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


Menu:
  •               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/content/download/540183/6097146/2D18-1393.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 -