No.

22-

IN THE
Supreme Court of the United States

AARON HASHIM AND PAUL HASHIM,

Petitioners,
v.

MALIA M. COHEN, INDIVIDUALLY AND IN HER

OFFICIAL CAPACITY AS STATE CONTROLLER OF THE
STATE OF CALIFORNIA, ET AL.,
Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF CALIFORNIA

PETITION FOR WRIT OF CERTIORARI

WILLIAM W. PALMER LAURENCE H. TRIBE

PALMER LAW GROUP, a PLC Counsel of Record
2443 Fair Oaks Boulevard KAPLAN HECKER
No. 545 & FINK LLP
Sacramento, CA 95825 350 Fifth Ave., 63rd Floor
(916) 972-0761 New York, NY 10118
[email protected] (929) 224-0174
[email protected]
JONATHAN S. MASSEY
MASSEY & GAIL LLP
1000 Maine Ave. SW
Suite 450
Washington, D.C. 20024
(202) 650-5452
[email protected] Dated: August 29, 2023
BATEMAN & SLADE, INC. STONEHAM, MASSACHUSETTS
 QUESTIONS PRESENTED

1. Whether the Controller’s actions under color of

the California Unclaimed Property Law, Cal. Civ.
Proc. Code §§ 1300, et seq. (“UPL”), violate the Due
Process Clause of the Fourteenth Amendment
because they deprive owners of their property without
affording constitutionally adequate notice.
2. Whether the Controller’s actions under color of
the California UPL violate the Takings Clause of the
Fifth Amendment because they take private property
without just compensation.

i
 PARTIES TO THE PROCEEDING

Petitioners (Plaintiffs-Appellants below) are

Aaron Hashim and Paul Hashim, on behalf of
themselves and other persons similarly situated.
Respondent (Defendant-Appellee below) is Malia
M. Cohen, individually and in her official capacity as
State Controller of the State of California.

RELATED CASES
Johnson v. Cohen, No. A161442, 2023 WL
2534784 (Cal. App. 1st Dist. Mar. 16, 2023)
Peters v. Cohen, U.S. District Court Eastern
District of California, Case No. 2:22-cv-00266
(JAM) (DB)
Salvato v. Harris, U.S. District Court District of
New Jersey, Case No. 21-12706 (FLW)
Schramm v. Mayrack, U.S. District Court District
of Delaware, Case No. 22-1443 (MN)

ii
 TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDING ........................... ii
RELATED CASES ..................................................... ii
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES ...................................... v
PETITION FOR WRIT OF CERTIORARI ................ 1
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
CONSTITUTIONAL PROVISIONS INVOLVED ..... 1
STATUTORY PROVISIONS INVOLVED ................ 2
STATEMENT ............................................................. 2
A. BACKGROUND .............................................. 6
B. STATUTORY FRAMEWORK ......................... 7
C. PROCEDURAL HISTORY............................ 15
REASONS FOR GRANTING THE WRIT............... 19
I. Certiorari Is Warranted To Review The
Constitutionality Of The California UPL
Scheme Under The Due Process Clause. 21
A. The Decision Below Conflicts With
This Court’s Precedent. ...................... 22
B. The Decision Below Conflicts With
Decisions by Federal Courts of
Appeals. ............................................... 27

iii
 II. Certiorari Is Warranted To Review The
Constitutionality Of The California UPL
Scheme Under The Takings Clause. ....... 30
III.This Case Is a Suitable Vehicle to Review
the Constitutional Issues Presented. ...... 33
CONCLUSION ......................................................... 35
APPENDIX

Appendix A
California Supreme Court Order dated
May 31, 2023. ...................................................... 1a
Appendix B
Decision of Court of Appeal dated
February 28, 2023 ...................................... 2a–21a
Appendix C
Relevant Provisions of California Unclaimed
Property Law, Cal. Civ. Proc. Code § 1501
et seq. ....................................................... 22a–49a

iv
 TABLE OF AUTHORITIES

Cases
Azure Limited v. I-Flow Corp.,
46 Cal.4th 1323 (2009) ...................................... 20
Cherokee Nation v. Southern Kansas R. Co.,
135 U.S. 641 (1890)............................................ 33
Connecticut v. Doehr,
501 U.S. 1 (1991)................................................ 23
Delaware v. New York,
507 U.S. 490 (1993)............................................ 33
Delaware v. Pennsylvania,
143 S. Ct. 696 (2023)............................................ 6
Fong v. Westly,
117 Cal. App. 4th 841 (Cal. App. 3d
Dist. 2004) .................................................... 19, 20
Fuentes v. Shevin,
407 U.S. 67 (1972).............................................. 23
Garcia-Rubiera v. Fortuno,
665 F.3d 261 (1st Cir. 2011) .............................. 27
Harris v. Westly,
116 Cal. App. 4th 214 (Cal. App. 2d
Dist. 2004) .......................................................... 19
Hashim v. Betty T. Yee,
2019 WL 4182640, 2019 Cal. App. Unpub.
LEXIS 5888 (Cal. App. 1st Dist.
Sept. 4, 2019) ............................................... 16, 33
Hashim v. Yee,
2021 WL 6286214 (Cal.App. 1 Dist.
Dec. 23, 2021) ..................................................... 34

v
Horne v. Department of Agriculture,
135 S. Ct. 2419 (2015)............................ 21, 30, 31
Jones v. Flowers,
547 U.S. 220 (2006)...........................20, 24, 25, 27
Mennonite Bd. of Missions v. Adams,
462 U.S. 791 (1983)............................................ 25
Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306 (1950)..................................... passim
N. Ga. Finishing v. Di-Chem, Inc.,
419 U.S. 601 (1975)............................................ 23
Pennsylvania v. New York,
407 U.S. 206 (1972)............................................ 33
Regional Rail Reorganization Act Cases,
419 U.S. 102 (1974)............................................ 33
Resnick v. KrunchCash, LLC,
34 F.4th 1028 (11th Cir. 2022) .......................... 28
Standard Oil Co. v. New Jersey,
341 U.S. 428 (1951)............................................ 33
Sterling Hotels, LLC v. McKay,
371 F.4th 463 (6th Cir. 2023) ............................ 28
Suever v. Connell,
439 F.3d 1142 (9th Cir. 2006)...................... 28, 29
Taylor v. Westley,
488 F.3d 1197 (9th Cir. 2007).................. 4, 28, 29
Taylor v. Westly,
402 F.3d 924 (9th Cir. 2005) ............................. 28
Taylor v. Westly,
525 F.3d 1288 (9th Cir. May 12, 2008) ....... 28, 30

vi
Taylor v. Yee,
136 S. Ct. 929 (2016)................................... passim
Texaco, Inc. v. Short,
454 U.S. 516 (1982) ..................................... 17, 32
Texas v. New Jersey,
379 U.S. 674 (1965)............................................ 33
U.S. v. James Daniel Good Real Property,
510 U.S. 43 (1993)........................................ 23, 25
United States Trust Co. of N.Y. v. New Jersey,
431 U.S. 1 (1977)................................................ 27
United States v. Winstar Corp.,
518 U.S. 839 (1996)............................................ 27
W. Union Tel. Co. v. Pennsylvania,
368 U.S. 71 (1961)................................................ 6
Statutes
28 U.S.C. § 1257(a)..................................................... 1
42 U.S.C. § 1983 ................................................. 15, 16
Stats. 1976, c. 648, § 1 & c. 1214 § 1 ......................... 7
Stats. 1988, c. 286 § 2................................................. 7
Stats. 1990, c. 1069 (S.B. 1186), § 1 .......................... 7
Stats. 1990, c. 450 (S.B. 57), § 4 ................................ 7
Codes
Cal. Civ. Proc. Code § 1300 .................................. 2, 31
Cal. Civ. Proc. Code § 1513 ........................ 7, 9, 11, 22
Cal. Civ. Proc. Code § 1514 ........................................ 9
Cal. Civ. Proc. Code § 1515 ........................................ 9
Cal. Civ. Proc. Code § 1516 ........................................ 9

vii
Cal. Civ. Proc. Code § 1520 ........................................ 9
Cal. Civ. Proc. Code § 1530 ................................ 10, 11
Cal. Civ. Proc. Code § 1531 ............................... passim
Cal. Civ. Proc. Code § 1532 ...................................... 11
Cal. Civ. Proc. Code § 1566 ...................................... 20
Cal. Civ. Proc. Code § 1577 ........................................ 8
Other Authorities
ABC Good Morning America, Not So Safe
Deposit Boxes States Seize Citizens’ Property
to Balance Their Budgets, YOUTUBE (May 12,
2008), http://www.youtube.com/
watch?v=ZdHLIq0qHhU,http://
abcnews.go.com/GMA/
story?id=4832471&page=1#.Udhur5yLfCY...... 32
CALIFORNIA STATE CONTROLLER, About
Unclaimed Property, https://www.sco.ca.gov/
upd_about_unclaimed_property.html (last
visited Aug. 10, 2023) .................................... 6, 32
CALIFORNIA STATE CONTROLLER, Laws,
Regulations, and Guidelines, https://
sco.ca.gov/upd_lawregs.html (last visited
Aug. 10, 2023) ...................................................... 9
CALIFORNIA STATE CONTROLLER, Search for
Unclaimed Property, https://www.sco.ca.gov/
search_upd.html (last visited Aug. 10, 2023) ... 14

viii
Savage, David G., Is California doing enough to
find owners of ‘unclaimed’ funds before
pocketing the money?, L.A. Times (Jan. 7,
2016, 3:00 A.M. PT), https://
www.latimes.com/nation/la-na-court-
california-cash-20160107-story.html .................. 8
Taylor, Mac, Unclaimed Property: Rethinking the
State’s Lost & Found Program, LEGISLATIVE
ANALYST’S OFFICE (Feb. 10, 2015), at pp. 16–
17, https://lao.ca.gov/reports/2015/finance/
Unclaimed-Property/unclaimed-property-
021015.pdf ............................................................ 3

ix
 PETITION FOR WRIT OF CERTIORARI

Petitioners Aaron Hashim and Paul Hashim

respectfully petition for a Writ of Certiorari to review
the judgment of the Supreme Court of California in
this case.

OPINIONS BELOW

The order of the Supreme Court of California (Pet.

App. 1a) is unreported. The opinion of the Court of
Appeal for the First Appellate District dated
February 28, 2023 (id. at 2a–21a) is unreported.

JURISDICTION

The Supreme Court of California issued its order

denying review on May 31, 2023. Pet. App. 1a. This
Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides, in relevant part: “[N]or shall
private property be taken for public use, without just
compensation.”
The Due Process Clause of the Fourteenth
Amendment to the United States Constitution
provides, in relevant part: “[N]or shall any State
deprive any person of life, liberty, or property, without
due process of law.”

1
 STATUTORY PROVISIONS INVOLVED

Relevant portions of California’s Unclaimed

Property Law, Cal. Civ. Proc. Code §§ 1300, et seq.,
are reprinted in the Appendix (Pet. App. 22a–49a).

STATEMENT

The California Unclaimed Property Law (“UPL”),

Cal. Civ. Proc. Code §§ 1300, et seq., authorizes the
State Controller to appropriate the property of
purportedly “unknown” persons, to auction or
otherwise sell it off, and to retain the proceeds. Under
this scheme, the Controller confiscates security
deposits, uncashed money orders, unused insurance
benefits, idle shares of stock, and even safe-deposit
boxes and bank accounts if those assets lie
“dormant”—i.e., with no account activity by the
rightful owner—for three years. Of course, a “buy-
and-hold” investment strategy will often result in a
substantial period of inactivity and thus trigger a
finding of “dormancy.”
Unless the property’s rightful owner can be
located, the State of California uses the funds in these
accounts for its own benefit. The State’s Controller is
not required to provide any individualized notice at
all to persons whose property is less than $50 in
value—only to list their property in a notice to be
published in a newspaper, website, or other media
(sometimes in aggregate form with no name or
address specified in connection with the property). As
of 2015, the State, in its last publicly available
valuation of the UPL fund, estimates that over fifty
percent (50%) of the UPL fund is made up of cash

2
amounts below $50. 1 (For those whose property is
above the $50 threshold, the UPL scheme provides for
unconstitutionally inadequate notice.) The
Controller also seizes property from foreign citizens
with no notice whatsoever.
Since the inception of this case, the California
unclaimed property fund has grown from 5 million
accounts to 70.4 million accounts belonging to citizens
residing in California, other states, and foreign
countries. Under this scheme, tens of millions of
persons are deemed to be “unknown” to the State of
California, including L e B r o n J a m e s , former
House Speaker Nancy Pelosi, former Governor
Arnold Schwarzenegger, and former Presidents
George W. Bush and Barack Obama.
Tellingly, when California seeks to locate
taxpayers to force them to pay amounts that are due
and owing, it is quick to resort to the Department of
Motor Vehicles (“DMV”) database and other readily
available sources of information. Yet when it comes
time to seize property under the UPL, the State is
inexplicably not able to find millions of its own
citizens and numerous persons of global renown, and
thus deems those same property owners “unknown.”
These same databases are then used by the Controller
to verify the identity of the owners and to determine

1 Mac Taylor, Unclaimed Property: Rethinking the

State’s Lost & Found Program, LEGISLATIVE ANALYST’S
OFFICE (Feb. 10, 2015), at pp. 16–17, https://lao.ca.gov/
reports/2015/finance/Unclaimed-Property/unclaimed-
property-021015.pdf.

3
whether they may later reclaim the property under
this UPL scheme.
In 2007, the Ninth Circuit rejected the State’s
defense of the UPL scheme and opined that it did not
comply with the “requirement that notice be given
before an individual’s control of his property is
disturbed.” Taylor v. Westley, 488 F.3d 1197, 1201
(9th Cir. 2007) (Taylor II) (emphasis added).
Following the Ninth Circuit’s ruling in Taylor II, a
federal district court issued a preliminary injunction
against the UPL scheme. Pet. App. 12a. But the
State effectively evaded the injunction by re-enacting
the UPL and papering over its unconstitutional
provisions. Since then, California has continued to
seize billions of dollars’ worth of private property, and
the private audit companies that administer the
scheme have reaped hundreds of millions of dollars in
commissions and fees. The federal injunction issued
in the wake of Taylor II was rendered essentially
meaningless.
Two Justices of this Court have already addressed
the California UPL in a prior case, opining that “the
constitutionality of current state escheat laws is a
question that may merit review in a future case.”
Taylor v. Yee, 136 S. Ct. 929, 930 (2016) (Alito, J.,
joined by Thomas, J., concurring in the denial of
certiorari). Those Justices expressed their concern
that States are “doing less and less to meet their
constitutional obligation to” reunite property owners
with their property before seeking escheatment, even
as they more aggressively go about classifying
property as abandoned. Id. The Justices added:

4
 This trend—combining shortened escheat
periods with minimal notification
procedures—raises important due process
concerns. As advances in technology make it
easier and easier to identify and locate
property owners, many States appear to be
doing less and less to meet their
constitutional obligation to provide adequate
notice before escheating private property.
Cash-strapped States undoubtedly have a
real interest in taking advantage of truly
abandoned property to shore up state
budgets. But they also have an obligation to
return property when its owner can be
located. To do that, States must employ
notification procedures designed to provide
the pre-escheat notice the Constitution
requires.
Id.
The concerns expressed by Justice Alito, joined by
Justice Thomas, were well founded, and the time has
come for this Court to grant review to examine the
constitutionality of the UPL scheme. This case
presents an ideal vehicle for doing so. It involves a
class action on behalf of property owners whose
property is valued at less than $50 and thus who are
entitled to no individualized notice whatsoever under
the UPL. Hence, this case presents the stark legal
question of whether the government can seize private
property under an unclaimed property statutory
scheme without providing any notice at all. This
Court should grant plenary review over this case to
put constitutional limits on a California scheme that

5
is a recipe for abuse, resulting in millions of instances
of deprivation of property without due process and
unconstitutional takings of property.

A. Background

As this Court recognized more than 60 years ago,

“rapidly multiplying State escheat laws, originally
applying only to land and other tangible things,” have
“mov[ed] into the elusive and wide-ranging field of
intangible transactions.” W. Union Tel. Co. v.
Pennsylvania, 368 U.S. 71, 79 (1961). According to
California’s Controller, today the most common forms
of unclaimed property are bank accounts and safe
deposit box contents; stocks, mutual funds, bonds,
and dividends; uncashed cashier’s checks and money
orders; certificates of deposit; matured or terminated
insurance policies; estates; mineral interests and
royalty payments; trust funds and escrow accounts;
and utility account deposits. 2
Unclaimed property statutes have become
significant sources of state revenue, as illustrated by
the recent dispute over escheatment proceeds before
this Court in Delaware v. Pennsylvania, 143 S. Ct.
696, 707 n.7 (2023). In 2001, for instance, California’s
Controller had seized property worth approximately
$2.7 billion; by 2007, the amount seized had grown to
$4.1 billion. Today, the Controller holds property
valued at over $11.9 billion, taken from over 70.4

2CALIFORNIA STATE CONTROLLER, About Unclaimed

Property, https://www.sco.ca.gov/upd_about_unclaimed_
property.html (last visited Aug. 10, 2023).

6
million accounts (more than a four-fold increase in
two decades) for a program that was initiated in 1950.

B. Statutory Framework

Under the California UPL, the escheatment

process is triggered when there is no activity with
respect to an account or when the owner has had no
contact with the holder (such as a bank) for a fixed
period of time (known as the “dormancy period”). In
this case, the relevant dormancy period is three years.
Thus, a bank customer who opens a savings account
and deposits wedding gifts but leaves the account
untouched for three years, or an investor who buys
and holds stocks without engaging in subsequent
sales or purchases for three years, will trigger the
“dormancy” definition. After three years of dormancy,
the property is statutorily defined as “abandoned” or
“unclaimed,” and the Controller is automatically
authorized to take title to the property. When the
UPL was enacted in 1959, the dormancy period was
fifteen years. In 1976, it was reduced to seven (7)
years; in 1988 to five (5) years, and in 1990 to three
(3) years. See Statutory Notes, 2007 Main Volume,
Cal. Civ. Proc. Code § 1513; see also Stats. 1976,
c. 648, § 1 & c. 1214 § 1; Stats. 1988, c. 286 § 2; Stats.
1990, c. 450 (S.B. 57), § 4. 3
Holders of property (which are “Banking
organizations,” “Business associations,” “Financial
organizations,” and other entities defined by Section

3 A later amendment extended the dormancy period back to

five years only for “any other written instrument on which a

banking or financial organization is directly liable,” such as a
certified check. Stats. 1990, c. 1069 (S.B. 1186), § 1.

7
1501 as “Holders”) are required to identify property
that, per the UPL, has been statutorily defined as
“unclaimed” and therefore subject to confiscation by
the State. Holders of property have a strong incentive
to report “unclaimed” property because failure to
timely report and remit such property subjects a
holder to potential financial sanctions. The UPL
permits the assessment of interest from the date
property should have been reported up to as much as
12% per annum. Cal. Civ. Proc. Code § 1577.
Holders of property are regularly audited by
private companies hired by the State to ensure they
have reported unclaimed property. These private
auditors are incentivized to increase the amount of
property seized because they are paid an 11%
commission from the seized property, which may even
increase with the rate of seizures. 4 These
commissions are paid from the private funds without
notice to the owners of the property who are paying
them.
The carrots used with private auditors and the
sticks used with Holders of property not only lubricate
the funnel for unclaimed property to slide into the
coffers of the state, but also increase the risk of
erroneous seizures.
Further, there are no published state regulations
governing this process—only constantly changing
internet “guidelines” found on the Controller’s

4 See, e.g., David G. Savage, Is California doing enough to

find owners of ‘unclaimed’ funds before pocketing the money?,

L.A. Times (Jan. 7, 2016, 3:00 A.M. PT), https://
www.latimes.com/nation/la-na-court-california-cash-20160107-
story.html.

8
website (e.g., “State of California Unclaimed Property
Holders Handbook”). 5 This absence increases the risk
of error.
Prior to escheating the property to the State, and
subject to an exception, 6 banks and other financial
institutions holding property valued at $50 or more
for deposit, account, shares, or other interest, “shall
make reasonable efforts” to notify property owners—
by mail, or, if the owner has consented to electronic
notice, electronically—that the owner’s property will
escheat. (Cal. Civ. Proc. Code § 1513.5, subds. (a),
(b)). The UPL provides that Holders need not give
notice to owners of “deposits, accounts, shares, or
other interests of less than fifty dollars ($50).” Cal.
Civ. Proc. Code § 1513.5, subd. (c); see also id. at
§ 1514, subds. (a), (b) (notice for safe deposit box or
repository); § 1516, subds. (a), (b), (d) (notice for
dividends and securities); § 1520, subds. (a), (b)
(notice for tangible and other intangible personal
property valued at $50 or more). Notice is inadequate
even for property worth $50 or more; 7 but for property

5 CALIFORNIA STATE CONTROLLER, Laws, Regulations, and

Guidelines, https://sco.ca.gov/upd_lawregs.html (last visited

Aug. 10, 2023).
6 The exception is that the holder need not mail notice to an
owner whose address the holder’s records disclose to be
inaccurate. Cal. Civ. Proc. Code § 1515.5, subd. (a).
7 If the Notice Report provides the Controller with the
owner’s SSN, Section 1531 requires the Controller to send the
owner’s name and SSN to the Franchise Tax Board (“FTB”) to
determine whether the FTB has a Current address for that
person. Section 1531(d). Citizens residing in other states and

9
worth less than $50, there is no individualized notice
at all.
Holders are required to send the Controller an
annual notice report (“Notice Report”) listing the
“unclaimed” and “abandoned” properties in question,
the owners’ names, and their last known addresses.
Cal. Civ. Proc. Code § 1530(d). Holders are not
required to report the owner’s Social Security Number
(SSN) for any type of escheated property, even if the
holder possesses the SSN. Notably, any person who
does not have a Social Security Number and does not
reside in the State of California will receive neither
direct mail nor publication notice of any kind.
Moreover, the UPL provides that items under $25
in value may be aggregated into a single lump sum on

those who do not pay taxes in California would have no record of

their correct address at the FTB. The same is true of foreign
citizens residing in other countries, who also do not have U.S.
Social Security Numbers. If the FTB address and the Holder’s
address are the same, the Controller sends notice to that
address. If the FTB has an address different from that provided
by the Holder, or multiple addresses, the Controller mails just
one arbitrary notice to the FTB address only, and she does not
send any notice to the address reported by the Holder, or
contained in another California database, such as the records of
the DMV. If the FTB has no address, then the Controller sends
notice to the address reported by the Holder (i.e., “the Last
Known Address” or “LKA”), which is already known to be a stale
address and is the reason for the UPL report to the Controller in
the first place.
If the Holder does not provide an SSN, which is not a
mandatory requirement under the UPL, then the Controller
does not request information from the FTB, or any other
electronic database accessible to her. She merely sends notice to
the stale address reported by the Holder.

10
the Notice Report received by the Controller. Cal.
Civ. Proc. Code § 1530, subd. (b)(2), (b)(5). Examples
of such aggregation are contained in the record at 8
CT 2140–43, e.g., “State Farm Insurance
Policyholders - $6 Million.” The State never learns
the owners’ names for these accounts, and the
Controller maintains no owner identification and no
records whatsoever for these property owners.
Therefore, it is impossible for these property owners
to reclaim their property from the Controller.
No more than 165 days after the Notice Report is
filed with the Controller, “the Controller shall mail a
notice to each person having an address listed in the
report who appears to be entitled to property of the
value of fifty dollars ($50) or more escheated under
this chapter.” Cal. Civ. Proc. Code § 1531, subd. (b).
No sooner than seven (7) months and no later than
seven (7) months and fifteen (15) days after the Notice
Report is filed, Holders are required to pay or deliver
to the Controller “all escheated property specified in
the report.” Cal. Civ. Proc. Code § 1532.
To summarize: the UPL provides that owners of
property worth less than $50 are entitled to no
individualized notice at all, either from the holder
under Section 1513 or from the Controller under
Section 1531. Yet the State estimates that over fifty
percent (50%) of the UPL fund is made up of cash
amounts below $50. 8 Still, the UPL requires no
individualized notice whatsoever, even on multiple
payments owed to a single owner that in aggregate
exceed $50, such as in the case of royalty checks and

8 Taylor, supra note 1, at pp. 16–17.

11
installment payments. Moreover, items under $25 in
value may be combined on the Notice Report received
by the Controller, so that the State has no record at
all of the names and last known addresses of those
owners.
Section 1531(a) of the UPL provides that,
“[w]ithin one year after payment or delivery of
escheated property,” “the Controller shall cause a
notice to be published in a manner that the Controller
determines to be reasonable, which may include, but
not be limited to, newspapers, Internet Web sites,
radio, television, or other media.” (Cal. Civ. Proc.
Code § 1531(a)). The Controller has implemented this
requirement through a practice of generic,
inconspicuous 3” x 5” “block” publication notices in
newspapers that do not provide actual notice to the
owners that their specific property has been
appropriated by the State. (Sample advertisements
are contained in the record at 8 CT 2098-2101.) The
generic “advertisements” are often published on dates
calculated to reduce readership, e.g., Thanksgiving
Day. It is overwhelmingly likely that only a miniscule
fraction of affected property owners will happen upon
these notices. The vast majority would have no notice
that their property rights have been lost.
The Controller has also created a website
(https://sco.ca.gov/search_upd.html) which, in theory,
allows property owners to search online for property
appropriated by the Controller. Owners who locate
their property online may submit a claim form to the
Controller and engage in the claim process of seeking
to retrieve their property.

12
 But the website has often been broken. (Stevens
Decl. 9 CT 2595-2622.) And, even when it is
operational, its efficacy is hampered by the fact that
no identifying information is listed on the website (or
maintained by the Controller) in the case of amounts
under $50, or for aggregated amounts, so that it is
impossible for the owners of those sums to locate or
claim their property. (8 CT 2139-2143.) For items
under $25 in value, the Controller does not know the
identity of the property owners and does not post the
property owners’ names on the public website. In
many instances, the property has already been sold
by the time it appears on the website, which is merely
a catalogue of sold property, though the website
identifies the property as though it might still exist.
Further, newspaper and website notice under
Section 1531(a) operate only after the fact, after the
Controller has seized the owner’s property. Thus, the
Controller has shifted the burden of conveying
constitutional notice from the government to the
citizens, who must ferret out their own property
information by looking through newspapers or
running queries on an often-broken government
website. Common sense dictates that if property
owners are not told ahead of time that the Controller
is taking their property, then they would have no
reason to search a website database and to file a claim
form for return of their property.
When California seeks to locate residents to force
them to pay taxes that are due and owing, it is quick
to resort to all government databases to locate them,
such as the DMV database and other readily available
sources of information. Yet when it comes time to
provide constitutional notice and to return property

13
under the mandatory language of UPL that requires
state officials to locate the owners and to return their
property, the same property owners are “unknown” to
the State, which does not use the available databases.
Moreover, the Controller has ready access to
private commercial databases such as Accurint to
locate owners of unclaimed property. The Controller
does not use either Accurint or any other commercial
database to locate the purportedly “unknown” owners
of “unclaimed” property and to provide them with the
best possible notice before or after their property is
taken by the State.
As the Controller was decreasing the amount
spent on notice, the State was simultaneously
spending increasingly large sums of money on private
auditors to expand the amount of property seized.
The auditors are paid on a percentage commission,
which rises with the rate of seizures. This strategy
predictably redounded to the State’s financial benefit.
In 2001, the Controller had seized property worth
approximately $2.7 billion; by 2007, it had grown to
$4.1 billion from 8.7 million persons. Today, the
Controller holds property valued at over $11.9 billion,
taken from over 70.4 million persons. 9 The California
property seizures are growing at an exponential rate,
and—as foreshadowed by Justices Alito’s concurrence
in Yee, 136 S. Ct. at 930—there is clearly little regard
for “reuniting” “unknown” owners with their
“unclaimed property” prior to its seizure and sale.

9 CALIFORNIA STATE CONTROLLER, Search for Unclaimed

Property, https://www.sco.ca.gov/search_upd.html (last visited

Aug. 10, 2023) .

14
 C. Procedural History

In 2013, petitioners filed this putative class

action in California state court, alleging that the
Controller violated their constitutional rights with
respect to property governed by the UPL. Pet. App.
3a. Petitioners owed no state taxes or penalties,
violated no laws, and did nothing wrong that would
entitle California to seize and sell their property.
Rather, petitioners alleged that they were the owners
of certain unclaimed property—specifically, money in
an amount less than $50. Id. Petitioners also alleged
that the Controller does not possess or even request
owner-identifying information for unclaimed
property with a value of less than $50, thereby
effecting a permanent deprivation and taking of their
property without constitutional notice. Id. at 3a–4a.
They asserted causes of action for: (1) declaratory
relief; (2) deprivation of the constitutional right to
procedural due process in violation of 42 U.S.C.
§ 1983; (3) unconstitutional taking of personal
property in violation of 42 U.S.C. § 1983; (4) violation
of the UPL; and (5) breach of fiduciary duty. Id. at
4a. The trial court sustained a demurrer with leave
to amend as to plaintiffs’ first, second, and fourth
causes of action, and without leave to amend as to
their third and fifth causes of action. Id.
Petitioners then filed a second amended
complaint. Upon the Controller’s motion, the trial
court dismissed with prejudice the claim that the
Controller violated the UPL by failing to request
identifying information for owners of unclaimed
property valued at less than $50. Id. at 4a–5a. The
court granted petitioners leave to amend their

15
remaining claims for declaratory relief and
deprivation of procedural due process under 42
U.S.C. § 1983. Id. at 5a. With respect to the latter
claim, the court found that petitioners could not state
a claim against the Controller individually due to the
doctrine of qualified immunity, but it granted
petitioner leave to amend as they “may be able to
amend the [second amended complaint] to state a
cause of action against the State directly to the extent
they seek damages equal to the amount of the
property held in trust only or an injunction.” Id.
In December 2014, petitioners filed a third
amended complaint (“TAC”)—the operative
complaint for present purposes—against the
Controller in his official capacity—alleging claims for
declaratory relief and deprivation of procedural due
process in violation of 42 U.S.C. § 1983. Id. at 5a.
Defendant demurred to the TAC and moved to strike
it for noncompliance with the order allowing
plaintiffs leave to amend. Id. The trial court granted
defendant’s motion to strike the TAC and ruled that
the demurrer was moot. Id.
On appeal, the California First District Court of
Appeal reversed the trial court’s decision dismissing
the case and awarded costs to petitioner. See Hashim
v. Betty T. Yee, 2019 WL 4182640, 2019 Cal. App.
Unpub. LEXIS 5888 (Cal. App. 1st Dist. Sept. 4,
2019). The Court of Appeal ruled that the trial court
had abused its discretion in granting the motion to
strike, holding that, “when read liberally as it must
be,” the TAC “seeks injunctive relief and return of
plaintiffs’ wrongfully taken property. Id.

16
 On remand, the trial court again sustained
defendant's demurrer to plaintiffs’ third amended
complaint without leave to amend and entered the
judgment at issue. Pet. App. 6a.
The Court of Appeal affirmed. The Court ruled
that “[f]irst, and importantly, plaintiffs do not cite to
the operative pleading or set forth its allegations in
their briefing,” id. at 13a—even though the Court of
Appeal had previously ruled in its September 2019
decision that petitioners’ TAC adequately pled their
constitutional claims.
The Court of Appeal then addressed the merits of
Petitioners’ claims and held that their “takings
claims are substantively deficient.” Id. at 14a.
Although “Plaintiffs alleged that they held a
protected property right in money in amounts under
$50[,]” “the trial court was correct in finding that
plaintiffs have not alleged that the government took
a property interest.” Id. The Court of Appeals opined
that “plaintiffs’ property under UPL ‘has not been
taken at all, but has merely been held in trust for
them by the Controller.’” Id. (citation omitted).
“Furthermore, any property deprivation that may
have occurred resulted from plaintiffs’ inattention to
their property, not a government taking for which
just compensation is due.” Id. The Court of Appeal
pointed to Texaco, Inc. v. Short, 454 U.S. 516 (1982),
which upheld an Indiana statute providing that a
severed mineral interest that is not used for a period
of 20 years automatically lapses and reverts to the
current surface owner of the property, unless the
mineral owner files a statement of claim in the local
county recorder’s office.

17
 The Court of Appeal also rejected Petitioners’ due
process claim. The Court recited that “plaintiffs
again fail to satisfy their burden to demonstrate that
they pleaded valid [due process] claims . . . because
they entirely fail to cite to the operative pleading or
set forth its allegations in their brief.” Pet. App. at
16a.
In addition, the Court of Appeal addressed the
merits of Petitioners’ due process claim and “found no
cause to reverse the judgment” because “plaintiffs
concede in their appellate brief, as they did in their
opposition to the demurrer below, that the UPL is
facially constitutional.” Id. at 17a. “The necessary
consequence of Plaintiffs’ concession that the UPL is
facially valid,” the court claimed, “is a concomitant
concession that the UPL is not constitutionally infirm
for failing to require the Controller to provide pre-
escheat direct mail notice to owners of property
valued under $50.” Id. at 17a–18a. The Court of
Appeal also found that petitioners “have not alleged
facts showing that the Controller permanently
deprived them of their property without due process.”
Id. at 18a. “While plaintiffs allege that ‘it is difficult,
if not impossible,’ for owners of property valued at
less than $50 to recover their property because the
Controller allegedly does not maintain owner-
identifying information therefor, at the same time,
plaintiffs allege that the Controller gives verbal claim
instructions to owners of property under $50 for how
to ‘prove up’ their claims.” Id. “Plaintiffs do not
allege that they sought return of their property from
the Controller, or that the Controller denied their
claims.” Id.

18
 The California Supreme Court denied
discretionary review on May 31, 2023. Id. at 1a.

REASONS FOR GRANTING THE WRIT

This case presents an excellent opportunity for

this Court to revisit the constitutional concerns raised
by Justice Alito, joined by Justice Thomas, in Yee, 136
S. Ct. at 930 (opinion concurring in the denial of
certiorari). Justices Alito and Thomas explained that
“process which is a mere gesture is not due process.
Whether the means and methods employed by a State
to notify owners of a pending escheat meet the
constitutional floor is an important question.” Id.
(citations omitted). The Justices concluded that “the
constitutionality of current state escheat laws is a
question that may merit review in a future case.” Id.
It is now time for this Court to review the
longstanding refusal of the California courts to
properly apply federal constitutional standards to the
UPL. In a series of rulings, including the decision by
the Court of Appeal in this case, the state courts of
California have effectively immunized the Controller
from scrutiny under the United States Constitution.
For example, in Harris v. Westly, 116 Cal. App. 4th
214 (Cal. App. 2d Dist. 2004), the Court of Appeal
invented the novel legal theory that constitutional
notice is provided, even when none is admittedly
given, because the mere existence of a statute
constitutes “constructive notice” that property could
be seized. Id. at 223 n.15.
In Fong v. Westly, 117 Cal. App. 4th 841 (Cal. App.
3d Dist. 2004), the Court of Appeal approved the
Controller’s action in seizing and selling Berkshire

19
Hathaway stock without notice at a time when the
value of the stock was $7,082 per share. 117 Cal. App.
4th at 847. The injured shareholders (employees who
were owed stock in their employee stock purchase
plan) discovered the seizure long after the fact and
filed a constitutional claim against the Controller.
The California courts rejected the claim on the
grounds that the Controller was not required to
provide constitutional notice or even to comply with
Section 1531 of the UPL, and that the Controller is
immune from liability under Section 1566 because the
owners’ claims supposedly arose primarily from the
Controller’s sale of their escheated property. 117 Cal.
App. 4th at 851–54. Even though the stock had
appreciated considerably in value (now worth over
$500,000 per share), the Court of Appeal reasoned
that the injured shareholders had received the full
amount allowed under the law from the unnoticed
seizures and sale because they had already recovered
the proceeds from the unnoticed sale of their stock, id.
at 852–54.
The Supreme Court of California has continued to
cite both the Fong and Harris decisions with approval
in the context of the UPL. See, e.g., Azure Limited v.
I-Flow Corp., 46 Cal.4th 1323, 1328, 1330, 1336
(2009).
The instant case continues the pattern of the
California courts’ failure to properly apply federal
constitutional standards to the UPL. The decisions of
the California courts cannot be squared with
foundational precedent of this Court regarding the
pre-deprivation notice required by the Due Process
Clause, including Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306 (1950), and Jones v. Flowers,

20
547 U.S. 220 (2006). The California decision in this
case also conflicts with numerous decisions by federal
Courts of Appeals.
In addition, the decisions of the California courts
conflict with precedent of this Court regarding the
Takings Clause, including Horne v. Department of
Agriculture, 135 S. Ct. 2419 (2015).
Review is also warranted because this case
involves an important issue of law involving the
property rights of millions of people. Every year, tens
of thousands of California residents, including many
elderly residents of limited means, suffer the
appropriation of their property with no meaningful
notice and no meaningful avenue of recourse. Such a
blatantly unconstitutional system, which serves only
the fiscal self-interest of California, warrants this
Court’s review. Moreover, because state unclaimed
property laws spanning the states are intertwined,
this Court’s review of the decision at issue will guide
other States in implementing their unclaimed
property laws Constitutionally. By providing
guidance on the constitutional standards such
schemes must satisfy, review of this decision would
enable this Court to protect the due process rights of
millions of Americans throughout the country.

I. Certiorari Is Warranted To Review The

Constitutionality Of The California UPL
Scheme Under The Due Process Clause.

The decision below conflicts with this Court’s

foundational precedent establishing the notice
requirements of Due Process, as well as with decisions

21
by the federal Courts of Appeals faithfully applying
that precedent.

A. The Decision Below Conflicts With This

Court’s Precedent.

In Mullane, this Court held that notice by

newspaper publication was insufficient with respect
to known present beneficiaries of a trust and did not
satisfy due process. 339 U.S. 306. This Court
observed that the “elementary and fundamental
requirement of due process . . . is notice reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and
afford them an opportunity to present their
objections” before they are deprived of property. Id.
at 313 (emphasis added). “[P]rocess which is a mere
gesture is not due process,” but rather the “means
employed must be such as one desirous of actually
informing the absentee might reasonably adopt to
accomplish it.” Id. at 315.
The California UPL falls far below the standards
of Mullane, even though technological advances since
1950 make it vastly easier to locate individuals now
than it was when Mullane was decided. Petitioners
and the putative class they represent are owners of
property worth less than $50 whom the UPL affords
no individualized or pre-deprivation notice at all,
either from the Holder of their property under
Section 1513 or from the Controller under Section
1531. This is not a small matter. The State estimates
that over fifty percent (50%) of the UPL fund (now

22
amounting to $11.9 billion) is made up of cash
amounts below $50. 10
The UPL flouts this Court’s teaching that “[t]he
right to prior notice”—before the State seizes or
appropriates property—“is central to the
Constitution’s command of due process.” U.S. v.
James Daniel Good Real Property, 510 U.S. 43, 53
(1993). “The purpose of this requirement is not only
to ensure abstract fair play to the individual. Its
purpose, more particularly, is to protect his use and
possession of property from arbitrary encroachment—
to minimize substantively unfair or mistaken
deprivations of property. . . .” Fuentes v. Shevin, 407
U.S. 67, 80–81 (1972). In Fuentes, this Court held
that the loss of kitchen appliances and household
furniture was significant enough to warrant a pre-
deprivation hearing. In Connecticut v. Doehr, 501
U.S. 1 (1991), this Court held that a state statute
authorizing prejudgment attachment of real estate
without prior notice or hearing was unconstitutional,
in the absence of extraordinary circumstances, even
though the attachment did not interfere with the
owner’s use or possession and did not affect, as a
general matter, rentals from existing leaseholds.
“[E]ven the temporary or partial impairments to
property rights that such encumbrances entail are
sufficient to merit due process protection.” Id. at 12;
see also Fuentes, 407 U.S. at 86 (“The Fourteenth
Amendment draws no bright lines around three-day,
10-day or 50-day deprivations of property. Any
significant taking of property by the State is within
the purview of the Due Process Clause.”); N. Ga.

10 Taylor, supra note 1, at pp. 16–17.

23
Finishing v. Di-Chem, Inc., 419 U.S. 601, 606 (1975)
(state garnishment statute subject to constitutional
due process where plaintiff’s property “was
impounded”).
And in Jones, this Court reaffirmed that “[b]efore
a state may take property and sell it for unpaid taxes,
the Due Process Clause of the Fourteenth
Amendment requires the government to provide the
owner ‘notice and opportunity for hearing appropriate
to the nature of the case.’” 547 U.S. at 223 (emphasis
added and quoting Mullane, 339 U.S. at 313). This
Court held “that when mailed notice of a tax sale is
returned unclaimed, the State must take additional
reasonable steps to attempt to provide notice to the
property owner before selling his property, if it is
practicable to do so.” Id. at 225 (emphasis added).
This Court concluded:
There is no reason to suppose that the State
will ever be less than fully zealous in its
efforts to secure the tax revenue it needs. The
same cannot be said for the State’s efforts to
ensure that its citizens receive proper notice
before the State takes action against them.
Id. at 239.
In Jones, this Court reasoned that a State may
not rely solely on mailed notice “when the government
learns its attempt at notice has failed.” Id. at 227.
This case demonstrates that California’s meager
attempts at notice under the UPL scheme have
predictably failed not once, but millions of times and
that the State makes no attempt to provide
individualized notice at all for property worth less
than $50. The scheme has resulted in a situation

24
where millions of people have been denied meaningful
notice of the seizure of their property, just as the
homeowner in Jones was not afforded meaningful
notice. And just as in Jones, “the government’s
knowledge that notice pursuant to the normal
procedure was ineffective triggered an obligation on
the government’s part to take additional steps to
effect notice.” Id. at 230.
The State’ reliance on its unclaimed property
website fails for two reasons. First, the website offers
only post-deprivation notice after the State has
already seized the property. That is
unconstitutionally inadequate. See James Daniel
Good Real Property, 510 U.S. at 54 (“All that the
seizure left [the property owner], by the Government’s
own submission, was the right to bring a claim for the
return of title at some unscheduled future hearing”).
Similarly, in Mennonite Bd. of Missions v. Adams, 462
U.S. 791 (1983), this Court held that a “party’s ability
to take steps to safeguard its interests does not relieve
the State of its constitutional obligation” to provide
meaningful pre-deprivation notice. Id. at 799.
Further, the website is not meaningful notice.
Property owners who have received no prior notice
that their property has been seized have no reason to
look at the State’s (often-broken) website to try to
identify their appropriated property. Mullane held
that newspaper advertisements are not
constitutionally adequate (except in special
circumstances) because “[c]hance alone” brings a
person’s attention to “an advertisement in small type
inserted in the back pages of a newspaper.” Mullane,
339 U.S. at 315. The same is true of the Controller’s
website.

25
 Moreover, property worth less than $50 is
typically aggregated rather than individually listed,
so even if owners of property worth less than $50
happen upon the website, they will not find
individually identifiable information for their
property. In reality, the website conveys no notice at
all to property owners and is nothing more than a
catalogue of the owners’ sold and destroyed property.
The California scheme has resulted in the absurd
situation where the Controller holds property
amounting to more than $11.9 billion belonging to
70.4 million supposedly “unknown” persons,
including L e B r o n J a m e s , former House Speaker
Nancy Pelosi, former Governor Arnold
Schwarzenegger, and former Presidents George W.
Bush and Barack Obama.
The results of this fatally flawed system speak for
themselves. The ostensible statutory purpose of the
UPL program is to locate and return private property
to “unknown” owners, and not to declare “known”
citizens to be “unknown” simply for purposes of
seizing their property for use by the State.
California’s procedures have hardly produced “notice
reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the
action and afford them an opportunity to present their
objections.” 339 U.S. at 313. Indeed, the opposite is
true.
Where (as here) the government’s own fiscal self-
interest is involved, the requirements of due process
should be even more stringent. This Court has
warned that the government’s financial interest (as
well the financial interest of the private auditors the

26
State has incentivized to administer its scheme)
creates the danger of self-dealing that raises
constitutional red flags. This Court has long
expressed constitutional “concern with governmental
self-interest” when “the State’s self-interest is at
stake.’” United States v. Winstar Corp., 518 U.S. 839,
896 (1996) (quoting United States Trust Co. of N.Y. v.
New Jersey, 431 U.S. 1, 26 (1977)).

B. The Decision Below Conflicts With

Decisions by Federal Courts of Appeals.

The California decisions upholding the UPL

cannot be squared with decisions by the federal
Courts of Appeals that have faithfully applied this
Court’s decisions establishing the pre-deprivation
notice required by the Due Process Clause. For
example, in Garcia-Rubiera v. Fortuno, 665 F.3d 261
(1st Cir. 2011), the First Circuit held that, under
Jones v. Flowers, Puerto Rico failed to give
constitutionally adequate notice to insureds in
connection with reimbursements for mandatory
automobile insurance, which would otherwise escheat
to the Commonwealth. The First Circuit explained
that Puerto Rico had established a reimbursement
procedure, but “has failed to give insureds notice of
the contents of that procedure or where to find it. In
fact, insureds will not find it unless they go in person
to the proper office of government and make an
‘appropriate request’ for a copy of the regulation.” Id.
at 263–64. The California UPL scheme, which denies
meaningful notice to millions of property owners,
suffers from the same constitutional defect.

27
 The Sixth Circuit found a due process violation
where a state elevator inspector shut down a hotel’s
elevators without adequate advance notice,
preventing it from renting rooms on five floors.
Sterling Hotels, LLC v. McKay, 371 F.4th 463 (6th Cir.
2023): “When a deprivation of property ‘occurs
pursuant to an established state procedure’—as
McKay acknowledges it did here—the state must
provide adequate notice and an opportunity to
respond before the deprivation.” Id. at 467 (citation
omitted); see also Resnick v. KrunchCash, LLC, 34
F.4th 1028, 1035 (11th Cir. 2022) (holding that
temporary freeze on borrowers’ bank accounts
without prior notice amounted to deprivation of due
process property interest; “even a temporary or
partial deprivation of property without proper notice
or a hearing violates due process”).
Review is especially warranted because the Ninth
Circuit has taken a different view of the UPL’s
constitutionality, creating an untenable judicial
divergence in the same State. Four separate panels
of the Ninth Circuit have held either that the UPL is
unconstitutional or that federal constitutional claims
should be allowed to proceed. See Taylor v. Westly,
402 F.3d 924, 926 (9th Cir. 2005), reh’g and reh’g en
banc denied (May 13, 2005) (Taylor I) (Eleventh
Amendment did not bar due process clam); Taylor II,
488 F.3d at 1200–02 (reversing denial of federal
injunction); Taylor v. Westly, 525 F.3d 1288, 1291 (9th
Cir. May 12, 2008) (Taylor III) (awarding interim
legal fees); Suever v. Connell, 439 F.3d 1142 (9th Cir.
2006) (following Taylor I).
Thus, in Taylor II, the Ninth Circuit opined,
“California cites no authority for the proposition that

28
due process is satisfied by a newspaper advertisement
saying that a person concerned about his property can
check a website to see whether he has already been
(or soon will be) deprived of it.” 488 F.3d at 1201. The
Ninth Circuit noted the danger of “the permanent
deprivation of [Petitioners’] property subsequent to
California’s sale of that property, which—pursuant to
California’s policy of immediately selling property
after escheat—would frequently occur even if
plaintiffs were diligent about monitoring their
property.” Id. at 1200 (emphasis in original).
The Ninth Circuit opined that the Controller was
required to notify property owners of the impending
seizure of their property prior to the seizure, in a
manner reasonably calculated under all the
circumstances to apprise them of that impending
seizure and afford them an opportunity to object:
“[b]efore the government may disturb a person’s
ownership of his property, ‘due process requires the
government to provide notice reasonably calculated,
under all the circumstances, to apprise the interested
party of the pendency of the action and afford him an
opportunity to present his objections.’” Id. at 1201
(citation omitted). The Ninth Circuit held that the
Controller’s mailings “[did] not respond to the
requirement that notice be given before an
individual’s control of his property is disturbed” (i.e.
escheated). Id.; see also Suever v. Connell, 439 F.3d
1142, 1148 (9th Cir. 2006) (noting that the plaintiff’s
complaint against the UPL alleges types of harm that,
if proven, would amount to “ongoing violation[s] of
federal law”).

29
 Subsequent Ninth Circuit decisions have rejected
certain challenges to the UPL, 11 but none of them
approved the scheme at issue here: the seizure and
appropriation of property with no pre-deprivation
individualized notice whatsoever.

II. Certiorari Is Warranted To Review The

Constitutionality Of The California UPL
Scheme Under The Takings Clause.

Under the UPL scheme, the Controller physically

appropriates private property and as a matter of
course permanently divests owners of that property.
Once this property is auctioned off or destroyed by
operation of the UPL scheme, the most the rightful
owner could recover is part of the monetary proceeds
of the sale—which will afford little comfort or relief to
the owner in circumstances where the sentimental
value of the property (such as family heirloom jewelry
in a safe deposit box) far exceeds its commercial value.
The Controller’s physical appropriation of
personal property under the UPL scheme effectuates
a taking under this Court’s decision in Horne.

11 In Taylor III, 525 F.3d 1288, the Court of Appeals opined

that a legislative amendment to the UPL “[o]n its face” brought

the UPL into compliance with the Constitution’s due process
requirements, id. at 1289, although the Ninth Circuit cautioned
that the issues before it were limited and that its “review in this
case is confined by our limited standard of review, and is not a
definitive adjudication of the constitutionality of the new law
and administrative procedure.” Id. at 1290. In Taylor v. Yee, the
Ninth Circuit rejected an as-applied challenge that the
Controller had failed to provide constitutionally adequate notice
and failed to take adequate steps to locate and notify certain
property owners. 780 F.3d 928 (9th Cir. 2015).

30
135 S. Ct. 2419. Horne noted “the settled difference
in our takings jurisprudence between appropriation
and regulation” and held that the Ninth Circuit had
erred in analyzing the seizure of raisins as a
restriction on the use of personal property. Id. at
2428. This Court opined that the seizure was a
physical appropriation of property, giving rise to a per
se taking: “The Government’s ‘actual taking of
possession and control’ of the reserve raisins gives
rise to a taking as clearly ‘as if the Government held
full title and ownership,’ as it essentially does.” Id.
(internal citation omitted). This Court held that
possible residual compensation offered to an owner,
after physical appropriation of the property itself, did
not excuse the taking. Id.
The Court of Appeal’s insistence that the
Controller merely holds unclaimed property “in trust”
does not withstand scrutiny. Pet. App. 14a. The UPL
Section 1300(c) defines the term “Escheat” as “the
vesting in the state of title to property the
whereabouts of whose owner is unknown . . . subject
to the right of claimants to appear and claim the
escheated property or any portion thereof.” Cal. Civ.
Proc. Code § 1300(c). Thus, the Controller does not
merely take “custody” but takes “title,” which vests in
the State as the owner of the property, which is then
sold or otherwise used by the State without notice to
the true owner. For example, the contents of safe
deposit boxes are held for varying periods of time and

31
then auctioned off on eBay. 12 Stock accounts are held
for 18 months and then liquidated. 13 This is a classic
taking of property under the Fifth Amendment.
The Court of Appeal also cited Texaco, but that
case involved a mineral lapse statute and the specific
state interests in the context of mineral development.
454 U.S. 516. “Certainly the State may encourage
owners of mineral interests to develop the potential of
those interests; similarly, the fiscal interest in
collecting property taxes is manifest.” Id. at 529.
This Court explained that, “[t]hrough its Dormant
Mineral Interests Act,” “the State has declared that
this property interest is of less than absolute
duration; retention is conditioned on the performance
of at least one of the actions required by the Act.” Id.
at 526. But the instant case (unlike Texaco) does not
involve mineral rights. Private citizens who hold
bank accounts and investment accounts, or store their
valuables in safety deposit boxes, do not own their
property at the sufferance of the government, and
should not be required to “churn” their financial
holdings or otherwise show periodic activity in their

12 ABC Good Morning America, Not So Safe Deposit Boxes

States Seize Citizens’ Property to Balance Their Budgets,
YOUTUBE (May 12, 2008), http://www.youtube.com/
watch?v=ZdHLIq0qHhU,http://abcnews.go.com/GMA/
story?id=4832471&page=1#.Udhur5yLfCY.
13 California State Controller’s Office, About the Unclaimed

Property Program, available at: http://www.sco.ca.gov

upd_faq_about_q01.html (“Your investment accounts will be
turned over to the State Controller's Office, which is required by
law to sell the securities, no sooner than 18 months and no later
than 20 months, after the due date for reporting the securities to
the State Controller’s Office.”).

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accounts, to prevent their property from reverting
back to ownership by the government. This Court has
never compared unclaimed property laws to rules
governing mineral leases. E.g., Delaware v. New
York, 507 U.S. 490 (1993); Pennsylvania v. New
York, 407 U.S. 206 (1972); Standard Oil Co. v. New
Jersey, 341 U.S. 428, 433–34 (1951); Texas v. New
Jersey, 379 U.S. 674, 675–77 (1965).
Under the just compensation requirement of the
Fifth Amendment, the government must establish the
existence of a “‘reasonable, certain and adequate
provision for obtaining compensation’” at “the time of
[a] taking.” Regional Rail Reorganization Act Cases,
419 U.S. 102, 124–25 (1974) (quoting Cherokee Nation
v. Southern Kansas R. Co., 135 U.S. 641, 659 (1890)).
Here, the UPL scheme offers no compensation at all
and is squarely inconsistent with the commands of
the Fifth Amendment.

III. This Case Is a Suitable Vehicle to Review the

Constitutional Issues Presented.

This case is an excellent vehicle for reviewing the

constitutional questions presented. Although the
Court of Appeal chided petitioners for supposedly not
“cit[ing] to the operative pleading or set[ing] forth its
allegations in their briefing,” Pet. App. 13a–16a, the
Court of Appeal proceeded to consider the merits of
both the takings and due process claims. Id. at 14a–
15a, 17a–18a. Those issues are squarely before this
Court. Further, in September 2019, the Court of
Appeal had held that petitioners’ TAC adequately
pled both takings and due process constitutional
claims. See Betty T. Yee, 2019 WL 4182640.

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Moreover, petitioners’ brief in the Court of Appeal
specifically referenced Justices Thomas and Alito’s
opinion with respect to the denial of certiorari in
Taylor v. Betty T. Yee. See Appellant’s Opening Br.,
at *7–8, *14 (Hashim v. Yee, 2021 WL 6286214
(Cal.App. 1 Dist. Dec. 23, 2021)); Appellant’s Am.
Opening Br., at 7–8, *14 (Hashim v. Yee, 2021 WL
6286214 (Cal.App. 1 Dist. Dec. 28, 2021)). The
constitutional issues were plainly presented below. 14

14 The Court of Appeal’s statement that Petitioners had

somehow conceded that “the UPL is not constitutionally infirm
for failing to require the Controller to provide pre-escheat direct
mail notice to owners of property valued under $50[,]” Pet. App.
17a–18a, because they had not contended that the UPL is
unconstitutional in every application (i.e., that it might have
permissible applications in some instances, such as for property
worth more than $50 for which adequate individualized notice
is provided), makes little sense.

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 CONCLUSION

The Petition for Writ of Certiorari should be

granted.
Respectfully submitted.

WILLIAM W. PALMER LAURENCE H. TRIBE

PALMER LAW GROUP, a PLC Counsel of Record
2443 Fair Oaks Boulevard KAPLAN HECKER
No. 545 & FINK LLP
Sacramento, CA 95825 350 Fifth Ave., 63rd Floor
(916) 972-0761 New York, NY 10118
[email protected] (929) 224-0174
[email protected]
JONATHAN S. MASSEY
MASSEY & GAIL LLP
1000 Maine Ave. SW
Suite 450
Washington, D.C. 20024
(202) 650-5452
[email protected]

Dated: August 29, 2023

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