OCA Files Supreme Court Amicus Brief: A Government IOU Is Not Just Compensation in Eminent Domain

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Recently, the Owners’ Counsel of America, a national network of eminent domain lawyers, filed an amicus curiae brief with the United States Supreme Court asking the Court to consider whether the government can take property using eminent domain while only promising future compensation, like an IOU, to the landowner.

Owners' Counsel of America is a nationwide network of eminent domain attorneys dedicated to representing landowners in property rights litigation.

Owners' Counsel of America is a nationwide network of eminent domain attorneys dedicated to representing landowners in property rights litigation.

OCA urges the Court to review and reverse the Florida Court of Appeals decision in this case and to ensure that private property rights are not ‘relegated to the status of poor relation’ to other rights protected by the Bill of Rights.

The Owners’ Counsel of America (OCA) filed an amicus curiae brief with the United States Supreme Court asking the Court to consider whether the government can take property using eminent domain with only a promise to pay just compensation in the future. OCA calls upon the Court to review the Florida Court of Appeal decision in Livingston v. Frank, 150 So. 3d 239 (Fla. 2d DCA 2014).

In Livingston, the appellate court held that the money deposited with the clerk of the court by a government taking private property by eminent domain does not belong to the landowner, even though the very act of depositing the money deprived the owner of title to his land. The court found that under Florida’s quick-take eminent domain law, two acts occur simultaneously when the condemnor makes the deposit. First, the government takes ownership of the land, and, second, the property owner earns only the right to full compensation (and not the right to the money on deposit). “It is the right to full compensation that vests, not a right to the specific funds, although common practice regularly releases the funds to the property owner.” (Livingston v. Frank, Slip. Op. at 10.) The court concluded that the government could take property merely by promising in the future to pay compensation.

“OCA’s brief argues that the Florida court rewrote the rules governing who owns money deposited with the court for private property taken in eminent domain proceedings,” explained appellate and property rights attorney Robert H. Thomas, a director with Damon Key Leong Kupchak Hastert, in Honolulu, Hawaii.

The amicus brief makes two distinct points. First, the brief contends that the Florida District Court of Appeal erred in concluding that Florida’s quick-take statute permitted the government to take private property now, and pay for it later. Rather than the deposited funds being the private property of the landowner because the funds are compensation for the taking of his land, the court held that the deposit was a mere IOU, and that the deposited money belonged to the condemnor until it was withdrawn by the landowner. (OCA brief pp. 2-3)

Speaking on behalf of OCA, eminent domain attorney Andrew Prince Brigham and OCA Florida representative stated, “We make the argument in the brief that the Florida Court of Appeal incorrectly concluded that the interest earned on money deposited with the court in quick-take eminent domain actions is not the private property of the landowner, and therefore it is not a taking when the clerk of the court gives 90% of the interest to the condemnor.”

The second point the brief addresses is the constitutionality of Florida’s quick-take statute. Because Florida’s quick-take statute, Fla. Stat. § 74.031, allows the condemnor to take immediate possession and ownership of private property upon the deposit of an estimate of just compensation with the court, the brief argues that the funds deposited into the court registry must be the private property of the affected landowner, not public property. The brief highlights two previous Supreme Court decisions – Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) and Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980) – in which the Court “acknowledged that the interest on deposited funds is a private property right when the deposited funds are private property, and a state cannot simply reassign that property to the public without running afoul of the Takings Clause.” (OCA brief pp. 7-8.)

“As stated in the brief, the Takings Clause of the Fifth Amendment requires the payment of just compensation when private property is taken for public use,” said Thomas, the OCA Hawaii Member and author of OCA’s brief. “The Fourteenth Amendment makes this requirement applicable to the states and the Supreme Court has established in previous cases that the payment must be contemporaneous with the taking. This does not mean that the property owner has only a right to future compensation, but to just compensation at the very moment his property is acquired by the condemnor.”

“OCA urges the Court to review and reverse the Florida Court of Appeals decision in this case and to ensure that private property rights are not ‘relegated to the status of poor relation’ to other rights protected by the Bill of Rights.”

The Owners’ Counsel of America (OCA) is a nationwide network of experienced eminent domain attorneys dedicated to protecting the rights of private property owners large and small, locally and nationally, and to advancing the cause of property rights. The lawyers affiliated with OCA are in private practice in nearly every state and represent private owners against federal, state, and local governments, utilities, transportation and redevelopment authorities and other entities that may be armed with eminent domain power. For more information or to locate a condemnation lawyer in your state, please visit http://www.ownerscounsel.com.

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Catherine Newman
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