holding that the State of Washington’s use of IOLTA to pay for legal services that were provided to the needy qualified as a “public use,” as required for exercise of the state’s authority to confiscate private property under the Takings Clause
How later courts described this case
- holding that the State of Washington’s use of IOLTA to pay for legal services that were provided to the needy qualified as a “public use,” as required for exercise of the state’s authority to confiscate private property under the Takings Clause
- holding that state IOLTA programs requiring earned interest be donated for legal services effected “taking” of property
- recognizing that administrative actions can possess “power to persuade, if lacking power to control”
- holding that petitioners were not entitled to any compensation for non-pecuniary consequences of a taking and that any pecuniary compensation must be measured by their net losses rather than the value of the public’s gain.
Written by the judges who cited it.
The opinion
*253 Justice Kennedy,
dissenting.
The principal dissenting opinion, authored by Justice Scalia, sets forth a precise, complete, and convincing case for rejecting the holding and analysis of the Court. I join the dissent in full.
It does seem appropriate to add this further observation. By mandating that the interest from these accounts serve causes the justices of the Washington Supreme Court prefer, the State not only takes property in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States but also grants to itself a monopoly which might then be used for the forced support of certain viewpoints. Had the State, with the help of Congress, not acted in violation of its constitutional responsibilities by taking for itself property which all concede to be that of the client, ante, at 235; Phillips v. Washington Legal Foundation, 524 U. S. 156, 172 (1998), the free market might have created various and diverse funds for pooling small interest amounts. These funds would have allowed the true owners of the property the option to express views and policies of their own choosing. Instead, as these programs stand today, the true owner cannot even opt out of the State’s monopoly.
The First Amendment consequences of the State’s action have not been addressed in this case, but the potential for a serious violation is there. See Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977); Keller v. State Bar of Cal., 496 U. S. 1 (1990). Today’s holding, then, is doubly unfortunate. One constitutional violation (the taking of property) likely will lead to another (compelled speech). These matters may have to come before the Court in due course.