KATHERINE CERAJESKI, Guardian for Walter Cerajeski, Plaintiff-Appellant,
GREG ZOELLER, Attorney General of the State of Indiana, et al., Defendants-Appellees
Argued June 2, 2015.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-cv-01705-JMS -- DKL. Jane E. Magnus-Stinson, Judge.
For KATHERINE CERAJESKI, Guardian for Walter Cerajeski, Plaintiff - Appellant: Terry Rose Saunders, Attorney, Saunders Law Firm, Chicago, IL; Arthur Theodore Susman, Attorney, Susman, Heffner & Hurst, Chicago, IL.
For GREG ZOELLER, Attorney General of the State of Indiana, Defendant - Appellee: Caryn M. Nieman, Assistant Attorney General, Frances Barrow, Attorney, Office of The Attorney General, Indianapolis, IN.
For KELLY MITCHELL, treasuere of the State of Indiana, Defendant - Appellee: Caryn M. Nieman, Assistant Attorney General, Frances Barrow, Attorney, Office of The Attorney General, Indianapolis, IN.
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
Posner, Circuit Judge.
This appeal is a sequel to our decision reported at 735 F.3d 577 (7th Cir. 2013), in which we held unconstitutional a provision of the Indiana Unclaimed Property Act, Ind. Code § § 32-34-1-1 et seq. (Indiana's version of the Uniform Unclaimed Property Act) tat authorized the state to confiscate
private property without any compensation--let alone just compensation--to the owner.
The Act stated that " property" is " presumed abandoned if the owner or apparent owner has not communicated in writing with the holder concerning the property or has not otherwise given an indication of interest in the property" within a specified period varying according to the type of property. § 32-34-1-20(c). By filing a valid claim with the state the owner could reclaim the property at any time up to 25 years after it was delivered to the attorney general. § 32-34-1-36. (After that, if still unclaimed, the property escheated to the state.) But he was entitled only to his principal and not to any interest earned on it. We held that the state's retention of the interest was a taking that violated the Fifth Amendment's just compensation clause (deemed applicable to actions by state governments by interpretation of the Fourteenth Amendment's due process clause) because the owner was paid nothing for his lost interest.
Our opinion concluded by stating that " the judgment is reversed and the case remanded for further proceedings consistent with this opinion. The plaintiff is entitled to just compensation from the state when she files her claim to [Walter] Cerajeski's account [remember that the plaintiff is his guardian], but the amount of that just compensation has yet to be determined. The plaintiff has also sought an injunction--why we don't know; and injunctive relief may well be unavailable in this case. 'Equitable relief is not available to enjoin an alleged taking of private property for a public use.' Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). The availability and propriety of injunctive relief are other issues to be resolved by the district judge in the first instance."
So the case returned to the district court. Several months later the state, having in response to our decision amended its Unclaimed Property Act to provide for payment of interest on property to which the owner had made a valid claim, Ind. Code § § 32-34-1-9.1, 32-34-1-30 (effective July 1, 2014), moved to dismiss the suit as moot. The plaintiff, objecting, asked the district court, pursuant to our judgment, to enter a declaratory judgment and also to award the attorneys' fees incurred in prosecuting the appeal that had resulted in our judgment. (The plaintiff is not seeking an award of fees for any other part of the litigation in either the district court or this court.) The district judge refused, dismissed the suit ...