Here's the amicus brief we filed today on behalf of our Owners' Counsel of America colleagues in Livingston v. Frank, No. 15-470 (cert. petition filed Oct. 9, 2015). That's the case in which the Florida District Court of Appeal held that the interest generated by quick-take deposits is not the private property of the condemnee, and therefore it is not a taking when the clerk of the court gives 90% of the interest to the condemnor.
Our brief argues that the Florida court rewrote the rules of who owns the deposit in order to save the statute which allows the clerk to give the interest on the deposit to the condemnor. There's a strong "judicial takings" flavor to the brief, even though we don't think it's necessary for the Court to go down that path expressly in order to take the case and reverse.
Here's the Summary of Argument from our brief:
This petition presents the fundamental question of whether property can be taken simply by promising to provide future compensation. At first blush, it might seem that this question was settled long ago in decisions such as United States v. Klamath Indians, 304 U.S. 119, 123 (1938), and Jacobs v. United States, 290 U.S. 13, 17 (1933), in which this Court held that under the Fifth Amendment, payment of just compensation must be “contemporaneous” with the taking. But the Florida courts apparently apply a different rule. In this case and a subsequent decision2—contrary to several other state and federal courts—the Florida District Court of Appeal concluded that Florida’s quick-take statute permitted the government to take now, and pay later: instead of the quick-take deposit being Petitioner’s private property because it represented just compensation for the taking of his land (which occurred when title transferred to the City upon the deposit), the court held that the deposit was a mere IOU, and the deposited money still belonged to the condemnor.
“Interest follows principal,” goes the old saw, as acknowledged by this Court in cases like Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980), and Phillips v. Washington Legal Foundation, 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 the bedrock principles of property law. Applying this rule to the deposit which the City of Tampa (City) made with the clerk should have resulted in the clerk assigning the interest which the deposit generated to Petitioner. But he did not, because a Florida statute allowed him to give 90% of the interest to the City. To rescue the clerk from liability for having taken the interest generated by the quick-take deposit, the Florida Court of Appeal created a distinction never recognized in Florida law (or anywhere else for that matter) between the “right to specific funds,” which it recognized as constitutionally protected property, and the mere “entitlement to full compensation,” which is not. See Pet. App. B-12. The deposit is the latter, the court concluded, which it declared ipse dixit to be public property.
This brief makes two points. First, the issue of the taking of interest earned on quick-take deposits is wholly separate from the taking of the land in the underlying quick-take actions, and “res judicata” is no impediment to this Court’s review. Second, the only constitutional reading of Florida’s quick-take statute is that deposits are the private property of condemnees and not the public.
--------------------------------------------------------2. Florida Dep’t of Transp. v. Mallard’s Cove, LLP, 159 So. 3d 927 (Fla. Dist. Ct. App. 2015).
There will be more, so stay tuned.
Brief Amicus Curiae of Owners' Counsel of America in Support of Petitioner, Livingston v. Frank, No. 15-540...
