242
Scalia, J., dissenting
use of client funds in IOLTA accounts or the payment of interest to LFW. Id., at 151. The Supreme Court of Washington dismissed all constitutional objections to its 1984 order on the now-discredited ground that any interest that might be earned on IOLTA accounts would not be "property" of the clients. Id., at 158; cf. Phillips, supra.
As the Court correctly notes, Washington's IOLTA program comprises two steps: First, the State mandates that certain client trust funds be placed in an IOLTA account, where those funds generate interest. Second, the State seizes the interest earned on those accounts to fund LFW. Ante, at 234. With regard to step one, we held in Phillips, supra, that any interest earned on client funds held in IOLTA accounts belongs to the owner of the principal, not the State or the State's designated recipient of the interest. As to step two, the Court assumes, arguendo, that the appropriation of petitioners' interest constitutes a "taking," 1 but holds that just compensation is zero because without the mandatory pooling arrangements (step one) of IOLTA, petitioners' funds could not have generated any interest in the first place.2 Ante, at 239-240. This holding contravenes our
1 Although the Ninth Circuit concluded that Washington's IOLTA scheme did not constitute a "taking" of petitioners' property, Washington Legal Foundation v. Legal Foundation of Wash., 271 F. 3d 835, 861 (2001), the Court does not attempt to defend this aspect of the decision. Ante, at 235.
2 The Court's ruminations on whether the State's IOLTA program satisfies the Fifth Amendment's "public use" requirement, ante, at 231-232, come as a surprise, inasmuch as they address a nonjurisdictional constitutional issue raised by neither the parties nor their amici. Petitioners' sole contention in this Court is that the State's IOLTA program violates the just compensation requirement of the Takings Clause. Brief for Petitioners 18-48; Reply Brief for Petitioners 1-20.
In needlessly addressing this issue, the Court announces a new criterion for "public use": The requirement is "unquestionably satisfied" if the State could have raised funds for the same purpose through a "special tax" or a "system of user fees," ante, at 232. This reduces the "public use" requirement to a negligible impediment indeed, since I am unaware of any use
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