Analysis
1. Precedents Cited
A. Due process notice framework: “reasonably calculated” notice
The majority anchored its procedural due process analysis in the familiar notice standard from
Mullane v. Cent. Hanover Bank & Tr. Co., requiring “notice reasonably calculated, under all the circumstances” to apprise interested parties and
allow objections—reaffirmed in Jones v. Flowers.
These cases establish two core propositions that controlled the result:
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Publication is a last resort: Mullane approved publication where parties are unknown or not reasonably reachable,
but held publication inadequate for “known present beneficiaries of known place of residence” when mail was available.
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Returned mail triggers additional steps: Jones v. Flowers held that when mailed notice is returned unclaimed,
the State must take “additional reasonable steps” if practicable.
The opinion also invoked Schroeder v. City of New York and Walker v. City of Hutchinson, Kan. to reinforce that
publication is insufficient when a name and address are known or easily ascertainable and direct notice is feasible.
B. Facial challenges and the “no set of circumstances” test
To reject the facial challenge, the court relied on Washington State Grange v. Washington State Republican Party and
United States v. Salerno, reiterating that a facial challenger must show “no set of circumstances exists” under which the law would be valid.
The court emphasized that Mullane itself was as-applied, not a facial invalidation of publication statutes.
C. Self-executing statutes vs. adjudicative determinations: Short and Pope
A pivotal move in the as-applied analysis was the court’s handling of the Clerk’s reliance on Texaco, Inc. v. Short.
The Clerk read Short to mean that enactment of a law is itself sufficient notice to satisfy due process.
The majority rejected that broad reading by distinguishing:
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Self-executing lapse rules (the “Mineral Lapse Act” context in Short), from
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Proceedings or determinations that trigger or implement a time bar, which implicate due process and typically require actual notice, per
Tulsa Professional Collection Services, Inc. v. Pope.
The court treated the Clerk’s decision as a property-rights determination requiring constitutionally adequate notice,
citing Lugar v. Edmondson Oil Co. to confirm that a clerk’s acts affecting property interests can be state action subject to due process constraints.
D. Statutory interpretation and discretion
The court deemed § 116.21 discretionary, relying on its text (“authorized at their discretion”) and
Baker v. State (interpreting similar language as discretionary).
It rejected constitutional-avoidance arguments by applying Johnson v. Arteaga-Martinez (and Jennings v. Rodriguez)
and Florida interpretive principles in Cox Enters., Inc. v. Pension Ben. Guar. Corp. and Williams v. State:
where statutory meaning is plain, courts apply it.
E. The Takings Clause and escheat/abandonment
On the takings claim, the court relied on:
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Lingle v. Chevron U.S.A. Inc. for the “paradigmatic” per se taking: direct appropriation.
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Maron v. Chief Fin. Officer of Fla. for elements of a per se appropriation claim.
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Webb's Fabulous Pharmacies, Inc. v. Beckwith to underscore that principal deposited in the registry is private property, not county property.
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Katsaris v. United States (quoting The No. 105) for the abandonment principle: it requires “voluntary intention” or
evidence from which intent may be presumed.
The majority acknowledged that escheat of abandoned property is generally not a taking (citing Short and
Cerajeski v. Zoeller), but held that premise failed here because the record did not support abandonment once due process deficiencies were accounted for.
The court also used Bennis v. Michigan to clarify that lawful acquisition under another governmental power can avoid compensation,
but stressed that the “lawful” predicate was missing if due process was violated. It cited Horne v. Dep't of Agric. as an example of takings
liability outside eminent domain, and referenced Lacy v. City of Chicago as an illustration of a takings theory tied to deficient notice before disposal/sale.
F. Florida law on abandonment intent
The majority’s rejection of abandonment drew on Florida intent-based abandonment cases:
Dade Cnty. v. City of N. Miami Beach (abandonment is intent; nonuse is only evidence) and
Brown v. Reynolds. The court concluded that the Clerk could not infer intent to abandon from silence when the silence
resulted from constitutionally defective notice.
G. The dissent’s counter-precedent posture
Judge Luck’s partial dissent framed Short and United States v. Locke as controlling:
states may condition continued retention of property on reasonable affirmative duties, and after statutory abandonment, there is no compensable interest.
The dissent also invoked Delaware v. New York (states may assume custody of abandoned property as bona vacantia) and
Bd. of Regents of State Colleges v. Roth (property interests defined by state law), and argued notice is not an element of a takings claim
(citing Maron v. Chief Fin. Officer of Fla.).
2. Legal Reasoning
A. Why § 116.21 survived facial attack
The court’s facial analysis is straightforward: because § 116.21 can constitutionally apply when owners are unknown or not reasonably reachable,
Warner could not meet the Salerno standard. The court also defused Warner’s rhetorical reliance on Mullane
by emphasizing that Mullane itself approved publication as sufficient for some categories of persons and invalidated the statute only as applied to known,
reachable parties.
B. Why the as-applied due process claim succeeded
(i) “The statute itself is notice” did not resolve this case.
The Clerk’s core defense was that the public enactment of § 116.21 provided sufficient notice. The court rejected this by characterizing Warner’s injury not as ignorance of the law’s
existence (a Short-type complaint), but as lack of notice of the Clerk’s application of that law to his specific property—akin to the
adjudicative contexts that, under Tulsa Professional Collection Services, Inc. v. Pope, implicate due process and require actual notice when feasible.
Two factual/legal features made individualized notice especially salient:
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Discretionary initiation: The clerk is “authorized at their discretion” to proceed, so the escheat did not happen purely by lapse of time without state choice.
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Determination of statutory conditions: The clerk effectively determined that the funds satisfied the “unclaimed” criteria and then transferred them to public use.
(ii) Publication was not “reasonably calculated” where direct electronic contact was readily available.
The court held publication could not be sufficient where the Clerk could readily contact Warner through the State’s e-file system—containing a correct email address, phone number,
and a mailing address used by Warner—accessible to the Clerk, which conceded it could message Warner.
Under Mullane and Jones v. Flowers, the availability of practical, direct methods makes publication constitutionally inadequate.
Notably, the court did not need to decide whether publication in La Gaceta (a primarily Spanish-language newspaper with limited reach) would be adequate if no better
notice methods existed; the existence of better methods sufficed to invalidate the notice in these circumstances.
(iii) The letter notice failed twice—factually and substantively.
Even though § 116.21 did not require a letter, the Clerk sent one to an address it had reason to know was bad—having received thirteen return-to-sender notices for that same address.
Under Jones v. Flowers and Florida’s application in Delta Prop. Mgmt. v. Profile Invs., Inc., returned mail triggers
a duty to take additional reasonable steps when practicable; here, practicable alternatives existed.
The court also found a substantive defect: the letter referenced transfer to the State’s unclaimed property division (a custodial regime under ch. 717),
not permanent forfeiture to the county under § 116.21 that would “forever bar” claims—so even successful delivery would not have warned of the true deprivation.
C. Why the takings claim succeeded (majority)
Having found Warner retained a property interest, the court treated the county’s appropriation as a per se taking under
Lingle v. Chevron U.S.A. Inc. and Maron v. Chief Fin. Officer of Fla. unless the county could show the funds were abandoned.
The opinion’s key move is to collapse the abandonment inference into the due process failure:
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Under Florida law (e.g., Dade Cnty. v. City of N. Miami Beach), abandonment turns on intent; nonuse may be evidence, but is not conclusive.
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Here, the sole basis for presuming intent was Warner’s non-response to notice; but notice was constitutionally deficient, and Warner never received it.
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Therefore, the county could not constitutionally infer abandonment from silence produced by the state’s own lack of due process.
The court distinguished the Clerk’s reliance on Texaco, Inc. v. Short and United States v. Locke by emphasizing that § 116.21
is structured to confirm abandonment after publication—making notice central to the abandonment inference—whereas Locke involved forfeiture of a legislatively
created interest for failure to file by a date certain. In effect, once notice failed, the statutory mechanism for inferring abandonment became constitutionally unusable on this record.
D. The dissent’s takings theory in contrast
Judge Luck’s dissent would have held that once § 116.21’s statutory conditions were satisfied, the money was “abandoned” under state law, leaving no compensable interest under
Texaco, Inc. v. Short. The dissent further argued that notice defects go to procedural due process, not the elements of a takings claim, and that
“the statute itself provides sufficient notice of the escheatment” under Short and related circuit authority cited in dissent.
3. Impact
A. Practical implications for clerks and escheat practices
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Publication-only compliance with § 116.21 may be insufficient as applied when the clerk has (or can readily obtain) direct contact information.
Clerks should expect that constitutionally adequate notice may require using accessible electronic case-management/e-filing contact channels.
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Returned mail is a red flag: after repeated return-to-sender events, proceeding without alternative steps invites liability under Jones v. Flowers.
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Accuracy of notice content matters: warning an owner about transfer to state unclaimed property (custodial and reclaimable) may not substitute for notice of
a permanent county forfeiture with claim-barring consequences.
B. Litigation consequences: two-track challenges (due process + takings)
By coupling due process deficiencies to the inability to establish abandonment, the decision provides a template for plaintiffs to plead and prove not only procedural due process claims
but also a compensable taking when the government converts “unclaimed” funds to public use without constitutionally reliable evidence of abandonment.
C. Doctrinal significance: limiting “statute-as-notice” in discretionary escheat settings
The opinion narrows the reach of generalized “enactment is notice” language from Texaco, Inc. v. Short by emphasizing
Tulsa Professional Collection Services, Inc. v. Pope: when a government actor must initiate or implement a deprivation through additional steps or discretionary choices,
due process is “directly implicated” and actual notice is generally required where feasible.