THE FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES v. RAYMOND A. DELLASELVA ( 2019 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FLORIDA DEPARTMENT OF )
AGRICULTURE AND CONSUMER )
SERVICES and FLORIDA )
COMMISSIONER OF AGRICULTURE, )
)
Appellants, )
)
v. ) Case No. 2D18-1393
)
JOSEPH DOLLIVER; NANCY DOLLIVER; )
JOHN KLOCKOW and DEANNA )
KLOCKOW, Trustees of the Klockow )
Living Trust; CHARLES STROH; LOIS )
STROH; THE CERTIFIED CLASS OF LEE )
COUNTY HOMEOWNERS; RAYMOND )
DELLASELVA; MARY E. DELLASELVA; )
and MARIANNE J. SANSON, Trustee of )
the Marianne J. Sanson Revocable Trust, )
)
Appellees. )
___________________________________)
Opinion filed November 13, 2019.
Appeal from the Circuit Court for Lee
County; Keith R. Kyle, Judge.
Wesley R. Parsons and Karen H. Curtis of
Clarke Silverglate, P.A., Miami, for
Appellants.
Robert C. Gilbert of Grossman Roth Yaffa
Cohen, P.A., Coral Gables; and Bruce S.
Rogow and Tara Campion of Bruce S.
Rogow, P.A., Fort Lauderdale, for
Appellees.
SILBERMAN, Judge.
The Florida Constitution provides in what is commonly referred to as the
"Takings Clause" that "[n]o private property shall be taken except for a public purpose
and with full compensation therefor paid to each owner or secured by deposit in the
registry of the court and available to the owner." Art. X, § 6(a), Fla. Const. Appellants,
a class of homeowners in Lee County (the Lee Homeowners), have spent sixteen years
fighting for their constitutional rights to payment of compensation for the taking of their
property by the Florida Department of Agriculture and Consumer Services and the
Florida Commissioner of Agriculture (the Department).
In this stage of these unnecessarily protracted proceedings, the Lee
Homeowners are pursuing enforcement of a 2014 final judgment for $13,625,249.09
that was entered following a jury trial, together with final judgments for attorney's fees
and costs entered in their favor in 2015 and 2016. In 2016, this court affirmed the 2014
final judgment, Fla. Dep't of Agriculture & Consumer Servs. v. Dolliver, 209 So. 3d 578
(Fla. 2d DCA 2016) (table decision), and the Department did not seek further review in
the Florida Supreme Court. The Department also did not seek appellate review of the
judgments for fees and costs.
As a result of the Department's ongoing failure to pay the outstanding final
judgments, the Lee Homeowners returned to court to enforce the judgments. Although
the judgments have long been final and the Department claimed that it would be "happy
to pay the three judgments," the Department asserted that it is unable to make payment
until the legislature appropriates the funds as required by sections 11.066(3) and (4),
Florida Statutes (2015). The Lee Homeowners responded that the Department has
-2-
refused to take affirmative action to obtain an appropriation and has taken a position
that has resulted in the governor vetoing a legislative appropriation that the Lee
Homeowners had requested. Further, the Lee Homeowners argued that sections
11.066(3) and (4) are unconstitutional as applied.
After an evidentiary hearing, the trial court entered a thorough order1 that
addressed at length the Takings Clause, the pertinent statutes, and the applicable case
law, together with the evidence that the parties presented. The court determined that
sections 11.066(3) and (4) are unconstitutional as applied and issued a writ of
mandamus directing the Department to pay the judgments. As the court explained, "To
essentially argue that the [Lee Homeowners] should just hope that someday, some
year, the Legislature eventually will pass an appropriation to cover the judgments, and
further that the governor finally will assent, while at the same time doing absolutely
nothing to secure such an appropriation, is a specious argument." (Order p. 7) We
agree with the trial court's well-reasoned decision and affirm.
I. Introduction
The question before this court is whether the trial court erred in declaring
sections 11.066(3) and (4) unconstitutional as applied to the Lee Homeowners' takings
judgments and in issuing a writ of mandamus compelling payment. Sections 11.066(3)
and (4) provide as follows:
(3) Neither the state nor any of its agencies shall pay or be
required to pay monetary damages under the judgment of
any court except pursuant to an appropriation made by law.
To enforce a judgment for monetary damages against the
state or a state agency, the sole remedy of the judgment
1Theentire order can be found at the following link on our website:
https://www.2dca.org/Opinions/Cited-Links-in-Opinions/2D18-1393.pdf.
-3-
creditor, if there has not otherwise been an appropriation
made by law to pay the judgment, is to petition the
Legislature in accordance with its rules to seek an
appropriation to pay the judgment.
(4) Notwithstanding s. 74.091, a judgment for monetary
damages against the state or any of its agencies may not be
enforced through execution or any common-law remedy
against property of the state or its agencies, and a writ of
execution therefor may not be issued against the state or its
agencies. Moreover, it is a defense to an alternative writ of
mandamus issued to enforce a judgment for monetary
damages against the state or a state agency that there is no
appropriation made by law to pay the judgment.
Under section 11.066(3), a court may not require a state agency to pay a
judgment for monetary damages absent an appropriation made by the legislature. In
the event of nonpayment of a monetary judgment due to a lack of appropriation, the
judgment creditor must petition the legislature for an appropriation. Id. Section
11.066(4) expressly prohibits the courts from issuing a writ of execution or using any
common-law remedy against the state agency to enforce the monetary judgment. And,
in the event a court issues an alternative writ of mandamus to compel payment, section
11.066(4) provides that the lack of an appropriation is a valid defense.
The difficulty with these provisions is that despite the constitutional
imperative in the Takings Clause, they give the legislature the sole discretion to decide
whether and when to make an appropriation. And if an appropriation is made, it is
subject to the governor's sole discretion to veto it. By doing so, application of these
statutory provisions could subject payment of a takings judgment to the whim of the
legislature and governor. And this could result in sections 11.066(3) and (4) effectively
abrogating judgment creditors' constitutional rights to full compensation under the
Takings Clause.
-4-
II. Facts
This action began in 2003 when the Lee Homeowners sued the
Department for inverse condemnation for taking 33,957 healthy citrus trees located on
11,811 residential properties. The Department had taken the trees in the course of its
efforts to eradicate citrus canker. In 2014, following a jury trial, the trial court entered a
judgment awarding the Lee Homeowners $13,625,249.09 plus interest and a judgment
awarding them $821,993.12 in attorney's fees. The takings judgment was affirmed by
this court. See Dolliver, 209 So. 3d 578. This court also awarded the Lee Homeowners
appellate attorney's fees, and the trial court entered a third judgment in the amount of
$70,892.50.2
In the 2017 session of the Florida Legislature, the Lee Homeowners
requested an appropriation to pay the judgments. The legislature passed a bill in the
session that included such an appropriation. However, Commissioner Adam Putnam
had made public statements suggesting that the Department was still challenging the
judgments, and Governor Scott line-item vetoed the appropriation in apparent reliance
on those statements on June 2, 2017.
On June 8, 2017, the Lee Homeowners filed a petition for writ of
mandamus or to declare sections 11.066(3) and (4) unconstitutional in the trial court.
The court issued an alternative writ and held a hearing on the petition. In March 2018,
the court entered an order that detailed at great length the evidence presented and
2Prior
to the Lee Homeowners' trial, other homeowners around the state
who were affected by citrus canker filed four class-action inverse condemnation actions
against the Department. In the Miami-Dade County case, the Department obtained a
defense verdict. The homeowners obtained judgments in Broward, Palm Beach, and
Orange Counties.
-5-
contained extensive findings. It is not necessary to repeat the trial court's findings for
the purposes of this opinion. We simply note that the court's factual findings are
supported by the evidence.
The court determined that the Lee Homeowners established the elements
necessary for a writ of mandamus: (1) they have a clear legal right to payment of the
judgments, (2) the Department has a legal duty to pay, and (3) they are without an
adequate remedy at law because the legislature has not been able to successfully pass
an appropriation resulting in payment. But the court also determined that, despite the
Lee Homeowners' satisfaction of these elements, sections 11.066(3) and (4) precluded
the court from issuing a writ of mandamus directing the Department to pay the
judgments.
The trial court then examined sections 11.066(3) and (4) and held that the
statutes were unconstitutional as applied. Based on that conclusion, the court stated it
would enter a writ of mandamus ordering the Department to immediately pay or arrange
for payment of the three judgments. If the Department did not comply, the court would
consider entering an order to show cause why the Department should not be held in
contempt. Alternatively, the court would consider issuing a writ of execution. The court
authorized the Lee Homeowners to conduct a deposition in aid of execution and submit
to the court a list of the Department's properties that would satisfy the judgments. The
court would review the list, conduct a duly noticed hearing, and decide which, if any, of
the properties may be subject to a writ of execution.
The writ of mandamus issued in April 2018. The Department filed this
timely appeal of the March 2018 order and the April 2018 writ of mandamus. While the
-6-
appeal has been pending, two more legislative sessions have passed without the
appropriation of any funds for the takings judgments.
III. Issues/Analysis
A. The Department's Ability to Pay
The Department asserts that the trial court erred in issuing a writ absent
evidence that it had the present ability to pay the judgments. We recognize that the
total inability to pay the judgments may preclude issuance of a writ of mandamus. See
State v. Amos, 131 So. 122, 123 (Fla. 1930); State v. Tavares & G.R. Co., 82 So. 833,
835 (Fla. 1919); Conner v. Mid-Fla. Growers, Inc., 541 So. 2d 1252, 1256 n.7 (Fla. 2d
DCA 1989). However, the Department has not established that it lacks the ability to
satisfy the judgments in full or in part. Instead, the Department's position is that it is not
legally authorized (or required) to pay the judgments until the legislature appropriates
the funds for that purpose as required by sections 11.066(3) and (4).
Based on the evidence presented the trial court found that the Department
failed to demonstrate an actual inability to pay. Indeed, the Department has made no
efforts to pay or secure payment of the judgments, and it has failed to request an
appropriation in order to make payment.3 In fact, when the legislature included an
appropriation in the 2017 budget, the Department's position that the judgments were not
final resulted in the governor vetoing that appropriation. As to the 2018-19 budget, the
3Inits reply brief, the Department asserted that it requested an
appropriation to pay the three judgments in its Legislative Budget Request (LBR) for
2020-21, which was filed while this appeal was pending. The Department informed this
court that we could take judicial notice of the LBR but did not file a motion requesting
same. Regardless, this court has taken judicial notice of Senate Bill 2500, the fiscal
year 2019-20 budget, which does not contain an appropriation for the judgments.
-7-
Department sought millions of dollars for increased salaries and vehicles, while
admittedly doing nothing to assist and support proposed appropriations to pay the
judgments. In summary, as found by the trial court, "The overwhelming and conclusive
evidence demonstrated that the" Department failed to pay the "judgments or make even
the most basic of efforts to secure an appropriation of funds to pay" the judgments.
(Order p. 15)
B. The Alleged Failure to Exhaust Legal Remedies
The Department next argues that the constitutionality challenge to
sections 11.066(3) and (4) was not ripe because the Lee Homeowners did not file a
claim bill under section 11.066(3). However, section 11.066(3) does not mention a
claim bill but merely states: "To enforce a judgment for monetary damages against the
state or a state agency, the sole remedy of the judgment creditor, if there has not
otherwise been an appropriation made by law to pay the judgment, is to petition the
Legislature in accordance with its rules to seek an appropriation to pay the judgment."
(Emphasis added.) The Fourth District has already rejected this exhaustion of remedies
argument on the same basis in the Broward County litigation. See Bogorff v. Fla. Dep't
of Agric. & Consumer Servs., 191 So. 3d 512, 514 (Fla. 4th DCA 2016).
As noted previously, an appropriation had been made during the 2017
legislative term, but it was vetoed by the Governor apparently based on the
Department's incorrect position that the judgments were not final. Moreover, the
evidence before the trial court established that the Department had not previously
raised section 11.066 as an impediment to paying other judgments. Based on the
-8-
analysis in Bogorff and the circumstances here, we conclude that the constitutionality
challenge to sections 11.066(3) and (4) was ripe.
C. The Constitutionality of Sections 11.066(3) and (4)
The trial court found sections 11.066(3) and (4) unconstitutional as applied
because the provisions (1) unconstitutionally restrict the Lee Homeowners' rights to
payment of full compensation for a governmental taking of their property under article X,
section 6(a), of the Florida Constitution; (2) violate the separation of powers doctrine
under article II, section 3; and the power of the judiciary under article V, section 1; (3)
violate the Lee Homeowners' rights of access to the courts under article I, section 21;
and (4) unconstitutionally conflict with section 74.091, Florida Statutes (2015), which
provides property owners the right to obtain a writ of execution to enforce a judgment in
an eminent domain proceeding. The Department challenges all of these findings, and
we adopt the trial court's well-reasoned analysis in its entirety. For purposes of this
opinion, we address the first two findings because they are the most compelling.
1. Right to full compensation for a governmental taking of
property under art. X, § 6(a)
In finding sections 11.066(3) and (4) unconstitutional on this basis, the trial
court reasoned, in part, as follows:
As stated in Notami Hospital of Florida, Inc. v. Bowen, 927
So. 2d 139, 142 (Fla. 1st DCA 2006), "[s]tate constitutions
are limitations upon the power of [] state legislature[s] . . . ."
As a result, a statute enacted by the Legislature may not
restrict a fundamental right granted under the Florida
Constitution. "To the extent [] a statute conflicts with express
or clearly implied mandate[s] of the Constitution, the statute
must fa[l]l." Id. at 142. Not surprisingly, courts rely on this
principle—legislative authority necessarily yields to
constitutional pronouncements—in the very context at issue
-9-
here: where legislation conflicts with the express or implied
mandate of Article X, § 6(a).
In Storer Cable T.V. of Fla., Inc. v. Summerwinds
Apts. Assocs. Ltd., 493 So. 2d 417 (Fla. 1986), the Florida
Supreme Court held that a statute purporting to authorize a
television service provider to enter private property without
providing full compensation to the owner was
unconstitutional under Article X, § 6, Fla. Const., as well as
the Fifth Amendment to the United States Constitution. Id. at
418. Similarly, in the inverse condemnation case of Drake v.
Walton County, 6 So. 3d 717 (Fla. 1st DCA 2009), the First
District Court of Appeal held that regardless of the county's
statutory authority to excavate drainage paths to preserve
property under § 252.43(6), Fla. Stat., the county's statutory
authority "must yield to Article 10, section 6 of the Florida
Constitution," requiring payment of full compensation to the
aggrieved party. Id. at 722.
No legislative pronouncement may thwart the
implementation of a constitutional mandate—particularly
where, as is typically the case and here, the constitutional
provision is self-executing. In such cases, the Legislature
may enact legislation addressing the constitutional right
conferred, but only to further protect the right or make the
right more readily available, not to undermine it. See, e.g.,
Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478,
485 (Fla. 2008) (recognizing that [a] constitutionally granted
right "may be supplemented by legislation, further protecting
the right or making it available," and that such does not
prevent the provision from being self-executing). In Florida
Hospital, the Florida Supreme Court explained:
The will of the people is paramount in
determining whether a constitutional provision
is self-executing and the modern doctrine
favors the presumption that constitutional
provisions are intended to be self-operating.
This is so because in the absence of such [a]
presumption the legislature would have the
power to nullify the will of the people expressed
in their constitution, the most sacrosanct of all
expressions of the people.
Id. at 486 (quoting Gray v. Bryant, 125 So. 2d 846, 851 (Fla.
1960)).
Application of §§ 11.066(3) and (4) to prevent or limit
payment of the three judgments awarded to [the Lee
- 10 -
Homeowners] in this constitutional takings proceeding
similarly "run[s] afoul" of the self-executing, constitutional
mandate that requires it. See Florida Hospital. As reflected
in the cases discussed above, the payment of full
compensation for a taking is compulsory. . . .
While the Legislature may permissibly implement the
constitutional mandate in order to further protect the
constitutional right to full compensation for a taking, or to
make the right more readily available, §§ 11.066(3) and (4)
do precisely the opposite. Application of §§ 11.066(3) and
(4) to preclude issuance of a writ of execution will preclude
the efforts of the Lee Homeowners to secure their
constitutional right to payment of full compensation, and
subject the payment of lawfully entered constitutional takings
judgments to the vagaries of the legislative appropriations
process. Absent judicial action, application of these sections
will render payment of constitutional compensation entirely
subject to the arbitrary exercise of the Legislature's
discretion to appropriate funds, leaving little doubt that the
constitutional guaranty of payment of full compensation will
be denied to [the Lee Homeowners]. Put another way, [the
Lee Homeowners'] right to full compensation is subject to the
will of the Legislature to pass an appropriation, and the
Governor to approve it, thereby essentially making the
subject guarantee of full compensation under our State
Constitution an illusory promise with no guarantee of
compliance. Accordingly, the interpretation and suggested
application of §§ 11.066 (3) and (4) must yield to Article X, §
6(a), Fla. Const.
(Order pp. 46-47) (footnotes omitted).
The Department raises three challenges to this analysis. First, it argues
that the Takings Clause does not trump sections 11.066(3) and (4) because those
sections are premised on the doctrine of sovereign immunity, which predates the
constitution. The Department asserts that the supreme court has found constitutional a
statutory cap that contained a similar restriction on payment for governmental
negligence. See Cauley v. City of Jacksonville, 403 So. 2d 379, 379 n.1, 384 (Fla.
1981) (upholding a statute providing a cap on tort judgments against a municipality and
- 11 -
providing that judgments in excess of the cap "may be paid in part or in whole only by
further act of the Legislature").
However, as noted by the Lee Homeowners, the underlying principle
behind the Takings Clause is that the government is not immune from the obligation to
pay full compensation when it takes and destroys private property. See State Road
Dep't of Fla. v. Tharp, 1 So. 2d 868, 869-70 (Fla. 1941); Hillsborough County v. Kensett,
144 So. 393, 395 (Fla. 1932). Additionally, Cauley did not involve a statute that, as
applied, completely deprived homeowners of their rights to compensation for a taking.
Instead, Cauley involved the application of a statute that provided a cap on tort
judgments, subject to further legislative action. Cauley, 403 So. 2d at 379 n.1. Here, as
discussed previously, the Department takes the position that it will make no payment of
the final judgments absent specific legislative appropriation; that it has no obligation to
take any action to secure such an appropriation; and that it is up to the legislature to
decide whether to make an appropriation. We agree with the trial court that these
statutes, as applied here, are contrary to the Takings Clause.
Second, the Department argues that sections 11.066(3) and (4) are
reasonable restrictions on the means by which a takings judgment may be paid. See,
e.g., District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (recognizing reasonable
restrictions on the constitutional right to bear arms); Buss v. Reichman, 53 So. 3d 339,
344 (Fla. 4th DCA 2011) ("The Florida Supreme Court has repeatedly recognized that
like other constitutional rights, the right to habeas relief is subject to reasonable
restrictions."). However, based on the evidence presented sections 11.066(3) and (4)'s
restrictions, as applied, completely deprive the Lee Homeowners of their rights to full
- 12 -
compensation for the government's taking. In short, the restrictions have not regulated
payment; they have allowed the Department to completely avoid payment contrary to
the Takings Clause.
And third, the Department argues that there are no Florida cases declaring
unconstitutional a statute that provides a process for payment of a governmental
obligation. The Department asserts that the cases cited by the trial court involve
instances of no compensation for a taking while sections 11.066(3) and (4) merely
regulate the process for obtaining compensation. However, the Department
mischaracterizes the result of sections 11.066(3) and (4) under the circumstances here.
As applied, the statues are being used as a shield against required compensation
established by the final judgments and in accordance with the Takings Clause.
2. Separation of powers under article II, section 3; and the power
of the judiciary under article V, section 1
In finding sections 11.066(3) and (4) unconstitutional on this basis, the trial
court reasoned, in part, as follows:
Application of §§ 11.066(3) and (4) also sets them at
odds with another long-settled and well-enshrined principle;
the determination of full compensation is a judicial function
that cannot constitutionally be performed by the Legislature.
As the Florida Supreme Court long ago held in Daniels v.
State Road Dep't, 170 So. 2d 846, 851 (Fla. 1964):
It is well settled that the determination of [what
is] just compensation for the taking of private
property for public use 'is a judicial function that
cannot be performed by the Legislature either
directly or by any method of indirection.'
Id. at 851 (emphasis added, quoting Spafford v. Brevard,
110 So. 451, 455 (Fla. 1926)).
Indeed, this oft-repeated principle is a hallmark of
citrus canker jurisprudence. See, e.g., Patchen v. Dep't of
- 13 -
Agriculture, 906 So. 2d 1005, 1008 (Fla. 2005) (holding that
"the determination of what is just compensation . . . is a
judicial function that cannot be performed by the
Legislature") (quoting [Haire v. Fla. Dep't of Agriculture], 870
So. 2d at 785); Dep't of Agriculture v. Bonnanno [sic], 568
So. 2d 24, 31 (Fla. 1990) ("It is true that the legislature may
not set conclusive values for property taken for a public
purpose because the determination of just compensation is a
judicial function."); State Plant Bd. v. Smith, 110 So. 2d 401,
407 (Fla. 1959) ("But where, as here, a provision for 'just
compensation' is a clear requisite to the act of destruction,
then we find no authority for the Legislature's specification of
the maximum compensation to be paid."); [Fla.] Dep't of
Agriculture v. Haire, 836 So. 2d 1040, 1048 (Fla. 4th DCA
2003), aff'd, 870 So. 2d 774 (Fla. 2004) ("Although the
[l]egislature had set the amount of compensation in the act, .
. . the determination of what constitutes 'just compensation'
[is] a []judicial function[] which [cannot] be pre[-]empted by
the Legislature.") (citing State Plant Board v. Smith, 110 So.
2d 401, 407 (Fla. 1959)[)].
The rationale for vesting the judiciary with the power
to determine full compensation, instead of vesting such
authority in the Legislature, is sound and controls here. As
stated in Daniels:
[']The just compensation clause may not be
evaded or impaired in any form of legislation.
Against the opposition of the owner of private
property taken for [] public use, the Congress
may not directly or through any legislative
agency finally determine the amount that is
safeguarded to him [by that] clause. . . .
[W]hen he appropriately invokes the just
compensation clause, he is entitled to a judicial
determination of the amount.['] . . . And in
Monongahela Navigation Co. v. U.S., supra,
148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463
[1893], in which the Supreme Court struck
down an Act of Congress purporting to exclude
an element of value . . . , the court said that
just compensation means that "a full and
perfect equivalent for the property taken" must
be returned to the owner, and that "By this
l[e]gislation[] congress seems to have
assumed the right to determine what shall be
the measure of compensation. But this is a
- 14 -
judicial, and not a legislative[,] question. * * * It
does not rest with the public, taking the
property, through congress or the legislature,
its representative, to say what compensation
shall be paid, or even what shall be the rule of
compensation. The Constitution has declared
that just compensation shall be paid, and the
ascertainment of that is a judicial inquiry.
170 So. 2d at 852 (quoting Baltimore & [O.R.] Co. v. U.S.,
298 U.S. 349, 368 (193[6])) (emphasis in original).
To the extent that §§ 11.066(3) and (4) are interpreted
to permit the Legislature (by the appropriations process) to
control the amount of compensation, if any, that [the Lee
Homeowners] will actually receive under their lawfully-
entered constitutional takings judgments, the Legislature, in
effect, will both impose the taking and then determine
whether or not, and in what amount, it will pay—in essence
supplanting the jury's verdict with their own. Such a result
resoundingly and repeatedly has been rejected by the
Florida Supreme Court as noted in some of the
aforementioned cases. A statute that allows the Legislature
to exercise its discretion to determine whether or not, and in
what amount, it will pay lawfully entered constitutional
takings judgments is no different than legislation that
purports to fix full compensation. Indeed, as succinctly
stated by the Fourth District [in the Broward County
litigation]:
While the government has the ability to
establish procedures for payment of its
constitutional obligation, it does not have the
luxury of avoiding it. Should the Class fail in
obtaining a writ of mandamus, pursuant to
section 11.066(4), the constitutional issue will
ripen, and [t]he courts will be left with no choice
but to enforce Article X, section 6(a) of the
Florida Constitution.
Bogorff II, 191 So. 3d at 51[6].[4]
(Order pp. 54-56)
4Bogorff v. Fla. Dep't of Agric. & Consumer Servs., 191 So. 3d 512 (Fla.
4th DCA 2016).
- 15 -
The Department argues that sections 11.066(3) and (4) do not implicate
the judicial function of determining just compensation for a taking. The Department
asserts that the judiciary has already determined just compensation by entering a
judgment for damages pursuant to a jury verdict. The Department claims that sections
11.066(3) and (4) "relate solely to the payment and the appropriation of state funds for
the amounts previously judicially determined, a matter within the exclusive purview of
the legislative, not the judicial, branch."
However, these provisions allow the legislature to exercise its discretion to
determine whether, when, and in what amount to pay constitutional takings judgments.
In this way, sections 11.066(3) and (4) expand the legislature's power beyond the
payment and appropriation of state funds for amounts previously determined. See
State Plant Bd. v. Smith, 110 So. 2d 401, 407 (Fla. 1959) (holding that a statutory cap
on payment for the taking of healthy trees constituted a legislative encroachment on the
judiciary's power to determine just compensation for the taking of private property). As
applied, the provisions have thwarted payment of full compensation, determined
through court proceedings, under the Takings Clause for years.
D. The Doctrine of Separation of Powers
The Department argues that the order and writ violate the doctrine of
separation of powers by encroaching on the legislative prerogative to appropriate funds
and the Department's prerogative to control its own budget. We acknowledge that
generally "[t]he judicial branch may not either interfere with the legislative branch by
requiring funds to be spent by an executive agency in a manner not authorized by
statute, nor interfere with an executive agency's discretion in the spending of
- 16 -
appropriated funds." Dep't of Children & Families v. K.R., 946 So. 2d 106, 107-08 (Fla.
5th DCA 2007). However, by specifying a defense to issuance of a writ of mandamus,
section 11.066(4) itself recognizes the authority of the judicial branch to issue a writ of
mandamus compelling a state agency to pay a valid judgment against it. And the
supreme court has recognized that "issuance of the writ of mandamus is an appropriate
enforcement mechanism" for a judgment against a governmental entity. Fla. Dep't of
Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1271 (Fla. 2008).
E. Writ of Execution
The Department challenges the portion of the order providing that if it fails
to comply with the writ of mandamus the court would consider issuing a writ of
execution against the Department's property. It also challenges the portion of the order
allowing the Lee Homeowners to conduct a deposition in aid of execution and to submit
a list of executable property to the trial court. The Department argues that these rulings
violate section 11.066(4) and the Department's protection as a sovereign.
However, we have considered both of these arguments and conclude that
both authorities cited by the Department yield to the Lee Homeowners' constitutional
rights to be compensated for the governmental taking. Furthermore, as noted by the
Lee Homeowners, any challenge to these provisions is premature because the court
indicated that it would not issue a writ of execution without conducting a duly noticed
hearing to decide which, if any, of the Department's property may be subject to a writ of
execution.
IV. Conclusion
- 17 -
After considering all arguments made by the Department, we conclude
that the trial court did not err in declaring sections 11.066(3) and (4) unconstitutional as
applied to the Lee Homeowners' takings judgments and in issuing a writ of mandamus
compelling payment. Applying sections 11.066(3) and (4) to prevent the trial court from
issuing a writ of mandamus would preclude the Lee Homeowners from securing their
constitutional rights to payment of full compensation under article X, section 6(a), of the
Florida Constitution. It would also allow the legislature to control the amount of
compensation, if any, that the Lee Homeowners will actually receive in contravention of
the separation of powers doctrine under article II, section 3; and the power of the
judiciary under article V, section 1. We echo the following sentiment of the trial court:
"This Court cannot and will not countenance further delays in securing payment to [the
Lee Homeowners] of the constitutionally-guaranteed full compensation that was
adjudicated to finality in this case." We affirm the orders on appeal.
Affirmed.
NORTHCUTT, JJ., Concurs.
BADALAMENTI, Judge, Concurring specially.
I fully concur in the opinion of the court. I write separately to suggest that
the legislature consider certain amendments to section 11.066, Florida Statutes (2015).
As an initial matter, our holding subsections 11.066(3) and (4)
unconstitutional as applied comes after careful determination that no other grounds
were available to enforce the final judgment rendered in favor of the plaintiffs here. See
In re Holder, 945 So. 2d 1130, 1133 (Fla. 2006) ("Of course, we have long subscribed to
- 18 -
a principle of judicial restraint by which we avoid considering a constitutional question
when the case can be decided on nonconstitutional grounds."). And we act today to
protect the Lee Homeowners' self-executing constitutional right to receive "full
compensation" for the Department's taking of their 33,957 citrus trees. See art. X, §
6(a), Fla. Const. Indeed, neither the Constitution of the United States nor the
Constitution of the State of Florida's respective takings provisions means anything
unless those who have been deprived of their private property are paid for what the
state took from them. See Bogorff v. Fla. Dep't. of Agric. & Consumer Servs., 191 So.
3d 512, 516 (Fla. 4th DCA 2016) (citing Tampa–Hillsborough Cty. Expressway Auth. v.
A.G.W.S. Corp., 640 So. 2d 54, 58 (Fla. 1994)) (explaining that the Florida Supreme
Court has interpreted the takings clauses of the United States and Florida Constitutions
coextensively).
The text of the takings provisions of both the Fifth Amendment and
Florida's constitution yields the obvious conclusion that they are self-executing. See
amend V, U.S. Const. ("[N]or shall private property be taken for public use, without just
compensation."); art. X, § 6(a), Fla. Const. ("No private property shall be taken except
for a public purpose and with full compensation therefor paid to each owner . . . ."). In
other words, these takings provisions do not require enabling legislation to be effective.
If a person's private property is physically taken by the government without "full
compensation" at the time that the government took it, as we have here, we are able to
discern a constitutional violation has occurred simply by the operation of the
constitutional provisions. See Knick v. Twp. of Scott, 139 S. Ct. 2162, 2171 (2019)
("Because of 'the self-executing character' of the Takings Clause [of the Fifth
- 19 -
Amendment to the United States Constitution] 'with respect to compensation,' a property
owner has a constitutional claim for just compensation at the time of the taking."
(quoting First English Evangelical Lutheran Church of Glendale v. Los Angeles Cty.,
Cal., 481 U.S. 304, 318 (1987))); Flatt v. City of Brooksville, 368 So. 2d 631, 632 (Fla.
2d DCA 1979) (noting that article X, section 6(a) of the Florida Constitution "does not
require enabling legislation to be effective"). Even still, this case illustrates that the
operation of even a self-executing constitutional provision has its challenges.
With the challenges presented in this case in mind, the legislature may
wish to consider amending section 11.066 to take steps to accelerate the finality of
constitutionally-based final judgments entered against the state and its agencies in our
state's courts of law. As to finality, the answer cannot be, as the Department suggests,
that takings plaintiffs must wait an indeterminate, if not infinite, number of legislative
sessions for the state to fully satisfy constitutionally-based monetary judgments. And
the position of a state agency should not be, as here, that it owes no duty to assist
takings plaintiffs with the process of receiving payment of constitutionally-based
monetary judgments.
Specifically, the legislature may first consider amending section 11.066 to
include that the state and its agencies provide immediate, accurate, and ongoing
information to the legislature until constitutionally-based monetary judgments are paid in
full. Second, the legislature may consider mandating that the state and its agencies
arrange for full payment, such that the legislature can appropriate new funds or
authorize its agencies to reappropriate funds from its existing till, of such
constitutionally-based judgments. Third, the legislature may consider adding that full
- 20 -
payment must be disbursed in a period not to exceed two legislative sessions from the
issuance of the mandate in the state's supreme court or, if not appealed to the supreme
court, the district courts of appeal. It is my view that much of this extended
postjudgment litigation would have been unnecessary had the Department fully and
accurately communicated the status of the litigation to the legislature and the governor
and had the Department continuously assisted the Lee Homeowners in collecting the
final monetary judgment entered against it.
- 21 -