to 

surplus proceeds from a tax foreclosure sale, the tax certificate 

sale process has been a part of Nebraska law since shortly after 

Nebraska became a state, see 1879 Neb. Laws, § 109, p. 320, 

yet Fair has not pointed us to any authority in our case law 

recognizing that the original property owner was ever entitled 

to receive compensation if the value of the property transferred 

to a tax certificate holder exceeded the tax debt. We thus find 

no basis to conclude that Nebraska common law recognizes 

the property interest that is essential for Fair’s takings claim to 

succeed. See Tyler v. Hennepin County, 505 F. Supp. 3d 879 

(D. Minn. 2020) (finding that Minnesota common law did not 

provide former owner of property forfeited to state and sold 

for delinquent taxes with right to surplus proceeds), affirmed

No. 20-3730, 2022 WL 468801 (8th Cir. Feb. 16, 2022).

We have held that the Takings Clause “applies only to vested 

property rights” and that “[t]o be considered a vested right, the 

right must be fixed, settled, absolute, and not contingent upon 

anything.” Big John’s Billiards v. State, 288 Neb. 938, 954, 

852 N.W.2d 727, 741 (2014) (internal quotation marks omitted). Fair, however, has not demonstrated that at the time the 

tax deed was issued, he had an absolute right to the difference 

between the assessed value of his property and his tax debt. 

Without such a right, his claims under the Takings Clauses 

cannot succeed.
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Excessive Fines.

Fair’s third argument is under the Excessive Fines Clause 

of the Eighth Amendment to the U.S. Constitution. He argues 

that transferring title of his property to Continental is an excessive fine prohibited by the Constitution because the value of 

the property was more than 10 times the amount of money he 

owed in delinquent taxes, interest, and fees.

The Eighth Amendment provides, “Excessive bail shall not 

be required, nor excessive fines imposed, nor cruel and unusual 

punishments inflicted.” The right to be free from excessive 

fines has been incorporated against the states through the Due 

Process Clause of the 14th Amendment. See Timbs v. Indiana, 

___ U.S. ___, 139 S. Ct. 682, 203 L. Ed. 2d 11 (2019).

The U.S. Supreme Court has said, “The Excessive Fines 

Clause limits the government’s power to extract payments, 

whether in cash or in kind, ‘as punishment for some offense.’” 

Austin v. United States, 509 U.S. 602, 609-10, 113 S. Ct. 2801, 

125 L. Ed. 2d 488 (1993) (emphasis in original) (quoting 

Browning-Ferris Industries v. Kelco Disposal, 492 U.S. 257, 

265, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989)). As we will 

explain, we find that the transfer of Fair’s title to Continental 

lacks essential attributes of a “fine,” as that term has been 

defined by the U.S. Supreme Court.

The U.S. Supreme Court has drawn a distinction between a 

penalty or forfeiture that is purely “remedial” and one that “can 

only be explained as serving in part to punish.” Id., 509 U.S. 

at 610. The latter, according to the U.S. Supreme Court, is a 

fine under the Eighth Amendment. A forfeiture is remedial, the 

U.S. Supreme Court has explained, if it, for example, removes 

dangerous or illegal items from society or compensates the 

government for a loss. Browning-Ferris Industries, supra.

Fair argues that the transfer of his property can only be 

understood as a form of punishment. In support of this contention, he points to the fact that as a result of the transfer, he 

stands to lose a property he previously owned free and clear of 

any encumbrances, the assessed value of which is more than 
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10 times the amount of the tax debt. Fair argues that the magnitude of his loss far exceeds remediation of his tax debt and that 

the transfer must be understood as punishment. We disagree for 

a number of reasons.

First, in United States v. Bajakajian, 524 U.S. 321, 118 S. 

Ct. 2028, 141 L. Ed. 2d 314 (1998), the U.S. Supreme Court 

recognized that a penalty or forfeiture is not necessarily punitive merely because of a discrepancy between the value of the 

property forfeited and the government’s loss. See, also, Tyler 

v. Hennepin County, 505 F. Supp. 3d 879, 896 (2020) (relying 

on Bajakajian and concluding that “[t]he fact that the operation 

of Minnesota’s tax-forfeiture system may result in a windfall 

to the government therefore does not compel the conclusion 

that the system is punitive”), affirmed No. 20-3730, 2022 WL 

468801 (8th Cir. Feb. 16, 2022). Second, the forfeitures the 

U.S. Supreme Court has found punitive in Austin, supra, and 

Bajakajian, supra, involved the forfeiture of property involved 

in criminal offenses and the U.S. Supreme Court relied heavily on their connection to criminal proceedings. Here, there is 

no suggestion that a property or its owner must be involved in 

criminal behavior in order for the property to be transferred via 

the tax certificate sale process.

In addition to those reasons, the notion that the State or 

the county intended to punish Fair for not paying his property 

taxes simply does not hold together. As we have noted, the 

statutes Fair challenges allowed him to avoid the loss of his 

property if he paid his tax debt more than 3 years after the tax 

certificate was first sold. This extended opportunity to avoid 

forfeiture suggests that the purpose of the tax certificate sale 

system is to “collect taxes, rather than to punish delinquent 

taxpayers.” Tyler, 505 F. Supp. 3d at 896.

Further, the magnitude of Fair’s loss was not dictated solely 

by the statute. If no party purchases a tax certificate offered 

for a particular property, a Nebraska statute provides that 

the county board shall direct the county attorney to foreclose 

the lien for the taxes in a tax foreclosure proceeding. See 
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§ 77-1901. Similarly, the purchaser of a tax certificate may 

choose to initiate a tax foreclosure proceeding rather than 

requesting a tax deed. See, Neb. Rev. Stat. § 77-1902 (Reissue 

2018); Neun v. Ewing, 290 Neb. 963, 863 N.W.2d 187 (2015). 

When property is sold in a tax foreclosure proceeding, however, the original owner is statutorily entitled to receive surplus proceeds. See, Neb. Rev. Stat. § 77-1916 (Reissue 2018); 

County of Lancaster v. Trimble, 34 Neb. 752, 52 N.W. 711 

(1892). It is difficult to discern an intent to punish delinquent 

taxpayers on the part of the Legislature when the magnitude 

of the delinquent taxpayer’s loss depends on choices made by 

third parties.

Not only did the magnitude of Fair’s loss depend on a 

choice made by Continental, the tax sale certificate process 

resulted in the transfer of his property to Continental. This fact 

highlights another way in which the tax sale certificate process 

does not function as a fine under the Eighth Amendment. The 

U.S. Supreme Court has held that the Excessive Fines Clause 

applies only to “those fines directly imposed by, and payable to, the government.” Browning-Ferris Industries v. Kelco 

Disposal, 492 U.S 257, 268, 109 S. Ct. 2909, 106 L. Ed. 2d 

219 (1989). Here, Fair was not ordered to pay anything to a 

governmental entity as a result of his failure to pay his delinquent tax debt.

Because we find that there was no fine imposed for purposes of the Eighth Amendment, Fair’s Excessive Fines Clause 

argument lacks merit.

Article I, § 25, of Nebraska Constitution.

Next, Fair argues that the tax certificate sale process violates article I, § 25, of the Nebraska Constitution. That section 

states, “There shall be no discrimination between citizens of 

the United States in respect to the acquisition, ownership, possession, enjoyment or descent of property. The right of aliens 

in respect to the acquisition, enjoyment and descent of property may be regulated by law.” Neb. Const. art. I, § 25. While 
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this provision regulates discrimination with regard to property rights, see, e.g., Landon v. Pettijohn, 231 Neb. 837, 438 

N.W.2d 757 (1989), Fair makes no argument that the tax sale 

certificate statutes unlawfully discriminate. He instead merely 

repeats the Takings Clause arguments we have already rejected. 

We thus find no basis to determine that the challenged statutes 

violate article I, § 25.

Article III, § 18, of Nebraska Constitution.

Finally, Fair briefly contends that the tax sale certificate 

statutes create a “special class” in violation of article III, § 18, 

of the Nebraska Constitution. Brief for appellant at 45. There is 

no indication in our record, however, that Fair raised this argument in the district court. Accordingly, we will not address its 

merits. See Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 

436 (2014).

CONCLUSION

In this appeal, Fair argues that Nebraska’s tax certificate 

sale statutes are “harsh and unconstitutional.” Brief for appellant at 45. The sole questions before us, however, are whether 

the statutes are unconstitutional in the manner Fair assigns. We 

find that they are not and, accordingly, affirm.

Affirmed.

Miller-Lerman, J., not participating.