When Scott Pung passed away in 2004, his property had a special tax exemption for principal residences. Years later, the local tax assessor determined that Scott’s surviving family members who occupied the home should have resubmitted paperwork for the exemption and thus retroactively denied it. Litigation before the Michigan Tax Tribunal proved the tax assessor wrong. But when Scott’s brother Michael Pung, the administrator of his estate, went to pay the family’s taxes in 2012, a town clerk informed him that once again the tax assessor had denied the tax exemption, notwithstanding the decision of the Tax Tribunal.

Furious, Pung refused to pay that portion of the property taxes, leaving an unpaid tax bill of approximately $2,200. That disputed bill was the only unpaid tax in the Pungs’ history. Nonetheless, the county initiated foreclosure proceedings on the property, eventually selling it at auction for $76,000 despite acknowledging its assessed fair market value was $194,400. The county kept the entire profit from the sale.

Pung filed suit, alleging violations of the Takings Clause and the Excessive Fines Clause. Reaching only the Takings Clause issue, the district court held that the county was required to reimburse the Pungs for the difference between the artificially depressed auction sale price and the unpaid tax debt.

On appeal to the Sixth Circuit, Pung asserted that he was due not just the surplus from the auction sale but the full assessed fair market value of his property (minus the tax debt), notwithstanding the fact that the property was sold at auction for much less than its full fair market value. The Sixth Circuit rejected this argument, holding that failure to pay the full fair market value was neither a taking nor a fine within the meaning of the Excessive Fines Clause. Pung asked the Supreme Court to hear his case, and the Court agreed to do so.

In December 2025, CAC filed an amicus curiae brief in the Supreme Court in support of Pung. Our brief focuses on the Excessive Fines Clause, responding to the Sixth Circuit’s conclusion that Michigan’s tax foreclosure scheme is categorically exempt from Eighth Amendment scrutiny simply because its main purpose is “to encourage the timely payment of property taxes.” Our brief makes three main points.

First, we explain that the historical roots of the Excessive Fines Clause show that it applies to financial penalties that are not just punitive, but also serve remedial purposes. The Excessive Fines Clause was taken nearly verbatim from the English Bill of Rights of 1689, which in turn codified Magna Carta’s guarantee that excessive financial payments—then known as “amercements”—would not be extracted. Amercements were neither civil nor criminal in nature. Though they were generally imposed to sanction wrongful (though not necessarily criminal) conduct, they also served remedial purposes—that is, they repaid the costs that the community or the Crown had incurred as a result of the wrongdoing.

During the seventeenth century, the modern-day fine replaced the amercement as the preferred financial sanction. In that same period, despite Magna Carta’s guarantees, the Stuart kings increasingly abused their power to extract financial payments, ultimately leading to the recodification of Magna Carta’s protections in the English Bill of Rights. Across the Atlantic, that same protection was written into the Virginia Declaration of Rights, which was eventually adopted word-for-word as the Excessive Fines Clause of the Eighth Amendment.

As our brief describes, colonial and early American records also make clear that the Founding generation did not draw sharp distinctions between remedial and punitive economic sanctions, and thus would not have viewed the Excessive Fines Clause as applying to only those payments that served exclusively punitive purposes. Indeed, in early America, a wealth of economic sanctions explicitly called “fines” were used for partially, or even primarily, remedial purposes. Further, early statutes expressly, and frequently, stated that fines collected as punishment would go toward these remedial purposes.

Second, our brief explains that under the Supreme Court’s precedents, a remedial sanction falls within the ambit of the Excessive Fines Clause so long as it also serves a partially punitive purpose. The Court made this explicit in Austin v. United States when it rejected the argument that an in rem forfeiture was beyond the scope of the Excessive Fines Clause because it also served remedial purposes and was imposed in a civil—not criminal—proceeding. And in every case to interpret the Excessive Fines Clause since Austin, the Court has expressly reaffirmed this holding. Indeed, just two years ago, two members of the Court underscored the point yet again in a case involving tax foreclosure, Tyler v. Hennepin County.

Finally, our brief argues that the court below erred by misapplying the test for what constitutes a fine under the Eighth Amendment. The court below misconstrued the Supreme Court’s precedents, leading it to conclude that Michigan’s tax foreclosure scheme is categorically exempt from scrutiny under the Excessive Fines Clause because it “does not necessarily punish property owners for failing to pay their property taxes” and because its chief “aim is to encourage the timely payment of property taxes.” Relying on an inapt Michigan Supreme Court decision, the court completely ignored the Supreme Court’s repeated admonition that economic sanctions frequently serve more than one purpose, and so they still constitute fines so long as they serve at least in part as punishment. That is true whether or not they are tied to criminal behavior, and whether or not their main purpose is to encourage the timely payment of property taxes rather than to punish the failure to do so.

To ensure that the Excessive Fines Clause can continue to play its important role in guarding against government abuse and overreach, our brief concludes by asking the Supreme Court to set the record straight about what constitutes a fine within the meaning of the Eighth Amendment.