Petition for Writ of Certiorari — Allison Cole-Kelly, Petitioner v. Malia M. Cohen, in Her Official Capacity as State Controller of California, et al.

No. 24In the

Supreme Court of the United States

ALISON COLE-KELLY,

Petitioner,

v.

STATE OF CALIFORNIA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Brian David

Law Offices

of Brian David

1329 North Dearborn #1

Chicago, Illinois 60610

Samuel Kornhauser

Counsel of Record

Law Offices of

Samuel Kornhauser

155 Jackson Street, Suite 1807

San Francisco, CA 94111

(415) 981-6281

samuel.kornhauser@gmail.com

Counsel for Petitioner

130328

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

The State of California, pursuant to its unclaimed

property laws, regularly seizes possession of owners’

unclaimed personal property, holds it in custody and

trust for the owners, uses it for the state’s purposes to

pay its obligations, without paying the owners of that

unclaimed property any compensation for its use of the

owners’ property pursuant to California Code of Civil

Procedure §§1540(c) and 1562. That is an unconstitutional

taking without just compensation in violation of the Fifth

Amendment’s Takings Clause made applicable to the

states pursuant to the Fourteenth Amendment.

The issues in this case are:

1: May a property owner whose property is taken

and used by the state without compensation, sue the

state directly for just compensation under the Fifth

Amendment’s Takings Clause where the state has not

affirmatively provided the property owner with a cause of

action and in fact, has affirmatively precluded any cause

of action to recover compensation for its taking and use

of the owner’s property?

2: Does Eleventh Amendment sovereign immunity

bar a property owner’s self-executing Fifth Amendment

right to just compensation for the state’s taking of his/

her property?

ii

LIST OF PARTIES

Petitioner: The petitioner is:

ALISON COLE-KELLY, the Plaintiff in the Alison

Cole-Kelly v State of California, et. al. Northern District

of California Case Number 22-cv-02841-HSG and the

appellant in the consolidated for decision Ninth Circuit

Court of Appeals Case of Alison Cole-Kelly v. The State

of California et al. Case Number 23-15413

Respondents are the STATE OF CALIFORNIA, THE

CONTROLLER OF THE STATE OF CALIFORNIA

AND BETTY YEE, the former Controller of the State

of California, who were the defendants in the Cole-Kelly

v. The State of California et. al., Case Number 23-15413

iii

RELATED PRECEEDINGS

Alison Cole-Kelley v. Betty T. Yee, et al. in the United

States Court of Appeals for the Ninth Circuit Case

Number 23-15413. Judgment entered on March 14, 2024.

Alexander Cote v. Office of the Controller of the State

of California, et al. in the United States Court of Appeals

for the Ninth Circuit Case Number 23-15375. Judgment

entered on March 14, 2024.

Jennifer Sykes v. Office of the Controller of the State

of California, et al. in the United States Court of Appeals

for the Ninth Circuit Case Number 23-15377. Judgment

entered on March 14, 2024.

Alison Cole-Kelley vs. Office of Controller of the State

of California, et al. in the United States District Court

for the Northern District of California Case Number

4:22-cv- 02841-HSG. Consolidated decision entered on

March 13, 2023.

Alexander Cote vs. Office of Controller of the State of

California, et al. in the United States District Court for

the Northern District of California Case Number 4:22cv- 04056-HSG. Consolidated decision entered on March

13, 2023.

Jenifer Sykes v. Office of Controller of the State of

California, et al. in the United States District Court for

the Northern District of California Case Number 4:22cv- 04133-HSG. Consolidated decision entered on March

13, 2023.

iv

There is a pending Petition for Writ of Certiorari in

Gerlach v. Rokita, U. S. Supreme Court Case No. 24- 21,

which seeks review, and which raises a similar issue to an

issue raised here, as to whether the Eleventh Amendment

bars a Fifth Amendment just compensation claim.

Alexander Cote and Jennifer Sykes have also filed

a petition for writ of certiorari with this Court from the

same Ninth Circuit March 14, 2024 consolidated opinion

(Appx. A hereto) in Cole-Kelly and Cote and Sykes.

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

RELATED PRECEEDINGS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

CITATIONS TO OFFICIAL AND UNOFFICIAL

OPINIONS AND ORDERS IN THIS CASE . . . . . 1

BASIS FOR THIS COURT’S JURISDICTION . . . . . . 2

CONSTIT U TIONA L PROV ISIONS A ND

STATUTES INVOLVED . . . . . . . . . . . . . . . . . . . . . . 2

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 2

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PERTINENT UNDISPUTED FACTS . . . . . . . . . . . . . 6

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . 10

vi

Table of Contents

Page

REASONS WHY CERTIORARI SHOULD BE

GRANTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

I.

C A L I F OR N I A C ODE OF C I V I L

PROCEDURE §§1540(c) AND 1562 ARE

UNCONSTITUTIONAL ON THEIR FACE

AND AS ADMITTEDLY APPLIED . . . . . . . . 23

This case presents issues of exceptional

importance to the States’ unclaimed

property system . . . . . . . . . . . . . . . . . . . . . . . . . . 29

This case is a suitable vehicle . . . . . . . . . . . . . . . 31

The Ninth Circuit’s decision contradicts

this Court’s Precedent and lacks any

constraining principle . . . . . . . . . . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

vii

TABLE OF APPENDICES

Page

APPENDIX A — MEMORANDUM OPINION OF

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT, FILED

MARCH 14, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDIX B — ORDER GR A N TING

DEFENDANTS’ MOTIONS TO DISMISS IN

THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

CALIFORNIA, FILED MARCH 13, 2023 . . . . . . 7a

APPENDIX C — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA,

FILED MARCH 13, 2023 . . . . . . . . . . . . . . . . . . . . 21a

APPENDIX D — ORDER OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E N I N T H C I R C U I T, F I L ED

APRIL 23, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23a

A P P E N DI X E — R E L E VA N T

CONSTITUTIONAL AND STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26a

viii

TABLE OF CITED AUTHORITIES

Page

CASES

Albert v. Franchot,

No. 1-22-CV-01558-JRR, 2023 WL 4058986

(D. Md. June 16, 2023), on reconsideration

in par t, No. 1:22 - CV- 0155 8 -JRR , 2 02 4

WL 308937 (D. Md. Jan. 26, 2024) . . . . . . . . . . . . . . 16

Albert v. Lierman,

appeal docketed, No. 2 4 -1170 (4th Ci r.

Feb. 23, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Brown v. Legal Foundation of Washington,

538 U. S. 216 (2003) . . . . . . . . . . . . . . . . . . . . . 14, 21, 25

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) . . . . . . . . . . . . . . . 5, 9, 14, 32, 34

Cerajeski v. Zoeller,

735 F.3d 577 (7th Cir. 2013) . . . . . . . 3, 9, 12, 13, 21, 26

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

166 U.S. 226 (1897) . . . . . . . . . . . . . . . . . . . . . 20, 22, 30

Citadel Corp. v. Puerto Rico Highway Auth.,

695 F.2d 31 (1st Cir. 1982) . . . . . . . . . . . . . . . . . . . . . 23

Clark v. Strayhorn,

184 S.W.3d 906 (Tex. App. Ct. 2006) . . . . . . . . . . 17, 18

ix

Cited Authorities

Page

Community Housing Improvement Program v.

City of New York,

492 F. Supp. 3d 33 (E.D.N.Y. 2020) . . . . . . . . . . . . . . 19

Dani v. Miller,

374 P.3d 779 (Okla. 2016) . . . . . . . . . . . . . . . . . . . 17, 18

Devillier v. Texas,

601 U.S. 285 (2024) . . . . . 5, 9, 12, 13, 19, 20, 31, 33, 35

Dillow v. Treasurer of the Commonwealth of

Pennsylvania,

appeal docketed, No. 24-2004 (3d Cir. June 4,

2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 16, 17

Edelman v. Jordan,

415 U.S. 651 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

EEE Minerals, LLC v. North Dakota,

81 F.4th 809 (8th CIr. 2023) . . . . . . . . . . . . . . . . . . . . 23

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County,

CA 482 U.S. 304 (1987) . . . . . . . 9, 13, 20, 22, 32, 33, 34

Gerlach v. Rokita

95 F.3d. 493, 499 (7th Cir.2024) . . . . . 18, 19, 20, 21, 34

Goldberg v. Frerichs,

912 F.3d 1009 (7th Cir. 2019) . . . . . . . . 3, 13, 21, 23, 26

x

Cited Authorities

Page

Gunter v. Atlantic Coast Line,

200 U.S. 273 (1906) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Hooks v. Kennedy,

961 So. 2d 425 (La. Ct. App. 2007) . . . . . . . . . . . 17, 18

Jacobs v. United States,

290 U.S. 13 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Knick v. Township of Scott, Pennsylvania,

139 S. Ct. 2162 (2019) . . . . . . . . 9, 13, 14, 19, 20, 33, 34

Kolton v. Frerichs,

869 F.3d 532 (7th Cir. 2017) . . . . . . . . . . . . 3, 13, 21, 26

Ladd v. Marchbanks,

971 F.3d 574 (6th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 23

Light v. Davis, et al.,

appeal docketed, No. 23-2785 (3d Cir. Sept. 28,

2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17

Light v. Davis, et al.,

No. No. 22-cv-611-CJB, 2023 WL 6295387

(D. Del. Sept. 27, 2023) . . . . . . . . . . . . . . . . . . . . . . . . 15

Liu v. Securities and Exchange Commission,

140 S. Ct. 1936 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 28

xi

Cited Authorities

Page

Loretto v.

Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 32

Maron v. Patronis,

appeal docketed, No. 23-13178 (11th Cir.

Sept. 28, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Maron, et al. v. Patronis,

No. 4:22CV255-RH-MAF, 2023 WL 11891258

(N.D. Fla. Sept. 5, 2023) . . . . . . . . . . . . . . . . . . . . 16, 17

McKenzie v. Fla. Dept. of Fin. Servs.,

No. 04 CA 755 (Fla. Cir. Ct. Apr. 27, 2005) . . . . . . . 17

Moore v. Harper,

2023 WL 4187750 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Murr v. Wisconsin,

582 U.S. 383 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Phillips v. Washington Legal Foundation,

524 U. S. 156 (1998) . . . . . . . . . . . . . . . . . . 14, 21, 25, 26

Simon v. Weissmann,

301 F. Appx. 107, 112 (3d Cir. 2008) . . . . . . . 15, 16, 17

xii

Cited Authorities

Page

Sogg v. Zurz,

121 Ohio St. 3d 449 (2009) . . . . . . . . . . . . . . . 18, 21, 26

Suever v. Connell,

579 F.3d 1047 (9th Cir. 2009) . . . . . . . . . . . 3, 11, 13, 19,

21, 23, 28, 32

Taylor v. Westly,

402 F.3d 924 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . 9, 25

Tahoe-Sierra Preservation Council,

535 U.S. 302 (2002) . . . . . . . . . . . . . . . . . . . . 5, 9, 22, 31

Taylor v. Yee,

136 S. Ct. 929 (2016) . . . . . . . . . . . . . . . . . . 9, 23, 25, 26

Texaco, Inc. v. Short,

454 U.S. 516 (1982) . . . . . . . . . . . . . . . . . . . . . 17, 30, 32

Turnacliff v. Wesley,

546 F.3d 1113 (9th Cir. 2008) . . . . . 3, 11, 13, 17, 28, 32

United States v. Dow,

357 U.S. 17 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

United States v. General Motors Corp.,

323 U.S. 373 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Great Falls Mfg. Co.,

112 U.S. 645 (1884) . . . . . . . . . . . . . . . . . . . . . . . . 20, 22

xiii

Cited Authorities

Page

United States v. Petty Motor Co.,

327 U.S. 372 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Klamath & Moadoc Tribes,

304 U.S. 119 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Wall v. City of Whittier,

2019 WL 8810391 (C. D. Cal. 2019) . . . . . . . . . . . . . . 24

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980) . . . . . . . . . . . . . . . . . . . 9, 14, 25, 32

Zito v. N.C. Coastal Res. Comm’n,

8 F.4th 281 (4th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . .23

STATUTES AND OTHER AUTHORITIES

U.S. Const. Amend IV . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

U.S. Const. Amend V . . . . . . . 2, 3, 4, 5, 6, 8, 10, 11, 12, 13,

14, 15, 18, 19, 20, 21, 22, 26, 33, 34, 35

U.S. Const. Amend XI . . . . . . . 2, 3, 4, 6, 10, 11, 18, 19, 20,

21, 22, 24, 28, 29, 34, 35

U.S. Const. Amend XIV . . . . . . . . . . . . . . . . . . . . 8, 21, 24

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

xiv

Cited Authorities

Page

C.C.P. § 1300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 25

C.C.P. § 1313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

C.C.P. § 1318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C.C.P. § 1361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

C.C.P. § 1400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C.C.P. § 1500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 25

C.C.P. § 1501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 32

C.C.P. § 1540 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C.C.P. § 1540(c) . . . . . . 4, 7, 8, 10, 11, 13, 21, 22, 23, 24, 26

C.C.P. § 1562 . . . . . . . . . . . . . . . 8, 10, 13, 21, 22, 23, 24, 26

C.C.P. § 1564 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Gov’t Code § 13470 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

https://unclaimed.org/who-we-are/ . . . . . . . . . . . . . 28, 31

1

CITATIONS TO OFFICIAL AND UNOFFICIAL

OPINIONS AND ORDERS IN THIS CASE

Alison Cole-Kelly v. State of California et al., District

Court Decision, 2023 WL 24080749 (March 13, 2023)

Alison Cole-Kelly v. State of California et al., Ninth

Circuit Decision 2024 WL 1108546 (March 14, 2024)

Alison Cole-Kelly v. State of California et. al, Ninth

Circuit, Case No. 23-15413, order denying rehearing and

rehearing en banc (April 23, 2024)

Alexander Cote v. State of California et al., District

Court Decision, 2023 WL 24080749 (March 13, 2023)

Alexander Cote v. State of California et al., Ninth

Circuit Decision 2024 WL 1108546 (March 14, 2024)

Jennifer Sykes v. State of California et al., District

Court Decision, 2023 WL 24080749 (March 13, 2023)

Jennifer Sykes v. State of California et al., Ninth

Circuit Decision 2024 WL 1108546 (March 14, 2024)

Supreme Court Order granting Jennifer Sykes and

Alexander Cote extension of time to August 12, 2024 to

file petition for Writ of Certiorari (23 A 1085)

Supreme Court Order granting Alison Cole-Kelley

extension of time to August 12, 2024 to file a petition for

writ of certiorari (July 23, 2024) (24 A 67)

2

BASIS FOR THIS COURT’S JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§1254(1) from the Ninth Circuit’s March 14, 2024 Judgment

and April 23, 2024 denial of petition for rehearing and

rehearing en banc.

Counsel for Cole-Kelly petitioned for and on July 23,

2024, was granted an extension of time to August 12,

2024 to file her petition for writ of certiorari from the

consolidated decision of the Ninth Circuit in Cole-Kelly

v. State of California et al.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The constitutional provisions and statues involved are

set out in the appendix.

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Alison Cole-Kelly, hereby petitions for a

writ of certiorari to review the Ninth Circuit consolidated

decision holding that Cole-Kelly, Sykes, and Cote and

California owners of unclaimed property held in custody

for them by the State of California) do not have a Fifth

Amendment claim for the State’s taking of their unclaimed

personal property without just compensation, and that

any such claims are barred by the Eleventh Amendment.

INTRODUCTION

California holds unclaimed private personal property

– typically stocks, bonds, uncashed checks, insurance

3

benefits, and dormant accounts held by banks and other

financial institutions – that it uses for public purposes until

the principal is returned to the property owners. When

the unclaimed property, or the cash proceeds therefrom, is

returned to the owners, California’s Unclaimed Property

Law (“UPL”) prohibits the payment of interest to the

owners. (California Code of Civil Procedure (“C.C.P.”)

§1540(c)) Only the principal itself is returned, and no just

compensation is paid to the property owners. Forty-Four

other states have a similar unclaimed property law that

likewise prohibits (or makes no provision for) the payment

of just compensation to the owners of seized, unclaimed

property used for public purposes.

In the consolidated decision below, relying on its

decisions in Suever v. Connell, 579 F.3d 1047 (9th Cir. 2009)

and Turnacliff v. Wesley, 546 F.3d 1113 (9th Cir. 2008), the

Ninth Circuit held that California’s public use of unclaimed

private property, which it holds in custody and trust for

the owners, is not a taking that requires just compensation

under the Takings Clause of the Fifth Amendment, and

that even if it is a takings claim, it is barred by the state’s

Eleventh Amendment sovereign immunity.

The Seventh Circuit has reached the opposite

conclusion, holding that the Takings Clause requires

States to pay just compensation to the owners of unclaimed

property for the time their property is in the State’s

possession and used for public purposes. See Kolton v.

Frerichs, 869 F.3d 532, 533 (7th Cir. 2017); Cerajeski v.

Zoeller, 735 F.3d 577, 581-582 (7th Cir. 2013); and Goldberg

v. Frerichs, 912 F.3d 1009, 1010 (7th Cir. 2019). The result

is a growing inter-circuit split that already has produced

divergent decisions by district courts in two other circuits

as well as conflicting decisions in various State courts.

4

The constitutional questions presented here are

indisputably important. The Takings Clause plays a crucial

role in balancing the state’s need to use private property

for public purposes with the property owner’s right to just

compensation for the state’s taking and use of her property

. It strikes an important balance between the States’

power to pursue public works and the constitutional rights

of private property owners to just compensation for the

state’s taking of their property. The Takings Clause

prevents the government from abusing its authority by

taking property without just compensation. However,

there is a tension between the Fifth Amendment selfexecuting protection of property owners’ right to just

compensation for the states’ taking and use of their

property, and the Eleventh Amendment sovereign

immunity, which purportedly bars property owners from

suing the state to recover the just compensation the Fifth

Amendment provides for them.

The Ninth Circuit’s decision that the Takings Clause

does not require just compensation even though the

unclaimed private property is custodied and held in

trust by the State for the owners and is admittedly used

for public purposes, because the State has sovereign

immunity for its taking of the owners’ property without

compensation, leaves the States uncertain about whether

they must pay just compensation to the property owners.

The Ninth Circuit’s decision risks exempting not just

unclaimed property in California, but in nearly every

State that has enacted similar unclaimed property

statutes. Indeed, the Ninth Circuit case here has most

recently been held as authority to deny just compensation

under Pennsylvania unclaimed property law. Dillow v.

Garity, 2024 WL 1975458 at *4

5

This Court repeatedly has held, most recently in Cedar

Point Nursery, that “a physical appropriation is a taking

whether it is permanent or temporary; the duration of the

appropriation bears only on the amount of compensation

due.” 594 U.S. at 140 (citing Dow, 357 U.S. 17, 26 (1958)).

See also Tahoe-Sierra Preservation Council, 535 U.S.

at 322; Loretto, 458 U.S. at 436-37. The Ninth Circuit’s

decision upholding California’s UPL is squarely at odds,

not only with the Seventh Circuit, but with this Court’s

prior holdings.

This case is a suitable vehicle for resolving the

important issue of whether a property owner has a

self-enforcing direct cause of action under the just

compensation clause of the Fifth Amendment against

the state. That is the issue this Court initially took up

in Devillier v State of Texas, 601 U.S. 285 (2024) but left

unresolved for another case, like this one, where there is

no other cause of action to redress the state’s failure to

pay just compensation for its taking. Unlike Devillier, in

this case, California and most other states do not provide

a cause of action and in fact, specifically preclude such a

claim. A direct Fifth Amendment takings claim is the only

avenue for redress.

There is no need for the Court to delay review of this

case. The petition presents legal questions able to be

resolved without awaiting further factual development.

Forty-Four states explicitly bar payment of interest or

just compensation to the property owners. Whether the

Takings Clause requires California and the other States

to pay just compensation to the owners of unclaimed

property is not dependent on any particular facts and

will not vary materially from State to State. Therefore,

6

this case offers the Court an opportunity to cleanly and

definitively resolve the circuit conflict that is of vital

importance.

Likewise, this case presents an opportunity to resolve

the tension between property owners’ Fifth Amendment

guaranteed right to just compensation, and the Eleventh

Amendment’s provision of immunity to the states from

paying that just compensation.

STATEMENT

PERTINENT UNDISPUTED FACTS

The State of California has enacted Unclaimed

Property Laws (the “UPL”) to deal with property nonpermanently escheated to the State of California. (C.C.P.

§§1300 et seq., C.C.P. §§1400 et seq., C.C.P. §§1500 et seq.)

The State of California has created an “Unclaimed

Property Fund” (“UPF”) in the State Treasury. All money

[except “permanently escheated” money, i.e., money that

has not been claimed by the Owner after the statutory

period (5 years) is deposited in the UPF.

All interest received, or other income derived from

the mandated investment (pursuant to Government Code

§13470), in interest bearing government bonds of monies in

the UPF, is deposited in the General Fund. (C.C.P. §1318)

While Controller holds the owner’s property in

custody, pursuant to the UPL, Controller converts the

owner’s property into cash and uses the property for

public purposes, including by investing the property and

7

earning interest, and otherwise using it to fund the State

of California’s operations and programs. (COLE-KELLY

ER-104 at ¶50)

The care and custody of property delivered to the

Treasurer or Controller is assumed by the State for the

benefit of those entitled thereto, i.e., the owners. (C.C.P.

§1361)

Property received by the State as unclaimed property

shall not permanently escheat to the State. It is in the

interest of the Legislature of the State of California that

property Owners be reunited with their property. (C.C.P.

§1501.5(a)–(c))

“Owner” means the person who had legal right to the

property before its escheatment. (C.C.P. §1540(d))

Any person who claims to have been the owner of

property paid or delivered to the Controller may file

a claim to the property, or proceeds from the sale of

the property, with the Controller (C.C.P. §1540(a)), but

“interest” shall not be payable on any claim paid to the

Owner. (C.C.P. §1540(c))

Prior to August 11, 2003, the Controller paid the owner

of the non-permanently escheated unclaimed personal

property interest on said property when it returned said

property to the owner. (C.C.P. §1540(c))

Section 1540(c) was amended in 2003 to provide that no

interest be paid to the owners of unclaimed property. The

Controller ceased paying interest on unclaimed property

on August 11, 2003 (C.C.P. §1540(c)) in order to make up

8

some of the State’s budget shortfall (California Spending

Plan 2003-2004, p. 1) (COLE-KELLY ER-42, COLEKELLY ER-47 at subparagraph (3), COLE-KELLY ER49 at “COMMENTS” – 50).

Controller holds Cole-Kelly’s property ($4,000) in

custody for her. (C. C. P. §1361)

Under C. C. P. §1540(c), the Controller is required not

to pay any just compensation to the owners for the State’s

use of that property.

Accordingly, C.C.P. §§1540(c) and 1562 effectively

provide the State of California with an interest-free use

of unclaimed private property funds without providing

any just compensation to the owners.

The State of California currently holds more than $13

Billion in unclaimed property funds and receives over $200

Million in income annually on said unclaimed property

funds and uses that money to fund State of California

obligations. The State of California otherwise pays market

rates to borrow money.

In this action, Petitioner seeks a declaration that

C.C.P. §§1540(c) and 1562 - which provide for the State

of California’s confiscation of the interest and other

earnings on unclaimed property and its beneficial use

of the property – are unconstitutional on their face and

as applied, and for just compensation as a taking for

which she and the Class are entitled under the Fifth and

Fourteenth Amendments.

9

In fact, the entire California UPL is unconstitutional

because the State acquires possession of owners’ property

on the unsupported presumption that the property has

been “abandoned” with no proof of the owner’s intent to

abandon (or even knowledge that it has been abandoned)

without a fair, prior opportunity to be heard. Taylor v.

Westly 402 F.3d 924, 926-928 (9th Cir. 2005); Cerajeski

v. Zoeller 735 F.3d 577, 580-581 (7th Cir. 2013); Taylor v.

Yee 136 S. Ct. 929, 930 (2016)

The Takings Clause mandates that “just compensation”

must be paid to the owners of private property whenever

their property is put to public use. Cedar Point Nursery v.

Hassid, 141 S. Ct. 2063, 2074 (2021); Murr v. Wisconsin,

582 U.S. 383, 392 (2017); Webb’s Fabulous Pharmacies,

Inc. v. Beckwith, 449 U.S. 155, 164 (1980). This requirement

applies whether the taking is permanent or only temporary.

See Cedar Point Nursery, 141 S. Ct. at 2074 (citing United

States v. Dow, 357 U.S. 17, 26 (1958)); Tahoe-Sierra, 535

U.S. at 322; Webb’s Fabulous Pharmacies, 449 U.S. at

162-65; United States v. Petty Motor Co., 327 U.S. 372,

66 S. Ct. 596, 90 L. Ed. 729 (1946); and General Motors

Corp., 323 U.S. 373, 65 S. Ct. 357. The Takings Clause

protects the time value of money or property as much as

it protects the money or property itself.

The Court has held that “A property owner acquires

an irrevocable right to just compensation immediately

upon a taking” “[b]ecause of the self-executing character

of the Takings Clause with respect to compensation.”

(emphasis added) Devillier v. State of Texas 601 U.S. 285,

291 (2024) citing Knick v. Township of Scott 588 U.S. 180,

192 quoting First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles, 482 U.S. 304, 315.

10

In tension with unclaimed property owners’ Fifth

Amendment right to just compensation for the state’s

taking of their property is the state’s claimed Eleventh

Amendment sovereign immunity protection against being

sued to pay such just compensation, which California and

most other states assert to prevent paying the property

owners any compensation for the state’s takings.

PROCEDURAL HISTORY

On May 13, 2022, Cole Kelly filed her complaint in

this action, on her own behalf and on behalf of a class

of California owners of unclaimed personal property

who had not received interest or the value of California’s

use of that unclaimed personal property, seeking

compensation for California’s taking and use for public

purposes of her and the putative class’s unclaimed

personal property, in violation of the Takings Clause of

the Fifth Amendment Cole-Kelly also seeks declaratory

and injunctive relief, declaring that California’s unclaimed

property laws, particularly C. C. P. §§1540(c) and 1562, are

unconstitutional. She also seeks an injunction enjoining

California and Controller from continuing to take and use

unclaimed personal property without compensating the

owners for violations of 42 U. S. C. §1983 (COLE-KELLY

ER-107 – COLE-KELLY ER-110)

Two other cases (Jennifer Sykes v. Office of the

Controller of the State of California and Alexander Cote

v. Office of the Controller of the State of California) were

subsequently filed by two separate plaintiffs alleging

similar claims. Those two cases were ordered related to

Cole-Kelly’s case on July 25th, 2022.

11

On July 19, 2022, Cole-Kelly moved for class

certification of her claims. On July 28, 2022, the District

Court vacated the briefing and hearing schedule on ColeKelly’s class certification motion, in light of the request

to continue the class certification until after Controller’s

motion to dismiss was decided.

On August 5, 2022, Controller moved, pursuant to F.

R. Civ. P. 12(b)(6), to dismiss Cole-Kelley’s case and also,

to dismiss the related cases.

On March 13, 2023 the District Court granted

Controller’s motion to dismiss Cole-Kelly’s and the related

cases on the grounds that the UPL is constitutional (Appx.

B, pp. 17a-18a) citing Suever v. Connell 579 F. 3d 1047,

1056-1059 (9th Cir. 2009) and Turnacliff v. Wesley 546

F. 3d 1113 , 1115 (9th Cir. 2008), and that Controller and

California have Eleventh Amendment immunity (Appx. B,

pp. 14a-17a) citing Suever v. Connell 579 F. 3d at 1059 and

Turnacliff v. Wesley 546 F. 3d at 1115, and that under the

law of the circuit doctrine, Petitioner’s claims were barred

by the Suever and Turnacliff cases. (Appx. B, pp. 17a-18a)

The district court also denied as moot Cole-Kelly’s class

certification and summary judgment motions, based on

its dismissal Order and Judgment. Id.

Cole-Kelly, Sykes, and Cote timely appealed.

On March 14, 2024, the Ninth Circuit panel in this

case, in a consolidated decision, affirmed the district

court’s dismissal of their cases on the grounds that C.C.P.

§1540(c) is constitutional and bars her Fifth Amendment

takings without just compensation claim, and that any such

Fifth Amendment claim is further barred by Eleventh

12

Amendment sovereign immunity. (Appx. A, pp. 4a-5a) The

Court further declined to follow Seventh Circuit precedent

from Cerajeski, Knowlton and Goldberg. (Appx. A, p. 5a)

On April 23, 2024 the Ninth Circuit denied Petitioner

Cole-Kelly’s timely filed petitions for rehearing and

rehearing en banc. (Appx. D, p. 25a)

Petitioner Cole-Kelly timely filed her Petition for

Writ of Certiorari on July 22, 2024 but withdrew it after

this Court, on July 23, 2024, granted her an extension to

August 12, 2024 to file a joint petition for writ of certiorari.

REASONS WHY CERTIORARI

SHOULD BE GRANTED

1. This Court should grant certiorari to determine

the issue on which it granted certiorari but left open in

Devillier v. Texas 601 U.S. 285, 292 (2024) as to whether

an owner of the property taken by the government has

a direct Fifth Amendment claim for just compensation

where, as here, “a property owner had no cause of action

to vindicate [her] rights under the Takings Clause.”

In the Devillier case, this Court was presented with

the issue of whether a person with a Fifth Amendment

just compensation claim can assert that claim in federal

court directly under the Fifth Amendment when the claim

can also be asserted under state law. This Court deferred

deciding that issue because Devillier had a remedy under

Texas state inverse-condemnation law.

This case presents the Court with the perfect basis

to now decide the issue of whether an owner with a Fifth

13

Amendment takings claim for just compensation can

sue the state directly under the Fifth Amendment for

monetary just compensation where the owner has no other

state or federal statutory basis to do so, and where the

state’s unclaimed property law, C. C. P. §§1540(c) and 1562,

specifically and unconstitutionally prevents the state from

paying the property owner just compensation (interest)

for the state’s use of her unclaimed property.

2. Cole-Kelly’s Petition for Writ of Certiorari should

also be granted so the Court can resolve and correct the

conflicts between the Ninth Circuit’s decisions in this case

and in Suever v. Connell 579 F. 3d 1047, 1056-57, and 1059

(9th Cir. 2009) and Turnacliff v. Wesley 546 F. 3d 1113 ,

1119 (9th Cir. 2008) holding that California’s unclaimed

property law (C.C.P. §§1540(c) and 1562) prohibiting the

state from paying just compensation (interest) to the

owners of the property it uses, is constitutional, and the

Seventh Circuit’s decisions in Cerajeski v. Zoeller 735 F.

3d 577, 582 (7th Cir. 2013) and Kolton v. Frerichs 869 F.

3d 532, 535 (7th Cir. 2019) and Goldberg v. Frerichs 912

F. 3d 1009, 1010-1011 (7th Cir. 2019) holding that payment

of just compensation (interest) is required for the states’

taking use of owners’ unclaimed property.

These cases present an important issue regarding the

meaning and application of the Takings Clause of the Fifth

Amendment of the United States Constitution. This Court

has held that a property owner acquires an “irrevocable”

right to just compensation “immediately” upon a taking

because of the self-executing character of the Takings

Clause with respect to compensation. Devillier v. State

of Texas supra, 601 U.S. 285, 291; Knicks supra, 588 U.S.

at 192; First English supra, 472 U.S. at 315.

14

The Takings Clause mandates that “just compensation”

be paid to the owners of private property whenever their

property is put to public use. Cedar Point Nursery v.

Hassid 141 S. Ct. 2063, 2074 (2021); Murr v. Wisconsin

582 U.S. 383, 392 (2017); Webb’s Fabulous Pharmacies,

Inc. v. Beckwith 449 U.S. 164 (1980). Just compensation

is required whether the public use of private property

is permanent or merely temporary. A taking occurs

as soon as the property is used by the State for public

purposes without paying for it. Knick v. Township of Scott,

Pennsylvania 139 S. Ct. 2162, 2170 (2019).

The Ninth Circuit’s decision also conflicts with the

Cedar Point Nursery v. Hassid 141 S. Ct. 2063, 2074 (2021)

holding that a property owner who establishes that he/she

has had his/her property taken by the state without just

(any) compensation has a per se Fifth Amendment claim

against the state for money, including retrospective harm

for the period the state deprived the owner of possession/

use of his/her property.

In reaching its decisions, the Seventh Circuit relied

upon this Court’s precedent that “the Takings Clause

protects the time value of money just as much as it does

money itself”. Id (citing Brown v. Legal Foundation

of Washington 538 U.S. 216, 235 (2003); Phillips v.

Washington Legal Foundation 524 U.S. 156, 165-72

(1998); and Webb’s Fabulous Pharmacies, Inc. 449 U.S.

at 162-65).

Both the Seventh and Ninth Circuits have considered

whether a state’s public use of unclaimed private property

is a taking that requires just compensation under the

Takings Clause of the Fifth Amendment. Although the

15

unclaimed property laws before the courts were virtually

identical, they reached different conclusions. The Seventh

Circuit held that the Takings Clause requires a state

to pay just compensation to the owners when it uses

unclaimed private property for public purposes while in

its possession. The Ninth Circuit held that California’s

virtually identical law, which prohibits the payment of

interest and does not provide for the payment of just

compensation on unclaimed property it uses for public

purposes, does not violate the Takings Clause. The result

is a clear and irreconcilable circuit split that only this

Court can resolve.

Absent this Court’s intervention, this circuit split on

whether the Fifth Amendment Takings Clause applies

to unclaimed personal property will only deepen. For

example, the District of Delaware recently sided with

the Ninth Circuit in upholding Delaware’s unclaimed

property law against an identical Fifth Amendment

challenge. See Light v. Davis, et al., No. No. 22-cv611-CJB, 2023 WL 6295387 (D. Del. Sept. 27, 2023)

. Delaware’s law, like the California UPL and the former

unconstitutional laws in Indiana and Illinois, requires

unclaimed property to be used for public purposes while

in the State’s possession, but prohibits the Delaware State

Escheator from paying interest or any other compensation

when the unclaimed property is returned to its owners. Light

is currently on appeal in the Third Circuit. Light v. Davis,

et al., appeal docketed, No. 23-2785 (3d Cir. Sept. 28, 2023)

. That appeal may not succeed because the Third Circuit

previously held in Simon v. Weissmann, 301 F. Appx. 107,

112 (3d Cir. 2008), that a state does not “take” the interest

earned on unclaimed property while in its possession

within the meaning of the Takings Clause. In any event,

16

the Third Circuit can only take sides in the split; it cannot

resolve it.

A second appeal also is pending in the Third

Circuit. Dillow v. Treasurer of the Commonwealth of

Pennsylvania, appeal docketed, No. 24-2004 (3d Cir.

June 4, 2024). Citing Simon, the district court dismissed

the plaintiff’s claim that Pennsylvania’s Disposition of

Abandoned and Unclaimed Property Act, which does

not permit interest or just compensation to be paid to

the owners of unclaimed property, violates the Takings

Clause.

In Albert v. Franchot, No. 1-22-CV-01558-JRR, 2023

WL 4058986 (D. Md. June 16, 2023), on reconsideration

in part, No. 1:22-CV-01558-JRR, 2024 WL 308937 (D.

Md. Jan. 26, 2024), the District of Maryland recently

reached the same conclusion as the Seventh Circuit but

differed from the Ninth Circuit’s holding in this case and

the District of Delaware’s holding in Light. Albert upheld

an unclaimed property owner’s claim that he is owed just

compensation for Maryland’s public use of his private

property. Prior to 2004, Maryland had an unclaimed

property statute that provided payment to the owner

of interest for the state’s use of unclaimed property.

Maryland amended its unclaimed property statute in

2004, to delete the provision for payment of interest. The

district court’s decision in Albert, which conflicts with the

Ninth Circuit’s decision here, is currently on appeal in the

Fourth Circuit. Albert v. Lierman, appeal docketed, No.

24-1170 (4th Cir. Feb. 23, 2024).

In Maron, et al. v. Patronis, No. 4:22CV255-RHMAF, 2023 WL 11891258, *4 (N.D. Fla. Sept. 5, 2023),

17

the district court upheld the constitutionality of Florida’s

Disposition of Unclaimed Property Act. The Florida

statute permits owners of unclaimed property to recover

only the principal; it does not allow interest or just

compensation to be paid “for the State’s retention or

use of the property prior to its return.” Id. at *1. Citing

this Court’s decision in Texaco, Inc. v. Short, 454 U.S.

516 (1982), Simon, and Turnacliff, as well as state court

decisions in Dani v. Miller, 374 P.3d 779, 793-94 (Okla.

2016), Hooks v. Kennedy, 961 So. 2d 425, 432 (La. Ct. App.

2007), Clark v. Strayhorn, 184 S.W.3d 906, 911-15 (Tex.

App. Ct. 2006), and McKenzie v. Fla. Dept. of Fin. Servs.,

No. 04 CA 755 (Fla. Cir. Ct. Apr. 27, 2005), the district

court held that “the constitutional issue is controlled by

who technically holds title, rather than by substantive

considerations.” Id.

The district court’s decision in Maron is currently on

appeal in the Eleventh Circuit. Maron v. Patronis, appeal

docketed, No. 23-13178 (11th Cir. Sept. 28, 2023).

The appeals in Light, Dillow, Albert, and Maron,

however, cannot resolve the circuit split. They can only

add to it. The lower court decisions have not varied based

upon any factual differences or any minor differences in

the statutes. The lower courts have reached different

results based on different understandings of whether the

Takings Clause protects unclaimed property and applies

to temporary takings.

Two circuits, the Seventh and Ninth Circuits, each

have reached opposite conclusions on two occasions. The

district courts are following their respective circuits. The

pending appeals in the Third and Fourth Circuits may add

18

weight to one side of the circuit split or the other, but they

will not resolve the split. There is no reason for this Court

to await development in the lower courts before resolving

this already entrenched split over these fundamental

constitutional questions.

State courts decisions add to the conf lict. For

example, in Sogg v. Zurz, 121 Ohio St. 3d 449, 452-53

(Ohio 2009), the Ohio Supreme Court upheld a claim that

Ohio’s unclaimed property law violated the analogue

to the Fifth Amendment’s Takings Clause in the Ohio

Constitution. Like the California UPL, the Ohio statute

provides that title remains with the property owner “in

perpetuity” and it requires Ohio to make public use of the

unclaimed property while in state custody. Id. at 451. The

Ohio Supreme Court held that the state could not control

and use earnings on the unclaimed property without

compensating the property owner. Id. at 452-53.

The state court decisions in Dani, 374 P.3d at 793-94,

Hooks, 961 So. 2d at 432, and Clark, 184 S.W.3d at 911-15,

and the unreported state court decision McKenzie, all of

which upheld the constitutionality of their respective state

unclaimed property laws, do not help clarify the important

question presented in this case.

3. Cole-Kelly’s petition for writ of certiorari should

also be granted (along with a grant of the pending petition

in Gerlach v. Rokita) (24-21) to resolve the tension between

property owners’ Fifth Amendment right, which provides

property owners just compensation for the state’s taking

of their property, and the Eleventh Amendment, which

provides states with sovereign immunity against property

owners’ suits to recover that just compensation.

19

States are generally immune from suit under the

Eleventh Amendment because of their sovereign status.

Edelman v. Jordan, 415 U.S. 651, 663 (1974). However, this

Court has held that, under the Just Compensation Clause,

the government has a duty to pay just compensation when

it takes property (Knick v. Township of Scott, 588 U.S.

180, 191–94 (2019)) and did not hold that such compensation

claim is barred by Eleventh Amendment immunity.

The Ninth Circuit decisions in this case (Appx. A, p.

5a) and in Suever supra 579 F.3d. at 1059 and the Seventh

Circuit’s decision in Gerlach v. Rokita 95 F.3d. 493, 499

(7th Cir.2024) [“But even if the {Supreme Court} does find

{in the Devillier case} a direct cause of action {under the

Fifth Amendment just compensation clause}, the second

obstacle - Eleventh Amendment sovereign immunity disposes of Gerlach’s claim.”] have held that even if owners

of unclaimed property have a Fifth Amendment takings

claim for just compensation for the state’s use of their

unclaimed property, any such claim against the state or

its officers is barred by Eleventh Amendment sovereign

immunity.

In contrast, the states’ immunity from suits for

“damages” accordingly conflicts with their obligation to

compensate owners when states take property without

providing contemporaneous compensation. Community

Housing Improvement Program v. City of New York, 492

F. Supp. 3d 33, 40 (E.D.N.Y. 2020).

The Seventh Circuit in Cerajeski, Kolton and

Goldberg have held that owners of unclaimed property

do have a right to just compensation for the state’s taking

and use of their unclaimed property and that the Eleventh

Amendment does not bar their Fifth Amendment claims.

20

Cole-Kelly’s petition for writ of certiorari should

be granted because the Ninth Circuit’s March 14, 2024

decision in this case - holding that Eleventh Amendment

sovereign immunity bars their Fifth Amendment taking

without just compensation claims - conflicts with the

decisions of this Court in First English Evangelical

Lutheran Church of Glendale v. Los Angeles County,

CA 482 U.S. 304, 316, n. 9 (1987) holding that Eleventh

Amendment sovereign immunity does not bar a Fifth

Amendment takings claim for monetary compensation.

In the Gerlach v Rokita 95 F.4th 493 (7th Cir. 2024)

decision (pending writ petition here, No. 24-21), the

Seventh Circuit resolved in favor of sovereign immunity,

holding that the Eleventh Amendment barred Gerlach’s

claim against the state (through its officers) for just

compensation. Eleventh Amendment sovereign immunity

is inconsistent with this Court’s jurisprudence. See

Chicago, B. & Q.R. Co., 166 U.S. at 236 (states are subject

to the Just Compensation Clause); United States v. Great

Falls Mfg. Co., 112 U.S. 645, 656 (1884) (“The law will

imply a promise to make the required compensation,

where property . . . is taken[.]”); Devillier v. State of

Texas 601 U.S. 285, 291 (2024) quoting from Knick 588

U.S. at 192 [“a property owner acquires an irrevocable

right to just compensation immediately upon a taking”].

The act of taking property itself waives any asserted

immunity from a property owner’s claim for compensation.

PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 500

(2021); Gunter, 200 U.S. at 284

The Ninth Circuit erred in ruling that the Eleventh

Amendment bars Cole-Kelly’s claims. That ruling conflicts

with this Court’s precedent - that interest on property

21

belongs to the property owner. The State of California and

its Controller are also not immune because Cole-Kelly’s

claims are not for “damages” but rather, are equitable

claims for disgorgement or a restitution return of their own

property. The interest on and time value of, the unclaimed

personal property is the property of the owners. Brown

v. Legal Foundation of Washington 538 U. S. 216, 235

(2003); Phillips v. Washington Legal Foundation 524 U.

S. 156, 172 (1998) The Eleventh Amendment does not bar

claims for the return of one’s own property, as the Ninth

Circuit held here and in Suever v. Connell 579 F.3d 1047,

1058-1059 (9th Cir. 2009) and in Gerlach supra 95 F. 4th

at 496 and 499.

Cole-Kelly asserts that her and the putative class’s

claims are not claims for damages but rather, for equitable

disgorgement or restitution of their own property Id.,

i.e., the interest the State of California received on

the unclaimed property and/or the benefit the State of

California received from its use (without compensation) of

Cole-Kelly’s and the class’s unclaimed personal property,

belongs to her and the class. The Controller’s refusal to

return it or pay it to them under C. C. P. §§1540(c) and

1562, is an unconstitutional taking in violation of the

Fifth and Fourteenth Amendments. Brown v. Legal

Foundation of Washington 538 U.S. 216 supra; Cerajeski

v. Zoeller 735 F.3d 577, 582 (7th Cir. 2013); Kolton v.

Frerichs 869 F.3d 532, 533 (7th Cir. 2017); Goldberg v.

Frerichs 912 F.3d 1009, 1010 (7th Cir. 2019); Sogg v. Zurz

121 Ohio St. 3d 449, 453 (2009) The Eleventh Amendment

does not provide sovereign immunity for the return of

owners’ own property.

22

It is undisputed that the State of California and the

Controller obtained and had and have possession and use

of billions of dollars of property owners’ unclaimed, nonescheated personal property but have not returned and

are prohibited by C. C. P. §1540(c) and C.C. P. §1562 from

returning to them their interest (or the time value) for

its possession and use of the owners’ unclaimed personal

property.

States have no Eleventh Amendment immunity

because the Fifth Amendment trumps the Eleventh

Amendment in that it specifically allows for compensation

for a taking without just compensation against a state

government for its use of private property.

This Court has emphasized that the states’ power

to take property is conditional upon payment of just

compensation. Great Falls Mfg. Co., 112 U.S. at 656;

United States v. Klamath & Moadoc Tribes, 304 U.S.

119, 123 (1938) (“the taking of property by the United

States in the exertion of its power of eminent domain

implies a promise to pay just compensation”). The Fifth

Amendment thus imposes a duty on the government to pay

compensation as the price of exercising the power to take

property. First English Evangelical Lutheran Church of

Glendale v. Los Angeles County 482 U.S. 304, 314. These

principles—that states owe compensation when taking

property, yet also enjoy sovereign immunity from suits

for damages—exist in uneasy tension. Vicki C. Jackson,

The Supreme Court, the Eleventh Amendment, and State

Sovereign Immunity, 98 Yale L. J. 1, 116 (1988) (The

“clarity of this textual provision for a monetary remedy

is inconsistent with a premise of sovereign immunity as a

constitutional doctrine[.]”); Chicago Burlington & Quincy

23

RR. Co. v. City of Chicago 106 U.S. 226, 233-234, 239-241

(1897); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 535 U.S. 302, 306 n.1 (2002).

However, here and in other takings cases, when

property owners attempt to assert that a state owes them

compensation, the Ninth Circuit and now, the Seventh

Circuit in Gerlach supra 95 F.4th at 499, and other courts

hold that sovereign immunity absolves them of that

obligation. See Suever v. Connell 579 F.3d 1047, 1059

(9th Cir. 2009); EEE Minerals, LLC v. North Dakota, 81

F.4th 809, 816 (8th Cir. 2023) (sovereign immunity barred

a claim after the state legislatively redefined private

mineral interests as public property); Zito v. N.C. Coastal

Res. Comm’n, 8 F.4th 281, 290 (4th Cir. 2021) (sovereign

immunity barred a claim that a state’s refusal to allow

construction of one home caused a taking); Ladd v.

Marchbanks, 971 F.3d 574, 576 (6th Cir. 2020) (sovereign

immunity barred a takings claim); Citadel Corp. v. Puerto

Rico Highway Auth., 695 F.2d 31, 33 n.4 (1st Cir. 1982)

(sovereign immunity barred a takings claim).

ARGUMENT

I.

CALIFORNIA CODE OF CIVIL PROCEDURE

§§1540(c) AND 1562 ARE UNCONSTITUTIONAL

ON THEIR FACE A N D AS A DMIT TEDLY

APPLIED

It is not disputed by Controller and the State of

California that they take “unclaimed” personal property,

by non-permanent escheat, and hold it in trust for the

owners until the owners claim it (C.C.P. §1313; Taylor

supra 402 F. 3d at 933-934). It is also undisputed that

24

Controller deposits that unclaimed, presumed abandoned

non-permanently escheated personal property in interest

bearing accounts, or interest bearing bonds, and then

uses the interest and principal of said personal property

to pay off government obligations and to pay for State

operations. (C. C. P. §1564)

It is also not disputed that over $13 Billion in nonpermanently escheated funds are held by California

in trust, which non- permanently escheated funds

generate over $200 Million per year in interest (www.sco.

ca.gov, Home – CA.gov, Unclaimed Property, Download

Unclaimed Property Records, All Properties), but none

of that interest or the value of California’s use of that

property is paid to the owners of the personal property

that generates that $200 Million per year in interest.

(C.C.P. §§1540(c) and 1562)

Controller claims that, even though they are admittedly

merely custodians for the owners and hold their property

in trust for the owners of that non- permanently escheated

personal property, they can keep the revenue (interest)

and time value realized from their use of owners’ personal

property, because C.C.P. §§1540(c) and 1562 ipse dixit

say they can. But C.C.P. §§1540(c) and 1562 are invalid

and unconstitutional because they purport to authorize

the State of California to take (seize) the “presumed

abandoned” property of another for government use (to

pay the State’s bills) without compensating the owners

for its use. That is a theft or conversion of the owners’

property, in violation of their Eleventh, Fourth, Fifth and

Fourteenth Amendment rights. Wall v. City of Whittier

2019 WL 8810391 at *5-6 (C. D. Cal. 2019)

25

Indeed, the entirety of the escheat unclaimed property

statutes (C.C.P. §§1300 et. seq., 1400 et. seq. and 1500

et. seq.) are unconstitutional because they presume and

treat owners as having abandoned their personal property

without notice, hearing or procedural or substantive due

process. Taylor v. Westly 402 F.3d 924 (9th Cir. 2005);

Taylor v. Yee 136 S. Ct. 929, 929-930 (2016)

Controller apparently contend that the interest on

or the time value of the owners’ presumed abandoned

non- permanently escheated property is not the property

of the owners (supposedly, only the underlying personal

property, held in custody by Controller, is the property

of the owners), so the State does not have to return the

interest/time value of the owners’ personal property. The

State is wrong.

As this Court has held, interest on personal property

is property and it belongs to the owner of the personal

property. Brown v. Legal Foundation of Washington 538

U.S. 216, 235, 242 (2003) [“as we made clear in Phillips,

the interest earned in the IOLTA account is the ‘private

property’ of the owner of the principal.”]; Phillips v.

Washington Legal Foundation 524 U.S. 156, 172 (1998)

[“ . . . we hold that the interest income generated by funds

held in IOLTA accounts is ‘private property’ of the owner

of the principal.”]; Webb’s Fabulous Pharmacies, Inc. v.

Beckwith 449 U.S. 155, 162-163 (1980) [“The usual and

general rule is that any interest on an interpleaded and

deposited fund follows the principal and is to be allocated

to those who are ultimately to be the owners of that

principal.”]

26

Indeed, recently, this Court, in Moore v. Harper 600

U.S. 1, 34-35 (2023), reiterated, albeit in a different context,

the continuing vitality of Phillips v. Washington Legal

Foundation supra, and Webb’s Fabulous Pharmacies, Inc.

v. Beckwith 449 U.S. 155 supra, citing them for its holding

that while state law is one important source of defining

property rights, “the Federal Constitution provides that

‘private property’ shall not be taken for public use, without

just compensation.” (Fifth Amendment) As a result, States

“may not sidestep the Takings Clause by disavowing

traditional property interests.” States may not, “by ipse

dixit . . . transform private property into public property

without compensation.” Moore supra at 35

In Taylor v. Yee 136 S. Ct. 929 (2016) two justices of

this Court seriously questioned the validity of forfeiture,

in the guise of escheat, on short notice as being a means

to seize property without just compensation and a

violation of due process. In Taylor v. Yee 136 S. Ct. 929

at 929-930 (2016), Justice Alito stated that “[t]he Due

Process Clause requires states to give adequate notice

before seizing private property . . . Because the seizure of

private property is no small thing, notification procedures

may not be empty rituals . . . This trend – combining

shortened escheat periods with minimal notification

procedures – raised important due process concerns. The

constitutionality of current state escheat laws is a question

that may merit review in a future case.”

The Seventh Circuit in Cerajeski v. Zoeller (J. Posner)

735 F.3d 577, 582 (7th Cir. 2013) held that [“Interest

on interest bearing unclaimed property is unclaimed

property too, and so the property owner can claim it upon

proving title . . .”]; Kolton v. Frerichs (J. Easterbrook) 869

27

F.3d 532, 533 (7th Cir. 2017) [“. . . a state may not take

custody of property and retain income that the property

earns.”]

Frerichs 912 F.3d 1009, 1010 (7th Cir. 2019), the state

circuit court held that the owner of unclaimed property

could not receive the time value of unclaimed property in

the State of Illinois’ possession if it had not been earning

interest prior to Illinois obtaining possession of it. The

Seventh Circuit (J. Easterbrook) disagreed and held “The

Supreme Court has held that the Takings Clause protects

the time value of money just as much as it does money itself

(citations omitted) . . . The property’s owner is entitled to

“income that the property earns” .

Some state courts agree. In Sogg v. Zurz 121 Ohio

St. 3d 449, 453 (2009), the Ohio Supreme Court held

unconstitutional the section of the state’s unclaimed

property law which, like California’s, specifically provided

that no interest would be paid to the property owner for

Ohio’s use of his/her unclaimed property. [. . . the state may

not appropriate for its own use, against the owner of the

underlying property, interest earned on that property.”]

Thus, the actual interest received by the State of

California or the time value of the State’s possession

of non-permanently escheated personal property is the

property of the owners and must be returned or paid to

Petitioner and the class. California cannot side-step the

Takings Clause by enacting statutes like C. C. P. §1540(c)

and 1562 that purport to allow it to take owners’ personal

property (interest on owners’ unclaimed personal property

and use of owners’ unclaimed personal property) without

justly compensating the owners for such taking and use,

28

simply by ipse dixit transforming private property into

public property.

In this case, based on Suever supra, the Ninth Circuit

decided that California did not have to pay unclaimed

property owners interest. That decision was based on the

notion that a payment of interest on unclaimed property

taken by the state would be a form of “damages” against

the State, rather than an equitable return of the owner’s

property or a disgorgement of the state’s gains from its

taking of the owner’s property and that therefore, the

State had Eleventh Amendment immunity. Suever v.

Connell supra 579 F.3d at 1054 and 1059. However, the

intervening United States Supreme Court case, Liu v.

Securities and Exchange Commission 140 S. Ct. 1936,

1946, 1949 (2020), has seriously undercut the purported

Turnacliff and Seuver decisions rationale. In Liu,

this Court held that disgorgement of the wrongdoer’s

gains is an equitable return to the wronged party of the

wrongdoer’s wrongful gains, not “damages”. Liu clarified

that gain (profits and interest) received by a “wrongdoer”

belong to the victims (owners) and should, in equity, be

disgorged and returned to the victims – not as damages

(measured by the victim’s loss) but rather, as disgorgement

of the wrongdoer’s (California) gain, which gain really

belongs to the victims, so that disgorgement of that gain

is a return to the owner of her own property. Id. at 1946,

1949.

Here , Ca l i for n i a i s t he “ w rongdoer ” by

unconstitutionally taking the owners’ property and must

return the interest or benefit (time value) derived from

that property, which itself is also the owners’ property,

to the owners as a return of their property and not as

29

damages, which the State claims is barred by Eleventh

Amendment sovereign immunity against damage claims.

This case presents issues of exceptional importance to

the States’ unclaimed property system.

1.

As discussed above, the issues in this case are of

exceptional importance to the nation’s unclaimed property

system. Whether states must pay just compensation on

unclaimed property they hold and use for public purposes

affects most States. Only six States (Indiana, Illinois,

New Jersey, Ohio, Maryland, and Wisconsin) now provide

for or permit any compensation to be paid to the owners

of unclaimed property when it is returned to them.

Given the ubiquity of unclaimed property, the circuit

split’s current, ongoing impact is huge. According

to the National Association of Unclaimed Property

Administrators, approximately 33 million people

collectively have more than $70 billion worth of unclaimed

property held by state treasurers across the country.

See https://unclaimed.org/who-we-are/. State treasurers

return more than $5 billion of unclaimed property to

millions of people annually. See https://unclaimed.org/

who-we-are/ In nearly every State, when the unclaimed

property is returned, no just compensation is paid to

the owners, which amounts to billions of dollars of costfree financing for those States and concomitant billions

of dollars of unpaid just compensation to the property

owners.

The split is particularly intolerable because it creates

disparate treatment for private property owners in

different States. Currently, the owners of unclaimed

30

property in Illinois, Indiana, New Jersey, Ohio, Maryland,

and Wisconsin enjoy the protection of the Takings

Clause, but unclaimed property owners in California and

Delaware do not. The Takings Clause has long been held

to apply to the States through the Due Process Clause

of the Fourteenth Amendment. See Chicago, Burlington

& Quincy R.R. Co. v. Chicago, 166 U.S. 226, 239 (1897);

Barron v. Baltimore, 32 U.S. 243, 250-51 (1833)). A private

property owner’s right to just compensation when his/

her unclaimed property is taken for public use should not

depend upon where he/she lives or where his/her property

is located.

This case and the cases that have upheld the

constitutionality of the taking of unclaimed private

property for public use without paying just compensation,

based on Texaco, Inc. v. Short 454 U.S. 516,526 (1982), have

misapplied the Court’s decision in Texaco. Texaco was not

a Taking case. Property was transferred from one private

party to another private party. Texaco, 454 U.S. at 518

(unused lease to mineral rights reverted to current surface

owner of the property). The mineral rights in question

never passed into the State’s custody, and they were never

used for any public purpose. The question presented here,

whether a State must pay just compensation for making

public use of private property, even if the property came

into the State’s custody because of the owner’s neglect,

was not presented in Texaco.

Now that a clear split exists over this constitutional

question, there is no reason for the Court to stay its hand.

2.

Even setting aside the need for certainty, the

question presented has enormous stakes for State

31

treasurers across the country. More than $70 billion

worth of unclaimed property is held by State treasurers

across the country. See https://unclaimed.org/who-weare/. It is used for public purposes in nearly every State.

More importantly, billions of dollars in interest (just

compensation) for use of the unclaimed property is owed

to millions of property owners but is withheld from them

annually. See https://unclaimed.org/who-we-are/. It is

important for State treasurers across the country to have

uniformity in the application of their laws. Until this Court

decides whether the Takings Clause applies to the public

use of unclaimed property, there will be no uniformity

in whether the States must pay for the public use of that

private property.

This case is a suitable vehicle.

This case gives the Court an opportunity to cleanly

and definitively resolve an irreconcilable circuit split on

an important issue of State power. The decision below, like

all the decisions in the circuit courts, the district courts,

and the State courts, addresses whether the States’ use

of unclaimed private property is a “taking.” The outcome

of these decisions is not dependent on differences in the

facts or material differences in the law. The arguments

for and against applying the Takings Clause to unclaimed

property will be thoroughly set forth by the parties to

this case in the arguments they make on their respective

sides of the issue.

The Ninth Circuit’s decision contradicts this Court’s

Precedent and lacks any constraining principle.

The Ninth Circuit’s decision also squarely conflicts

with a plethora of prior decisions of this Court in Devillier,

32

First English, Cedar Point Nursery, Tahoe-Sierra, Webb’s

Fabulous Pharmacies, and Loretto. For that reason, it

is clearly erroneous, and this Court should grant a writ

of certiorari overruling it and the Suever and Turnacliff

decisions upon which it is based.

Here, and in Suever and Turnacliff, the Ninth Circuit

held that the interest or time value of the state’s use of the

owners’ unclaimed property belongs to the state, even

though the state holds custody of the unclaimed property

in trust for the owners. The Ninth Circuit, here and in

Suever and Turnacliff, misapplied this Court’s decision in

Texaco. There, the Court held that States could enact laws

providing for the transfer of abandoned property from one

private owner to another. 454 U.S. at 526. The Indiana

Mineral Lapse Act at issue in Texaco provided that “a

severed mineral interest that is not used for a period of

20 years . . . reverts to the current surface owner of the

property.” Texaco, 454 U.S. at 518. The case involved the

transfer of property rights between private citizens, not

rights transferred to the State.

The Ninth Circuit’s decision conflicts with this Court’s

decisions in other, more relevant Takings cases which hold

that even a temporary physical taking, as occurs with

unclaimed property used for public purposes, requires

just compensation. For example, in Cedar Point Nursery,

141 S. Ct. at 2074, the Court held that a “physical taking”

occurs when the government obtains “possession of

property without acquiring title to it.” Here, the UPL

provides that California does not acquire title to the

unclaimed property; it merely takes temporary custody

of the property in trust for the owner. Cal. Civ. Code

§ 1501.5(a) (“property received by the state under this

chapter shall not permanently escheat to the state”).

33

Once a taking of private property has occurred, the

duty to pay just compensation arises if the property is put

to public use. The State’s duty to pay just compensation

under the Takings Clause “arises at the time of the

taking, regardless of post-taking remedies that may be

available to the property owner.” Knick v. Twp. of Scott,

139 S. Ct. 2162, 2170 (2019) (citing Jacobs v. United States,

290 U.S. 13 (1933)). In Jacobs, the Court held that “the

compensation must generally consist of the total value of

the property when taken, plus interest from that time.”

290 U.S. at 17 (quoting Seaboard Air Line R. Co. v. United

States, 261 U.S. 299, 306 (1923)).

As the Court just held, “‘a property owner acquires

an irrevocable right to just compensation immediately

upon a taking’ ‘[b]ecause of “the self-executing character”

of the Takings Clause “with respect to compensation.”’

De Villier v Texas, 601 U.S. 285 (2024) (quoting Knick v.

Township of Scott, Pa., 588 U.S.180, 192 (2019) (quoting

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U. S. 304, 315 (1987)).

3.

In addition, this Court should grant certiorari to

answer the important question left undecided in Devillier

- whether a property owner has a direct takings claim

for just compensation under the Fifth Amendment’s

Takings Clause when, as here, there is no other basis

available to compensate the owner and in fact, the state’s

law specifically prohibits the state from compensating

the owner for its use of her property. Almost every state

has enacted unclaimed property laws that specifically

bar states from justly compensating, or compensating at

all, owners for the state’s use of their property, in direct

violation of the Fifth Amendment. The Court should grant

certiorari to resolve that issue.

34

4.

Finally, and quite importantly, the Court should

grant certiorari in Cole-Kelly’s case and in the pending

petition for writ of certiorari in the Gerlach v. Rokita

case (Supreme Court Docket Number 24-21) which also

seeks resolution of the ongoing tension between the Fifth

Amendment’s self-execution grant of the right to just

compensation for the state’s taking of owner’s property, and

the Eleventh Amendment’s grant of sovereign immunity,

which the states almost uniformly and successfully assert

in order to block their Fifth Amendment obligations to

justly compensate those owners for the state’s taking of

their property. While this Court appears to have tacitly

acknowledged (without explicitly so holding) in

First English supra, Knick supra, Cedar Point supra, and

Brown supra, that the Fifth Amendment’s Taking Clause’s

just compensation obligation cannot be barred by a state’s

claim of Eleventh Amendment sovereign immunity, this case

presents the opportunity to clarify the conflict between these

two important constitutional grants, at least in the area of

states’ takings of unclaimed personal property, i.e., to clarify

that states’ possession and use of the interest/time value of

unclaimed personal property without compensation to the

owners, is a violation of the Fifth Amendment, for which

violation the states do not have sovereign immunity.

CONCLUSION

This Court should grant Cole-Kelly’s petition for writ

of certiorari in order to resolve the conflict between the

Ninth Circuit and the Seventh Circuit and the patchwork

of various district courts’ and state courts’ decisions as to

whether owners of unclaimed property have a direct Fifth

Amendment claim for just compensation for the state’s

taking of their property.

35

This petition should further be granted to resolve the

issue that was not decided by this Court in the Devillier

case 601 U.S. 285 (2024) of whether a person whose

property has been taken and used by the state without

compensation can sue the state directly under the Fifth

Amendment where there is no other law providing for

compensatory relief and, in fact, where the state’s law

specifically precludes compensatory relief to owners of

unclaimed property, in violation of the Fifth Amendment.

Also, certiorari should be granted to resolve the

constitutional conflict between property owners’ “irrevocable”

Fifth Amendment right to just compensation for the state’s

taking of their property and the state’s claimed Eleventh

Amendment sovereign immunity from justly compensating

those property owners for the taking of their property.

Respectfully submitted,

Brian David

Samuel Kornhauser

Law Offices

Counsel of Record

of Brian David

Law Offices of

1329 North Dearborn #1

Samuel Kornhauser

Chicago, Illinois 60610

155 Jackson Street, Suite 1807

San Francisco, CA 94111

(415) 981-6281

samuel.kornhauser@gmail.com

Counsel for Petitioner

DATED: August 12, 2024

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — MEMORANDUM OPINION

OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED MARCH 14, 2024 . . . . . . . . . . . . . . . . . . . . . . 1a

A P PEN DI X B — OR DER GR A N T I NG

DEFENDANTS’ MOTIONS TO DISMISS IN

THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

CALIFORNIA, FILED MARCH 13, 2023 . . . . . . . 7a

A PPENDI X C — J U DGMENT OF THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

CALIFORNIA, FILED MARCH 13, 2023 . . . . . . 21a

A PPEN DI X D — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

APRIL 23, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23a

A P P E N DI X E — R E L E VA N T

CONSTITUTIONAL AND STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26a

1a

Appendix A

APPENDIX A — MEMORANDUM

OPINION OF

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT, FILED MARCH 14, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-15375

D.C. No. 4:22-cv-04056-HSG

ALEXANDER COTE, INDIVIDUALLY AND

ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED,

Plaintiff-Appellant,

v.

OFFICE OF THE CALIFORNIA STATE

CONTROLLER; BETTY T. YEE, IN HER

OFFICIAL CAPACITY AS CALIFORNIA

STATE CONTROLLER,

Defendants-Appellees.

No. 23-15377

D.C. No. 4:22-cv-04133-HSG

JENNIFER I. SYKES, INDIVIDUALLY AND

ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED,

Plaintiff-Appellant,

v.

OFFICE OF THE CALIFORNIA STATE

CONTROLLER; BETTY T. YEE, IN HER

OFFICIAL CAPACITY AS CALIFORNIA

STATE CONTROLLER,

Defendants-Appellees.

2a

Appendix A

No. 23-15413

D.C. No. 4:22-cv-02841-HSG

ALISON COLE-KELLY, INDIVIDUALLY AND ON

BEHALF OF ALL THOSE SIMILARLY SITUATED,

Plaintiff-Appellant,

v.

BETTY T. YEE, IN HER OFFICIAL CAPACITY AS

CALIFORNIA STATE CONTROLLER; STATE OF

CALIFORNIA,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding.

Submitted March 12, 2024*

San Francisco, California;

Before: S.R. THOMAS, McKEOWN, and CHRISTEN,

Circuit Judges.

MEMORANDUM**

Plaintiffs-Appellants Alexander Coté, Jennifer Sykes,

and Alison Cole-Kelly appeal a district court’s dismissal

without leave to amend of their putative class action against

The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

*

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

**

3a

Appendix A

Defendent-Appellee the California State Controller. We

have jurisdiction over this appeal of the district court’s

dismissal under 28 U.S.C. § 1291. We affirm the judgment

of the district court. Because the parties are familiar with

the factual and procedural history of the case, we need

not recount it here.

“Dismissal pursuant to Federal Rule of Civil

Procedure 12(b)(6) is reviewed de novo.” Dougherty v.

City of Covina, 654 F.3d 892, 897 (9th Cir. 2011) (emphasis

omitted). “We review for abuse of discretion a district

court’s dismissal . . . without leave to amend.” Benavidez

v. County of San Diego, 993 F.3d 1134, 1141-42 (9th Cir.

2021). “A district court acts within its discretion to deny

leave to amend when amendment would be futile . . . .”

V.V.V. & Sons Edible Oils Ltd. v. Meenakshi Overseas,

LLC, 946 F.3d 542, 547 (9th Cir. 2019) (ellipsis in original)

(quoting Chappel v. Lab. Corp. of Am., 232 F.3d 719, 72526 (9th Cir. 2000)). We review “the question of futility of

amendment de novo.” United States v. United Healthcare

Ins. Co., 848 F.3d 1161, 1172 (9th Cir. 2016).

Plaintiffs claim that California’s Unclaimed Property

Law (UPL) violates the Fifth and Fourteenth Amendments

of the United States Constitution and Article 1, Section

19 of the California Constitution. San Remo Hotel L.P. v.

City And County of San Francisco, 27 Cal. 4th 643, 664,

117 Cal. Rptr. 2d 269, 41 P.3d 87 (2002) (construing the

California Constitution’s takings clause “congruently”

to the United States Constitution’s Takings Clause).

They argue that California’s Unclaimed Property Law is

unconstitutional because it does not require interest to be

4a

Appendix A

paid on escheated property while held by the state nor once

reclaimed. Cal. Civ. Proc. Code § 1540(c). Plaintiffs seek

declaratory and injunctive relief to remedy this injury.

However, we have already decided this question in

two cases: Turnacliff v. Westly, 546 F.3d 1113 (9th Cir.

2008), and Suever v. Connell, 579 F.3d 1047 (9th Cir. 2009).

These cases bind us, and preclude relief. In addressing

an estate administrator’s challenge to the 2002 version

of California’s Unclaimed Property Law that guaranteed

some interest, we held that “when the Estate abandoned

its property, it forfeited any right to interest earned by

that property.” Turnacliff, 546 F.3d at 1119; Texaco, Inc. v.

Short, 454 U.S. 516, 102 S. Ct. 781, 70 L. Ed. 2d 738 (1982).

We confirmed that holding in Suever, where we rejected

claims for retroactive interest under the same 2002 statute

because “state sovereign immunity clearly precludes

Plaintiffs from successfully obtaining more than [their

escheated principal and sales proceeds therefrom] in the

form of interest.” 579 F.3d at 1059. We also rejected claims

for an injunction that required the “payment of interest on

any claims for unclaimed property that escheated under”

the 2003 California Unclaimed Property Law that paid no

interest. Id. at 1057. And we rejected claims for equitable

relief that were “indistinguishable in effect from claims for

money damages against the State and, as such, . . . barred

by the Eleventh Amendment.” Id. at 1059-60.

There is no principled difference to be drawn between

the statutes those decisions considered and the one before

us today. Plaintiffs’ property has validly escheated to the

state. The current statute does not guarantee interest,

5a

Appendix A

Cal Civ. Proc. Code § 1540(c) (2021) (“Interest shall not

be payable on any claim paid under this chapter.”), and we

addressed a nearly identical statute that did not guarantee

interest in Suever. 579 F.3d at 1057; see Cal Civ. Proc.

Code § 1540(c) (2003) (“No interest shall be payable on

any claim paid under this chapter.”). As we held in Suever:

“[T]he State is not constitutionally required to pay any

interest under the UPL . . . .” 579 F.3d at 1056. The district

court applied our precedents correctly. To the extent the

plaintiffs’ claims are for money damages against the state,

they are barred by the Eleventh Amendment. Id. at 1059.

To the extent any claims escape the Eleventh Amendment,

plaintiffs cannot establish an entitlement to the interest

they seek. Turnacliff, 546 F.3d at 1119.

To overcome the weight of our precedent, plaintiffs

cite to several out-of-circuit cases, which do not bind this

court, and several Supreme Court decisions. A threejudge panel may overrule circuit precedent only where an

“intervening higher authority” is “clearly irreconcilable”

with the reasoning of that decision. CoreCivic, Inc. v.

Candide Grp., LLC, 46 F.4th 1136, 1141 (9th Cir. 2022)

(quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003) (en banc)). Turnacliff and Suever were decided after

the cited Supreme Court cases, and therefore the cited

cases cannot constitute “intervening higher authority.”

Miller, 335 F.3d at 900.1

1. Plaintiffs also suggest the panel call for en banc review or

certify their questions to the Supreme Court. En banc review is not

warranted because we are not faced with “contradictory precedents”

nor an “irreconcilable conflict” in our case law. Atonio v. Wards Cove

Packing Co., Inc., 810 F.2d 1477, 1478-79 (9th Cir. 1987). As to whether

6a

Appendix A

The district court properly applied Turnacliff and

Suever in dismissing the plaintiffs’ claims as precluded

by Ninth Circuit precedent.

AFFIRMED.

this panel should certify plaintiffs’ questions to the Supreme Court,

mere “doubts” about a Court of Appeals’ prior panel decisions are

insufficient to invoke “so exceptional a jurisdiction” as the Supreme

Court’s on certification. Wisniewski v. United States, 353 U.S. 901,

902, 77 S. Ct. 633, 1 L. Ed. 2d 658 (1957).

7a

B GRANTING

APPENDIX BAppendix

— ORDER

DEFENDANTS’ MOTIONS TO DISMISS IN THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA,

FILED MARCH 13, 2023

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Case No. 22-cv-02841-HSG

Re: Dkt. Nos. 16, 24, 23, 35

ALISON COLE-KELLY,

Plaintiff,

v.

BETTY T. YEE, et al.,

Defendants.

Case No. 22-cv-04056-HSG

Re: Dkt. No. 32

ALEXANDER COTE,

Plaintiff,

v.

OFFICE OF THE CALIFORNIA STATE

CONTROLLER, et al.,

Defendants.

8a

Appendix B

Case No. 22-cv-04133-HSG

Re: Dkt. No. 23

JENNIFER I. SYKES,

Plaintiff,

v.

OFFICE OF THE CALIFORNIA STATE

CONTROLLER, et al.,

Defendants.

ORDER GRANTING DEFENDANTS’

MOTIONS TO DISMISS

Pending before the Court are Defendants’ motion to

dismiss (Dkt. No. 23) in Cole-Kelly v. Yee, 22-cv-02841HSG (“Cole-Kelly”); Defendants’ motion to dismiss

(Dkt. No. 32) in Coté v. Office of the California State

Controller, 22-cv-04056-HSG (“Coté”); and Defendants’

motion to dismiss (Dkt. No. 23) in Sykes v. Office of the

California State Controller, 22-cv-04133-HSG. Also

pending before the Court are the Cole-Kelly Plaintiffs’

motion for partial summary judgment (Dkt. No. 35),

Plaintiffs’ motion to certify class (Dkt. No. 16), and

Plaintiffs’ motion to consolidate related cases and appoint

class counsel (Dkt. No. 24). The Court finds this matter

appropriate for disposition without oral argument and

the matter is deemed submitted. See Civil L.R. 7-1(b).

The Court GRANTS Defendants’ motions to dismiss

9a

Appendix B

and TERMINATES AS MOOT the Cole-Kelly Plaintiffs’

motion for partial summary judgment, motion to certify

class, and motion to consolidate related cases and appoint

class counsel.

I.

FACTUAL BACKGROUND

Cole-Kelly, Coté, and Sykes are three related putative

class actions that challenge the constitutionality of

California’s Unclaimed Property Law (“UPL”), C.C.P.

§ 1500 et seq., under the United States Constitution and the

California Constitution.1 As alleged in the Coté complaint,

“[t]he UPL applies to unclaimed property that is held by

a third party, for example, a bank, insurance company,

corporation, or public utility. Unclaimed property is

generally defined as any financial asset left inactive by its

owner for a period of time, typically three (3) years. Under

the UPL . . . such property is temporarily transferred to

the custody of the State.” Coté Dkt. No. 1 at ¶ 17. Plaintiffs

1. The Cole-Kelly complaint brings three claims: 1) claim for

declaratory and prospective injunctive relief on behalf of plaintiff

and the class: unconstitutionality under 5th Amendment, 2) claim

for declaratory and prospective injunctive relief on behalf of

plaintiff and the class: unconstitutionality under Article I, Section

19, and 3) violation of equal protection and due process (42 U.S.C.

§ 1983). See generally Cole-Kelly Dkt. No. 1. The Coté and Sykes

complaints bring the same two claims: 1) claim for declaratory

and prospective injunctive relief on behalf of plaintiff and the

class for violation of the Fifth and Fourteenth Amendments of the

U.S. Constitution, 2) claim for declaratory and injunctive relief on

behalf of plaintiff and the class for violation of Article I, Section

19 of the California Constitution. See generally Coté Dkt. No. 1;

Sykes Dkt. No. 1.

10a

Appendix B

further allege that the UPL “is not a true escheat statute;

it gives the State custody, not ownership, of unclaimed

property.” Id. Third parties are required to self-report

any unclaimed property and “transfer property to the

State once the property meets the UPL’s definition of

unclaimed property and pay the State interest at the

rate of twelve percent (12%) per annum for property

not timely reported or delivered.” Id. ¶ 19. According

to the Coté plaintiffs, “[t]he State collects hundreds of

millions of dollars in unclaimed or abandoned property

annually but returns just a fraction of that amount to the

property owners. The State retains and uses the interest,

dividends, accruals, earnings, investment returns, and

other benefits earned on and from unclaimed property

for public purposes.” Id. ¶ 20. The Coté complaint alleges

that “the Controller does not pay interest, dividends,

accruals, earnings, investment returns, or other benefits

above the original amount of the unclaimed property to

the owner or person entitled to recover the unclaimed

property and is prohibited by statute from doing so.” Id.

¶ 21. For this reason, the Coté complaint alleges that “[t]

he State deprives Plaintiff and all other Class members

of just compensation on unclaimed or abandoned property

it uses for public purposes.” Id. ¶ 22. The Cole-Kelly and

Sykes complaints make similar allegations. See Cole-Kelly

Dkt. No. 1 ¶¶ 10-38; Sykes Dkt. No. 1 ¶¶ 17-22.

The central allegation in all three cases is that the

UPL is unconstitutional under both the United States

Constitution and the California Constitution because it

unconstitutionally deprives property owners of any “time

11a

Appendix B

value” 2 accrued by their property during the time it is

controlled by the State. Accordingly, the constitutionality

of the UPL is a dispositive issue in all three cases.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires that a

complaint contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(2). A defendant may move to dismiss a complaint for

failing to state a claim upon which relief can be granted

under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is

appropriate only where the complaint lacks a cognizable

legal theory or sufficient facts to support a cognizable

legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr.,

521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule

12(b)(6) motion, a plaintiff need only plead “enough facts

to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,

167 L. Ed. 2d 929 (2007). A claim is facially plausible when

a plaintiff pleads “factual content that allows the court to

draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

2. Plaintiffs in all three cases refer to the concept of “time

value.” See e.g., Cole-Kelly Dkt. No. 40 (“Opp.”) at 1; Sykes Dkt.

No. 38 (“Opp.”) at 13; Coté Dkt. No. 49 (“Opp.”) at 13. For clarity,

the Court will refer to “interest” throughout this order. Although

the Court understands that “time value” may include other forms

of appreciation—such as dividends, accruals, or other earnings—it

finds that this does not change the analysis or outcome.

12a

Appendix B

In reviewing the plausibility of a complaint, courts

“accept factual allegations in the complaint as true and

construe the pleadings in the light most favorable to the

nonmoving party.” Manzarek v. St. Paul Fire & Marine

Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless,

courts do not “accept as true allegations that are

merely conclusory, unwarranted deductions of fact, or

unreasonable inferences.” Hartman v. Gilead Scis., Inc.

(In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th

Cir. 2008) (quoting Sprewell v. Golden State Warriors,

266 F.3d 979, 988 (9th Cir. 2001)).

Even if the court concludes that a 12(b)(6) motion

should be granted, the “court should grant leave to amend

even if no request to amend the pleading was made, unless

it determines that the pleading could not possibly be cured

by the allegation of other facts.” Lopez v. Smith, 203 F.3d

1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted).

III. DISCUSSION

A.

Three-Judge Panel

As a preliminary matter, the Cole-Kelly Plaintiffs

argue that Defendants’ motion to dismiss and Plaintiffs’

motion for partial summary judgment in Cole-Kelly

should be decided by a three-judge panel under 28 U.S.C.

§ 2284. Cole-Kelly Opp. at 20-21. Section 2284 provides

that three-judge panel “shall be convened when otherwise

required by Act of Congress, or when an action is filed

challenging the constitutionality of the apportionment

of congressional districts or the apportionment of any

13a

Appendix B

statewide legislative body.” 28 U.S.C. § 2284. This case

does not involve the apportionment of congressional

districts or a statewide legislative body so, under § 2284,

Plaintiffs must identify an applicable “Act of Congress”

that requires a three-judge panel. In support of their

request, Plaintiffs argue that “[w]here, as here, an action

seeks to establish the unconstitutionality of a state statute

and to enjoin the state and its officers from enforcing

that allegedly unconstitutional statute, a party can move,

pursuant to 28 U.S.C. § 2284, to have a three-judge district

court panel decide the issues.” Cole-Kelly Opp. at 20-21.

The two cases Plaintiffs cite in support both concern 28

U.S.C. § 2281, which stated:

An interlocutory or permanent injunction

restraining the enforcement, operation or

execution of any State statute by restraining

the action of any officer of such State in the

enforcement or execution of such statute or

of an order made by an administrative board

or commission acting under State statutes,

shall not be granted by any district court

or judge thereof upon the ground of the

unconstitutionality of such statute unless the

application therefor is heard and determined

by a district court of three judges under section

2284 of this title.

Hicks v. Miranda, 422 U.S. 332, 342 n.12, 95 S. Ct. 2281,

45 L. Ed. 2d 223 (1975) (quoting 28 U.S.C. § 2281 (repealed

1976)); see also Fla. Lime & Avocado Growers, Inc. v.

Jacobsen, 362 U.S. 73, 79-80, 80 S. Ct. 568, 4 L. Ed. 2d

568 (1960).

14a

Appendix B

Section 2281, however, was repealed in 1976. See 28

U.S.C. § 2281 (repealed 1976); see also Tedards v. Ducey,

951 F.3d 1041, 1060 n.37 (9th Cir. 2020) (stating that

“[In 1968], Congress required that any case seeking an

injunction against a state officer to prevent enforcement

of an allegedly unconstitutional state statute be heard

by a special three-judge district court,” but noting in the

citation to the statute that it was “repealed 1976”); Larry

P. By Lucille P. v. Riles, 793 F.2d 969, 978 n.4 (9th Cir.

1984) (explaining that § 2281 “was repealed in 1976”).

The Court knows of no current authority or other basis

on which it could grant Plaintiffs’ request, and Plaintiffs

point to none. Accordingly, Plaintiffs’ request for a threejudge panel is DENIED.

B. Sovereign Immunity

Defendants argue in the Cole-Kelly motion to dismiss

that “any claims against the State of California and its

agencies are barred by the Eleventh Amendment.” ColeKelly Mot. at 8. Defendants further argue that because

“officials sued in their official capacities are not persons

within the meaning of § 1983 . . . a plaintiff is barred from

suing defendants in their official capacities for money

damages, absent congressional abrogation or waiver of

sovereign immunity.” Id. at 8-9 (quotations omitted). The

Defendants make similar arguments in the Coté and Sykes

motions to dismiss. See Coté Mot. at 9-10; Sykes Mot. 9-10.

The Sykes and Coté Plaintiffs argue that “the Eleventh

Amendment does not bar claims for prospective injunctive

relief to remedy a state’s ongoing violations of federal

15a

Appendix B

law.” Coté Opp. at 16; Sykes Opp. at 16. The Cole-Kelly

Plaintiffs also argue that “the interest (or time value) on

the unclaimed property is the property of the owners,

not the State” so “Plaintiffs’ claim for a return of their

interest is a claim for a return of their property, and not

a claim for damages against the state.” Cole-Kelly Opp. at

20 (footnotes and citations omitted); see also Coté Opp. at

17 (making similar arguments); Sykes Opp. at 17 (same).

The Coté and Sykes Plaintiffs further argue that “even if

retrospective relief would be sought, the self-executing

aspect of the Fifth Amendment provides relief.” Coté Opp.

at 16; Sykes Opp. at 16.

The Ninth Circuit addressed sovereign immunity in

the context of claims for interest in Suever II: “while the

Eleventh Amendment is no bar to Plaintiffs’ claims for

return of their escheated principal and the sales proceeds

therefrom, state sovereign immunity clearly precludes

Plaintiffs from successfully obtaining more than that

amount in the form of interest. . . .” Suever v. Connell

(Suever II), 579 F.3d 1047, 1059 (9th Cir. 2009) (emphasis

in original).

Plaintiffs’ argument that their claim for a return of

the interest is a claim for the return of their property

(and therefore not barred by the Eleventh Amendment)

is foreclosed by the reasoning in Turnacliff regarding

the interest earned by unclaimed or abandoned property.

In Turnacliff, Plaintiffs argued, in part, that “the

Controller’s action ran afoul of the Takings Clause of the

Fifth Amendment, because he did not pay to the Estate

the actual interest that the unclaimed property earned

16a

Appendix B

while California held it.” Turnacliff v. Westly, 546 F.3d

1113, 1115 (9th Cir. 2008). The court acknowledged that

in a previous case it had held that “prisoners possess

a constitutionally cognizable property right in the

interest earned on the principal held in Inmate Trust

Accounts.” Id. at 1119 n.3 (citing Schneider v. Cal. Dep’t

of Corr., 151 F.3d 1194, 1201 (9th Cir. 1998)). The court

discussed Schneider’s holding that “‘[t]he “interest follows

principal” rule’s common law pedigree, and near-universal

endorsement by American courts—including California’s’

left us with ‘little doubt that interest income of the sort

at issue’ [there] was ‘sufficiently fundamental that States

may not appropriate it without implicating the Takings

Clause.’” Id. (quoting Schneider, 151 F.3d at 1201). The

Turnacliff court, however, also stated that “[b]y contrast,

we are unaware of . . . any authority for the proposition

that interest earned by unclaimed or abandoned property

belongs to the property owner.” Id.

Given the Ninth Circuit’s statement in Turnacliff,

this Court declines to find that the interest earned

by unclaimed or abandoned property belongs to the

property owner. Consequently, Plaintiffs’ claims for

the payment of any interest accrued by their property

while the property was in State custody are barred by

the Eleventh Amendment. Suever II, 579 F.3d at 1059

(explaining that “Plaintiffs are not entitled to more than

the actual property that the State took into its possession

or the proceeds of that property. . . . Rather, such claims

for additional compensation, whether described as

‘restitution’ or otherwise, are indistinguishable in effect

from claims for money damages against the State and, as

17a

Appendix B

such, are barred by the Eleventh Amendment” (emphasis

in original) (quotations omitted)). 3

C.

Constitutionality of UPL

To the extent that any of Plaintiffs’ claims are not

barred by the Eleventh Amendment, these claims fail to

state a claim upon which relief can be granted because the

claims are not tenable under current Ninth Circuit law.

The Ninth Circuit has “squarely rejected the

proposition that property owners have a compensable

Fifth Amendment right to interest earned on unclaimed

property that escheats to the State of California.” Suever

II, 579 F.3d at 1056.4 It has stated that “insofar as [a district

3. The Cole-Kelly Plaintiffs arg ue that “Suever and

Turnacliff are not the law of the circuit” based on the Supreme

Court’s decision in Liu v. Securities and Exchange Commission,

140 S. Ct. 1936, 1946, 207 L. Ed. 2d 401 (2020). See Cole-Kelly

Opp. at 19-20. Liu involved a civil enforcement action brought by

the SEC. The Court held “that a disgorgement award that does

not exceed a wrongdoer’s net profits and is awarded for victims

is equitable relief permissible under” a statute “that historically

exclude[d] punitive sanctions.” Liu, 140 S. Ct. at 1940. Given the

different context of the Liu case and its holding, Plaintiffs have not

met the high standard of “clear irreconcilability” required before

district courts can “consider themselves bound by the intervening

higher authority and reject the prior opinion of [the Ninth Circuit]

as having been effectively overruled.” Miller v. Gammie, 335 F.3d

889, 899-900 (9th Cir. 2003) (en banc).

4. The Coté and Sykes Plaintiffs argue that “[t]he law has

developed since the Ninth Circuit Court of Appeals determined

that owners of unclaimed property have no Fifth Amendment

18a

Appendix B

court’s] order requires prospective payment of interest, or

payment of interest on any claims for unclaimed property

that escheated under the current version of the UPL . . .

Turnacliff requires reversal.” Id. 1057 (emphasis added).5

The Court has also explicitly stated that “[a]s previously

noted, we have declared that the current version of the

UPL is facially constitutional.” Id.

The Ninth Circuit could not be more clear: Plaintiffs’

claims are not legally viable. If Plaintiffs want to change

Ninth Circuit law, they will have to persuade an en banc

panel of that court to do so.6

right to interest itself actually earned on their property while

held by the State . . . ” Coté Opp. at 2; Sykes Opp. at 2. However,

the cases cited by Plaintiffs are out-of-circuit cases that have no

precedential value within the Ninth Circuit, and cannot override

this circuit’s decisions on the question.

5. Suever II was decided in 2009, well after the law’s 2003

amendment. See Cole-Kelly Opp. (explaining that the current

version of § 1540(c) was enacted in 2003).

6. The Court finds that Plaintiffs’ claims that the alleged

taking also violated the due process and equal protection

provisions of the Constitution are derivative and fail for the same

reason. See Cole-Kelly Dkt. No. 1 ¶ 73 (“The California Controller

and Treasurer violated Plaintiff’s and the Classes’ due process

and equal protection rights, by taking Plaintiff’s and the Class’s

property without just compensation, thereby causing harm to

Plaintiff and the Class.”); Coté Dkt. No. 1 ¶ 52 (“The UPL violates

the Fifth and Fourteenth Amendments of the United States

Constitution in that it directs that unclaimed property transferred

to the custody of the Controller must be paid to the State’s General

Fund and used by the State for public purposes without the

payment of just compensation to property owners, upon claiming

19a

Appendix B

IV. CONCLUSION

Because the “pleading[s] could not possibly be cured

by the allegation of other facts,” Lopez, 203 F.3d at 1127

(quotation omitted), the Court GRANTS WITHOUT

LEAVE TO AMEND Defendants’ motions to dismiss:

Dkt. No. 23) in Cole-Kelly, Dkt. No. 32 in Coté, and Dkt.

No. 23 in Sykes.

This order also TERMINATES AS MOOT Plaintiffs’

motion for partial summary judgment (Dkt. No. 35),

Plaintiffs’ motion to certify class (Dkt. No. 16), and

Plaintiffs’ motion to consolidate related cases and appoint

class counsel (Dkt. No. 24) in Cole-Kelly.

The Clerk is directed to enter judgment in favor of

Defendants and to close the three cases.

the property, for the State’s use of that property while in its

custody for public purposes.”); Sykes Compl. ¶ 52 (same).

Defendants point out that “[a]side from a provision in

California’s Constitution proscribing ‘damage’ to property without

compensation, the Takings Clauses in the United States and

California Constitutions have been construed ‘congruently.’” Coté

Mot. at 3 n.1 (quoting San Remo Hotel L.P. v. City and County of

San Francisco, 27 Cal. 4th 643, 664, 117 Cal. Rptr. 2d 269, 41 P.3d

87 (2002)); Sykes Mot. at 3 (same); Cole-Kelly Mot. at 3 n.2 (same).

The Coté and Sykes Plaintiffs agree, and the Cole-Kelly Plaintiffs

do not argue otherwise. See Coté Opp. at 1 n.2; Sykes Opp. at 1

n.2; see generally Cole-Kelly Opp. The Court therefore finds that

Plaintiffs’ claims under Article I, Section 19 of the California

Constitution also fail for the same reason.

20a

Appendix B

IT IS SO ORDERED.

Dated: 3/13/2023

/s/ Haywood S. Gilliam, Jr.

HAYWOOD S. GILLIAM, JR.

United States District Judge

21a

C

APPENDIX CAppendix

— JUDGMENT

OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA,

FILED MARCH 13, 2023

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA,

Case No. 22-cv-02841-HSG

ALISON COLE-KELLY,

v.

BETTY T. YEE, et al.,

Plaintiff,

Defendants.

Case No. 22-cv-04056-HSG

ALEXANDER COTE,

v.

Plaintiff,

OFFICE OF THE CALIFORNIA STATE

CONTROLLER, et al.,

Defendants.

Case No. 22-cv-4133-HSG

JENNIFER I. SYKES,

v.

Plaintiff,

OFFICE OF THE CALIFORNIA STATE

CONTROLLER, et al.,

Defendants.

22a

Appendix C

Judgment is hereby entered consistent with the

Court’s Orer Granting Defendants’ Motions to Dismiss,

This document constitutes a judgment and a separate

document for purposes of Federal Rule of Civil Procedure

58(a).

Dated at Oakland, California, this 13th day of March,

2023.

Mark B. Busby

Clerk of Court

By:

Nikki D. Riley

Nikki D. Riley

Deputy Clerk to the Honorable

HAYWOOD S. GILLIAM, JR.

23a

APPENDIX D —Appendix

ORDER D

OF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT, FILED APRIL 23, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-15375

D.C. No. 4:22-cv-04056-HSG

Northern District of California, Oakland

ALEXANDER COTE, INDIVIDUALLY AND

ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED,

Plaintiff-Appellant,

v.

OFFICE OF THE CALIFORNIA STATE

CONTROLLER; BETTY T. YEE, IN HER

OFFICIAL CAPACITY AS CALIFORNIA STATE

CONTROLLER,

Defendants-Appellees.

No. 23-15377

D.C. No. 4:22-cv-04133-HSG

Northern District of California, Oakland

24a

Appendix D

JENNIFER I. SYKES, INDIVIDUALLY AND

ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED,

Plaintiff-Appellant,

v.

OFFICE OF THE CALIFORNIA STATE

CONTROLLER; BETTY T. YEE, IN HER

OFFICIAL CAPACITY AS CALIFORNIA STATE

CONTROLLER,

Defendants-Appellees.

No. 23-15413

D.C. No. 4:22-cv-02841-HSG

Northern District of California, Oakland

ALISON COLE-KELLY, INDIVIDUALLY AND ON

BEHALF OF ALL THOSE SIMILARLY SITUATED,

Plaintiff-Appellant,

v.

BETTY T. YEE, IN HER OFFICIAL CAPACITY AS

CALIFORNIA STATE CONTROLLER; STATE OF

CALIFORNIA,

Defendants-Appellees.

25a

Appendix D

ORDER

Before: S.R. THOMAS, McKEOWN, and CHRISTEN,

Circuit Judges.

The panel has unanimously voted to deny the petition

for panel rehearing. The full court has been advised of the

petition for rehearing en banc, and no judge of the court

has requested a vote on the petition for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing and the petition for

rehearing en banc is DENIED.

26a

Appendix ECONSTITUTIONAL

APPENDIX E — RELEVANT

AND STATUTORY PROVISIONS

Fifth Amendment of the United States Constitution

. . . nor be deprived of . . . property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

27a

Appendix E

Suits Against States

Eleventh Amendment of the United States Constitution

The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of

any Foreign State.

28a

Appendix E

Fourteenth Amendment

Section 1

. . . No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

29a

Appendix E

California Constitution

Article I - Declaration of Rights

Section 19

(a) Private property may be taken or damaged for a public

use and only when just compensation, ascertained by a

jury unless waived, has first been paid to, or into court

for, the owner.

30a

Appendix E

California Code of Civil Procedure § 1540(c)

...

(c) Interest shall not be payable on any claim paid under

this chapter.

31a

Appendix E

California Code of Civil Procedure § 1562

When property other than money is delivered to the State

Controller under this chapter, any dividends, interest, or

other increments realized or accruing on such property

at or prior to liquidation or conversion thereof into money,

shall upon receipt be credited to the owner’s account by

the State Controller. Except for amounts so credited the

owner is not entitled to receive income or other increments

on money or other property paid or delivered to the State

Controller under this chapter. All interest received and

other income derived from the investment of moneys

deposited in the Unclaimed Property Fund under the

provisions of this chapter shall, on order of the State

Controller, be transferred to the General Fund.