Judges: Posner
Filed: Oct. 31, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12-3766 KATHERINE CERAJESKI, Guardian for Walter Cerajeski, Plaintiff-Appellant, v. GREG ZOELLER, Attorney General of the State of Indiana, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-cv-1705-JMS-DKL — Jane Magnus-Stinson, Judge. _ ARGUED SEPTEMBER 12, 2013 — DECIDED OCTOBER 31, 2013 _ Before POSNER, EASTERBROOK, and SYKES, Cir
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12-3766 KATHERINE CERAJESKI, Guardian for Walter Cerajeski, Plaintiff-Appellant, v. GREG ZOELLER, Attorney General of the State of Indiana, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-cv-1705-JMS-DKL — Jane Magnus-Stinson, Judge. _ ARGUED SEPTEMBER 12, 2013 — DECIDED OCTOBER 31, 2013 _ Before POSNER, EASTERBROOK, and SYKES, Circ..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3766
KATHERINE CERAJESKI, Guardian for Walter Cerajeski,
Plaintiff‐Appellant,
v.
GREG ZOELLER, Attorney General of the State of Indiana,
et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:11‐cv‐1705‐JMS‐DKL — Jane Magnus‐Stinson, Judge.
____________________
ARGUED SEPTEMBER 12, 2013 — DECIDED OCTOBER 31, 2013
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The plaintiff appeals from the dis‐
missal of her suit challenging the constitutionality of part of
the Indiana Unclaimed Property Act, Ind. Code §§ 32‐34‐1‐1
et seq. (Indiana’s version of the Uniform Unclaimed Property
Act), on the ground that it authorizes the state to confiscate
private property without any compensation—let alone just
compensation—to the owner.
2 No. 12‐3766
The Act states that “property” is “presumed abandoned
if the owner or apparent owner has not communicated in
writing with the holder concerning the property or has not
otherwise given an indication of interest in the property”
within a specified period that varies according to the type of
property. § 32‐34‐1‐20(c). When the presumption kicks in,
the holder of the property (for example a bank, in the case of
a bank account) is required to try to notify the owner and to
submit within 60 to 120 days after that a detailed report of
the matter (including the owner’s last known address) to the
state attorney general, and simultaneously with that submis‐
sion to transfer the property to the attorney general. §§ 32‐
34‐1‐26(a), (b), (e); 32‐34‐1‐27. By November 30 of the follow‐
ing year, assuming the owner hasn’t tried to reclaim his
property, the attorney general must attempt notice by publi‐
cation. § 32‐34‐1‐28. Notice is also posted on an official web‐
site, www.indianaunclaimed.gov (visited Oct. 29, 2013). The
owner, by filing a valid claim to his property (which he can
do on the website), can reclaim the property from the state at
any time up to 25 years after it was delivered to the attorney
general. § 32‐34‐1‐36. At that point if still unclaimed it es‐
cheats to—that is, becomes owned by—the state.
But here’s the rub that has given rise to this lawsuit: the
owner who files a valid claim to property is entitled only to
his principal, and not to any interest earned on it. The plain‐
tiff contends that the state’s retention of the interest is a tak‐
ing that violates the takings (just‐compensation) clause in the
Constitution because the owner is paid nothing for his lost
interest.
The plaintiff’s ward had a small, interest‐bearing account
(it was either a savings account or a money market account)
No. 12‐3766 3
in an Indiana bank. The value of a bank account is not prop‐
erty owned by the depositor; he is just a creditor of the bank.
But the Indiana statute defines “property” very broadly, to
include the value of a bank account, § 32‐34‐1‐17(b), and
with respect to such property the presumption of abandon‐
ment kicks in three years after the last communication, or
indication of interest, by the owner regarding the account.
§ 32‐34‐1‐20(c). That happened, in the case of Cerajeski’s ac‐
count, in 2006; we assume the reason for his failure to indi‐
cate any interest in the account for the required three years
was related to whatever disability led to the appointment of
a guardian for his affairs, but there is nothing in the record
about this.
The statute requires individualized notice and reporting
of a bank account after the three‐year period elapses only if
the value of the account exceeds $50. §§ 32‐34‐1‐26(a), (e)(3).
Cerajeski’s account was smaller, but we haven’t been told
whether, before transferring it to the attorney general (re‐
quired regardless of the account’s size), the bank went
through all the motions required by the Act for larger ac‐
counts anyway. Cerajeski’s guardian didn’t learn about the
account until 2011.
Correctly believing that the state wouldn’t pay interest if
she filed a claim, she filed this lawsuit instead, seeking a dec‐
laration that she is entitled (on behalf of her ward) to the in‐
terest; if she obtains the declaration, the claim will follow.
The plaintiff does not quarrel with the aim and general
structure of the Unclaimed Property Act. Unclaimed proper‐
ty, whether lost, mislaid, forgotten, or abandoned, is a drag
on the economy. With no owner (abandoned property), or
no known owner (lost or mislaid or forgotten property), a
4 No. 12‐3766
property is unlikely to be put to its most productive use.
One way to minimize the resulting loss of value is to vest
ownership after some period of years—25 in Indiana—in the
state; this is called escheat or bona vacantia (ownerless
goods). See, e.g., Texas v. New Jersey, 379 U.S. 674, 675–77
(1965); Standard Oil Co. v. New Jersey by Parsons, 341 U.S. 428,
435–36 (1951). Another approach, also employed by Indiana,
is for the state, after a much shorter period in which the
owner of a property is unknown, to take custody of the
property, try to find the owner, and if the owner shows up
to claim it before enough time has elapsed for the property
to escheat to the state, return the property to the owner. The
goal of both procedures is to avoid so far as possible situa‐
tions in which, for want of an identified owner, the value of
property is not being maximized.
The state is certainly entitled to charge a fee for its ser‐
vices in taking custody of unclaimed property and trying to
locate the owner. The statute, however, authorizes it to de‐
duct from the value of the property only a very limited set of
costs, see § 32‐34‐1‐36(g), none of which appears to be rele‐
vant to Cerajeski’s bank account. The uniform act on which
the Indiana law is modeled allows for reasonable service
charges and other fees for custodianship, Uniform Un‐
claimed Property Act of 1995 § 13(b), but for unexplained
reasons Indiana has not enacted that section of the uniform
act. And the state has made no effort to show that the
amount of interest in Cerajeski’s bank account bears any re‐
lation to the cost of the services that the state has performed
in relation to the account.
The confiscation of the interest on Cerajeski’s principal
was therefore a taking of a part of his property (remember
No. 12‐3766 5
that the Indiana statute makes a bank account “property”
under Indiana law). Suppose Cerajeski had lost not a bank
account but an apple orchard. Years later his guardian learns
about the orchard, visits it, and discovers that a neighboring
farmer has occupied the orchard for a number of years. The
farmer acknowledges the guardian’s right to the property,
and leaves—thanking her profusely for the opportunity to
gather and sell the apples that the orchard has produced all
these years, but not compensating her for having appropri‐
ated them. She would be understandably indignant. He had
converted property of hers—the apples. He would be enti‐
tled to a reasonable fee for having harvested and sold them
rather than letting them rot, but not to keep the entire reve‐
nue from their sale. If you own an apple tree, you own the
apples; and if you own a deposit account that pays interest,
you own the interest, whether or not state law calls interest
property. See Brown v. Legal Foundation of Washington, 538
U.S. 216, 235 (2003).
Even if by some magic the cost to the state of its custodi‐
anship of Cerajeski’s bank account and related services
equaled the confiscated interest, the confiscation would be a
taking within the meaning of the takings clause. See Koontz
v. St. Johns River Water Management District, 133 S. Ct. 2586,
2601 (2013), remarking that “we have repeatedly found tak‐
ings where the government, by confiscating financial obliga‐
tions, achieved a result that could have been obtained by
imposing a tax. Most recently, in Brown [v. Legal Foundation
of Washington, supra] we were unanimous in concluding that
a State Supreme Court’s seizure of the interest on client
funds held in escrow was a taking despite the unquestiona‐
ble constitutional propriety of a tax that would have raised
exactly the same revenue. Our holding in Brown followed
6 No. 12‐3766
from … two earlier cases in which we treated confiscations
of money as takings despite their functional similarity to a
tax.”
Indiana could, after a reasonable time and satisfying due
process, escheat the fruit, or the interest, without having to
escheat the entire property as well. And it occurred to us af‐
ter the oral argument that although the period of escheat in
the Indiana statute is 25 years, the confiscation of interest af‐
ter 3 years might be a partial escheat, though not called that.
So we asked the parties to file supplemental briefs address‐
ing two questions: whether the state’s taking unconditional
title to “presumed abandoned” property would be constitu‐
tionally valid as an escheat, and whether any issue concern‐
ing escheat had arisen in the course of the suit.
The state answered that without violating the takings
clause, it can seize unconditional title to abandoned property
without compensation, but that no issue concerning escheat
has arisen in the present litigation because, as explained in
the state’s supplemental brief, the Unclaimed Property Act
“is not, strictly speaking, an escheat statute. The state does
not acquire title to unclaimed property, it acts as a custodian,
and the owner may claim the property at any time.” In sup‐
port of this statement the state cites our decision in Com‐
monwealth Edison Co. v. Vega, 174 F.3d 870, 872 (7th Cir. 1999),
where we said that the unclaimed‐property acts enacted by
Illinois and other states, including acts based on the Uniform
Unclaimed Property Act of 1995, as the Indiana act is, “are
not escheat statutes. The state does not acquire title to the
property. It is merely a custodian. The owner can reclaim his
property at any time.”
No. 12‐3766 7
The state’s answer to our question whether there is any
issue of escheat in this case is correct, but fatal to its case.
Begin with “abandoned.” “Abandonment” in property law
means voluntary relinquishment or renunciation of a prop‐
erty right, or an ownership vacuum resulting from the own‐
er’s death without heirs or a valid will. E.g., Mucha v. King,
792 F.2d 602, 610 (7th Cir. 1986); Schaffner v. Benson, 166 N.E.
881, 883 (Ind. App. 1929); Haslem v. Lockwood, 37 Conn. 500,
506–07 (1871); Eads v. Brazelton, 22 Ark. 499, 509 (1861); Note,
“The Unclaimed Personal Property Problem: A Legislative
Proposal,” 19 Stan. L. Rev. 619, 620 (1967). It means that the
owner gives up all claims to the property, thus pitching it
back into the public domain, where it is available for reap‐
propriation. Of course the state can take abandoned property
without compensation—there is no owner to compensate.
That is a clear example of escheat. (If the state lays no claim
to abandoned property, the first person to claim it becomes
the owner.) But Mucha v. King, supra, involved a painting
that had disappeared for 60 years; yet it had not been aban‐
doned, and we held that the owner’s heir was entitled to its
return.
Cerajeski did not voluntarily relinquish either the princi‐
pal or the interest in his bank account. The fact that he has a
guardian suggests that he is not competent to keep track of
his property, though the record contains no details regard‐
ing his condition. The guardian was unaware of the account
until years after it was transferred to the state. The account
was unclaimed rather than abandoned. Unclaimed property,
like abandoned property before someone appropriates it, is
in a kind of limbo; and one way of moving it to economic
heaven is escheat. See United States v. Locke, 471 U.S. 84, 100
(1985); cf. Texaco, Inc. v. Short, 454 U.S. 516, 525–26 (1982).
8 No. 12‐3766
The Supreme Court of Illinois, interpreting its version of the
Uniform Unclaimed Property Act, could be thought to have
held, in an opinion on which the attorney general of Indiana
mistakenly relies, that the Act authorizes the escheat of in‐
terest, though the court did not use the word “escheat.” Cwik
v. Giannoulias, 930 N.E.2d 990 (Ill. 2010). The attorney general
has misread the case. The interest in question was interest
the state had earned after taking custody of the plaintiff’s
property; the owner had not earned any interest on the
property when it was in his custody. Id. at 993–94. To give
the interest to the owner when he reclaimed the principal
would therefore have given him a windfall. The court dis‐
tinguished its earlier decision in Canel v. Topinka, 818 N.E.2d
311, 324–25 (Ill. 2004), which had held unequivocally that
Illinois’s version of the uniform act does not permit a taking
of interest if, as in the present case, the owner’s property was
earning interest (or, equivalently, dividends) when the state
took custody, and would have continued earning it had the
state not taken custody. (“At all times the shares of stock
remained the private property of plaintiff. Under the cir‐
cumstances, the dividends, as an incident of ownership,
were also private property.” Id. at 325.)
The attorney general’s reliance on Cwik is doubly odd,
because he interprets his own state’s version of the uniform
act differently. He assures us that “the state will not take un‐
conditional title, as opposed to custody, of unclaimed prop‐
erty.” See also Smyth v. Carter, 845 N.E.2d 219, 222 (Ind. App.
2006). He tells us that Indiana law does not permit the state
to escheat the Cerajeski account—which remember includes
interest as well as principal—until 2031 (the state took cus‐
tody of the account in 2006). That is why he rightly acknowl‐
edges that there is no issue of escheat in this litigation, that
No. 12‐3766 9
the state is merely a custodian of the account. But if it is
merely a custodian, on what basis can it confiscate a portion
of the account? Interest on interest‐bearing unclaimed prop‐
erty is unclaimed property too, and so the property owner
can claim it upon proving title, unless the property has been
escheated; and the state assures us that it has not been es‐
cheated because the law under which it was taken by the
state—the Unclaimed Property Act—is not an escheat stat‐
ute, or more precisely not an escheat statute except with re‐
gard to property unclaimed after 25 years.
There is no basis for the state’s confiscating the interest in
Cerajeski’s account. See Sogg v. Zurz, 905 N.E.2d 187, 192
(Ohio 2009). There is no articulated basis for fixing a 25‐year
term for escheat of principal and only 3 years for escheat of
interest—a period so short as to present a serious question
whether it is consistent with the requirement in the Four‐
teenth Amendment that property not be taken without due
process of law, implying adequate notice and opportunity to
contest. And “at least as to confiscatory regulations (as op‐
posed to those regulating the use of property), a State may
not sidestep the Takings Clause by disavowing traditional
property interests long recognized under state law.” Phillips
v. Washington Legal Foundation, 524 U.S. 156, 167 (1998); see
also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,
164 (1980); Schneider v. California Department of Corrections,
151 F.3d 1194, 1199–1200 (9th Cir. 1998); cf. Stop the Beach Re‐
nourishment, Inc. v. Florida Department of Environmental Protec‐
tion, 130 S. Ct. 2592, 2611–12 (2010). A state may not “trans‐
form private property into public property without compen‐
sation” merely “because it is held temporarily by the
[state].” Webb’s Fabulous Pharmacies, Inc. v. Beckwith, supra,
449 U.S. at 164. “In Phillips, the Supreme Court reaffirmed its
10 No. 12‐3766
commitment to the ‘interest follows principal’ rule as a con‐
stitutionally relevant aspect of Takings Clause jurispru‐
dence.” Schneider v. California Department of Corrections, supra,
151 F.3d at 1199. And a state may not escheat property with‐
out a judicial or administrative determination that the prop‐
erty has been abandoned or is otherwise subject to escheat.
E.g., Connecticut Mutual Life Ins. Co. v. Moore, 333 U.S. 541,
546–47 (1948); Anderson National Bank v. Luckett, 321 U.S. 233,
241–42, 245–46 (1944); State v. Otis Elevator Co., 95 A.2d 715,
720, 723–24 (N.J. 1953).
Everything required for an escheat is missing in this case.
We think we know what has led the state into error. It is
its misunderstanding of the concept of abandonment, a mis‐
understanding fostered by the misleading term “presumed
abandoned” in the Unclaimed Property Act. Abandonment
of property other than as a consequence of death without a
valid will or heirs means at common law a voluntary relin‐
quishment of ownership. If there is no owner, there is no one
to object to the state’s taking the property without compen‐
sation (there is no one to compensate). Now it is true that a
state’s power of escheat is not limited to abandoned proper‐
ty in the common law sense. The state can “condition the
permanent retention of [a] property right on the perfor‐
mance of reasonable conditions that indicate a present inten‐
tion to retain the interest,” Texaco, Inc. v. Short, supra, 454
U.S. at 526—and so the fact that “abandoned” in the Indiana
statute does not mean ”abandoned” in the common law
sense, but instead means abandoned or unclaimed, does not
necessarily limit the state’s power to escheat the property.
And in fact Indiana does escheat some property that is mere‐
ly unclaimed and not abandoned—but only after 25 years of
No. 12‐3766 11
its remaining unclaimed. Until then, Indiana law gives the
state no authority to escheat property. And so if before then
the state takes either principal or interest it must render just
compensation to the owner if as in this case the owner’s
identity is known. The state can charge a fee for custodian‐
ship and for searching for the owner, but the interest on the
principal in a bank account is not a fee for those services.
The perversity of the state’s position lies in the fact that
unclaimed property acts are primarily designed not to enrich
the state directly but to “return[] the unclaimed property to
the stream of commerce,” Louisiana Health Service & Indemni‐
ty Co. v. Tarver, 635 So.2d 1090, 1092 (La. 1994), and to pro‐
tect property owners against what’s known as “lucrative si‐
lence.” “[A] holding institution [such as a bank] for intangi‐
ble personal property [such as a bank account] can find do‐
ing nothing with its customers’ property and communi‐
cating as little as possible with its customers to be ‘lucrative
silence.’” Unclaimed Property Act Summary, Uniform Law
Commission, uniformlaws.org/ActSummary.aspx?title=
Unclaimed%20Property%20Act (visited Oct. 29, 2013). “The
practical reason behind the states’ action [in enforcing un‐
claimed property laws] is to prevent unclaimed personal
property being eventually appropriated by the present hold‐
er,” though realism requires recognition that unclaimed
property statutes “are also a means of raising [state] reve‐
nue.” Treasurer of New Jersey v. U.S. Department of Treasury,
684 F.3d 382, 390 (3d Cir. 2012), quoting John Orth, “Escheat:
Is the State the Last Heir?,” 13 Green Bag 2d 73, 78–79 (2009).
A holder of someone else’s property may be tempted to
try to reap the fruits of the property if the owner is inatten‐
tive to it or perhaps (as is probably true in this case—why
12 No. 12‐3766
else the guardianship?) incapable of keeping track of it.
We’re surprised that the attorney general of Indiana wants
to take those fruits from someone who may be incompetent
to safeguard his property.
The judgment is reversed and the case remanded for fur‐
ther proceedings consistent with this opinion. The plaintiff is
entitled to just compensation from the state when she files
her claim to Cerajeski’s account, but the amount of that just
compensation has yet to be determined. The plaintiff has al‐
so sought an injunction—why we don’t know; and injunc‐
tive relief may well be unavailable in this case. “Equitable
relief is not available to enjoin an alleged taking of private
property for a public use.” Ruckelshaus v. Monsanto Co., 467
U.S. 986, 1016 (1984). The availability and propriety of in‐
junctive relief are other issues to be resolved by the district
judge in the first instance.
REVERSED AND REMANDED.