brief amicus curiae of owners' counsel of america in support of petitioner, livingston v. frank, no....

8/20/2019 Brief Amicus Curiae of Owners' Counsel of America in Support of Petitioner, Livingston v. Frank, No. 15-540 (Nov. …

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No. 15-470

In The

Supreme ourt of the United States♦

W ILLIAM A. L IVINGSTON , for himself and all otherssimilarly situated,

Petitioner , v.

P AT F RANK , as the Clerk of the Circuit Court ofHillsborough County, Florida and the C ITY OF T AMPA ,

Respondents. ♦

On Petition for Writ of Certiorari to theCourt of Appeal of Florida, Second District

♦ MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OFOWNERS’ COUNSEL OF A MERICA

IN SUPPORT OF PETITIONER♦

A NDREW P RINCE BRIGHAM R OBERT H. THOMAS K ERRY COOPER COLLINS Counsel of Record Brigham Property Rights Damon Key Leong KupchakLaw Firm, PLLC Hastert

2963 Dupont Avenue, Suite #3 1003 Bishop Street, 16th FloorJacksonville, Florida 32217 Honolulu, Hawaii 96813(904) 730-9001 (808) [email protected] [email protected]

Counsel for Amicus Curiae

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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MOTION FOR LEAVE TO FILEBRIEF AMICUS CURIAE

Pursuant to this Court’s Rule 37.2(b), Owners’Counsel of America (OCA) respectfully requestsleave of the Court to file the attached brief amicuscuriae in support of the Petitioner, William A. Liv-ingston.

OCA sought consent of the parties and providedcounsel for each with more than ten days’ notice ofOCA’s intent to file this brief. Petitioner has con-sented to the filing of an amicus brief by OCA, butRespondents Pat Frank and the City of Tampa havewithheld consent.

OCA submits this brief to assist the Court in itsconsideration of the case by explaining how thequick-take procedure — in which property owners aredeprived of title immediately upon a deposit ofestimated compensation — is constitutional only if themoney deposited is the property of the condemnee,and not simply an intangible right to receive com-pensation in the future, as held by the Floridacourts. OCA brings unique expertise to this task.OCA is a network of the most experienced eminentdomain and property rights attorneys from acrossthe country who seek to advance, preserve anddefend the rights of private property owners andthereby further the cause of liberty, because theright to own and use property is “the guardian ofevery other right” and the basis of a free society. See James W. Ely, The Guardian of Every Other Right: AConstitutional History of Property Rights (2d ed.1998). As the lawyers at the front lines of eminentdomain law, OCA’s members understand the im-portance of the issues presented by this petition, andhow the rule adopted by the Florida courts, if leftunreviewed, will undermine the check on the unbri-dled exercise of the eminent domain power that the

Takings Clause provides.


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2OCA is a non-profit organization, organized under

IRC § 501(c)(6) and sustained solely by its members.Since its founding, OCA has sought to use its mem-bers’ combined knowledge and experience as a re-source in the defense of private property ownership,and to make that opportunity available and effectiveto property owners nationwide. OCA member attor-neys have been involved in landmark property lawcases in nearly every jurisdiction nationwide. Addi-tionally, OCA members and their firms have beencounsel for a party or amici in many of the eminentdomain and takings cases this Court has consideredin the past forty years. OCA members have also

authored treatises, books, and scholarly articles ontakings, eminent domain, and compensation, includ-ing chapters in the seminal treatise Nichols onEminent Domain. OCA believes that its members’long experience in advocating for the rights of prop-erty owners will provide an additional, valuableviewpoint on the issues presented by this petition.

For the foregoing reasons, the motion of OCA to filea brief amicus curiae should be granted.

Respectfully submitted, A NDREW P RINCE BRIGHAM R OBERT H. THOMAS

K ERRY COOPER COLLINS Counsel of Record Brigham Property Rights Damon Key Leong KupchakLaw Firm, PLLC Hastert

2963 Dupont Avenue, Suite #3 1003 Bishop Street 16th FloorJacksonville, Florida 32217 Honolulu, Hawaii 96813(904) 730-9001 (808) [email protected] [email protected]

N OVEMBER 2015.



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QUESTIONS PRESENTEDFlorida’s quick -take mechanism permits the gov-

ernment to acquire ownership of privately-ownedland by depositing with the court an estimate of justcompensation. The Florida District Court of Appealheld that the deposit is “public money” which merelysecures the property owner’s right to just compensa-tion, and is not the private property of the con-demnee. The court held that the deposit does notbecome private property until it is actually paid tothe landowner. Thus, when the clerk invests thedeposits, the interest earned is also public money,and the clerk may give 90% of it to the city. Thequestions presented are:

1. Is interest earned on the deposit part of the just compensation owed for the taking of the land?

2. Is money deposited by a condemnor to a courtregistry to take immediate title and ownership ofland the private property of the owner whose landwas taken?


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TABLE OF CONTENTSPage

QUESTION PRESENTED ................................ i

TABLE OF AUTHORITIES .............................. iii

INTEREST OF AMICUS CURIAE................... 1

SUMMARY OF ARGUMENT ........................... 2

ARGUMENT ..................................................... 4I. THE PROPERTY TAKEN BY THE

CLERK WAS NOT THE SAMEPROPERTY TAKEN BY THE CITY .......... 4

II. FLORIDA’S QUICK -TAKE STATUTEDOES NOT PERMIT THE CITY TO“TAKE NOW, PAY LATER” ....................... 7

A. Interest Follows Principal ...................... 7

B. Florida’s Quick-Take Procedures Are Constitutional Only If ThePrincipal Is Private Property ................ 9

CONCLUSION .................................................. 17


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TABLE OF AUTHORITIESPage

C ASES

Air Pollution Variance Bd. of Colorado v.W. Alfalfa Corp ., 416 U.S. 861 (1974) ............... 16

Babbitt v. Youpee , 519 U.S. 234 (1997) ................. 15

Broad River Power Co. v. South Carolina,281 U.S. 537 (1930) ............................................. 14

Camden I Condominium Inc. v. Dunkle ,805 F.2d 1532 (11th Cir. 1986) .......................... 12

Cent. Hudson Gas & Elec. Corp. v. Pub.Serv. Comm’n of New York , 447 U.S.557 (1980) ............................................................ 17

Dolan v. City of Tigard , 512 U.S. 374

(1994) .................................................................. 16

Florida Dep’t of Transp. v. Mallard’sCove, LLP , 159 So. 3d 927 (Fla. Dist.Ct. App. 2015) ...................................................... 2

Hodel v. Irving , 481 U.S. 704 (1987) ..................... 15

Hughes v. Washington , 389 U.S. 290(1967) .................................................................. 14

Ingraham v. Wright , 430 U.S. 651 (1977) ............. 15


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TABLE OF AUTHORITIES —ContinuedPage

Jacobs v. United States , 290 U.S. 13(1933) .............................................................. 2, 11

James v. City and Cnty. of Honolulu ,2014 U.S. Dist. LEXIS 115868(D. Haw. 2014) ................................................... 10

Kaiser Aetna v. United States , 444 U.S.

164 (1979) ....................................................... 15-16

King v. State Roads Comm’n , 467 A.2d1032 (Md. 1983) ................................................. 11

Kirby Forest Ind., Inc. v. United States ,467 U.S. 1 (1984) ............................................ 5, 11

Lemon v. Mississippi Trans. Comm’n ,735 So. 2d 1013 (Miss. 1999) ............................... 9

Lucas v. South Carolina Coastal Council ,505 U.S. 1003 (1992) .................................... 13, 16

Marshall v. Barlow’s, Inc .,436 U.S. 307 (1978) ............................................ 16

McMillan v. Robeson Cnty ., 137 S.E.2d105 (N.C. 1964) .................................................. 12


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Moldon v. Cnty. of Clark , 188 P.3d 76(Nev. 2008) ......................................................... 12

New York v. Burger , 482 U.S. 691 (1987) ......... 16-17

Phillips v. Washington Legal Foundation ,524 U.S. 156 (1998) ................................ 3, 7, 9, 15

PruneYard Shopping Center v. Robins ,447 U.S. 74 (1980) ........................................ 14, 15

Sellers v. Harris Cnty ., 483 S.W.2d 242(Tex. 1972) .......................................................... 12

Stop the Beach Renourishment, Inc. v.Florida Dep’t of Envtl. Prot ., 560 U.S.702 (2010) ........................................................... 14

United States v. Klamath Indians , 304

U.S. 119 (1938) .......................................... 2, 10-11

Webb’s Fabulous Pharmacies, Inc. v. Beckwith , 449 U.S. 155 (1980) .................... passim

C ONSTITUTIONS , S TATUTES , AND R ULES

U.S. Const. amend. V ....................................... passim


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Florida Statutes Annotated§ 74.031 ................................................................. 9§ 74.051(2) ........................................................... 10§ 74.051(4) ............................................................. 6§ 74.061 ............................................................ 6, 10

Hawaii Revised Statutes

§ 101-26 ................................................................ 11§ 101-29 ................................................................ 10

Maryland Constitutionart. III, § 40A ...................................................... 10

New Jersey Statutes Annotated§ 20:3-19 ................................................................. 9

Virginia Code§ 25.1-305 ............................................................. 10

O THER A UTHORITIES

Ely, James W., The Guardian of EveryOther Right: A Constitutional Historyof Property Rights (2d ed. 1998) .......................... 1


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Huffman, James L., Background Princi- ples and the Rule of Law: Fifteen Years After Lucas, 35 Ecology L.Q. 1 (2008) ........... 13-14


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INTEREST OF AMICUS CURIAEOwners’ Counsel of America (OCA) is an invitation-

only national network of the most experienced emi-nent domain and property rights attorneys. They have

joined together to advance, preserve and defend therights of private property owners, and thereby furtherthe cause of liberty, because the right to own and useproperty is “the guardian of every other right ,” andthe basis of a free society. See James W. Ely, TheGuardian of Every Other Right: A Constitutional

History of Property Rights (2d ed. 1998). 1 As the lawyers on the front lines of property law

and property rights, OCA members understand theimportance of the issues in this case, and bringunique expertise to this task. OCA is a non-profit501(c)(6) organization sustained solely by its mem-bers, and only one member lawyer is admitted fromeach state. Since its founding, OCA has sought to useits members’ combined knowledge and experience asa resource in the defense of private property owner-

ship, and OCA member attorneys have been involvedin landmark property law cases in nearly every jurisdiction nationwide. Additionally, OCA membersand their firms have been counsel for a party or

1. Amicus sought consent of the parties and providedcounsel for each with more than ten days’ notice of OCA’sintent to file this brief. Petitioner has consented to thefiling of an amicus brief by OCA, but Respondents PatFrank and the City of Tampa have withheld consent.Pursuant to this Court’s Rule 37, counsel states this briefwas not authored in any part by counsel for either party,and no person or entity other than amicus made a mone-tary contribution intended to fund the preparation orsubmission of this brief.


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amicus in many of the property cases this Court hasconsidered in the past forty years. OCA membershave also authored and edited treatises, books, andscholarly articles on property law and propertyrights. This case concerns OCA because the Floridacourts have undermined the long-standing propertyprinciple that interest follows principal by redefiningthe principal as public property, an interpretationwhich would render the quick-take statute unconsti-tutional. OCA believes that its members’ long experi-

ence in eminent domain and advocating for therights of property owners will provide an additional,valuable viewpoint on the issues presented by thispetition.

♦ SUMMARY OF ARGUMENT

This petition presents the fundamental question ofwhether property can be taken simply by promisingto provide future compensation. At first blush, itmight seem that this question was settled long ago indecisions such as United States v. Klamath Indians ,304 U.S. 119, 123 (1938), and Jacobs v. UnitedStates , 290 U.S. 13, 17 (1933), in which this Courtheld that under the Fifth Amendment, payment of

just compensation must be “contemporaneous” withthe taking. But the Florida courts apparently apply adifferent rule. In this case and a subsequent deci-sion 2 — contrary to several other state and federalcourts — the Florida District Court of Appeal conclud-ed that Florida’s quick -take statute permitted thegovernment to take now, and pay later: instead of

the quick-take deposit being Petitioner’s p rivate

2. Florida Dep’t of Transp. v. Mallard’s Cove, LLP , 159So. 3d 927 (Fla. Dist. Ct. App. 2015).


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property because it represented just compensationfor the taking of his land (which occurred when titletransferred to the City upon the deposit), the courtheld that the deposit was a mere IOU, and thedeposited money still belonged to the condemnor.

“Interest follows principal,” goes the old saw, asacknowledged by this Court in cases like Webb’sFabulous Pharmacies, Inc. v. Beckwith , 449 U.S. 155,164 (1980), and Phillips v. Washington Legal Foun-dation , 524 U.S. 156, 172 (1998). This rule has been

a part of the common law “since at least the mid-1700’s,” Phillips , 524 U.S. at 164-65, and is one of thebedrock principles of property law. Applying this ruleto the deposit which the City of Tampa (City) madewith the clerk should have resulted in the clerkassigning the interest which the deposit generated toPetitioner. But he did not, because a Florida statuteallowed him to give 90% of the interest to the City.To rescue the clerk from liability for having takenthe interest generated by the quick-take deposit, theFlorida Court of Appeal created a distinction neverrecognized in Florida law (or anywhere else for thatmatter) between the “right to specific funds,” whichit recognized as constitutionally protected property,and the mere “entitlement to full compensation, ”which is not. See Pet. App. B-12. The deposit is thelatter, the court concluded, which it declared ipsedixit to be public property.

This brief makes two points. First , the issue of thetaking of interest earned on quick-take deposits iswholly separate from the taking of the land in the

underlying quick-take actions, and “res judicata ” isno impediment to this Court’s review. Second , theonly constitutional reading of Florida’s quick -take


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statute is that deposits are the private property ofcondemnees and not the public.

♦ ARGUMENT

I. THE PROPERTY TAKEN BY THE CLERK WAS NOT THE SAME PROPERTY TAKENBY THE CITY

Petitioner’s takings claim seeks recovery from theclerk for wrongfully giving 90% of the interest gener-ated by the deposit to the City, not prejudgmentinterest on the just compensation award because theCity delayed making full payment for taking Peti-tio ner’s land. Thus, “r es judicata” does not stand inthe way of this Court’s review.

The Florida court conflated the clerk’s taking of theinterest on the deposit (the subject of this lawsuit),with the City’s taking of Petitioner’ s land by eminentdomain (the subject of the quick-take action). As aconsequence, the court wrongly concluded that whenPetitioner acknowledged the final judgment in theeminent domain action was “in full settlement ofclaims for compensation from [the City] whatsoever,including statutory interest, ” it precluded Petitionerfrom instituting a takings claim against the clerk torecover the interest on deposit which the clerk latergave to the City. Pet. App. B-9. According to thecourt, because Petitioner “might have litigated” hisclaim for the interest on the quick-take deposit in thecourse of the eminent domain action, he was pre-cluded from asserting it in a subsequent takingsaction. Id . But claim preclusion did not apply for tworeasons.

First, in the eminent domain action, Petitionercould not have made a claim against the clerk for the


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taking of the interest on the deposit for the simplereason that Petitioner did not know about the clerkinvesting the deposit and paying 90% of the interestto the City until after the eminent domain judgmenthad been entered. Additionally, the clerk was not aparty to the eminent domain action, so could not bebound by any judgment or settlement in that case.Moreover, interest on the quick-take deposit wasgenerated after the order of taking was entered andthe pleadings in that action were closed. In short,

Petitioner couldn’t disclaim in the eminent domainaction that which he didn’t know about and whichdid not yet exist, and make a claim against a personwho was not a party.

Second, notwithstanding those facts, Petitioner waslegally prohibited as part of the eminent domainaction from making a claim against the clerk forinterest generated on the deposit. The only interesthe could have claimed in that action was prejudg-ment interest. Prejudgment interest is what con-demnees are entitled to in the event the amount ofcompensation eventually awarded by the court forthe taking of their land exceeds the amount of anydeposit, and is a requirement of federal constitution-al law to make owners whole when full payment ofcompensation is not provided at the time of thetaking. Kirby Forest Ind., Inc. v. United States , 467U.S. 1, 10 (1984) ( “But if disbursement of the awardis delayed, the owner is entitled to interest thereonsufficient to ensure that he is placed in as good aposition pecuniarily as he would have occupied if the

payment had coincided with the appropriation.” ). Itis also required by Florida statute:

Interest is a component of full compensation.Compensation shall be determined in ac-


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cordance with the provisions of Chapter 73,except that interest shall be allowed at thesame rate as provided in all circuit court

judgments from the date of surrender of pos-session to the date of payment on theamount that the verdict exceeds the estimateof value set forth in the declaration of taking.

Fla. Stat. § 74.061. As the statute notes, prejudg-ment interest is a component of the compensationowed for the land taken, and was payable by the City

only in the event that Petitioner eventually wasawarded more in compensation for his land than theamount which had been deposited. This is not thesame as the interest generated by the deposit whichPetitioner claims was taken by the clerk. In contrastto prejudgment interest which exists as part of theconstitutional mandate of just compensation, theclerk invested the funds on deposit and transferredthe interest to the City under the authority of aseparate statute. See Fla. Stat. § 74.051(4).

Despite these differences, the Florida court plainlyconfused the two, concluding that prejudgmentinterest was the same as the interest generated bythe deposit:

Otherwise, in theory, Mr. Livingston couldacquire not one but two interest payments onthe same monies used to pay, in part, fullcompensation.

Pet. App. B-10. Thus, it wrongly concluded that toallow Petitioner to claim the interest generated bythe deposit would be “double dipping” because itwould overcompensate Petitioner for the taking ofhis land, Pet. App. B-10, when exactly the opposite istrue: the interest generated by the deposit has noth-


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ing to do with fully compensating Petitioner for thetaking of his land.

Prohibiting Petitioner from asserting a takingsclaim against the clerk would deprive him of theinterest generated on the deposit — interest he isentitled to regardless of whether the deposit itselffully covers the eventual compensation award for theland.

II. FLORIDA’S QUICK -TAKE STATUTE DOESNOT PERMIT THE CITY TO “TAKE NOW,PAY LATER” A. Interest Follows Principal

In two decisions, this Court acknowledged thatinterest on deposited funds is a private propertyright when the deposited funds are private property,and that a state cannot simply reassign that proper-ty to the public without running afoul of the TakingsClause.

In Phillips v. Washington Legal Foundation , 524

U.S. 156 (1998), this Court concluded that interestearned by funds on deposit in lawyers’ trust accountsis property protected by the Takings Clause. Underits Interest on Lawyers Trust Account (IOLTA)program, the Texas Supreme Court adopted a rulewhich required attorneys to place certain clientfunds that otherwise could not earn interest into apooled interest-bearing IOLTA account. That inter-est would be paid to a nonprofit corporation estab-lished by the Texas court to deliver legal services tolow income clients. This Court concluded that be-

cause “under Texas law the principal held in IOLTAtrust accounts is the ‘private property’ of the clients,”524 U.S. at 164- 65, and “[t]he rule that ‘interestfollows principal’ has been established under English


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common law since at least the mid- 1700’s,” theinterest was also private property. The Court reject-ed the state’s claim that the interest follows principalrule was a matter purely of state law, and that Texashad previously carved out an exception to the generalrule. The Court examined Texas law and concluded ithad always considered interest as following princi-pal, and was therefore owned by whomever ownedthe principal. Id . at 168-69.

Similarly, in Webb’s Fabulous Pharmacies, Inc. v.

Beckwith , 449 U.S. 155, 164 (1980), the Court heldthat interest is traditionally an “incid ent of owner-ship” and that the state could not simply reassigninterest on interpleaded funds to the state. In thatcase, like here, Florida assigned ownership to thegovernment of interest earned when a party inter-pleaded funds with the court. This Court concludedthat the interest was the private property of theowner of the principal , and that Florida’s attempt toreassign ownership to the government was a taking:

Neither the Florida Legislature by statute,nor the Florida courts by judicial decree, mayaccomplish the result the county seeks simp-ly by recharacterizing the principal as “publicmoney” because it is held temporarily by thecourt. The earnings of a fund are incidents ofownership of the fund itself and are property

just as the fund itself is property. The statestatute has the practical effect of appropriat-ing for the county the value of the use of thefund for the period in which it is held in the

registry.Id . at 163.


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Phillips and Webb’s Fabulous Pharmacies establishthat certain fundamental aspects of property cannotbe abrogated by the state without compensation. Butthis is precisely what the Florida court did here.

B. Florida’s Quick-Take Procedures AreConstitutional Only If The PrincipalIs Private Property

In both Webb’s Fabulous Pharmacies and Phillips ,it was clear that the money on deposit belonged tothe depositor, and thus the interest the depositbelonged to them as well. Here, it is no less clearthat the quick-take deposit was Petitioner’s privateproperty from the moment it was deposited.

Florida’s quick -take statute, like similar provisionsin other states, allows a condemnor to take immedi-ate possession and ownership of private propertyupon the deposit of estimated just compensation withthe clerk of the court. See Fla. Stat. § 74.031. Cf. N.J.Stat. Ann. § 20:3-19 (The right to immediate andexclusive possession and title to the property de-

scribed in the declaration of taking vests in thecondemnor upon the filing and service of the declara-tion of taking, the making of the deposit of estimatedcompensation and filing of proof of service); Md.Const. art. III, § 40A (property may be taken imme-diately upon payment into court of an estimate of

just compensation); Va. Code § 25.1-305 (condemnormay obtain title by making deposit or filing a certifi-cate of take); Lemon v. Mississippi Trans. Comm’n ,735 So. 2d 1013 (Miss. 1999) (invalidating Mississip-pi’s quick -take procedures, which permitted theimmediate taking of possession and title upon depos-it, as violating due process). The process is known as“quick -take” because it is an “abbreviated” proceed-ing which permits the condemnor to deprive the


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owner of title immediately upon the deposit. See Fla.Stat. § 74.061; Pet. App. B-4. By contrast, non-quick-take statutes permit only immediate possession uponthe deposit of estimated compensation, but do nottransfer ownership or title. See , e.g ., Haw. Rev. Stat.101-29 (permitting governmental condemnor to takeonly immediate possession of property “ and permit-ting the State or county to do such work thereon asmay be required for the purpose for which the takingof the property is sought ”); James v. City and Cnty.

of Honolulu , 2014 U.S. Dist. LEXIS 115868, at *16(D. Haw. 2014) (“ § 101-29 establish[es], at a mini-mum, that [the owner] still has title to the subjectproperty).

The critical event in Florida’s quick-take process isthe deposit with the court registry, which takes placefollowing an order of the court allowing the taking.The deposit is meant to “fully secure and fully com-

pensate the persons entitled to just compensation asultimatel y determined by the final judgment.” Fla.Stat. § 74.051(2) (emphasis added). The depositoperates to transfer ownership of the land from theprivate owner to the condemnor, which means thatthe money deposited must be the former landowner’sprivate property; otherwise, the statute which allowsthe quick-take is unconstitutional because it wouldpermit a transfer of title and ownership without acorresponding payment of compensation. The Tak-ings Clause, applicable to the states via the Four-teenth Amendment, prohibits private property frombeing taken for public use without just compensa-

tion. U.S. Const. amend. V. This requires payment ofcompensation contemporaneous with the taking.United States v. Klamath Indians , 304 U.S. 119, 123(1938); Jacobs v. United States , 290 U.S. 13, 17


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(1933). 3 This does not mean compensation may beprovided after the taking. See Kirby , 467 U.S. at 10(“But if disbursement of the award is delayed, theowner is entitled to interest thereon sufficient toensure that he is placed in as good a position pecuni-arily as he would have occupied if the payment hadcoincided with the appropriation.). It does not meanthat the owner merely has a right to future compen-sation, nor does it mean that a condemnor mayprovide the property owner with only a vested right

to full compensation and not actual compensation, asthe Florida court concluded. Pet. App. at B- 12 (“It isthe right to full compensation that vests [upon thedeposit] , not a right to specific funds[.]”). Thus, theonly way to read the quick-take statute constitution-ally is to conclude that the money deposited in quick-takes belongs to the condemnee. The Florida court’sdecision conflicts with the rulings of several other

3. In non-quick-takes, title to the property (and thusownership) does not transfer from the condemnee to the

condemnor until final judgment determining the amountof compensation, and after the actual payment of allcompensation owing. See , e.g ., Haw. Rev. Stat. 101-26(“When all payments required by the final judgment havebeen made, the court shall make a final order of condem-nation, which shall describe the property condemned andthe purposes of the condemnation, a certified copy ofwhich shall be filed and recorded in the office of theregistrar of conveyances, and thereupon the propertydescribed shall vest in the plaintiff.”); King v. State RoadsComm’n , 467 A.2d 1032, 1034 (Md. 1983) (“In convention-al condemnation cases, the condemnor files a condemna-tion petition pursuant to the provisions . . . of the Mary-land Rules. No right to possession of the property isobtained by the condemning authority until it pays thefull amount of the condemnation judgment, plus costs.”).


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federal and state courts applying similar quick-takeprovisions. These courts concluded that the deposit isthe private property of the condemnee, as is theinterest. See , e.g ., Camden I Condominium Inc. v.

Dunkle , 805 F.2d 1532 (11th Cir. 1986); Moldon v.Cnty. of Clark , 188 P.3d 76 (Nev. 2008); McMillan v.Robeson Cnty ., 137 S.E.2d 105 (N.C. 1964); Sellers v.Harris Cnty ., 483 S.W.2d 242 (Tex. 1972).

But if quick-take deposits are not the private prop-erty of the owners whose land is taken such that

interest on those deposits is also their private prop-erty as the Florida court concluded, then Florida’squick-take statute violates the Takings Clausebecause it allows property to be taken without thecontemporaneous payment of just compensation. Tosave the statute from constitutional infirmity andallow the clerk to transfer the interest to the Cityinstead of the condemnee, the Florida court reinter-preted established property and eminent domain lawto conclude that the money — the deposit of whichhad earlier transferred ti tle to Petitioner’s land tothe City —was public property, and not Petitioner’s.By sidestepping fundamental eminent domain prin-ciples, applying an illusory distinction (the landown-er owner is provided only a right to compensation,and not a right to the funds deposited which securethat right), and pointedly failing to cite or distin-guish this Court’s holding in Webb’s Fabulous Phar-macies , the Florida court effectively redefined Peti-tioner’s private prop erty out of existence. Althoughthe contours of what constitutes property is left

mostly to definition by state legislatures and courts,this authority is not exclusive, and the Takings andDue Process Clauses constrain a state court ’s powersto “reimagin e” the established rules of property to


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declare that what has always been private is nowpublic, as the Florida court did here. See , e.g. , Webb’sFabulous Pharmacies , 449 U.S. at 164 the state maynot, “by ipse dixit . . . transform private property intopublic property without compensation”); Lucas v.South Carolina Coastal Council , 505 U.S. 1003, 1014(1992) (“the government’s power to redefine therange of interests included in the ownership ofproperty was necessarily constrained by constitu-tional lim its”). The case at bar presents this Court

with the opportunity to provide definitive guidancethat “property” is not a completely malleable term,but rather embodies a core set of normative princi-ples immunized by the Fifth and Fourteenth

Amendments from state court redefinition, especiallywhere, as here, the result of state action is a per setaking of property that appears to fly in the face ofthis Court’s rulings:

If it were to be accepted that the . . . holdingin Lucas can fairly be understood to embracethe notion that the common law is almost in-finitely malleable at the discretion of anycourt or legislature, then the ambitions ofthose who would read the takings clause outof the constitution are finally and fully real-ized. But the common law cannot be so plia-ble at the hands of adjudicators and law-makers or it no longer serves its core pur-pose: the rule of law. To be sure, legislatorshave power to alter or repeal the commonlaw through legislation, but they do not, con-

sistent with the rule of law, have power todeclare the common law something it is not.

James L. Huffman, Background Principles and theRule of Law: Fifteen Years After Lucas, 35 Ecology


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L.Q. 1, 12 (2008). This Court has addressed the issuebefore, although never conclusively resolved it. See ,e.g. , Stop the Beach Renourishment, Inc. v. Florida

Dep't of Envtl. Prot ., 560 U.S. 702, 715 (2010) (af-firming that a state court “may not transform privateproperty into public property”) ; PruneYard ShoppingCenter v. Robins , 447 U.S. 74, 93 (1980) (Marshall,J., concurring) (“I do not understand the Court tosuggest that rights of property are to be definedsolely by state law, or that there is no federal consti-

tutional barrier to the abrogation of common lawrights by Congress or a state government. The con-stitutional terms ‘life, liberty, and property’ do notderive their meaning solely from the provisions ofpositive law. They have a normative dimension aswell, establishing a sphere of private autonomywhich government is bound to respect.”); Hughes v.Washington , 389 U.S. 290, 296-97 (1967) (Stewart,J., concurring) (government cannot wipe out propertyrights simply by legislating the property out ofexistence); Broad River Power Co. v. South Carolina ,

281 U.S. 537, 540-4 1 (1930) (“[I]t is the province ofthis Court to inquire whether the decision of thestate court rests upon a fair or substantial basis. Ifunsubstantial, constitutional obligations may not bethus evaded .”).

The established rule of interest follows principal — in Florida and elsewhere — is exactly the type of long-standing understandings which the Takings and DueProcess Clauses were designed to protect from trans-fer to the public by state court fiat. See , e.g. , Kaiser

Aetna v. United States , 444 U.S. 164, 179-80 (1979)(“we hold that the ‘right to exclude,’ so universallyheld to be a fundamental element of the propertyright, falls within this category of interests that the


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Government cannot take without compensation”)(footnote omitted); Phillips v. Washington LegalFoundation , 524 U.S. 156, 172 (1998) (interest onlawyer’s trust accounts is “private property”); Hodelv. Irving , 481 U.S. 704, 716 (1987) (passing propertyby inheritance a fundamental attribute of property);

Babbitt v. Youpee , 519 U.S. 234, 239 (1997) (thestatue in Hodel was struck down because “[s]uch acomplete abrogation of the rights of descent anddevise could not be upheld.”). In PruneYard , Justice

Thurgood Marshall concurred in the Court’s holdingthat no judicial taking had occurred, but acknowl-edged:

Quite serious constitutional questions mightbe raised if a legislature attempted to abolishcertain categories of common-law rights insome general way. Indeed, our cases demon-strate that there are limits on governmentalauthority to abol ish “core” common -lawrights, including rights against trespass, atleast without a compelling showing of neces-sity or a provision for a reasonable alterna-tive remedy.

PruneYard , 447 U.S. at 93-94 (Marshall, J., concur-ring). Justice Marshall noted that in Ingraham v.Wright , 430 U.S. 651 (1977), the Court determinedthe Due Process Clause prohibits abolishment of“those privileges long recognized at common law asessential to the orderly pursuit of happiness by freemen.” Id. at 672-73, quoted in PruneYard , 447 U.S.at 94 n.3 (Marshall, J., concurring). The universally-

accepted rule of interest following principal has forcenturies insured that the time value of money isaccounted for, and that a dollar paid today is worththe same as a dollar paid tomorrow. In the decision


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under review, however, the Florida court radicallyaltered that ancient principle. To avoid ruling that aFlorida statute abrogated rights which had been anestablished part of Florida law, the court decreedthose rights never really existed at all. With thestroke of a pen, the court eliminated a fundamentalattribute of property. The right of the owner ofmonies on deposit to the interest which those moniesearn is not simply a unilateral expectation or aproduct of positive law, but an expectation “that has

the law behind it.” Kaiser Aetna , 444 U.S. at 178.Thus, it is property expressly protected by the Fifthand Fourteenth Amendments from arbitrary orcapricious state action which includes a state courtsummarily altering established common law rules.The Fifth and Fourteenth Amendments do notdictate what state law is, see Lucas , 505 U.S. at 1035(Kennedy, J., concurring) (“The Takings Clause doesnot require a static body of state property law.”), butthey do constrain all state action. If state courts arenot limited from transferring established and uni-

versal common law property rights to the public ashere, then property truly will be “relegated to thestatus of poor relation” to other rights protected bythe Bill of Rights. 4

4. As this Court recognized in Dolan v. City of Tigard ,512 U.S. 374 (1994), “We see no reasons why the TakingsClause of the Fifth Amendment, as much a part of the Billof Rights as the First Amendment or Fourth Amendment,

should be relegated to the status of a poor relation inthese comparabl e circumstances.” Id . at 392 (citingMarshall v. Barlow’s, Inc ., 436 U.S. 307 (1978); Air

Pollution Variance Bd. of Colorado v. W. Alfalfa Corp .,416 U.S. 861 (1974); New York v. Burger , 482 U.S. 691


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CONCLUSIONThis Court should grant the petition and review

the judgment of the Florida Court of Appeals.

Respectfully submitted.

A NDREW P RINCE BRIGHAM R OBERT H. THOMAS K ERRY COOPER COLLINS Counsel of Record Brigham Property Rights Damon Key Leong KupchakLaw Firm, PLLC Hastert

2963 Dupont Avenue, Suite #3 1003 Bishop Street, 16th FloorJacksonville, Florida 32217 Honolulu, Hawaii 96813

(904) 730-9001 (808) [email protected] [email protected]

Counsel for Amicus Curiae

N OVEMBER 2015.

(1987); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.Com m’n of New York , 447 U.S. 557 (1980)).

brief amicus curiae of owners' counsel of america in support of petitioner, livingston v. frank, no....

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