New Cert Petition: State Court Altering Bottle Refund Rights A Judicial Taking

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Robert Thomas

BY ROBERT THOMAS – Here’s the latest foray into the judicial takings arena. In this cert petition, a beverage distributor asserts that the Connecticut Supreme Court’s decision altering established property rights in unclaimed refund values in bottles resulted in a taking.

Here are the Questions Presented:


For nearly 30 years, Connecticut beverage distributors had established property rights in socalled “unclaimed refund values” accumulated in conjunction with the State’s bottle return regulatory scheme. The Connecticut Supreme Court eliminated these rights in holding that a recent amendment to the regulatory scheme did not affirmatively vest distributors with an interest in the so-called unclaimed refund values, allowing the State to retroactively take the distributors’ property.

1.  Did the Connecticut Supreme Court’s opinion eliminating an established property right, and allowing the State to retroactively take the petitioners’ property, effect a “judicial taking” in violation of the Fifth and Fourteenth Amendments to the United States Constitution?

2.  Did the Connecticut Supreme Court’s opinion arbitrarily deprive distributors of their property in violation of the Due Process Clause of the Fourteenth Amendment when it held that distributors had no property rights in unclaimed refund values, despite 30 years of settled expectations and practices to the contrary?

Over the next few days, we’ll post the amicus briefs that have been filed in support. Follow the case on the Supreme Court’s docket here.

Petition for a Writ of Certiorari, A. Gallo & Co., Inc. v. Comm’r of Envt’l Protection, No. 13-625 (fil…

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.