Initially, both parties moved for a quick knockout -- Temple Inland sought a preliminary determination that the use of estimates was completely prohibited by the U.S. Supreme Court's decision in Texas v. New Jersey, while Delaware asked the court to dismiss the suit in its entirety. In March 2013, the court denied both those arguments, allowing the case to continue.
Later both parties moved for summary judgment (a ruling providing that there is no need for a trial because one party is right as a matter of law) on the remaining claims that estimation was barred by the Due Process Clause, represented an unconstitutional taking of Temple Inland's property, or violated the ex post facto clause. The court ruled on those motions yesterday.
The Court Rules Against Delaware on Due Process Claim, Leaves Remedy Open
The court began its substantive opinion with a section titled "Delaware's Dependence on Unclaimed Property Revenue." While none of the following facts will be particularly startling to unclaimed property professionals, seeing them acknowledged by a federal judge is notable. In particular, the court recognized:
- Unclaimed property represents Delaware's third largest revenue source;
- In 2007, Delaware transferred over $350 in unclaimed property to the general fund, but only returned $20 million to owners; and
- It is estimated that 90% of the property collected by Delaware is owner-unknown property (meaning it will likely never be paid out to its rightful owner).
In particular, the court singled out the following actions for criticism:
- The fact that Delaware attempted to avoid the three or six year statute of limitations (which does not apply where no report has been filed) by not requiring negative reports and by not (apparently) keeping copies of reports filed by holders;
- That Delaware never gave the holder notice that it must keep records of unclaimed property compliance (Delaware has no unclaimed property records retention statute) then tried to capitalize on the lack of such records to justify its estimation practices;
- Delaware's attempt to impose the estimation statute retroactively;
- The mechanics of the estimation process itself. In particular, the he court intimated that Delaware may not properly take custody of estimated sums where the underlying liabilities upon which those estimates are based relate to amounts owed in other states. Specifically, the court explained that “[I]f the property in base years shows an address in another state, then the characteristic of that property has to be extrapolated into the reach back years;” and
- The potential for double liability if other states estimate the same period.
The Court Defers the Takings Clause Claim
The court made no final decision on the "taking" claim. Pursuant to the Fifth Amendment (made applicable to the states by the Fourteenth Amendment) a state may not take private property for public use without just compensation. Temple Inland argued that, by demanding estimated property in the context of an unclaimed property audit, the state was impermissibly taking Temple Inland's property for public use. The court rejected the absolute nature of this argument. While the court recognized that an inaccurately performed estimate could result in the taking of a holder's property, the court held "reasonable" estimation, in and of itself, did not represent an unconstitutional taking of a holder's property. Noting that the parties had not yet presented evidence on whether the estimation at issue was "reasonable," the court deferred a decision on this issue.
The Court Rejects the Ex Post Facto Challenge
The court found in favor of Delaware on the ex post facto cause claim. The Constitution's ex post facto clause (Art. I, Sec. 10) prevents states from retroactively punishing an act that was not prohibited at the time of the act. As the court recognized, however, violations of the ex post facto clause have generally only been found in connection with criminal statutes, or civil statutes that operate as criminal punishments. Because the court found that the estimation provisions of Delaware's unclaimed property law were civil, not criminal, in nature it rejected this claim.
The Temple Inland decision is no doubt a big win for the unclaimed property holder community that, for years, has been complaining about Delaware's overly aggressive and at times seemingly arbitrary estimation practices. That said, the Court has expressly left open the issue of how Delaware's violation is to be remedied. Until the court's ruling is given some practical effect, it is unclear just how much of a game changer this ruling will be.