All seemed to be going well for the property owners in a Florida takings case. They obtained a satisfactory compensation judgment for the taking of their healthy citrus trees (yes, this is that case). And because Florida's Constitution requires "full" compensation, they were also entitled to attorneys' fees and costs. $13 million in compensation, nearly $1 million in fees. Took a while, but so far, so good.
That's when the Florida Department of Agriculture really dug its heels in. It acknowledged it was obligated to pay compensation, but it simply refused to do so. It didn't make a request to the legislature to appropriate money to satisfy the judgment, and claimed it has no obligation to do so. The legal equivalent of a middle finger at both the courts and Florida citizens:
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.
The Department asserted that two statutes say that the state and its agencies can't be required by a court to pay any judgment, and the "sole remedy of the judgment creditor" if the legislature hasn't appropriated the money to satisfy the judgment "is to petition the Legislature in accordance with its rules to seek an appropriation to pay the judgment."
The Department asserted this requirement applies equally to just compensation for takings judgments. You can order us to pay, court, but you can't make us go ask the lege for the money. The property owners can only go ask the lege themselves.
But wait, aren't the just and full compensation requirements of the U.S. and Florida Constitutions self-executing? Meaning that this section can't be applied to such judgments in a constitutional manner? Yes, held the trial court.
Well, in Florida Dep't of Agriculture and Consumer Services v. Dolliver, No. 2D18-1393 (Nov. 13, 2019), the Florida District Court of Appeals for the Second District agreed:
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.
Slip op. at 4.
The most interesting part of the slip opinion begins on page 9 (don't get us wrong, the entire thing is worth reviewing).
The court concluded that the statutes are unconstitutional as applied. First because sovereign immunity isn't a question in takings cases. The court also rejected the Department's argument that the "go ask the legislature" statutes are reasonable regulations and restrictions on the right to just and full compensation. Not so, held the court. A regulation that deprives property owners of 100% of their just and full compensation judgments isn't a "reasonable" restriction on the right, but a total abrogation. Finally, the Department argued that separation of powers deprived the courts of power to order the Department or the legislature to do anything. Courts may be able to determine the amount of compensation, but they can't actually force the executive or the legislature to pay up. You work your side of the street judge, and we'll work ours. The court rejected that argument as well, concluding that a writ of mandamus is the appropriate (ha, ha) enforcement mechanism to appropriate money to satisfy a judgment.
If all of this sounds faintly familiar, it does remind us of a decision from a couple of years ago from the Commonwealth of the Northern Marianas Islands, of all places. There, after an affirmative exercise of eminent domain to take property, the government still hadn't bothered to appropriate the money to pay the judgment. The trial court got fed up and ordered the government's bank accounts to be levied. That sure got their attention. The CNMI Supreme Court mostly agreed, and although it vacated the levy, it did tell the government that it had better pay up, or else.
So what's the deal Department of Agriculture? Why not ask the lege for the money? To us, this looks like it is simply digging in. Do we think this will be the end of the matter, and now it will pay up? Given its actions thus far, maybe not.
Fla. Dep't of Ag. & Consumer Svcs v. Dolliver, No. 2D18-1393 (Fla. Dist. Ct. App. Nov. 13, 2019)
