brief amici curiae of new england legal foundation, cato institute, national federation of...

8/13/2019 Brief Amici Curiae of New England Legal Foundation, Cato Institute, National Federation of Independent Businesse

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NO. 13-625

IN THE

Supreme Court of the United States

A.GALLO&CO.,ET AL.Petitioners,

v.

DANIELC.ESTY,COMMISSIONER,CONNECTICUTDEPARTMENTOFENERGYAND

ENVIRONMENTALPROTECTION,ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TOTHE SUPREME COURT OF CONNECTICUT

BRIEFOFAMICICURIAE

NEWENGLANDLEGALFOUNDATION,

CATOINSTITUTE,NATIONALFEDERATION

OFINDEPENDENTBUSINESS,AND

SOUTHEASTERNLEGALFOUNDATION

INSUPPORTOFPETITIONERS

John PagliaroCounsel of Record

Martin J. Newhouse, PresidentNew England Legal Foundation150 Lincoln StreetBoston, Massachusetts 02111Tel.: (617) 695-3660

[email protected] for Amicus Curiae New

England Legal Foundation

December 23, 2013Additional counsel listed on the inside cover

BATEMAN &SLADE,INC. BOSTON,MASSACHUSETTS


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Ilya ShapiroCato Institute1000 Mass. Ave. NW

Washington, DC 20001Tel. (202) [email protected]

Counsel for Amicus Curiae CatoInstitute

Karen R. HarnedLuke A. WakeNFIB Small Business Legal Center1201 F Street, NW, Suite 200

Washington, DC 20004Tel. (202) [email protected]

Counsel for Amicus Curiae NationalFederation of Independent Business

Shannon Lee GoesslingSoutheastern Legal Foundation2255 Sewell Mill Road, Suite 320Marietta, Georgia 30062Tel. (770) [email protected]

Counsel for Amicus CuriaeSoutheastern Legal Foundation


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TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE................................ 1

SUMMARY OF ARGUMENT.....................................4

ARGUMENT ...............................................................5

I. This Is A Classic Case Of Shifting A PublicBurden To Private Parties Unjustly And

Unfairly.......................................................... 5

II. The State Court, Along With The Two OtherBranches Of State Government, IsImplicated In The Constitutional WrongsPetitioners Allege ..........................................8

III. The State Court Unconstitutionally TookPetitioners Established Property RightBy Committing Numerous Errors InReasoning.....................................................11

A. The State Court Looked forPetitioners Rights in the WrongPlace ..................................................... 11

B. The State Court Erred in Failing toRecognize That the 2008 Act WasPassed to Assist Legislative Fact-Finding ................................................. 14

C. The State Court Gave No Effect to the

DEPs Admission That Petitioners Hadan Established Right to the UnclaimedRedemption Values..............................16


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IV. Doctrinal Differences Over Judicial TakingsShould Not Prevent This Court FromGranting The Petition ................................. 18

CONCLUSION..........................................................19


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TABLE OF AUTHORITIES

CASES

AFT Michigan v. State, 825 N.W.2d 595(Mich. App. 2012)...................................................7

A. Gallo and Co. v. Commissioner of EnvironmentalProtection, 73 A.3d 693 (Conn. 2013).......... passim

Armstrong v. United States,364 U.S. 40 (1960) ........ 8

Chicago, B. & Q. R. Co. v. Chicago,

166 U.S. 226 (1897)................................................8

Clean Water Coalition v. M Resort, LLC,255 P.3d 247 (Nev. 2011).......................................8

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998).....7

Stop the Beach Renourishment v. FloridaDepartment of Environmental Protection,560 U.S. 702 (2010)..............................................18

Tuttle v. New Hampshire Medical MalpracticeJoint Underwriting Association,992 A.2d 624 (N.H. 2010) ......................................7

Webbs Fabulous Pharmacies, Inc. v. Beckwith,449 U.S. 155 (1980)....................................8, 15 n.3

Wisconsin Medical Society, Inc. v. Morgan,787 N.W.2d 22 (Wis. 2010) .................................... 7

PUBLICACTS AND REGULATIONS

ConnecticutAn Act Concerning Deficit Mitigation,

Pub. Act 08-01.............................................. passim


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An Act Concerning Deficit Mitigation for the FiscalYear Ending June 30, 2009,Pub. Act 09-01.............................................. passim

New York

N.Y. Comp. Codes R. & Regs. title 6, 367.11(Westlaw 2013) .................................................... 15

2009 N.Y. Laws, c. 59, pt. SS. 8............................. 15

LAW REVIEWS

Barros, D. Benjamin, The Complexities of JudicialTakings, 45 U. Rich. L. Rev. 903 (2011) .............19

Pealver, Eduardo Moises and Lior Strahilevitz,Judicial Takings or Due Process, John M. OlinLaw& Economics Working Paper No. 549 (2dSeries) (Apr. 2011) ...........................................9, 19

Thompson, Barton H.,Judicial Takings,76 Virginia L. Rev. 1449 (1990).......................9, 10

Wagner, David,A Proposed Approach To Judicial

Takings, 73 Ohio St. L.J. 177 (2012)................... 19

OTHER

Sam Gardner, Thunder fan who hit half-court shotmay not get to keep his $20K (available athttp://msn.foxsports.com/buzzer/story/fan-who-hit-half-court-shot-may-not-get-to-keep-the-20k-he-won-112613).................................17-18


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INTEREST OF AMICI CURIAE1

Amicus curiae New England Legal Foundation(NELF) is a nonprofit, nonpartisan, public-interestlaw firm incorporated in Massachusetts in 1977 andheadquartered in Boston. Its membership consistsof corporations, law firms, individuals, and otherswho believe in NELFs mission of promotingbalanced economic growth in New England and thenation, protecting the free-enterprise system, anddefending individual economic rights and the rightsof private property. NELFs members and

supporters include both large and small businesseslocated primarily in the New England area. NELFhas previously filed amicus briefs in this Court,advocating, among other things, in defense of privateproperty rights. NELF filed an amicus brief insupport of Petitioners in the Connecticut SupremeCourt.

Amicus curiae Cato Institute (Cato), founded in1977, is a nonpartisan public policy researchfoundation dedicated to advancing the principles ofindividual liberty, free markets, and limitedgovernment. Catos Center for ConstitutionalStudies was established in 1989 to promote theprinciples of limited constitutional government thatare the foundation of liberty. To that end, Catopublishes books and studies, conducts conferences,

1 Pursuant to Supreme Court Rule 37.6, Amici state that noparty or counsel for a party authored this brief in whole or inpart and that no person or entity, other than Amici, made amonetary contribution to its preparation or submission.

Pursuant to Supreme Court Rule 37.2(a), Amici state that allparties were given timely notice to the filing of this brief andhave consented to its filing.


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and produces the annual Cato Supreme CourtReview.

Amicus curiae National Federation ofIndependent Business Small Business Legal Center(NFIB Legal Center) is a nonprofit, public interestlaw firm established to provide legal resources andbe the voice for small businesses in the nationscourts through representation on issues of publicinterest affecting small businesses. The NationalFederation of Independent Business (NFIB) is thenations leading small business association,

representing members in Washington, D.C., and all50 state capitals. Founded in 1943 as a nonprofit,nonpartisan organization, NFIBs mission is topromote and protect the right of its members to own,operate and grow their businesses.

NFIB represents 350,000 member businessesnationwide, and its membership spans the spectrumof business operations, ranging from sole proprietorenterprises to firms with hundreds of employees.While there is no standard definition of a smallbusiness, the typical NFIB member employs 10people and reports gross sales of about $500,000 ayear. The NFIB membership is a reflection of

American small business.

To fulfill its role as the voice for small business,the NFIB Legal Center frequently files amicus briefsin cases that will impact small businesses.

Amicus curiae Southeastern Legal Foundation(SLF), founded in 1976, is a national non-profit,public interest law firm and policy center thatadvocates constitutional individual liberties and freeenterprise in the courts of law and public opinion.SLF drafts legislative models, educates the public onimportant policy issues, and litigates regularly


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before this Court. See, e.g. Stop the BeachRenourishment v. Florida Department ofEnvironmental Protection, 560 U.S. 702 (2010);Hawaii v. Office of Hawaiin Affairs, 129 S. Ct. 1436(2009); Suitum v. Tahoe Regl Planning Agency, 520U.S. 725 (1997); Dolan v. City of Tigard, 512 U.S.374 (1994);Lucas v. South Carolina Coastal Council,505 U.S. 1003 (1992); Nollan v. California CoastalCommn, 483 U.S. 825 (1987).

Amicis interest in this case arises out of theircommitment to the protection of private property

rights and economic freedom. The case involvesConnecticuts assertion of the power to take privateproperty (i.e., targeted funds of money) for public usewithout compensation, in violation of the U.S.Constitution.

In the midst of a fiscal crisis, the state legislaturepassed a bill that imposed on Petitioners a financialexaction so that the state could pay for publicbenefits that should properly be borne by the publicas a whole. Although Petitioners successfullychallenged the law in the trial court, the stateSupreme Court ruled that Petitioners had noright tothe money at all. The ruling was contrary to decadesof settled expectations concerning their rights tosuch funds, rights acknowledged even by the stateagency charged with implementing the Bottle Bill.

For these reasons and for the further reasonsset out in their brief, Amici believe that this is acompelling case for this Courts review. State courtsshould not be permitted to define establishedproperty rights out of existence and thereby justify a

states taking of private property for public usewithout just compensation.


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SUMMARY OF ARGUMENT

In response to a budgetary crisis, in 2009Connecticut passed a law to escheat all futureunclaimed redemption values of beveragecontainers covered by the states Bottle Bill. Thestate also attempted to reach back in time to seizefour months of additional values, although suchmoney had, for nearly thirty years, been regarded asbelonging to Petitioners. This case thereforepresents a classic instance of government unjustlyimposing on a few persons an economic burden that

should be borne by the public at large. The Courthas long condemned the use of such shortcuts toachieving a public good.

The review of this Court is all the morewarranted because all three branches of stategovernment were involved in the taking or denial ofPetitioners established property rights, andPetitioners have been left without a state remedy forviolation of their federal constitutional rights.

In particular, the Connecticut Supreme Court

erroneously found that Petitioners claimed propertyrights in the money did not exist and therefore couldnot be violated by the states actions. The courtreached this conclusion without proper examinationof the history of the Bottle Bill and itsimplementation, despite the fact that Petitionersbased their defense of their rights on these sources.Instead, the court relied on a law passed in 2008,also in response to the fiscal crisis. The analysis thecourt then performed to show that Petitioners lackedso-called incidents of ownership under that law is

fatally flawed.That 2008 law did not purport to vest Petitioners

with new rights or to divest them of established


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rights. It was enacted to facilitate legislative fact-finding about the economics of the Bottle Bill and itsimplementation by the beverage industry, i.e., as anaid to deciding later whether to escheat some or allof the unclaimed values. So well established wasPetitioners property interest that the state agencycharged with administering the Bottle Billacknowledged publically that unclaimed valuesunder that thirty-year-old program belonged toPetitioners. Confronted with this evidence, the statecourt brushed aside the obvious meaning of theagencys words.

This Court should not be dissuaded from grantingthe Petition by the present lack of consensusconcerning whether a decision like that of the statecourt should be reviewed as a judicial taking or aviolation of substantive due process. The decisioncannot survive review under either doctrine.

ARGUMENT

I. This Is A Classic Case Of Shifting APublic Burden To Private Parties

Unjustly And Unfairly.

It is undisputed that this case arises out ofConnecticuts response to a severe fiscal crisis.Indeed, the very first facts that the Connecticut

Attorney General hastened to put before the statesupreme court in his brief emphasized the urgency ofthe states financial crisis:

The facts of this case are not in dispute.The State has for several years beenfaced with one of the worst economic

downturns in its history. On January20, 2009, the Governor announced thatthe estimated budget deficit for the


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fiscal year ending June 30, 2009 wasnearly $922 million. . . . The Governorlater announced that the deficit hadincreased to approximately $1.056billion, and that the estimated budgetdeficit for the next two fiscal yearscombined was $7.95 billion. . . .

Brief of the Defendants-Appellants with Appendixat 2. The Attorney General then stated that, [f]acedwith this unprecedented budgetary crisis, the stateGeneral Assembly had passed a number of deficit

mitigation plans designed to increase staterevenues, and [i]n particular the two deficitmitigation acts that are at the center of this case,

An Act Concerning Deficit Mitigation, Pub. Act 08-01(2008 Act), and An Act Concerning DeficitMitigation for the Fiscal Year Ending June 30, 2009,Pub. Act 09-01 (2009 Act).

As interpreted by the Connecticut SupremeCourt, the 2009 Act mandates the relinquishment ofthe Petitioners money, retroactive to a four-monthperiod before the effective date of the act, while theregulation imposed on the money by the 2008 Actsupposedly establishes the Petitioners lack of anyproperty interest in the money during that period.The atmosphere of budgetary panic may be gaugedby the fact that although Petitioners first quarterlyaccounting under of the 2008 Act was not due untilMarch 15, 2009, the General Assembly passed the2009 Act on January 15, 2009barely seven weeksafter passing the 2008 Actto raid the segregatedaccounts created by the earlier act and take thequarterly balances, whatever those sums might turnout to be.


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These facts possess a national significance. Forseveral years, all levels of government in this nationhave been especially hard-pressed to find revenuesto meet the financial obligations they haveundertaken or would like to undertake. Under suchexigent circumstances, the direct, uncompensatedappropriation of the private property of a targetedfewwhether in the form of money or tangiblepropertycan be a tempting shortcut by which toaugment government revenues. As Justice Holmesobserved, however, a strong public desire to improvethe public condition is not enough to warrantachieving the desire by a shorter cut than theconstitutional way of paying for the change.

Eastern Enterprises v. Apfel, 524 U.S. 498, 523(1998) (plurality) (quoting Pennsylvania Coal Co. v.

Mahon,260 U.S. 393, 416 (1922)).

Sometimes, state appellate courts functionadequately as a firebreak against this kind of abuseof power. See, e.g., AFT Michigan v. State, 825N.W.2d 595 (Mich. App. 2012) (finding constitutionalviolations, including impairment of contracts,

substantive due process, and takings clause, wheregovernment confiscated income of one discrete groupin order to fund specific governmental obligationowed to another discrete group); Wisconsin MedicalSociety, Inc. v. Morgan, 787 N.W.2d 22 (Wis. 2010)(finding unlawful taking where state legislatedtransfer to itself of $200 million of healthcareproviders private money to reduce need to fundMedicaid with states general revenues); Tuttle v.

New Hampshire Medical Malpractice JointUnderwriting Association, 992 A.2d 624 (N.H. 2010)

(finding impermissible retrospective law wherelegislation targets $110 million of private funds fortransfer to states general fund to pay for public


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healthcare). See also Clean Water Coalition v. MResort, LLC, 255 P.3d 247 (Nev. 2011) (unlawfullocal tax imposed when state mandated $62million, paid by residents and businesses into fundheld by interlocal water management coalition forcapital improvements, be transferred to statesgeneral fund).

At other times, as now, it becomes necessary fordispossessed parties to appeal to this Court in orderto find the relief denied them by their state courts.See, e.g., Webbs Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 164 (1980) (overturningFlorida Supreme Court decision upholding taking ofprivate property). Without this Courts review, thePetitioners will be forc[ed] . . . to bear publicburdens which, in all fairness and justice, should beborne by the public as a whole. Armstrong v.United States, 364 U.S. 40, 49 (1960) (TakingsClause intended to bar imposition of such burdens).

II. The State Court, Along With The TwoOther Branches Of State Government, Is

Implicated In The Constitutional WrongsPetitioners Allege.

This Court has long held that the Due ProcessClause of the Fourteenth Amendment prohibitsuncompensated takings by the states and that theprohibitions of the [Fourteenth] [A]mendment referto all the instrumentalities of the state,to itslegislative, executive, and judicial authorities.Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226,233, 241 (1897) (emphasis added).

Viewed in that light, the facts of this casestrongly support granting the Petition because allthree branches of Connecticut state government are


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implicated in the constitutional wrongs Petitionersallege in the Petition. See Barton H. Thompson,

Judicial Takings, 76 Virginia L. Rev. 1449, 1486-89(1990); Eduardo Moises Pealver and LiorStrahilevitz,Judicial Takings or Due Process, JohnM. Olin Law& Economics Working Paper No. 549(2d Series) at 19 (Apr. 2011). The 2009 Act,concerning which Petitioners complain, was, ofcourse, passed by the General Assembly, whichspecifically intended to assert the states ownershipof the money. Then the governor signed the 2009

Act, and, also within the executive branch, the stateDepartment of Environmental Protection (DEP)was charged by the General Assembly withimplementing both the 2008 and 2009 deficitmitigation Acts and, in particular, with takingcustody of the money relinquished unwillingly byPetitioners and depositing it into the states generalrevenue fund.

Then, when Petitioners challenged the legality ofthe 2009 Act as applied to the moneys segregatedduring the four months prior to the acts effective

date, the Connecticut Supreme Court provided thelegal justification for the actions of the otherbranches. Exercising the distinctive judicialfunction of saying what the law is, the court ruledthat the 2009 Act effected no taking of Petitionersmoney because Petitioners had noproperty interestin the money.

There could hardly be a stronger takings case forthis Courts review than one involving a transfer ofproperty from private hands to the public fisc, whenthe transfer is enabled by all branches ofgovernment. As discussed above, a state court mayhead off a proposed unlawful transfer that the otherbranches favor. But especially when the political or


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government are complicit in those violationsthisCourt must step in and provide the remedy.

III. The State Court Unconstitutionally TookPetitioners Established Property RightBy Committing Numerous Errors InReasoning.

In deciding that Petitioners lacked any propertyinterest in the money taken by Connecticut, thestate court conducted an analysis that wasfundamentally flawed in numerous ways. The

resulting deprivation of Petitioners constitutionalrights warrants this Courts review.

A. The State Court Looked forPetitioners Rights in the WrongPlace.

The state court doomed Petitioners case from thestart by searching forand failing to findPetitioners rights in the 2008 Act, for Petitionershad never claimed that their rights derived fromthat source. As the trial court understood when

ruling in favor of Petitioners, these rights antedatedthe 2008 Act, whose own legal effect simply cannotbe gauged accurately unless viewed against abackdrop of thirty years of pre-existing rights andexpectations. Remarkably, the state supreme courtthought otherwise on all of these points.

Indeed, the state court seems to have paid scantattention to what Petitioners told it in their brief, forthe court set itself to examine the 2008 Actregardless of the status of the refund values beforepassage of the act, which we are not asked to

determine. A. Gallo and Co. v. Commissioner ofEnvironmental Protection, 73 A.3d 693, 703 (Conn.2013). Yet Petitioners had explained and


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emphasized, in the very first pages of theirargument to that court, the overriding importance totheir case of the Bottle Bill as written through 2007and of the manner in which it had been implementedfor nearly thirty years before passage of the 2008

Act. One need only read their argument headings tosee this: A. Under the Original Bottle Bill, thePlaintiffs Had a Vested Property Interest in So-Called Unclaimed refund Values; B. TheLimitations Imposed by the 2008 Act Did Not Divestthe Plaintiffs of Their Property Interests. Brief and

Appendix of Plaintiffs-Appellees at 8, 10.

Instead of attending to Petitioners argumentabout the real source of their rights, the state courtconcluded that, because the 2008 Act did notaffirmatively set out any of the rights Petitionersclaimed, they simply had none. Gallo, 73 A.3d at704. In the state high courts eyes, therefore, theacts silence was fatal to Petitioners claims. Thecourt should have instead found, as the trial courthad, that the silence meant that Petitioners pre-existing rights remained intact and that the 2008

Act merely regulated how Petitioners would accountfor a designated dollar portion of their revenues.

As if to compound its error, the state court wenton to apply a three-part incidents of ownership testand used the results to bolster its conclusion that the2008 Act not only did not grant Petitioners the rightsthey claimed but was positively incompatible withthose rights. See id. at 709-10. The incidentsexamined by the court were the rights to: (1) use themoney, (2) earn income from the money and tocontract over its terms with other parties, and (3)the right to transfer ownership rights permanentlyto other parties. Id. at 709. The state courtconcluded that, in light of how the 2008 Act worked,


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Petitioners lacked all these incidents and did notpossess the rights they claimed. Id. at 710. Thecourts analysis was clearly wrong here too; indeed,it erred on every incident.

The Petitioners used the money in exactly thesame way they had always used the equivalenceportion of their revenues in the past, before the 2008

Act mandated the segregation of fundsi.e., theyused it to pay retailers five cents for each containeroffered for redemption by the latter. In other words,Petitioners paid some of their bills with the money, a

fact that, even standing alone, would constitute acompelling incident of ownership.

Petitioners also enjoyed the right toearn interestfrom the money and to contract concerning the terms.The 2008 Act, other than requiring them to openinterest-bearing accounts at financial institutionslocated in Connecticut, left Petitioners completelyfree to choose with what kind of financial institutionthey would contract, and they had an equally freehand in trying to obtain terms earning the highestinterest and charging the lowest fees. This latitudeof action was important because once interest waspaid into the special accounts, it became availablefor Petitioners to use to pay their obligations toretailers whenever mandatory redemptions exceededthe amount Petitioners had deposited into theaccounts as calculated on a per-bottle-sold basis.2

2 Because Petitioners are required to pay redemption values forsome bottles presented to them which they did not themselves

sell to retailers, redemption outlays can exceed any amountsthat may have been collected previously from retailers to coveranticipated redemption costs. SeePetition at 6.


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Finally, by paying some of their bills from thespecial accounts, Petitioners permanentlytransferred ownership of the money every time theywrote a retailer a check to pay redemption values.

The real question, then, is not whetherPetitioners exercised incidents of ownership underthe 2008 Act, but how the state court could fail to seethat Petitioners continued to own and use the moneyas they always had, merely subject to the acts newbookkeeping requirements.

B. The State Court Erred in Failing to

Recognize That the 2008 Act WasPassed to Assist Legislative Fact-Finding.

The state courts examination of the 2008 Act asthe alleged source of Petitioners substantive rightswas also fundamentally misconceived for anotherreason. As the plain language of the 2008 Act makesclear, the act was concerned with imposing reportingand other regulatory requirements on Petitioners,not with either vesting them with ownership rights

or divesting them of such rights. The immediatepurpose of the requirements it imposedwhichfigure so largely in the courts incidents ofownership analysiswas to facilitate legislative

fact-finding. The General Assembly entertained, atleast initially, some hesitation about seizingredemption values until it could first gather moreinformation about how the beverage industry workedin this regard and what the ebb and flow of themoney might be. One member of the legislaturesaid, for example:

The bill requires, for the first time[,]that those receipts be accounted for. . . .One of the difficulties in determining


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whether we should collect that revenueis that we dont have any way ofmeasuring what the revenue will be. . . .[T]he first report would be available tous March 15 . . . . and allow us toevaluate whether or not we ought torecapture some or all of the revenue onan ongoing basis.

Brief and Appendix of Plaintiffs-Appellees at A-4 toA-5. (As noted above, within weeks of passage of the2008 Act, the General Assembly cast aside these

concerns and voted to take the quarterly balances intoto.)3

That such a statutory scheme of accounting isperfectly consistent with private ownership ofunclaimed values is demonstrated by the fact thatNew York had, for about 26 years, imposedrequirements for segregating redemption funds andaccounting for them under GAAP, before it everpurported to escheat the unclaimed money to itscoffers. See N.Y. Comp. Codes R. & Regs. title 6, 367.11 (eff. July 1, 1983) (Westlaw 2013); 2009N.Y. Laws, c. 59, pt. SS. 8 (eff. April 1, 2009)

3 Since there was serious discussion in the legislature about thepossible need, in light of the budgetary crisis, to start takingthe money, it is not terribly surprising to find some members ofthe General Assembly expectantly referring to the money asescheats during debate. The state court relied on thisoccasional usage in deciding that the legislature did not regardunclaimed redemption values as belonging to Petitioners, andfrom this it then concluded that the money did not in fact

belong to Petitioners. See Gallo, 73 A.3d at 705-706. Seldomhas the ipse dixit fallacy been carried so far and spread sothick. SeeWebbs Fabulous Pharmacies, 449 U.S. at 164.


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(codified as N.Y. Environmental Conservation Law 27-1012).

C. The State Court Gave No Effect tothe DEPs Admission ThatPetitioners Had an EstablishedRight to the UnclaimedRedemption Values.

The state court also reacted dismissively whenPetitioners cited the state DEPs own admission,made as late as January 2009, that they had anestablished right to unclaimed refund values as a

consequence of how the Bottle Bill, enacted in 1978and . . . effective January 1, 1980, had operated fornearly thirty years. See DEPs Bottle Bill FAQ,attached to Brief and Appendix of Plaintiffs-

Appellees at A-1 to A-2. Focusing narrowly on theuse of the verb keep in the Bottle Bill FAQ, thestate court held that the DEPs statement meantonly that the distributors retain[ed] the unclaimedvalues, not that they owned them. See Gallo, 73

A.3d at 706.

The courts conclusion is plainly wrong, and thecourts citation to a dictionary does not change thatfact. Question 5 of the FAQ and its answer read asfollows (emphasis in original):

Who gets the money from bottlesthat are not returned?Called unclaimed deposits, these moniesaccumulate from containers that areeither thrown away, or recycled through


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curbside programs. These funds arekept by the distributors.4

It should be perfectly obvious that unclaimeddeposits are called that because no one has claimedownership of them. Read in this context, thequestion of who gets the money when no one elsehas claimed it asks about who gets it by defaultownership.

Even in the general case, when an issue is raisedabout who will get to keep money, everyone(except, apparently, the Connecticut Supreme Court)

understands that the issue concerns who will havethe right to keep and own the money, not who willretain the money in his pocket forever without everbeing able to regard it as truly his own. Evenwriters of sports copy understand this:

A 23-year-old fan named CameronRodriguez hit a half-court shot for$20,000 at an Oklahoma City Thundergame on Nov. 18, one of anunfathomable five fans to complete the

feat in a 22-game stretch at ChesapeakeEnergy Arena, including two in back-to-back games.

Unfortunately, Rodriguez may notget tokeephis haul, which he earned fair andsquare by sinking the shot below,because hes a college athlete.

Sam Gardner, Thunder fan who hit half-court shotmay not get to keep his $20K (available athttp://msn.foxsports.com/buzzer/story/fan-who-hit-

4 Similarly, the answer to Question 1 says, The distributorkeeps the 0.5 for each unclaimed deposit.


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half-court-shot-may-not-get-to-keep-the-20k-he-won-112613) (last visited December 12, 2013) (emphasisadded).

Once again, the state court seemed almostdeterminedly blind to Petitioners established rightsto the money.

IV. Doctrinal Differences Over JudicialTakings Should Not Prevent The CourtFrom Granting The Petition.

In Stop the Beach Renourishment v. Florida

Department of Environmental Protection, 560 U.S.702 (2010), six justices of this Court agreed that theConstitution places limits on the power of statecourts to define property rights, especially when astate court has held that an established right doesnot exist and has thereby put its judicial imprimaturon the states seizure of private property.

Four justices (Chief Justice Roberts and JusticesScalia, Thomas, and Alito) adopted the theory of

judicial taking to address such a situation. Two

justices (Justices Kennedy and Sotomayor) hesitatedto do so, preferring to apply substantive due processin cases where a court has acted arbitrarily bydenying the existence of an established propertyright. (Two justices, Justices Breyer and Ginsburg,believed that the issue did not need to be reached onthe facts of that case.)

Like the six justices in Stop the Beach, academiccommentators differ in their view of the best way toconceptualize what a court does when, in the courseof deciding whether another branch of government

has taken private property unconstitutionally, thecourt denies the existence of the established propertyright which attaches to the property. See, e.g.,


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Pealver, supra; David Wagner, A ProposedApproach to Judicial Takings, 73 Ohio St. L.J. 177(2012); D. Benjamin Barros, The Complexities of

Judicial Takings, 45 U. Rich. L. Rev. 903 (2011).

Amici do not entirely agree among themselves onthis doctrinal question, and for that reason in theirbrief have striven to frame the issue raised by thiscase with a light doctrinal hand. Amici do, however,agree on one thing: the Supreme Court ofConnecticut violated the federal constitutional rightsof Petitioners under at least one of these theories

and it did so in an egregious way. This is a wrongthat only this Court has the power to right.

CONCLUSION

For the reasons stated above, this Court shouldgrant the Petition.

Respectfully submitted,

John PagliaroCounsel of Record

Martin J. Newhouse, PresidentNew England Legal Foundation150 Lincoln StreetBoston, Massachusetts 02111Tel. (617) 695-3660

[email protected]

Counsel for Amicus Curiae NewEngland Legal Foundation


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Ilya ShapiroCato Institute1000 Mass. Ave. NWWashington, DC 20001Tel. (202) [email protected]

Counsel for Amicus Curiae CatoInstitute

Karen R. HarnedLuke A. Wake

NFIB Small Business Legal Center1201 F Street, NW, Suite 200Washington, DC 20004Tel. (202) [email protected]

Counsel for Amicus Curiae NationalFederation of Independent Business

Shannon Lee GoesslingSoutheastern Legal Foundation

2255 Sewell Mill Road, Suite 320Marietta, Georgia 30062Tel. (770) [email protected]

Counsel for Amicus CuriaeSoutheastern Legal Foundation

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