ffiþv

IN THE CIRCUIT COURT OF THE TWENTIETI] JUDICIAL CIRCUIT, IN AND FOR LEE
COTINTY FLORIDA CIVIL ACTION

RAYMOND A. DELLASELVA, et a1.,

Plaintiffs,

vs. CASENO. O3.CA-1947

FLORIDA DEPARTMENT OF
AGRICULTURE AND CONSUMER
SERVICES, et al.,

Defendants.

ORDDR DECLARING SECTIONS 11.066(3) AND (4), FLA. STAT.,

UNCONSTITUTIONAL.,4,S,4PP¿18D, AND GRANTING WRIT OF MANDAMUS

THIS CAUSE came before the Court on February 6, 2018, for a final evidentiary hearing

on Petitioners' Post-Judgrnent Motion (Complaint) for Writ of Mandamus and to Declare $$

11.066(3) and (4), Fla. Stat., Unconstitutional, As Applied. Present before the Court were Lois

and Charles Stroh, Deanna ancl John Klockow, and Nancy and Joseph Dolliver, on behalf of

themselves and the certified class.l Derek Buchanan was also present, on behalf of the Florida

Department of Agriculture and Consumer Services and the Florida Commissioner of Agriculture.2

The Florida Attorney General was not preseú.t at the hearing and has not actively parlicipated in

this post-judgment proceeding. The Court's docket reflects that notice ofPetitioners' "as applied"

I Plaintiffs and the certified class of Lee County Homeowners (the "Lee Homeowners") and Class
Counsel are collectively lefened to as "Petitioners." The cerlified class of Lee Homeovmers is
comptised of the owners of approximately 11,811 residential properlies in Lee County, whose
33,957 residential citrus trees were not infected with citrus canker and were destroyed by the
Deparlmerf under the Citrus Cankel Eradication Progra:n ('CCEP') between 2000 and 2006'
2
The Florida DepaÍment of Agriculture and Consumer Services (1he "Department") and the
F'lorida Commissioner of Agriculture ("Commissioner") are collectively referred to as
"Respondents."
 + ,.].'.
! '.:.,¡ )

constitutional challenge of $$ 1 1.066(3) ancl (4), Fla. Stat., was provided to the Florida Attorney

General on June 8,2017 ,by serving a Notice of Compliance lvith Section 86.091, Florida Statutes

and attachecl copy of Petitioners' Post-Judgment Motion (Complaint) for Wtit of Mandamus and

to Declare $$ 11.066(3) and (4), Fla. Stat., Unconstitntional As Applied, via electronic mail to

oas.civil.eserve@myfloridalegal.com, the e-serve box established by the Attorney Genetal's

Office in complying with the Florida state colrt eservice requirements, prusuant to Rule 2.516,

Floricla Rules of Judioi¿rl Administration, to be used to provicle notice of a constitutional challenge

to a state statute, prÌrsuant to $ 86.091, Fla. Stat. (2012) and lìu1e 1.071 of the Florida Rules of

Civil Pt'ocedule. See

[http;//www.myfloridalegal.com/pages.nsf/Main/988C464978828D8.485257478004DF2D1].

The Notice indicates that it was also sent via Federal Express to the Florida Attorney General's

mailing address in Tallahassee, Flolida. Furlher', the docket reflects that all pleaclings and other

papers {ìled by Petitioners in this proceeding subsequent to June 8, 2017 were served on the Florida

Attorney General at the same email address.

Based on the pleadings ancl in consideration ofthe competent credible evidence ofrecorcl,

along with arguments of counsel and applicable case lzLrv, this Courl FINDS' ORDERS and

ADJUDGES that $ S 1 1 .066(3 ) and (4), Fla. Stat., are unconstitutional as applied to the three linal

judgments entelecl in this constitutional talcings proceeding. The Coud fuúher FINDS, ORDERS

and ADJUDGDS that issuance of a writ of mandamus is the ptoper renedy to compel payment

of the ftÌll amounts clue undel these constitutional takings juclgments.

Infroduction

Since the earliest days of this country, the judiciai system has been called upon, time ancl

time again, to safeguatcl our state and lederal constitutional commandments guaranteeing payment

2
of full and just compensation when govemment takes private property fot a public purpose. These

provisions are atrrong the cornelstones ofthe relationship between government and its citizens.

The Fíftli Amendment to the United States Constitution prohibits the taking of private

propefty without payment of just compensation. U.S. Const., Fifth Amd. ("nor shall private

properly be taken for public use, without just compensation"). "The Fifth Amendment's guarantee

that private propefty shall not be taken for a public use without just compensation was designed to

bar Govemment from forcing some people alone to bear public buldens which, in all faimess and

justice, should be borne by the public as a whole." Dep't of AgrictLlnre v. Bogoffi 35 So.3d 84,

92-93 (Fla. 4th DCA 2010), rev. denied, 48 So.3d 835 (Fla. 2010), cert, denied, 131 S.Ct. 2814,

179L.F,d.2d i188 (U.S. Fla.2011) ("Bogoíf l')(citingArmstrongv. UnitedStat¿s,364U.S.40,

49 80 S,Ct. 1s63,4L.F,d,2d 15s4 (1960).

. The commandment to pay full compelsation when the State takes private properly for a

public purpose has been ensluined in the Florida Constitution for more than 150 years. Article X,

$ 6(a), Fla. Const., mandates that:

No plivate property shall be taken except for a public purpose and withftll
cornpensation paid to each owner or secured by deposit in the registry of
the coufi and available to the ownet. (emphasis added).

"By requiring the State to abide by its constitutional obligation to compensate individual

homeownels, we safeguard the propelty lights of alI." Bogorff 1,35 So.3d at 92. "'The sacred

rights of p1'opefiy are to be guarded at every point. I call them sacled, because, if they are

unplotected, all other rights become wofthless or visionary."' Id. (citing Joseph Story, T'he Value

and Importance of Legal Studies (7829), in Miscellaneous Itr/ritings of Joseph Srory 503, 519

(William W. Story ed., 1852)).

3
 In this extraorclinary post-judgment proceeding, the Corut is called upon to safegltarcl the

lundamental property rights of thousands of Class Nfeurbers by requiring the Statc of Florida to

abicle by its fçndamental constitutional obligation to pay full and fair compensation, inclucling

attorneys' fees and costs, previously awarcled to Petitioners in this inverse condemnation case. In

2013, after more than a decade o1 highly contested litigation, fhis Courl fomd Respondents liable

to the Class Members in inverse condemnation undel Ar..ticle X, $ 6(a), Fla. Const., for the taking

a¡cl destnrction of the Lee Homeowncrs' ptivate property. In2014, a jr-rly cletermined the amomt

of flrl1 oompensation due for the private property and the Court enterecl judgment in favol of the

Lee Homeowners/Class Members. ln 2016, the Second District Corut of AppeaÌ aflitmecl the

jr.rry's cietermination ancl the Final Judglrent. No appeal of t1.re Second District Court of Appeal

was taken up to the Floricla Supreme Conr1, leaving this Court's Final Judgment, inclucling all

cleterminations, findings, and acljudications therein as the hnal word on the parlies' obligations and

(fi nancial) responsibilities.

Nevertheless, Petitioners have still not received payment ofthe constitutionally-gr"raranteecl

fu|l compe¡sation ensl¡r'ined in Arlicle X, $ 6(a), Fla. Const. becanse the State has declinecl to pay

the Final Judgment as affirmed ou appeal.

Why has this constitutional takings judgmelt awa¡ded in favor of Petitioners, by ajuly of

their.peers no less and affirmecl on appeal, not been paid - particr.rlally when the ConstiLution of

the State of Floricla expressly gnarantees the fundamental right ofaggrieved citizens to ¡eceive ftill

zrnd hir. compensation for properly the State seizes without legal j ustihcation? One must consider

the reasons given on behalf of the Slate, but the rationalizations and excuses offered by

Responclerts in this case are without merit and who1ly unacceptabie

4
 Simply put, Petitioners have not been paid their constitutionally-nandated compensation

because Respondents refuse to pay these judgments or tnake any affirmative effort to obtain an

appropriation of funds with which to do so. Instead, Respondents assed that $$ 11.066(3) and (4),

Fla. stat., and sever.al other statutes, prohibit them from paying these judgments absent a specif,tc

appropriation by the Legislature. In spite oftheir own (woefully inadequate) justifications for non-

payment, Respondents have never sought nor requested an appropriation from the Legislature to

pay these judgments. Notwithstanding Commissioner's constitutional oath taken under Article II,

g 5(b), Fla. Const., to "suppor1, defend and upholcl the Constitution and the Govemment of the

uuited States and the state of Florida," Respondents claim they have no responsibility or

obligation to seek or suppofi an appropriation frorn the Legislature to pay these constitutional

takings judgments. Respondents shockingly argue that the responsibility for doing so falls solely

on Petitioners and/or the Legislature. Respondents' position is untenable, parlicularly when the

record demonstrates that Commissioner Putnam essentially has done absoiutely nothing to attempt

to secure payment for the Class Members because he apparently feels no obligation to do so despite

the finality of the instant judgments. Based upon the lecord before this Coufi, one reasonably

could even impliedly be under the impfession that commissionel Putnam may even be thwafiing

efforls of payment, as evidenced by published comments attributed to his offrce. At the vety least,

however', it is quite clear Respondents feel no obligation or compunction to make the simplest

effoÍ to even attempt to secure payment for the instant case's Class Membels. As an example,

despite the fact that the judgments in this matter have loirg been final and not subject to further

appeal, Comrnissioner Putnam has been attributed as saying, "I've maintained that the Florida

Supreme Corut shoulcl uifimately consider the citrus canker lawsuits, as the courts have ordered

wildly differerf am.ounts of compensation to the homeowners, who had also received payments in
2005. Miami-Dade's case, which accourts for nearìy half of all the removed hees, has not yet

beeir resolvecl by the lower couri. Should the Legislature approve additional payments, r,ve r'vill

efhciently pay them." 'I'he pendency of other cases have no bearing on the State's obligations in

this case, particulally when the instant juclgments of tiris case are final. As a matter of law and

flact, and not subject to appeal at this juncture, the State owes Petitioners for taking their property,

plain and simple. The irony ofthe situation at hancl relative to the Commissioner's position is that

the instant claims ancl those raised ìn sister jurisdictions r'vere all initially taisecl in one case to be

settled in one proceeding, only to be broken Ùp at the insistence ofone ofhis pretlecessors.

As referenced above, in April 2017, long aftel the amorÌnts awatdecl under the three final

judgments enteted in this proceeding wele f,ural, Commissioner Putnam issued a public statement

suggesting that there was "ongoing litigation" that could somehow alter or change the outcomes

and the amo¡nts due nnder these linal judgments. In that statement, the Cornmissioner nrged the

Florida SrLpreme Court to teview the juclgments awarded to lhe Lee Homeowners, along r'vith

judgments awalcleci to homeor,vners in Browar-d, Orange and Palm Beach Counties, because julies

ancl courts in these four corurties ar'vat ded "wilclly different amounts." At the time the

Commissioner made his statement, however, there was no ongoing litigation that coulcl change the

amounts awarded uncler the hnal judgments rendelecl in favo¡ of the Lee I-Iomeowners. Moteover,

in referring to diff'ering awarcl amounts, the Cornmissioner iäilecl to point out that the sole reason

for the differing award amounts was Responclents' demand that these cases be triecl bef'ote judges

ancl julies in clifferent counties. This Commissioner's statement was inaccruate, misleading, and

oontrary to the oath he toolc under Atticle II, $ 5(b), Fla. ConsT,

It is leasonable to conclucle uncler the circumstances that Commissioner Putnam's public

statement has either direotly or inclirectly caused o¡ contributed to the on-going delay in payment

6
of the constitutionally-guaranteed full compensation awarded to Petitioners in this case. On June

2,2017 - less than two months after the Commissioner's inaccurate and misleading statement -
Governor Scott vetoed the Florida Legislature's appropliations of $16,475,800 to pay the final

judgmerlts in this case and 520p41j28 to pay the final judgments in the related Browald County

case based on the premise of "ongoing litigation." As a result. Petitioners have still trot received

payment of the full compensation guaranteed mder the Flolida Constitution more than a. decade

after their private propeflv was taken over the property owners' objection.

This Courl cannot and will not corrntenance further delays in securing paynent to

Petitioners ofthe constitutionally-guaranteed full compensation t1ìat was adjudicated to finality in

this case. Respondents must not continue to fallaciously requir-e the Lee Homeo\ mers to "navigate

a legal obstacle course" and "be thwarted in theil attempt to obtain full and just compensation."

Bogotffv. Scott,223 So.3d 1000, 1001 (Fla.2017). "The time has come for the State to pay up."

Id. aT. 1002. To essentiaJly argue that the Petitioners should just hope that someday, some year,

the Legislature eventually will pass an appropriation to cover the judgtnents, and fufiher that the

govemor finally will assent, while at the same time doing absolutely nothing to secure such an

appropriation, is a specious algument.

Background

In 2003, the Lee Homeowners (also refered to as "Class Members" sometimes herein)

commenced this constitutional takings proceeding to recover fuli compensation under Arlicle X,

$ 6(a), Fla. Const., for the Deparlment's taking and destruction of 33,957 healthy, uninfected

residential citrus trees located on 11,811 residential propelties in Lee Courfy, Florida undet the

CCEP. This was one of five related cases filed and tried before judges and juries in different

counties based on Respondenls' venue objection to a single n-rulti-county class and the Fourth

7
District CourL ofAppeal's ensuing decision in Dep'l oJ Agriculhtre v. City ofPompano Beach,829

So.2cl 928 (Fla.4th DCA 2002), rcv. denied,845 So. 2d 889 (Fla. 2003).

Responclents vigolously contested liability and the amount of full compensation through

separate liability and compensation trials. On F ebruary 8, 2013, following a non-jury tdal, this

Courl entered its Order on Plaintiffs' Liability Claims anc{ Defendants' Defenses that held

Respondents liable in inverse conclemnation fot the taking and destmction o.fl the Lee

HomeowneLs' private ptoperty. In releyant part, the Corrt f'ourcl and conclncled, basecl on clear

and convincing eviclence, tirat Responclents' operation of the CCEP confenecl a pubic benef,rt by

attempting to protect Iìloricla's commercial citms industly, .9¿¿ Orcler on Plaintifls' Liability

Clainrs and Defendants' Defenses at 2I-23. The Coult also found and concluded that the Lee

Homeowners' resiclentiaÌ citrus trees clid not pose an imminent tlúeat to the public health, safety

ot welfare, ancl did not constitute a public nuisance. Id. aT 32-37. Accordingly, the Court found

and concludecl that l{espondents' taking and physical destruction of tire Lee llomeorvnels'

r-esiclential cìtrus trees that were not determined to be infected with citrus canker, but were located

within 1900 feet of another oifus Íee (s) determined to be infected lvith citrus ca¡ker, oonstituted

a taking under Article X, $ 6(a), Fla. Const,, entitling the Lee Homeowners to full compensation

fol their private property. 1d. al37-38.

ln July 2014, a 12-person july determìnecl the amollnt ol full compensatior owecl to the

I-ee Homeowners as "$285.25 per tree for each of the 3 3,957 trees. .. " (Pl.Ex.3).3 Thejury also

determined that Respondents r'vele entitled to oerlain set-offs. (Icl.). Of note, in reaohing their

decision, thejruy essentially rejected Responclents' arguments and <lefenses to the extent any such

3
Exhibits aclmitted into eviclence during the Februaly 6, 2018 healing are refetenced as "Pet, Ex
f#1" or "Resp. Ex. [#]."

8
presentation was made. Thereafter, in August 2014, this Coult entered a final judgment against

Respondents that awarded $13,625,249.09 as full compensation to the Lee Homeowners and

"reserve[d] jurisdiction for purposes of enlorcement of and/ol execution on this f,rnal judgment."

(Pet. Ex.3). In March 2015, following contested fee proceedings, this Coud entered a second final

judgment against Respondents that awatded $821,993.12 in attorneys' fees and costs to Class

Counsel for their decade-p1us representation ofthe Lee Homeowners in the ttial courl proceedings.

(Pet. Ex. 4).

In March 2076, tbe Second District Court of Appeal afftmed, per curiam, the 2014 ft¡a1

judgment that awarded full compensation to the Lee Homeowuers, and granted appellate fees in

an amount to be determined by this Court. Dep't of Agriculture v, Dolliver,209 So. 3d 578 (Fla.

2dDCl\2016). In December 2016, this Court entered a third hnal judgment against Respondents

that awarded $70,892.50 in appellate attomeys' fees to Class Counsel for their replesentation of

the Lee Homeowners in the appeal frorn the 2014 final judgment. (Pet. Ex, 5).

Thus, as of early 2017, Petitioners held tln'ee judgments that we1'e final and no longer

subjecl to further appellate review:

¡ Final judgment entered August 18,2014, in the amount of 513,625,249.09, plus

post-judgment interest (Pet. Ex. 3);

o Final judgment entered March 18, 2015,in the amount of $821,993.12, plus post-

judgment interest (Pet. Ex. 4); and

o Final judgment entered D ecember 22,2016, in the amount of $70,892.5 0, plus post-

judgment interest (Pet. Ex. 5).

In March 2017, rhe Florida Legislature convened for its amual 60-day session. On May

8,2011, The 2011 Legislature approved Senate Bill 2500, the FY 2017-18 Genetal Appropriations

9
Act, that included an appropriation of $16,475,800 ftom general Levenue to pay and satisfy the

three hnal judgments enteled in this case, as well as a separale appropriation for $20,941,328 to

pay and satisfy the final judgrnents enterecl in the related case in Browa:d County. (Pet Ex.8,9).

On June 2, 2017 , Governor Soott vetoed the $ 16,475,800 appropliation incorporated into

the F'Y 2017-18 General Appropriations Act intended to pay atcl satisfy the thlee final judgments

entered in this case, as well as the $20,941,328 appropriation intended to pay and satisfy tl-re final

judgments enterecl in the related Browarcl County oase. (Pet, Ex. 10). The Governor's veto of

these appropriations was not due to insufficient fnnds. In the Proclamation accompanying his list

ofvetoes, Governor Scott proclaimed that the "state ofFlorida has a buclget sutplus exoeeding $3

billion." (Pet, Ex. 11). Rather, the Governoi-'s vetÕ letter stated that the $16,475,800 and

$20,941,328 appropriations were vetoed "because olongoing litigation." (Pet. Ex. 10 at 53).

Within days of the Governor''s veto, Petitioners letumed to thìs Courl to enforce the final

judgrnents enteled in their favor. On Jrure 8, 2017, Petitioners fìlecl their Post-Judgment Motion

(Complaint) for 'Writ of Mandamus and to Declare ${ì I 1.066(3) and (4), Fla. Stat ,

Unconstitutional As Applied (the "Petition"),4 The Petition seeks to enlorce and collect payment

undel the threejudgments entered in this case that aw¿rded Petitioners full compensation plu su¿ìnt

to Article X, $ 6(a), Fla. Const.

Shortly after the Petition r,vas fìlec1 in this Court, Petitioners (and the Browarcl

I-lomeowners) filed a separ:ate Petition for Wlit of Manclamus in the Supreme Corut of Florida,

a
The Broward Flomeowners and Class Connsel filed a similar mandamus petition in B¡oward
circnit coufi seeking to enforce and collect payment on the final judgments that alvarded them full
compensation, including attorneys' fees ancl costs, in the related Btowald County case. Based on
the representations of counsel, the Court understands that an Alternative Writ o.f Mandamus was
recently issued and that a linal hearing has not been set in that proceeding.

10
seeking to oveltuln the Governor's line-item vetoes of the Legislature's appropriations to pay the

judgments awalded in this case and the related Broward County case. On July 13,2017, the

supreme courl dismissed that petition without prejudice. Bogorffv. scott,223 So. 3d 1000, 1001

(Fla. 2017). The Court held that while the underlying coustittttional takings judgments are final,

the Lee and Broward Flomeowners are "curently in their respective circuit courts seeking writs of

ma¡damus to compel payment or, in the alternative, declarations that sections 11 .066(3) and (4),

Florida Statutes (2016), are unconstitutional as applied." 1d Therefore, the Couft dismissed the

petition "without prejudice to seek redress in the pending cilcuit courl actions." 1d. The concun ing

opinion recognized that:

Despite the petitioners having obtained frnal judgments, the validity of which are
not contested, the State has fought paytnent on these judgments over many years,
requiring the petitioners to navigate alegal obstacle coul'se' ". Ln2012, the Fourth
District court of Appeal directed that the petitioners must first seek a legislative
appropriation to leceive compensation. Fla. Dep't of Aqric. v. Mendez, 98 So. 3d
604, 609 (Fla. 4th DCA 2012). After fufiher litigation over whether the proper
method was a claims bill, the petitioners were successful this past session in
obtaining specific appropriations for the fuIl amount of their judgments However,
these line-item appropriations were vetoed by the Governor' Adding fur1her insult
to injury, the Governor's veto was based on misinformation that the litigation in
these cases was still ongoing when that was not the case.

It is unfortunate that the petitioners now must return to the trial coults in Broward
and Lee Counties for further litigation and perhaps face another round of appeals
to the Fourth District and Second District Courls ofAppeal.

These petitioners have the right to full compensation. The time has come for the
State to pay up.

Id. af 1001-02

Meanwhile, in the posljudgmeff procoedings before this Court, Respondents initially

moved to transfer venue to Leon County. This Courl denied the motion 1o transfer ventte and, on

11
Jrure 28, 2017, issued an Alternative Writ of Mandamus (the "Alternative Wlit"), requiring

Respondents to pay or issue vouchers authorizing payment of the atnoulrts due uucler the tluee

judgments or show cause why they have failed and relìrse to malçe or authorize payment of fhe

jqdgments. Iìespondents appealed the venue order before expiration of the time established for

compliance nnder the Alternative writ. on November 15,2011, the Second Dis|ttc| per cutiam

affirmed the venue order. Dep't of AgrÌultztre v. Dolliver et a|.,2011 WL' 5412286 (Fla.2d DCA

2017).

As soon as the Second District affirmed the venue order, this Court dilected Ilesponclents

to promptly lesponcl to the Alternative Writ. On November 30,2017, Respondents flled their

Answel and Delenses that denied the material allegations of the Petition and raisecl a series of

defenses based ol $$ 11.066(3) and (4) and several other statutes. Petitioners filed their Reply

and Avoidance to Affirmative Defenses on December 18,2017.

f his Courl held a status conference on December 11,201.7, during which Petitioners

requested that a ñnal hearing be scheduled as expeditiously as possible. Although the Corul

olfered to convene a final hearing within a week or two, Respondents demanded that the hnal

hearing not be set for at least 50 clays after the date the pleadings were closed, relying on Fla. R.

Civ.P. 1.440. As a result, the Corrt schecluled the final hearing for Febrr.rary 6,2018. Thereafter,

the Court convened sevelal healings to keep the parlies on track for the February 6th final hearing.

Dtuing one oL more of those hearings, the parties plesented arguments abont whether the

Commissioner could be cornpellecl to testify in this proceecling, After the Corut mled that

Petitionets demonsüated sufficient basis to compel the Commissioner's testimony irL a nanowly

limited deposition, Petitionels withdrew their request plior to entry of a witten orcler to avoid

12
further delays after Respondents announced their intention to seek appellate review and the Court

granted Respondenfs' ore lenus motion for a stay pending review.

The Evideuce

The evidence plesented was lalgely undisputed. Three witnesses, Derek Buchanan, Stanley

Willia¡r Moore and Cary Gaylord, testified in open courl.s Based on the parties' stipulation, the

Court also received into evidence ancl considered as testimony the depositions ofthe Department's

rule 1.310(b)(6) designee, the Florida Depaftment of Financial Affairs' ("DFS") rule 1.3 10(b)(6)

designees, the Florida Department of Transportation's ('FDOT') rule 1.310(b)(6) designees, and

fhe affrdavit ofa lepresentative ofthe Fiorida Department ofEnvironmental Protection ("FDEP').6

Numerous documentary exhibits were also admitted into evidence.

The Judgments. The total amount due and owing under the three final judgments entered

in this case, including post-judgment interest through February 6, 2018, is $16,959,059.45, with a

per dienr of 52,199.60.7 (Pet. Ex. 19). Specifically, the amounts due under the three final

judgments a¡e as follows:

¡ Final judgment entered August 18,2014, in the ar¡ount of 513,625,249.09, plus

post-judgment interost - amount due with accrued post-judgment interest through

February 6, 20 1 8 is 81. 5,944,7 92.7 2;

5
Testimony preserfed in open courl during the Febnrary 6, 2018 hearing is referenced as "Tr
lpagel."
6
Testimony from these depositions is referenced as "Dep. [page]," and testimony from the
affidavit is leferenced as ".Aff. [fl]."

7
The curent per-diem amount is valid through March 31,2018. The State of Florida publishes
updated interest rates on judgmerfs each quarter.

13
 e I, inal judgment entered March 18, 2015,in the amount of $821,993.12, plus post-

judgment inierest - amount due wilh aooruecl post-jr"rdgment interest tluough

Febmary 6,2018 is $939,250.09; ancl

o Finaljudgment entered l) ecember 22,2016, in the amount of$70,892.50, plus post-

judgment interest - amount due with accrued post-judgment interest through

. þ-ebmary 6,2018 is $75,016.64,

(Pet. Ex. 19).

Testimony by the Respondents. Mr. Derek Buchanan, the Deparlment's director of

policy ancl buclget, testifred on behalf of the Depaflment and Commissioner Adam Putnam.s (Tr.

31-74,149-231; Pet. Ex. 39). Mr'. Buchanan spoke with Commissioner Putnam in preparation for

giving his testimony, and the Commissioner authorizecl him to speak on his behalf. (Tt.31).

Mr. Buchanan testified that Commissioner Putnam and the Department are ful1y aware of

the existence of the L,ee Corurty judgments. (Tr. 33-34, 31). T'hey have been aware of these

judgments since they were entered. (Dep. 26-21). The Commissioner and the Department

understand that the judgments are based on constitutional takings of plivate property. (Dep. 28-

29). They understand that inve¡se conclenxlation .is a govelnment taking of private ploperly

without the owner's colsent. (Dep. 29). The Commissioner and I)epartment also understancl that

the constitutional provision coveling takings of plivate property reqr"rires the govemment to pay

full compensation for the property taken. (Id.). The Commissioner and Deparlment ate aware that

the juclicial system adjudioatecl that a constitutional taking took place when the Department

destroyed lhe Lee Ilomeowners' trees ancl awarded full compensation. (Dep. 29-30). They

8 Petitioners called the Commissioner as their fìrst witness. (Tr. 29-30). Commissioner Pntnam
did not appear to testify, consistent with his position that he should not be compelled to testify.

14
understand that the litigation over whether the Lee Homeowners are entitled to îull compensation

and the amount ofthe full compensation alvarded has been eompleted in thejudicial system. (Dep.

30,7 4-7 5). They are aware of the amounts owed under the Lee County judgments, and that post-

judgment interest is accruing daily. (Tr. 34; Dep. 31). Commissioner Putnam and the Deparlment

are aware that the Lee County judgn-rents rernain unpaid. (Tt. 34; Dep, 33),

Respondents' "Justifications" for Not Paying thc Judgments. The overwhelming and

conclusive evidence demonstrated that the Respondents have failed to pay the Lee County

judgments or make even the most basic of efforls to secure an appropriation of funds 1o pay these

judgments. It is quite cleal that Respondents feel no obligation to either secure oL assist the Lee

Homeowners in securing leimbursement or payment for their long-ago seized property'

Commissionel Putnam and the Department agree that the Lee County judgments should be

paid. (Tr. 41-42; Dep. 34-35). According to Mr. Buchanan, the Department and Commissioner

Putnam would be "happy to pay the threejudgments" if the Legislature appropriates the money to

do so. (Tr. 32-35). Their only position regarding why the Lee County judgments have not been

paid is because the Department has not had an appropriation from the Legislatule and approved

bythe Governor. (Tr. 4I-42; Dep. 48-49). Commissioner Putnam's and the Deparlment's position

is that they have no responsibility or obligation to pay the Lee County judgrnents unless and until

tlrere is a specific legislative appropriation to do so and approvecl by the govemor. (Tr.42,73-74;

Dep. 49-51). Respondenls have never sought a legal opinion fiom the Attomey

General/Department ofLegal Affairs concerning their obligation to pay the Lee Countyjudgmeuts,

nor have they sought an applopriation fi'om the Legislature with which to pay these judgrnents.

('|r.41;Dep. 174).

15
 Responderfs have never made a request to the I-,egislature to appropriate funcis to pay these

juclgments. (Tr. 35-36; Dep. 53-54, 56-57). Comissionel Putnam makes the hnal decision about

what items will be included in the Department's annual legislative budget request ("LBR"). (Tt.

35-36; Dep.22-24), To that end, Respondents have not requested or incluclecl an appropriation

lequest for the instant judgments.

To the contrar-y, and pertLaps what one might consider the epitome of irony, while

Respondents have never sought an appropriation to pay the Lee Homeowners' judgments, the

f)epartment's annual LBR lor F'Y 2016-17 included a $450,000 line item to cover legal fees

associated i,vith Respondents' clefense ofthe claim to recover payment uncler thesejudgments. (Tr.

6l-65,208-209; Resp. Ex. 4). The Financial Plan attached to the Department's Work P1an,

describing the objectives, activities and budget fbr the Citrns Flealth Response Program, includes

a description ofthe line-item appropriation to pay legal fees in "ongoing litigation dating back to

lhe contt oversictl Citlus Cankel Eradication Program..." ('|r. 209-210; Resp. Ex. 5) (emphasis

aclded). Mr, Buchanan - speaking for Commìssioner Putnam and the Department - could not

explain how paying legal fees to hght payment ofjndgments aw¿uded to Petitioners helps protect

Florida citrus fiom citrus greening and other citrus cliseases, the purpose of the Citrus Health

Response Program. (Tr.210-211). Despite usirg fecleral funds tohelppay its legal fees associated

with the clefense of this proceeding, Respondents have never asked the t'ederal government fol

permission to ûse any funds associated with the Citrus Health Response Program to pay the

juclgments awarded to Petitioners. (Tr. 2i 1).

The 2017 Vetoed Appropriation. In March 2017, the Florida l,egislatrue convencd for

its annual 60-day session. The Depadment's LBR for FY 2017-18 was approximately $1.7 billion.

(Tr. 36). Commissioner Putnam clid not request that the Legislatnre appropriate any money 01'

16
funds as part ofthe Department's 201"7 -18 budget to satisfy the Lee County judgments (Tr. 3 5-3 7;

Dep, 39-40, 128-129).

Even though Respondents did not seek an appropriation flom the 2017 Legìslature to pay

the Lee County judgments, the Depaflment prepared a briefing memo for Commissioner Putnam

in advance of his March 14,2017 meeting with Representative Ben Albritton on various issues of

concern to the Departrnent, including HB 3'167 - the proposed appropriation of approximately

$ 100 million to pay the citrus carker judgments awarded to the Lee Homeownets and homeowners

who recovered judgments in the related cases litigated to hnality in Broward, Orange and Palm

Beach Counties. (Tr. 218-221; Pei' Ex. 24; Dep, 158-161). The March 14,2017 meeting was

within the first week or two of the 2017 legislative session. (Tr. 219). Mr. Buchanan - speaking

for Commissioner Putnam - could not explain what the Commissioner discussed with

Represontative Albritton at that rîeeting relating to proposed HB 37ffi.e $r.220-221).

As of April 10,2017, Commissioner Putnam and the Department undoubtedly and most

certainly knew there was no ongoing litigation in this case, that the amounts awarded under the

thlee judgments entered in this case had been adjudicated to finality, and that there was no basis

for the Florida Supreme Court to leview the anounts awarded under the Lee County judgments.

(TL. s9-60).

Nevertheless, on April 10,2017, in response to an Associated Press correspondent's

request for comment on the Florida House of Representative's decision to appropriate $66 million

to pay the takings judgments entered in Lee Cornty, Broward County and Palm Beach County,

Commissioner Putnam issued a public statement that read, in pet'tinent part:

9 The Court was unable to ascefiain the substalce of the actual communications between
Commissioner Putlam and Representative Albritton duling that meeting since the Commissioner
objected and refused to testify in spite ofPetitioners' express desire that he do so. (Tr. 221).

I7
 For the sake of fairness, I've r¡aintained that the Floricla Supten're Court shor d
ultimately considel the citrus cankel lawsuits, as the oourls have ordered wildly
different amounts of compensation to the honeowners, w-ho hacl also leceived
payments in 2005.

(Tr.58-60; Pet. Ex. 17),

Commissioner Putnam's statement was included in newspaper alticles publishecl in April 2017.

(Dep. 188-190).

On May 8,2017, the 2017 Legislature apploved Senate Bill 2500, the FY 2017-18 General

Appropliations Act, that inclucled an appropliation of$16,475,800 tom general revenue to pay

the three fiual judgments entered in this case, as well as a separate appropliation fot lì20,941,328

to pay the finaljudgments entered in the related case in Browarcl County. (Pet. Ex. 8, 9).

On June 2, 2011 , Govemor Scott vetoecl the $ 16,475,800 appropriation incorpolated into

the FY 2017-18 General Applopriations Act intendecl to pay the thlee final jr"rdgments entered in

this case, as r.vell as the $20,941,328 appropliation intendeci to pay the fìnal judgments entered in

tl.re relatecl Broward County case, (Pet. Ex. 10). 'Ihe Governor's veto of these appropriations was

not clue to insufficient funds or a budget crisis of some kintl. In his Proclamation accompanyiug

his list of vetoes, including a vetoed applopriation for the instant judgments, Governor Scotl

proudly stated that the "State ofFloricla has a bndget surplus exceeding $3 billion." (Pet. Ex. 11).

'1he Govelnol, however, vetoed the aibrementioned applopriation "bec¿ruse ofongoing litigation."

(Pet. Ex. 10 rt 53).

Respondents' acknowledge that Governor Scott's message stating that his veto of the

appropliation to pay the l,ee Countyjudgments was based on "ongoing litìgation" was not accurate

insofar as it related to the Lee Colrffy case because there was no ongoing litigation as ofthe date

ofthe veto. (Dep.74-75; Pet. Ex. 10 at 53). In fact, the instant judgments were long final as of

the time ofveto a¡d were not subject to ÍÌuther appeal.

18
 According to Mr. Buchanan, Commissioner Putnam did not have aøy communications with

the Govemor or his staff regarding the appropriations that were later vetoed from the time the

proposed appropriations first appeared in the budget in late Malch 2017 until the date ofthe vetoes

on June 2, 2017. (Dep. 77-79). Mr. Buchanan also claimed that the Department did not have

advance knowledge of the Governor's planned vetoes of the appropriations to pay the Lee and

Broward County judgments. (Dep. 125). Nevertheless, within minutes ol the Govemor's

afflouncemelÍ ofhis vetoes, Mr. Buchanan cutiously circulated an email advising his colleagues

of the vetoes affecting the Deparlment's budget, including the appropriations to pay the Lee

Countyjudgments and the Browald County j udgrnents. (Tr.223-224; Pet. Ex. 25;Dep. 124-1.26).

The Governor's vetoes of the appropriations to pay the Lee County judgments and the Broward

County judgments did not materially affect Department's overall budget. (Tr. 66-71;Pef.Ex.26;

Dep. 125-126). The Govemor's vetoes only cut $41,9 million from the Deparlment's total budget

- 537,417,128 of which comprised the appropriations intended to pay the judgments awarded in

tlris case and the related Broward County case. (Pet. Ex. 25,26). The Depat'tment's total approved

budget for FY 2017/18 was $1.793 billion before vetoes and $1.751 billion after the Govemor's

vetoes. (Tr. 66-7I; Pef. Ex.26; Dep. 163-168). One Depadment colleague responded: "Good

work, Derek." (Pet. Ex. 25).

Respondents' Lack of Effort to F ind a Solution, The overwhelmingly clear, convincing,

and conclusive evidence has demonstrated that Respondents have never rnade even the simplesl

of effort to pay or attetnpt to secure payment of the Lee County judgments.

Respondents have never conferred with any other state agency, nor sought a legal opinion

from inside or outside counsel or the Attorney General/Office ofLegal Affairs regarding whether

a mechanism exists that would allow the Departrnent to move funds within its budget to pay the

I9
Lee County judgments or whether some other process would allow the Deparlment to seek an

amendment to allow it to pay these juclgnents. (TL. 41; Dep. 58-60, 88-91). The Depafitrlent

maintains and administers approximately 18 trust 1ìurds, some with substantial balances. (Ir.211-

215; Resp. Ex. 8; Dep. I4I-144). Respondents have not ìnvestigated or consulted r'vith anyone

about whether any of these tmst funcls could be used to pay the Lee Homeowrers' juclgments, (T'r,

212-21.3). Mr. Buchanan reached l'ris own determination that noue of these trust funds would

potentialiy allow for payment of the Lee I-Iomeowners' jr,rdgments, withont ever seeking aclvice or

a second opinion, (Tr. 214-215; Dep. 146).

Even after this post-juclgment ploceecling began in Jnne 2017, Commissioner Putnam still

had not requestecl that the Legislature apptopriate funds to pay the Lee County judgments as paú

of the Depaftment's 2018-19 $1.8 billion I-BR, currently uncler consideratíon by the 2018

L()gislature. (Tt.37-39; Dep, 54-55), Nevettheless, the Depadment's 2018-19 LBR includes

appropriation requests for, arnong other things, approximately $11 million in inoreased salaries for

Department law enfolcement pelsonlel and fìrefighters, ancl $1 million to replace aging vehicles

(Dep. 128-129, 136-141). When asked what Respondents are cloing to try to assist and suppod

proposed approprialions currently under consideration by the 2018 Legislature to pay the three

final judgments awarded in this case ancl the related cases in Bror.vard, Orange and Palm Beach

Counties, Mr. Buclranan responded: "We haven't done anything thns flar." ('l.r.226-221; Resp,

Ex. 15).

Mr. Buchanan agreed that it would be better to include an afÏrmative appropriation request

in the Department's LBR, rather than simply aclvising the Legislature of the exìstence of ancl

amounts due under the Lee Cor-rnty jndgments. (Tr. 65-66; Dep. 97-99). He also agleed that

including a request f'or the specihc amount necessary to pay the Lee Coulty judgments would be

20
'lnore affirmative" than simply reporting the existence of and amounts due under the judgments

to the Legislature. (Id.). While Mr. Buchanan tried to rationalize that including an affirmative

request might not impact ultimate funding decisions made by th.e Legislature, he conceded he

would "neve¡ be able to know because [he] didn't ask." (Tr. 66)'

Mr. Buchanan speaking for Commissioner Putnam and the Deparlment * did not have an
-
opinìon or view about how many sessions are enough for the Lee Homeowners to have to wait for

their constitutional takings judgments to be paid: "I don't have an answer to that. .,
' Ultimately,
the legislature is responsible for funding." (Tr. 199-200). He also did not have a view ofhow

long and many times the Lee l{omeowners may have to wait fot the Legislatule to consìder this

issue without the Department affirmativeiy l'equestillg an appropriation to pay the judgments as

part of its annual LBR. (Tr. 200-201).

In contrast to Respondents' lack ofefforts, when pressed on why other state agencies have

affirmatively sought and secured legislative appropriations to pay inverse clairns brought against

them, Mr. Buchalan claimed the citlus canker litigation is a "truly unique situation." (Tr. 201-

202). YeI, when confronted with another unique situation involvirg an inverse condemnation

judgment recovered by Bassford Fanns against the State, Mr. Buchanan could not explain away

why that property owner received full payment ofthe inverse judgrnent and associated attorneys'

fees awarded less than a year after the juclgment was affirmed. (Tr.202-205; Resp. Ex. 10, 11).

Mr. Buchanan denied tl-re reason for Respondents' r'efusal to affirmatively seek an appropriation

to pay the judgments arvarded inthis case is based on Respondetrts' continued beliefthat they were

right and tlre couts were wrong. (\-r. 206-207). Nevedheless, he acklowledged the

Commissioner has "expressed fiustrations publicly about the differences in juclgments, but he has

not said tlrat he thinks the Coutts are wrong." (Tr. 207).

2l
 Mr. Buchanan's testimo[y revealed another potential motive lol why Respondents have

never made any effort to seek an apploprierlioit to pay the Lee County judgments, as well as the

judgmeuts awalded to homeowners in the related cases. FIe testiliecl about the Broward

Flomeowners' rursuccessful attempt in 2014 to secure an appropriation amendment to pay the

constitutional takings judgments ar'varcled inthe related Broward County case, (Tr. 169-177; Iìesp.

Ex, 7). He conceded that the proposed appropriation amenclment was of "great concern to the

l)epartment" because, if it had passed, it would have lesultecl in funds being taken from other

important buckets within the Deparfment's budget in order to appropriate funds to pay the Ilrowalci

judgments. (Tr.216-217). Essentially, it seems as a matter of self-interesl, that the Department

does not want to, nor will it ever, reqnest the necessary funding in its budget to satisfy the instant

judgments for fear that other aspects of theil buclget may be reduced or eliminatecl. As such,

because the Depafiment has been concerned abo¡.rt the potential loss of {Ìrnds in "buckets" that it

f'elt were critical to its operations, the Departruent would opposed any such appropriation

amendment. (Tt.217).

The Department's Reporting on thc Juclgments. As required, the Department has

routinely reported the existence of the three Lee County judgments to the DFS, the Legislature,

ancl the Governor's Of'lìce. (Tt. 39-40).

The Depaltment repofis the existence a:'rd status of the Lee County judgments to the DFS

annually for inclusion in note i 6 of the Florida Comprehensive Anrual Financial Report ("CAFI{")

that is issned each February for the prececling hscal year. (Tr,43-46,52-; Pet. Ex.20,29,30;Dep.

1,34-1.35, 147 -148, 110-173), Tlie CAFR is the Slate ofFlorida's comprehensive annual finanoial

statement, ('Ir,45-46; Pet, Ex. 34). The ve¡sion of note 16, ptepared by the Departmeft's counsel

on October 10,2011 , confirmecl the amounts awarded under the Lee County judgments (as well

22
as the jrÌdgment amounts in Broward, Palm Beach and Orange Counties) and that " [p] o st-j udgment

interest in running on all judgments." (Pet. Ex. 29). The Depafiment's most r..ecent Form P3 -

Loss Contingencies, submitted on August 28, 2017 , also confirmed the amounts awarded under

the Lee County judgments and states: "The Florida Legislature appropriated funds to pay these

judgments in full inthe 2017 session, and the appropriation was vetoed by the Governor of Florida.

The circuitjudge issued an alternative wlit of mandamus on June 28,2017, requiring the FDACS,

within 40 days, to pay or authorize payment of the judgments or to respond to plaintiffs' complaint

for writ of rnandamus." (Pet. Ex. 30 af 2). Despite the finality of the instant judgments and

knowing full well that they ale not subject to fuilher appeal/revision/reversal, the Deparlment's

letter goes on to state: "We a¡e vigorously resisting all claims in al1 cases." Qd, at 3). Seemingly

by their own admission, Respondents apparently have no problem "resisting" adherence to the

State Constitution's mandate of "full compensation" and do not wish to see to i1 that the Lee

Homeowners be ful1y and fairly compensated for their seized property anytime soon - despite the

fact tliat the Lee Homeowners' property was seized by the government years ago and in spite of

the finality ofthe instart judgments.

Notwithstancling its annual submission of updated versions of note i6 - including

acknowledgement ofthe amounts due under the three takings judgments awarded in this case, plus

accrued interest through the date ofpayment - Mr. Buchanan testif,red that he did not know whethel'

the Departme has even recorded the three Lee County judgments as a líability on its books and

lecolds, (Tr,47).

The Department's counsel also periodically updates a memorandum, titled "Citrus Canker

Litigation Overview," that reporls on the status of the various citrus canker litigation matters,

including this case. (Tr. 48-52; Pet. Ex. 28). The Depaltment provides the Citrus Canker

l.)
Litigation Overview memoranclum to the Legislature and the Governor's ofltce upon reqttest. (Tr.

49). Tlre most recent version of the Citnrs Canker Litigation Ovelview, dalecl Augusl 7 ,2017,

includes a section titled "Total O'"ved in Canker Lar'vsuits (these numbers are approximate as of

March 2017)" that states, with regard to Lee County, that the total owed is " fa]pproximately $16 7

million (the jlulgtnents in this case are collectable)," (Pet 28 at 3) (emphasis added). The

clocument also includes a reference to the Fonrth l)istrict's 2016 decision in Bogorff, where that

court "agreecl with the plaintiffs that they have attemptecl withont suocess to obtaitl an

appropriation (citing the 2014 appropriation actions by Senator llores ancl Representative Diaz);

the coufi disagreed with FDACS's argument that a claim bill is required. The court pointecl to an

alternative remedy in the form of a writ of manclamrs, and suggested that, if the plaintiffs were to

exhaust this remedy, the issue ofthe constitutionality ofthe statute would be ripe for consideration

by the cour1," (Id. at 4).

Responrlents' Defenscs. Respondents' primaly defense is gror"rnded in $ 11.066 (3) and

(4), Yet, Mr. Bnchanan, the Deparlment's designee, ltrst learned of the existence of $ 11 .066 in

preparation for his deposition a few weeks ago. (1'r. 55-56; Dep. 93-94). He admittedly doesn't

know whether it is the Department's and Commissioner Putnam's position that $ 11.066 takes

prececlence of the Flolicla and U.S. Constitutions. (TL. 54-55; Dep. 51-52). The Department has

never raiseci $ 11.066 before as an impecliment orbarto paying judgments enteretl against it. (Tr.

57; Dep. 95, 100). Respondents' position is that while $ 11.066 ptecludes the Depafment lrom

paying the Lee County judgments, (astonishingly) they have no aflfir'mative obligation to seek an

appropliation to pay those juclgments. (Dep. 96-91, 1.11-114). Finally, Mt. Buchanan confirmed

that Respondents are not claiming $ 1 1.066 r'eqnir-es the Lee Homeowners to pursue a claim bill to

recover payment under the three judgments. (Tr. 57; Dep. 180). He futlher acknowleclgecl that a

24
claims bill is a completely discretionary act on the part ofthe Legislalure and that, ifa claim bill

were required to recover.. paynent of the amounts due under the three Lee County judgments, the

special master appointed to review and recommend disposition ofa claim bill request would have

the power to completely disregard ever)thing adjuclicated in this constitutional takings case and

recommend that the clairn bill be approved in whole or in part, or rejected in its enTiery. (Tr'227-

230).

Testimony of Other Practitioners. Petitioners presented testimony from two prominent

attorneys in.the field of takings law, whose testimony assisted the CouÍ in understanding the

unique siluation at issue in this rare proceeding.

Stariley William Moore has practiced law in Florida for mole than 45 years. (Tr. 77). He

began his career as a prosecutor at the State Attorney' office in Sarasota and Bradenton and then

moved to Tallahassee, where he joined the Florida Depaltment of Tlansportation's condemnation

division. (Id.). When he left the FDOT, Mr. Moo¡e was chief conclemnation attorney for the State.

(Id.). Since entering private practice in 1978, Mr'. Moore has concentrated in the field of eminent

domain and irverse condemnation law. (Tt.77-18). He has also wtitten on the subject of inverse

condemnation, irclucling a chapter i¡ Nichols on Etninent Dontain, a:nd since the 1980s has been

the editor of the inverse condemnation chapter in the Florida CLE book. (Tr. 78). For a number

ofyears, Mr. Moore also has taught and lectuled on the topic ofinverse condemnation and eminent

domain law. (Id.). Mr. Moore testifìed that 75 to 80 percent of his practice has been and continues

to be devoted to inverse condemnation, regulatory takings and spiroffs such as due process

challenges. (Tr.80).

Thoughout his career, Mr. Moore has recovered judgmerfs fol his clients on inverse

condemnation claims brought against the Stafe of Florida or its agencies, as well as local

25
governnlents and other agencies. (1ï. 80-81). He estimated that, since 1991, he has recovered 12

to 15 judgments sounding iu inverse condemnation against the State of Florida or its agencies. (Tr.

81). According to Mr. Moore, he has neve¡ encounterecl a situation where the State of Floricla or

any of its agencies have failed or refusecl to pay ancl satisly an inverse conclemnation judgment he

obtained for a client by invoking $ 11.066, (Tr. 81-82). Mr. Moote testified abont a number of

the inverse conclemnation juclgments he recovered on behalf of clients against the FDOT and the

South llorida Water Management District since 1991. (Tr.82-91). In each case, the State agency

paid and satisfied the inverse conclemnation juclgment lvithout delay ancl without seeking to avoid

payment by invoking ô i 1.066. (Id.).

Over the course ofhis 40-plus year career specializing in inverse condemnation, Mr. Moore

has never encormterecl or hearcl about a situation such as is presented in the instant case - other

than this case a¡cl the related Brolvard Cor-rnty case - where the State ofI'lorida or a State agency

has invbkeci $ 1 1 .066 as a bar or as a manner of clelay in paying finaljuclgments sounding in inverse

conclemnation: "l went back and looked, becanse this caseis uniqne. l've never had that or heatd

of it." (Tr.91). Acoorcling to Mr. Moore, if the State of Florida or one of its agencies invoked $

11.066 as a bar o¡ manner of delay of payment every time he handled an inverse condemnation

claim for a client, "it would be a real bar, a real irúìbìtion to the full recovely the landowner is

entitled to." (Tr. 91-92).

Cary Gaylord has practiced law for mo¡e than 44 years. (Tr-. 102). IJe began his legal

career as a JAG offìcer prosecuting courl maÍìals in various locations. (Tr. 102). lle entered

private pr-actice in 1977 and, after a shorL slint as an insruance dcfbnse iawyer, began his caleel in

the eminent domain arena. (li. 102-103). For the past 40 years, Mr. Gaylord has devoted, and

continues to devote, all or substantially all of his practice to the areas of eminenl domain ancl

26
inverse condemnation. (Tr. 103). He has also served in various capacities within that practico

area, including as chairman of the eminent domain comrnittee of The Florida Bar back in the 1980s.

(TL. 103-104).

Like his longlime colleague, Mr. Gaylord has recovered judgments for his clients on

inverse condemnation claims brought against the State of Florida or ìts agencies. (Tr. 105). He

has never encountered a situation where the State ofFlorida or any of its agencies have lailed or

refused to pay and satisfy an inverse condemnation.judgment recovered for a client by invoking $

11.066. (Tr. 105-106). Mr. Gaylord also testified that neither the State of Florida or any of its

agencies against which he's recove-r-ed inverse condemnation judgments has ever advised him that

his clients must seek a claim bill in ordel to be paid on their judgments. (Tr. 106-107), Mr.

Gaylord has "never had any agency attempt to invoke that [claim bill] process." (Tr. 106-107).

The State ofFlolida or any ofits agencies have also never delayed payment ofajudgment sounding

in inverse condemnation by advising Mr. Gaylord that a specific approptiation must be sought

from the Legislature: "No. That's never been suggested." (Tr. 107)- No state agency or the State

against which he recovsred an inverse condemnation judgment has evet advised or taken the

position that Mr. Gaylord or his clients are the ones that have to seek a specifllc appropriation from

the Legislature to pay theil takings judgments. (id.).

Mr, Gaylord snmmed up his view of the impact that application of $ 11.066, as advânced

by Responderfs, would have on Florida eminent domain and inverse condemnatiot.r law:

It has nevel been invoked in that regard. But it had application in every situation
since 1991. And if you follow the logic of what the statute is saying, there would
be no reason in the future for the State of Florida to ever take right-of-way. They
couldjust go out and build a road on somebody's propedy and then say, sue us, and
then at the end of the time after you get the judgment in eminent domain, or excuse
me, the judgrlent in inverse condemnation, say that we haven't had an
appropriation to pay for it, and so, and the logical extension ofthis is that the power
of eminent domain has ro meaning going forward, because govelnment can do

27
 what it wants, take what it wants, and then fol'ce the private indiviclual to sue them,
and at the end ofthe processjust say, well, we don't have an appropriation Sothe
things that I've heard in cottlt would be an avowment(ph) of a constitutional
principle but completely mtestraining on government behavior.

(Tr. 11s-l16).

Testimony of Other State Agencies, The parties presentcd testimony ofthree other State

agencies, DFS, FDEP and FDOT. (Pet. Ex. 40, 41, 42).

The DFS provided testimony on cefiain issues relevant to thìs proceeding. (Pet Ex. 40)

One of the divisions within DFS is the Division of Risk Management; it is taskecl with
aclministeting the Risl< Management Insulance Trust F'uncl that defends ancl pays claims brought

against state agencies. (Dep. 7). The types of claims handled by the Division of Risk Management

include federal constitutional claims and court-a¡,varded altorneys' fees. (Dep. 7-8, 14-18). There

is no limitation on the amout of covelage on federal conslitutional claims ancl corut-awardecl

attorneys' Ièes. (Dep. 17). Horvever', the Division of Risk Management does not administer,

clefend, settle or pay state constitutional claims. (Dep. 8), The Division of Risk Management also

does not administer', clefend, settle or pay coul-a\.varded attorneys' fees in eminenl domain and

inverse conclemnation proceeclings. (Dep. 14-18). The fitnds usecl by Risk Management to

administer, defend, settle ol pay coverecl claims come from the state agencies themseìves, which

are assessed am.rually basecl on an actuarial loss assessment. (Dep. 11-12). The Deparlment [of

Agriculture] is one of the state agenoies on whose behalf Risk Management provides these

services. (Dep. 13), The Department fof Agriculture] has never consulted with Risk Management

regarding the claims that resulted in the Lee County judgments. (Dep. 22-23).

The Division of Risk Management's records reflect that, since 1991, it has administe¡ed,

defended, settled and/or paid out funds on three different matters u/here the Department [of

Agriculture] was a named defenclant that ilvolved fèderal constitutional claims a¡cl/or conrt-

28
awarded attorÌìeys' fees. (Dep. 23 -32; Pet. Ex. 31). One of those matters iuvolved a federal

constitutional ciairn brought by Ocheesee Creamery, a dairy farm that challenged the Depadrnent's

enforcement of a statute regulating how skim milk products were tequired to be labeled. (Pet. Ex.

31). The dairy ultirnately prevailed in the litigation and Risk Management was called upon by the

Department [of Agriculture] to pay the courl-awarded attomeys' fees of $ì436,822.13 to the dairy's

lawyers. (Dep. 26-30; Pet. Ex. 3 1, 32).

Another matter where the Department [of Agriculture] was a party involved a federal

constitrÌtional challenge to a state statute, where the travel compally, ABC Charters, sought

declaratory and injunctive reliefto enjoin enforcement of amendments to a state statute regulatirg

travel to Cuba; the travel agency prevailed against the Department and Risk Management paid

$364,452.30 in court-awarded attorneys' fees less than one month after entry ofthe finaljudgment.

(Dep. 30-32; Pet. 31, 33).

Separate and apart frorn Risk Management, DFS is the state agency that plocesses requests

from state agencies f'or issuance of warants (checks) to satisfy judgtnents and to pay other amounts

and financial obligations that may be due pursuant to coufl orders. (Dep. 51-52). DFS has no

record of ever receiving a request frorn the Depattment [of Agricullure] to pay or authorizing

payment ofthe amounts awarded under the Lee County judgments. (Dep. 49-50).

In o¡der to process a request for payment, the state agency must submit an electronic

Íequest that includes, among other information, the source ofthe appropriated funds to be used in

paying thejudgment. (Dep. 55-57). The procoss is fairly süeamlined and, ifthe lequest is properly

completed and the supporling documentation provided, the wan'ant will usually be issued within

24-48 houls. (Dep. 56-57). Although it could be difficult, a state agency that has not requested

29
an appropriation to cover a palticular juclgment as part of its a mal LBR can still submit a request

fol issuanoe ofa warrant. (Dep. 59-66, 70-71).

DFS is also the state agency responsible for ploducing various Iinancial repotts that the

State is required to procluce, including the CAFR that is pubiishecl annually at the end of February

covering tlre preceding fiscal year. (Dep.76-78;Pet. Ex.34). CAFR provides the overall financial

position olthe State ol Floricla. (Dep. 78). ln the course of preparing the annual CAFR, DFS

requests and receives annual reports from the Depadment fof Agriculture] regarding the Lee

County jLrdgments, as r,vell as the other related juc'lgments. (Dep. 80- 96; Pet. Ex. at 134). The

specific documentation leceived from the Deparlment [of Agriculture] regarding oilrus canl<er

juclgments is a form that discloses loss contingencies in excess of$25 million, (Dep. 80-87; Pet.

Ex.29,30,34 af 157). DFS' auditors revier'v the reporl submitted to be sure it conforms with

GAAP for inclnsion in the CAFR. (Dep. 83-87), DFS does not know whether or not a liability

has been recorded in the financial statements ofthe State ofFlorida for the Lee County judgments,

(Dep. 88-90). 'Ihe initial level of responsibility for lecording a liability for the Lee County

judgments falls on the Department fof Agricultule]. (Dep. 91-93). lf the Depafiment [of

Agriculture] made a determination in accordance with GAAP that a liability shor d be accrued for

the Lee County judgments, those liabilities woulcl have been rolled up and includecl in the CAFR

1ìnancial statements. (Dep. 90-92). The Department's [of Agriculture] most recent revised note

16 wìll be inchrded, in whole or in part, in the upcoming CAFR for F'YE 6130111 fhaf will be issued

in late February 2018. (lr. 48; Dep. 94-96;Pet. Ex, 29,30).

The FDEP plovided testimony on cerlaìn issues lelevant to this proceeding. (Pet. Ex. 41).

According to the FDEP, there have only been two final judgments entered against FDEP since

2000 based on inverse condemnation claims, and both were reversed on appeal. (Aff. !f 5A and

30
B). A third ínverse condemnation clain-r was brought against FDEP in 2004. (Afl. ll 5C). That

matter was settled on Septernber 7,2005, based on an agreement that FDEP would affrrmatively

seek a $7. 150 million appropriation as part of its 2006 annual budget request to the Govemol to

pay the settlement, and that if the applopriation was not obtained andlor vetoed, the litigation

would resume. (Aff. f 5C and Comp. Ex. D). Tlie $7,150 million appropriation was obtainecl

during the 2006 Legislature, and the full amount ofthe settlement was paid on July 26, 2006, less

than 12 months following execution of the settlement agreement. (Id; Resp. Ex. i4).

Finally, the parlies presented testimony of the Þ-DOT on ceúain topics related to the

pending matters before the Couf. (Pet. Ex. 42). According to the FDOT, it ran an electronic query

of its database for all inverse condemnation cases within its distlicts where a final judgment was

paid. (Dep, 8). That query generated a spreadsheet listing al1 such cases since 2000. (Dep. 8-12).

According to the FDOT, in all such cases, the inverse condemnation judgments were paid in full

either lrom a line itern appropriation in FDOT's budget for a specihc ploject or, if the funds in that

line item were insuffrcient, from a "contingency fund" or "corfingency box" that exists within the

FDOT bndget to cover unanticipated costs or ovetages. (Dep. 34-36,46-48). The FDOT teslified

that, if it were given a courl mandate to pay monies based on a f,rnal judgment where the funds did

not exist in the cuuent year's budget or within the five-year work program budget, "then if another

project in my work plan has to what we call shift or move out, then we will do that in older to

accommodate a couú mandate " (Dep. 51). According to the FDOT, "[w]e shift projects around

all the time for a lot ofvaríous reasons, notiust court mandates." (Id.).

Lceal Analysis

Respondents have not paid Petitioners the full conpensation. ilcludìng attomeys' fees and

costs, adjudicated to be due and owing by this Court following years oflitigafion, despite the clear

31
constitutional commandments embodied in Alticle X, $ 6(a), Fla Const., and U.S. Const, Fifth

Amd. Petitionets have returned to ConÍ to virìclicate their constitutional dghts. By enforcing the

clear constitutional rights of the Lee Homeowners in this instance, this Courl saf'egnards the

property rights of ali.

The relief Petitioners seek is autholizecl uncler $ 1 1 .066(4), Fla. Stat., as interpreted by the

Fonrth District it Bogorlf et al v. Dep't of Agriculnre and The Florida Commissioner of

Agticulture, 191 So.3c1 512 (Fla. 4th DCA 2016) ("Bogoíf Il'), and Dep't of Agriculture v.

Mendez,98 So.3d 604 (F'la. 4th DCA 2012).

In Bogorff II, an appeal fi'om the related Broward County case, the Þ'ourth District held,

inter alia, thal: (i) the Rroward homeowners fulfìlled the directive in $ 11.066(3) to seek an

appropriation to pay the judgments they recovered in that case; (iÐ $ 11.066(3) does not require

the homeovmers to pursue a claim bill; (iii) $ 1 1.066(4) ptovicles an alternative remedy in the form

of a writ ol manclamus to enfbrce the judgmerfs enterecl âgainst Respondents; and (iv) the

unconstitutional application of the statute will materialize if the homeowners ancl class counsel do

not succeed in securing payment of the judgments through a writ of manclamrs. In relevant part,

the F'ourlh District held:

The Class and Class connsel holcl frnal judgments for money damages ancl
attorney's fees, respectively, against the Floricla I)epaltment of Agricultr-ue
and Consumer Services ("Department"), 'I'he circuit court pteviously
granted the I)epattment's motion to preclude issuance of a writ of
execution. See $ 1 1,066(4), Fia. Stat. (2015). We r,rpheld that clecision.
Dep't of Agricttltr.tre v. Mendez,98 So. 3d 604 (Fla, 4th DCA 2012), rev.
denied, 107 So.3d405 (Fla.2012). But we teversecl the cou¡t's decla¡ation
that section 1 1.066(3) was constitutional "as applied" because the Class hacl
'hot yet availed itself ofthe appropriation plocess contemplatecl by section
1 1.066," ld. aI 609.ln shorl, the constitutional issue was not t ipe,

The l)epartment and the Attorney General, who has f|ted an amictts curie
brief in support of the Deparlment, contend thal the issne remains ttnr..ipe as
the Class has not pursued a claim bil1,ffootnoto omitted] We disagree.

32
Nothing in section 1i.066(3) refers to a claim bill. And, the Class sought a
legislative appropriation, pursuant to subsection (3) without success.

The Class now appeals. It argues that it fulfilled subsection (3) and our
mandate to pursue a legislative appropriation. Accordingly, fhe Class
algues the constitutional issue is now ripe, and asks us to declare sections
11.066(3) and (4) unconstitutional as applíed. The Deparlment continues
to argue that because the Class failed to file a claim bi1l, the constitutional
issue lemains unripe. We agree in part with the Depadment and affirm,

...We agree with thè Class that it pursued the subsection (3) remedy to no
avail.

We disagree with lhe Departntent that lhe Class must pursue a clqitn bill.
Had the Legislahre required a claim bill, it v,ould hc:e said so. IT did nol.
Therefore, the Class has fuffilled subsecîiott (3)'s direcrive "to seek an
apprcpriqtiotx to pay the judgment. "

Subsection (4), however, provides an alternative remedy.

Notwithstanding s.74.091, a judgment for monetary

damages against the state of any of its agencies may not be
enforced through execution or any common law remedy
against propefly of the state or its agencies, and a writ ol
execution therefore rnay not be issued against the state or its
agencies. Moreover, it is a defeirse to an ãlternative v,rit of
tnandamus issued to enforce a judgment for monetary
dantages against the state or (t state agency thal there is no
appropriation made by law to pay the judgmerf.

$ 1 1.066(4), Fla. Stat. (emphasis adcled).

This protisîon allows a judgmenl creditor to seek a writ of mandamus lo

enforce a judgment for monelary darnages. The plaintilf has not yet
travelied this avenue. The Class argues that the additional language of
subsection (3) that allows the State to defend a writ of mandamus by arguing
"there is no appropriation made by law to pay the judgment" rencler-s this
option a fait accompli. We disagree. Had the Legislature decided that a
petition fol wlit ofmandamus could not secure payment, it would have said
so. See llaskins 1,. Cily of Ft. Løuderdale,898 So.2d 1120, 1123 (Fla. 4th
DCA 2005). It did not. Subsection (4) plovides yet another alternative
rnethod for the Class to obtain payment of its judgment.

33
 We pause to comment on the importance of section 1 1.066 to provide a
means lor compensation for the Depatlmeut's taking of the Class members'
property. Since the founding ofour nation, the law has recognized, required,
and enforced just compensation when govemment takes private propefly.

No private property shall be taken except lor a public

pupose and wifh. ftill compensation paid to each owner or
securecl by deposit in the registry of the coutl and available
to the owner'.

Art. X, $ 6(a), Fla. Const. (emphasis adcled). Indeed, the United States
Constitution contains a similar provision. Amencl. V, U.S. Const. ("[N]or
shall private propefiy be taken for publio use, without just compensation.").

The Florida Supleme Coufi has interpreted the takings clauses ofthe Unitecl
States and Flolida Constitr.rtions coextensively, See e.g., Tampa-
HÌllsborough Cty. Expressway Auth, v, A.G.Ilt.S. Corp.,640 So.2d 54, 58
(Fla, 1994); Joint Venkn'es, Inc. v. Dep't of Transp.,563 So.2d 622, 623
(Fla. 1990),

llthile the governmenl has the dbility to establish proceùtresfor payment of

its constitutionãl obligation, il does not have the lun Lry of avoiding it.
Should the Class faíl in obtaining a writ of møndamtLs, pLÍslrctnt to secîion
11.066(4), tJle canstihttionctl isnrc will ripen, and rhe courts will be left wilh
no choice bu.t to enforce Article X, sectiôn 6(a), ofthe Florida Constirution.

'I'he Class obtained cL money judgmentfor property taken by the Department

many years ago. The Depaúment does not contest lhe Class's right to
receive full compensãîion. I'he government mttsl fttffill its constitxttional
obligation to pay Ìts debî, Hotvever, should the Class succeecl in o pelition
for writ oJ mandamus, then the alleged unconslitutional application of lhe
statute wotld nol materi( ize. þ-or this reason, we decline to reach the
con[titutional isslte at this tìme.

Our aflirmance cloes nol preclncle the Class from again seeking a declaration
that the statute is unconstitutional should it become necessary, but only aftet
it has exhausted the iegislative remedies available to it thn'ough section
11.066.

ßogorl¡ ll.l9l So.3d at 513-16 lemphasis atÌded).

34
 Consistent with Bogorff II and Mendez, Petitioners seek a writ of mandamus and a

determination that $$ 11.066(3) and (4), Fla. Stat., are unconstitutional as applied to the three

constitutional takings judgments entered in this case.

During the final hearing, Petitioners proposed the following "choreography" as appropriate

for addressing the requested relief. (Tr. i 1-12). According to Petitioners, belore reaching the

constitutional question, the Court should determine whether it can issue a writ of mandamus

directing Respondents to immediately pay the thee constitutional takings judgments entered in

this case, or directing them to issue vouche¡s authorizing the DFS to pay these judgments. Ifthe

Courl concludes that it can jssue the writ of rnandarnus without reaching the constitutional

question, Petitioners suggested that the Court should issue the wr'ìt and make an alternafive ruling

finding the statute constitutional. If, however, the Coutl concludes that it can-not issue a wlit of

mandamus in this case based on $$ 11.066(3) and/or (4), Fla. Stat., Petitioners urged the Court to

turn its focus to determining whether $$ 11.066(3) and/or' (4), Fla. Stat., are unconstitutional as

applied to the judgrnents ente¡ed in this case. lfthe CouÍ concludes that $$ 11.066(3) and/or (4),

Fla. Stat., are unconstitutional as applied, the Court would then issue the requested writ of

mandamus without being consú'ained by $$ 11.066(3) and (a), Fla. Stat. The Court adopts

Petitionels' suggestecl approach and addresses these issues serlallltt.

1. Writ of Mandarnus

Petitioners hold and have continued to hold for quite some time thlee unsatisfied

judgments awarding full and fair compensation rnder Article X, $ 6(a), Fla. Const. in cousequence

ofthe State seizing and destroying their property, (Pet. Ex. 3, 4, 5). Despite the Conrmissioner's

public statements expressing dissatisfaction with the amounts awarded, it is undisputed that the

amounts due under thesejudgments are hnal and no longer subject to appellate review. Consistent

35
rvith the mandate in Article X, $ 6(a), Fla. Const., the amounts due under these constitutional

takings judgments must be paid without fulther delay,

As the Foufih District held in Bogorlf II, $ 11.066(4), Fla. Stat., provicles Petitioners with

an alternative remedy to enforce the judgments ttu'ough awrit of man damvs. Bogorffll,191 So.3cl

at 515-16. Bogorff II is binding on this CoÙrt in the absence of contrary authority from the

Supreme Court or the Seconcl District. To this Courl's knowledge, no contraty autholity exists.

Petitioners seek a writ of mandamus directing Respondents to pay or imrnediately issuc

the necessary vor.rchers authotizing payment by the Chief þ-inancial Olficer of the State ofFlorìda

of the amounts due uncler these three judgments: $13,625,249.09 plr.rs poslj udgment interest frotn

August i 8, 2014 through the date ofpayment (Pet. Ex. 3); $821,993.12 plus post-judgment interest

from Match 18, 2015 through the date ofpayment (Pet, Ex. 4); and $70,892.50 plus posrjudgment

interest from December 22,2016 through the date of payment (Pet. Ex. 5). Based on the

tm<lisputed evidence, the total amount dne uncler these three judgments thror-rgh Februaly 6,2018

is$16,959,059,45,withaperdiemof$2,199.60throughMarch31,201B. (Pet.Ex. 19).

Mandamus is a common law remedy to enforce an established legal right by compellìng

a public officer and/or governmental entity to perform a ministerial duty that the party has a duty

to perform beoause of its official p ositiott. Smithv. State,696 So.2ci 814, 815 (Fla. 2íDCA 1991):

State exrel. B¿tcl*valter v. City of Lakelqnd,ll2Fla.200,150 So. 508 (Fla. 1933). A patty seeking

a writ of mandamus must establish a clear legal right to perl'ormance clf the act requested, an

indisputable legal duty, and no adequate lemecly arlaw. Il.adJordv, Brock,914 So.2d 1066,1067-

68 (Fla. 2d DCA 200s).

This Colut finds anci concludes that Respondents' payment ofthe amounts due under these

judgments, or issuance of the necessary vouchers authorizing payment of these juclgments, is a

36
purely ministerial act. Based on the evidence presented, namely testirnony of the DFS,

Respondents need only follow the minísterial act of submitting an online form to DFS to initiate

the process of obtaining issuance of a wanant(s) to pay these judgments. Whether submission of

that online form successfully results in issuance of a wanant(s) to pay these judgments is not

outcome determinative. To date, Respondents have not even attempted to submit al online forrn

to DFS requesting issuance of a warrant to satisfy the judgments, let alone taken any other steps

towald rneadngful attempts to secure payrnent of these juclgments, in whole or in par1.

Petitioners undoubtedly satisfy the three main elements necessary to obtaining ma¡damus

relief from the Court.

First, the Court finds and concludes that Petìtioners have a clear legal r:ight to performance

of the act requested. They hold three constitutional takings judgments that remain unpaid (and

seerníngly will confinue to be unpaicl in light of the Respondents' lack of effort and "resisting"),

and under which Petitioners are entitled to payment to satisfy these judgments in their entirety,

including all interest accrued thereon.

Second, the Court finds and concludes that a legal duty exists on the part ofRespondents

to perform this act. Respondents have a legal duty and obligation to pay or secure the issuance of

the necessary vouchels authorizing payment by the ChiefFinancial Officer ofthe State ofFlorida

of the constitutional compensation adjudicated by this Court to be due and owing several years

ago.

Finally, the Courl finds and cóncludes without a doubt that Petitioners are without an

adequate remedy at law under the circumstances of this case. Sections $$ 11.066(3) and ( )

prohibit issuance ofa writ ofexecution to satisfy the judgrnents, and provide that an appropriation

by the Legislature is the sole recourse f'or recovering the amounts awarded urder the judgments

37
ctÌtercd in this case. As the l'ourth Distr-ict ColDt helcl, "should the fafi'ected i{omeowners] succeed

in a petition for writ of manclamus, then lhe ailegecl rnconstitutional application of the statute

would not materialize." Bogorffll, 191 So.3d at 516.

Notwithstanding the foregoing findings and conclusions that Petitioners have satisfied the

elements fol a wtit ofexecution, this Courl is constlained by the express language in $$ 11.066(3)

and/or (4), Fla, Stat., fi-om issuing a writ of mandamus clilecting Responclents to immediately pay

the lhree constitutional takings judgments entered in this c.:ase, or directing them to issue vouchers

authorizing the DFS to pay these judgmelts. Therefore, the Court must ttrn its attention to

determining whether' $$ 11.066(3) and/or (4), F'la. Stat., are tnconstitutional, as applied, to the

judgments entered in this case. lf the Courl concludes that $ $ 11 .066(3) and/or (4), Fla. Stat , are

nnconstilntional as applied, the CouÍ will issue the writ of mandamus without being constlainecl

by $$ 1 1.066(3) and (4), Fla. Stat.

2, Sections 11.066(3) and (4), Fla. Stat. Are ljnconstitutional As Applicd

Petitioners request that the Corut declare $$ 1 1,066(3) and (4) unconstitutional as appliecl

to the three constitutional takings judgments (saicl final judgments, respectively, for Petitioners'

full compensation as determinecl by the jLrry, atlorneys' fees/costs, ancl appellate fees/costs). This

Coufl agrees ¿nd concurs with Petitioners' presentation that these sections are unconstitutional r¿s

applied ro the three judgments entered in thìs case that awarded full compensation rurder Arlicle

X. $ 6(r). [ìlc. Const.

The constitutionality of a statnte is a pure question of latv. Seørcy, Denney, Scarola,

Bcn'nhart & Shipley, etc. v. State,209 So.3cl 1181, 1 188 (Fla.2017). The starting point for every

38
constitutional challenge is that a statute is inherently clothed with a presumption of conectness,

and all reasonable doubts about its validity must be resolved in favor of constitutionality if a1 all

possible..Id.

Statutory interpretatlon "beginfs] with the actual [plain meaning of the] language used in

the statute because legislative intent is determined first and foremost from the statute's text."

Searcy Denney,209 So.3d at i 189 (citing, R ayrnond Jarnes Fìn. Servs., Inc. v. Phillips, 126 So.3d

186, 190 (Fla. 2013) (quoting, Heart ofAdoptions, Inc. v. J.A.,963 So.2d 189, 198 (Fla. 2007).

Above all else, a statute must be given its plain and obvíous meaning as it is sfated. Florida Dep't

of Envtl. Prot. u. Contractpoint Fla. Pørks, LLC,986 So.2d 1260,1265 (Fla. 2008) (citing, Holly

v. Auld,450 So.2d2I'7,219 (Fla. 1984) (quoting, l.R, Douglass, Inc. v. McRainey,102 FIa. 1141,

137 So. 151,159 (Fla. 1931). "When the language of the statute is clear and unambiguous and

conveys a clear and definite meaning, thele is no occasion for resoding to the ttles of statutory

intelpretation and consfruction; the statute must be given its plain and obvious meaning." Searcy

Denney,209 So. 3 d at 1 189 (citing, Bennett v. St. Vincent's Med. Ctr., Inc.,71 So.3d 828,837-38

(Fla.2011) (quoting, Fla. Birth-Related Neuro. Injury Comp. Ass'nv. Dep't of Admin. Ifearings,

29 So.3d 992,997 (Fla.2010).

When interpreting a statutory subsection - here $$ 11.066 (3) and (a) -the Cout't cannot
read the subsection in isolation, but must read it within the context of the eltire secTion (in pari

ntateria) fo ascertain legislative intent for the provision. Contractpoint, 986 So.2d af 1265. A

"sÍatute should be interpreted to give effect to every clause in it, and to accord meaning and

harmony to all its par1s," and is not to be read in isolation, but in the context of the entire section.

Id. (cifing, Jones v. ETS of Nev, Orleans, lnc.,793 5o,2d91,2,914-15 (Fla. 2001) (quoting, Acosta

v. Richter,671 So.2d 149,153-54 (Fla. 1996).

39
 This Court's interpretation of $$ 11.066 (3) and (4) is guided by our Supreme Coutt's

analysis ofthe applicability of the same provisions to ajudgment enterecl against a state agency in

a breach ofcontract action. Contractpoint,986 So.2d 1260. In Contractpoint, a priva,Ta contractor

petitioned for a writ of ma¡damus to compel the State to pay a $628,543 jLrdgment entered against

the Floricla Depafiment of Environmental Protection arising from a bfeach of contract. Id. 'the

Circuit Court deniecl the petition. 1d. The First District Coufi ofAppeal reversed and cer1ifiec1 a

qnestion of great public importance. 1d. The Supreme Court granted review. 1d.

The Snpreme Court began its analysis by framing the question r,ndet' considelation. "The

only question before us is r,vhether section 1 i.066 plainly evinces an intent to shield the State from

paying any valid judgment entered against it in a breach of contract action ltnless ancl until there

is a specific iegislative appropliation to pay that judgment." ContrqctpoÌrtt, 986 So 2cl at 1264'

The Coufi then outlined the history ofthe statute's enactment and recited all of its provisions. 1cl.

at 1264-65.

The Coru't reiteratecl the longstanding rule thal "a statnte must be given its plain and

ordinary meaning." Contracrpoint,9S6 So.2d af i265 (internal citations omitted). Next, the Court

leminclecl that there is no neecl to resorL Lo stalrrlory construction if the langnage of the statuts is

"clear ald tnambiguous and conveys a clear ancl clefinite meaning." 1d. (intelnal citatìons

omitted). The Courl then pointed out that, in interpreting $ 1 1.066, it could not read subsection

(3) in isolation, bnt must read it within the context of the entire statute to asceltain the legislative

intent for the section. .Id, A "statute should be interpreted to give ellect to every clause in it, a¡d

to accorcl meaning and harmony to al1 of its pat'ts" and is not to be read in isolaiion, but in the

context of the entire section." Id. (inTemal citations omitted).

40
 The Court concluded that while subsection (3), standing alone, appeared to be an abSolute

bar to the State's payment of all judgments, subsections (3) and ( ) must be read with reference to

subsection (2), which expressly referred to suits "seeking monetary damages" made in the context

of the State's exercise of its police power to protect the public health, safety, or welfare.

Contractpoint, 986 So.2d at 1266. Therefore, the Court concluded that subsection (2) clearly

focused the thrust of the statute on judgments arising from claims based on the State's police

power'. /d. Thus, the Court concluded that, when "considered as a whole," with an express

indication of the "evil to be comected," the Legislature's appaletrt intent in $ 11.066 was to

"preclude payment ofjudgments for monetary damages arising out of the State's exercise of its

police powers unless an appropriation exists." 1d. The Colut noted that the legislative history

confirmed its conclusion, indicating that "[o]ther legislative materials relating to the original

enactment of section 11.066 also suggest that one impetus for the statute was the many attempts

to recover judgrnents for claims arising out ofthe State's exercise of its police powers during the

Citrus Canker Eradication Program in the mid-1980s." Id, a1 1267.

Based on its overall interpretation of the statute, the Courl concluded that $$ 1 1.066 (3)

and (4) were not intended to broadly lirnit the payment of all judgments, but only those entered

againsl the State arising from actions it took in the exercise of its police poweß. Contractpoint,

986 So.2d at 1268-

When subjected to analysis based on these overarchìng principles of construction and in

the shadow of Contractpoinl, the inescapable conclusion is that application of $$ 11,066 (3) and

(4) cannot be hannonized with the constitutional maudate embodied in Arlicle X, $ 6(a), Fla.

Const., absent payment of the full compensation awarded to Petitioners in this constitutional

41
takings case. Therefore, the statute must be declared unconstitntional as appìied to these takings

j uclgments.

Tlre holding it Contracîpoinr, that $$ 11,066 (3) and (4) cloes not apply to a judgment

basecl on breach ofcontract, suppods this Cour['s conclnsion that $$ I 1.066 (3) and (a) carurot be

constitutionally applied to limit the State's obligation to pay three constitutional takings judgments

in this case. The constitutional commandment enshrinecl in Article X, $ 6(a), Fla. Const.,

represents much more than a contract. It requires no mutuality of agreement from the citizens.

'I'he provision commanding payment of flrll compensation when private property is taken for a

prrblic ptrrpose, Article X, $ 6(a), is a self-executing oonstitutional ma¡clate. See, e.g,, StetuarT v.

City of Key Wesr, 429 So.2cl 784, 785 (Fla. 3d DCA 1983) ("this constitutional requirement fof

fnll compensationl needs no enabling legislation to be effective"); Flatt v. City ofBrooksville, 368

So.2d 631, 632 (Fla.2d DCA 1979) ("this conslitutional provision does not reqr"rire enabling

legislation to be effective"); Div. o/ Admin,, Dep'Í oJ'T'ransp. v. Grqnt Motor Co,,345 So.2d 843

(Fla. 2d DCA 1977) ("Section 6 of Alticle X of the Florida Constitution is self-executing and,

therefore, cloes not require enabling legislation ... ").

As the Fourth District held in Bogorff l,"the common larv and statntory provisions do not

clisplace the constitution¿rl recluireurent for just compensation when the State desttoys private

propefiy to aicl some inclustry." Bogorff 1,35 So.3cl at 90, This applies with fr-rll force to the

conflict between $$ 11 066(3) and (4) and the commandment to pay full compensation enshrined

in Arricle X. $ 6z\. l-la, Const.

The Floricla Snpleme Cor.rt has repeatedly recognized that payment offul1 compensatiorr

is required in the context ofthe Department's longstanding effbrls to eradicate citrus canker. ,S¿¿,

e.g., BogorJf I,35 So.3d at 91 ('lf the compensation requiled by the Constitution exceeds a

42
statutory amount,fhe Slafe will have to pay |haf arnoLrnt. . .."); 1)ep 't of Agricuhure v. Mid-Florida

Growers, Inc.,521So.2d 101, 103 (Fla. 1988) ("we hold tlut ftrll andjust compensation is required

when the state, pursuant to its police power', destroys healthy trees"); Dep't ofAgriculture v. Mid-

Florida Growers, lnc.,505 So.2cl 592, 593 (F1a. 2d DCA 1987) ("The sovereign must make just

compensation for any propelty taken."), aff'd,521 So.2d 101 (Fla. 1988).

ln Haire v. Dep't of Agriculrure, ST0 So.2d 774,786 (F1a, 2004), the Florida Supreme

Courl agreed with the Deparlnent's concession that $ $ 1 1 .066 (3) and (a) are "not a lirnitation on

the State's obligation to pay compensation for the destruction of exposed citrus canker."

Although the State and its subdivisions are oldinarily not subject to a common law writ

of execution,l0 the immunity of the sovereign is nowhere reflected in the abundant case law that

speaks to the compulsory nature of constitutionally-maldated payment offull compensation where

a taking of private property has occurred, To the contrary, it is a well-settled principle of

constitutional law that payment not merely recovery - of full compensation for a taking is

conrpulsory. See, e.g., Village ofTequesta v Jupiter Inlet Corp.,371 So.2d 663,669 (Fla. 1979)

("lf the damage suffered by the owner is the equivalent of a taking or an appropriation of his

propelty for public use, then oü constitution recognizes the owrer's right to compel

conrpensation").

Ä. Application of $$ 11.066 (3) and (a) unconstitutionally restrict the right of

Petitioners to payment of full compensation, as mandatcd by the Florida and
U.S. Constitutions.

In Mendez, the Fourlh District decliled to reach the Br-oward homeowners as-applied

challenge to $ $ 1 1.066 (3) and (a), finding it was nof ripe until the homeowners availed themselves

10
See, e.g., Berek v. Metro Dade County, 396 So.2d 756, 759, n.4 (Fla. 3d DCA 19S1) ('A
judgrnent creditor may not obtain a lien against or levy execution against the propeúy or funds of
a state, county or municipality in the absence of express authorization.").

43
ofthe appropriation process contemplated by $ 11,066. lu[endez,9S So,3d at 609 Foilowing their

unsrÌooesslirl 2014 efforts to avail themselves olthe appropriation pr-ocess mandatedby Mendez,

the Forulh Distri ct in Bogorff II held that the Ilrowald Flomeowners fulfi11ec1 their obligatiol under

$ 11.066(3) to pursrÌe a legislative appr..opriation, but theil as-applied constitutional challenge was

still not ripe until they availed themselves of the opportunity to seek the alternative lemecly of

mandamus provideil under $ 11.066(4). BogorlJ II, 191 So. 3cl at 515-16.

As in Bogorff II, Petitioners availed themselves of the appropriation process contemplated

by $ 11,066. During the 2017 Legislature, LIB 3767 was proposed to pay the fltll amounts owed

under the three judgments entered iu this case, as well as the unpaicl lakings jr,rdgments entered in

the related cases in Broward, Orange and Palm Beach Counties. (Pet. Ex. 6). An appropriations

amendment was also submilted in the 2017 Floritla Senate. (Pet. Ex. 7). The 2017 Legislature

approvecl Senate Bill 2500, the FY 2017-18 General Appropriatìons Act, that includecl an

appiopriation oflì16,475,800 tì'om general revenue to pay the three finaljudgments enteled in this

case, as well as a separate appropriation for $20,941,328 to pay the final judgments entered in the

related case in Broward County. (Pet. Ex. 8, 9). Ultimately, however, Governor Scott vetoed the

l| 16,475,800 appropriation incorporated into the FY 2017-18 General Appropriations Act intended

to pay the three juclgments entered in this case, as weli as the $20,941,328 appropriation irfended

to pay the fìnal jnclgments entered in the reiatecl Broward Cotnty case.rl (Pet. Ex. 10).

Petitioners' effotts to avail themselves of the appropriation process conlenplatecl by $

11.066wereunsucoesslil.'I'herefore,havingattemptedtosecr,uepaymentth'oughthelegislative

appropriations process, Petitioners' request lo¡ issuance of a writ of manclamus or, in the event

11
In clismissing the Petition for Writ of Mandamus seeking to overtum Governor Scott's veto, the
Supreme Cou¡t held that the Govemor's "constitutional line-item veto authority is part of the
process that results in "an appiopriation made by law."" Scott,223 So.3cl at i001.

44
mandamus is unavailable or unsuccessful in securing payment, theil as-applied constitutional

clrallenge, is now ripe. Bogotff11,191 So.3d af515-16.

Based on Bogo(f II, this Cout finds and concludes that $$ 11.066 (3) and (4) is

unconstitutional as applied to the judgments entered in favor of Petitioners because $ $ 11 .066 (3)

and (4) cannot be harmonized with the required payrnent of full compensation enshrined in Article

X, $ 6(a) of the Florida Constitution a¡d the Fifth Amendment of the U.S. Constitution.

As stafed in ly'olami Hospital of Floridq, Inc. v, Bowen,927 5o.2d139,142 (Fla. lstDCA

2006), "[s]tate constitutiols are limitations upon the power of the state legislature ... ." As a result,

a statute enacted by the Legislature may not restrict a fundamental right granted under the Florida

Constitution.12 "To the extent that a statute conflicts with express or clearly implied mandate of

the Constitution, the statute must fail." Id. at 142. Not surprisingly, courts rely on this principle

- legislative authority necessarily yields to constitutional pronounce.ments * in the very context at

issue here: where legislation conflicts with the express or implied mandate of Arlicle X, $ 6(a).

In Storer Cable T.V. of Fla,, Inc, v. SummerwÌnds Apts, Assocs. Ltd.,493 So.2d 417 (Fla.

1986), the Florida Supreme Courl held that a statute purporting to authorize a television service

provider to enter pdvate property without providing full compensation to the owrer was

unconstitutional under Article X, $ 6, Fla. Const., as well as the Fifth Amendment to the Unifed

States Constitution. Id. af 418. Similarly, in the inverse condennation case of Drake v. Il/alron

Cottnty,6 So.3d 717 (Fla. 1st DCA 2009), the First District Court of Appeal held that regardless

12
It requires little elaboration to note that the similar compensation requirement in the U.S.
Constitution - the supreme law ofthe land - would serve to restrict a state legislatule's authority
to avoid constitutionally mandated payment. See, e.g., Stop the Beach Renourishment, Inc.v. Fla.
Dep't of Environ. Prot., 130 S.Ct. 2592,260I (2010) (holding the Fifth Amendment's "takings
clause" applies to the states by vitue of the Fourleenth Arnendment).

45
of the county's statutory authority to excavate drainage paths to preserve property under $

252.43(6), Fla. Slat., the couûty's statutory authority "must yield to Àrticle 10, section 6 of the

Floricla Constitution," requiring payment of ftrll compensation to the aggrieved party. Id. a1722.

No legislative plonollncement may thwafi the implementation of a constittttional manclate

- particulally where, as is typically the case ancl here, the constitutional provision is self-

execnting.l3 In snch cases, the Legislature may enact legislation adclressing the constitutional right

confelred, but only to further protect the right or make the light more readily available, not to

nnclermine it. See, e,g., Florida Hospilal Waterman, Inc. v. Buster,9B4 So.2d 478, 485 (Fla. 2008)

(recognizing that constitutionally granted light "may be supplemented by legislation, ftuther

protecting the right or making it available," and that such does not prevent the provision hom

being self-executing).In Florkla Hospital,tlte Florida Supreme Courl explained:

The will of the people is paramornt in determining whether constitutional

a
provision is self-executing and the modem doctrine lavors the presnmption
that constitutional provisions ¿ue intended to be se11'-operating. This is so
, becanse in the absence of such a presnmption the legislatule would have the
power to nullify the will ofthe people expressed in their constitution, the
most sacrosanct of all expressions of tire people.

Id. a|486 (quoting Gray v. Bryant, i25 So.2d 846, 851 (FIa. 1960)).

Application of $$ 1 1.066 (3) ancl (a) to prevent or limit payment of the three judgments

awardecl to Petitionels ìn this constitutionai takings ¡roceecling similarly "rnns al'oul" of the self-

execr,rting, constitutional mandate that recluires it. ,l¿ø Floricla ÍIospital, As reflected in the cases

discussed above, the payment of full compensation for a taking is compulsory. See e,g., Bogorff

I; Menrlez; Haire; Mid-Florida Growers; Village of Tequesta,

r3
Article X, $ 6(a) has long been recognized as a self-executing constitutional mandate. See,e.g.,
Stervm't, 429 So,2d at785; Flatt, 368 So.2d at 632; Grant Motor, 345 So.2d af 843.

46
 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,14 55 tt.066 (3)and(a) do precisely the opposite. Application of $$ 11.066 (3)

and (4) to preclude issuance ofa writ ofexecution wiLl preciude the efforts ofthe Lee Homeowllers

to secure their constitutional right to payment of full compensatior¡ and subject the payment of

lawfully entered constitutional takings judgments to the vagaries of the legislative appropriations

process. Absentjudicial action, application ofthese sections will render payment of constitutional

compensation entirely subject to the arbitlary exercise ofthe Legislature's discretion to applopriate

funds, leaving iittle doubt that the constitutional guaranty ofpayment offull cornpensation will be

denied to Petitioners. Put another way, Petitioners' right to fulI compensation is subject to the will

of the Legislature to pass an appropriation, and the Govemo¡ to approve it, thereby essentially

makìng the subject guarantee offull compensation under our Slate Constitution an illusory plomise

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.

B. Application of $$ 11.066 (3) and (a) unconstitutionally violates Petitioners

fundamental right of access to the Court and thereby violates Article I, $ 21 of
the Florida Constitution.l5

Arlicle I, $ 21, FJa. Const., establishes the fundamental right of access to coufis,

proclaiming that "[t]he courts shall be open to every person for ledress of any injury, and justice

shall be administered without sale, denial, or delay." Because this right is "specifically mentionecl

ra
E.g., as where the Legislature waived immunity from execution in ç 74.091, Fla. Stat., when the
State fails to pay compensation awalded pursuant to a frnal judgment eltered in a quick-take
eminent clomain proceeding.

ls Article I, $ 21 states: "The courts shall be open to every pelson lol redress of any injury, and
justice shall be administered without sale, denial, or delay."

47
in Florida's constitution," it "deserves[] more ptotection than those rights found only by

implication." Mitchetl v. Ì,tIoore,786 So.2d 521, 527 (F'la. 2001). To illringe npou this right,

legislation urnst pass the mnster rnder the stringent analysis set forlh in Kluger v. I¡íhfte,281 So.2d

1, 4 (Fla. 1973).

In Kluger, the Florida Supreme Court held that "the Legislature is without povr'er to

abolish" certain pre-existing common law rights for reclress of injuries16 "without pr-oviding a

reasonable alternative to protect thfos]e rights" or, if it does not do so, the Legislature mnst

establish "an overpowering public necessity for the abolishment ol such right, and [that] no

alternative methocl of meeting snch public necessity can be shown." [QtLger,2BI So.2cl at 4

(emphasis added). This "Kluger tesl" is the hrnctional equìvalent ofthe "strict-sclutiny" test used

in substantive due process and equal protection cases involving fundamental rights or suspect

classes. Mitchell, 786 So.2c1 ¿rt 528 ("conclud[ing] that there is no televant difference between the

'compelling governmental intelest/strict sclutiny' test and the 'no al[ernative rnethocl ofcorrecting

the problem/overpowering public necessity' test set forÍh in Klttger"). Accordingly, fhe Kluger

test establishes an exceedingly high hurdle lor the Legislature to clear.

Petitioners right to payment of full compensation I'or fhe taking of their private propelty

is a constitutionat light that is subject to the exacting Kluger slandard An action for inverse

condemnation predated Florida's 1968 Decla¡ation of Rights and the inclusion of At'ticle X, $ 6(a)

in the 1968 Floricla Constitution.IT See, e.g,, State Road Dep't. v. Lewis, 170 So.2d 817 (F1a.

16
Specifically, Kh.ger infetpreted the access-to-courts grÌai..antee as plotecting those tights of
acccss to the courts that existecl before the adoption of the Declaration of Rights of the I'loricla
Constitution in1968. Kluger,281 So.2d af 4.

17
Florida's 1885 Constitution and Declaration of Rights also contained a constitutional mandate
that no private propelty be taken without ftrll compensation. See, e.g., Hillsborough Cottnty v.
Kensett, 144 So. 3 93 (Fla. 1.932); Rosenbaum v, State Road Dep't of Fla., 1,77 So.220 (Fla. 1937).

48
1964); City of Jacksonville v. Schuman, i67 So.2d 95 (Fla. 1st DCA 1964). By restricting

Petitioners ability to recover payment of the full compensation guaranteed under Article X, $ 6(a),

$$ 11.066 (3) and (a) severely restrict and/or abolish that right. ln an analogous context, the

Florida Supreme Couú in Smith v. Dep't of Insurance,507 So.2d 1080 (F1a. 1987) explained:

Access to the courts is granled for the purpose of redressing injuries. A

plaintiff who receives ajury verdict for, e.g., $ 1,000,000.00 has not received
if
a constitutional redress of injulies the Legislature statutotily, and
arbitralily, caps the recovery at $450,000.00.

Id, af 1088-89. I¡ Smitlt, the Court struck a statutory cap on nonecolomíc damages under Kluger

as violative of the plaintiffls access-to-the-cour1 right, despite the fact that the cap would not

"'totally' abolish" that right. Id. a,-1089.

Sections 11.066 (3) and (4), as applied to the constitutional tal<ings judgmerfs entered in

this case, fail to meet llrre two "Kluger exceptiot'ts," "i.e., (1) providing a reasonable alternafive

remedy or commensurate beneht, or (2) a legislative showing of overpowering public necessity

for the abolishment of the rigb:t and no alternative method of meeting such publio necessity."

Smith, 507 So.2d at 1088.

The Legislature has infringed on the Petitioners access right without providing a

"reasonable alternative remedy." Seclions 11.066 (3) ancl (4) do not provide a "reasonable

alternative remedy." Therefore, they cannot stand as applied to the factual circumstances ofthis

case.

Section 11.066(3) expressly provides that the "sole remedy" to enforce the constitutional

takings judgments eltered in this case is to petition the Legislature for an appropriation to pay the

judgments. But petitioning the Legislafure to pay these constitutional takings judgments is not a

reasonable altemative remedy, because the Legislalure has the absolute and sole discretion to

decide whether or not to rnake an appropriation to pay the judgments, in whole or in par1. As the

49
evidence presented duling the final hearing demonstrated, the legislative appropriations process is

nol a reasonable alternative remedy; even after the Legislature passeci the appropriation to pay

these .judgments, they were still subj ect to the Governor's line-item veto, r,vhich he exercisecl at

least once already relative to an appropriate for the instant juclgments. (Pet. Ex. 8, 9, 10).

Review ofthe plain language ol $ 11.066(a.¡ confirms that the Legislature dicl not provicle

a "reasonable alternative remedy." Section 11.066(4) states that the lack of an appropriatiou to

pay the constitutional takings jndgments entered in this case is a clefense to an alte¡native r,vrit of

mandamus issued to enlolce these juclgments, In other words, ifthe Legislatrre cleclines make an

appropriation to pay these juclgments - as has already occrrrecl by virtne of the Governor's veto

a writ of mandamus compelling payment of these juclgments will be futile based on $ 11.066(4).

Sections 11.066 (3) and (4) were enacted to thwart payment of takìngs judgments

¡ecovered against the Respondents arising fi-om the CCEP. S¿¿ Contlactpoint,986 So.2cl a|1267

("[O]ne impetus for the statute was the many attempts to recover judgments fol clailts arising out

of the State's exercise of its police power during the Citlus Cantel Eraclication Pr-ogram in the

mid-1980s."). ll'hus, in enacting $$ 11.066 (3) and (4), the Legislature didnotprovide a reasonable

alternative remedy; it sought to create a shield (except at the whim of the Legislature) to insulate

the State from paying future constitulionai takings juclgments that were not to their liking, Thìs

violates the K/zçer test.

Based on the applioation of gg 1 1.066 (3) ancl (4), the Florida Legislature failed to provide

private propefty ownel's - Petitioners here - with a ¡easonable altemative remedy, Petitionels, and

others like them, who recover constitutional takûrgs j udgments are left with no mezrns ofenforcing

and collecting their constitutionally-mandatecl compeusation ìn the coufls, nor are they guaranteed

a substantially equivalent remedy uucler some alternate system.

50
 Nor do $$ 1 1.066 (3) and (4) provide Petitioners with any "commensurate benefit." Once

again, in an analogous context, the Florida Supreme Coult explained that, unlike the statutory cap

on arbitration damages where litigants receive "comr¡ensurate benefits in exchange for the cap,

such as saving the expense of attomey fees and experl witnesses" under $ 166.118, surviving

plaintiffs receive "absolutely no benefil whatsoever fi'om the cap on noneconomic damages," See

Estate of McCallv. U.5.,134 So.3cl 894,904 (Fla.2014).

As in McCall, since $$ 11.066 (3) and (4) do not provide Petitioners with auy

"commensurate benefit," they ca¡not wilhsland constitutional scrutiny under the Kluger lest,

There is also no compelling publio need for' $$ 11.066 (3) and (4) to be applied to

constitutional takings judgments entered in this action that cannot be met by alternative means.

Even ifthere is a need to attain cerlain public policy goals, those sections ale not narrowly tailored

to address that need. See Kluger,28l So.2d at 5.

There is no "crisis" necessitating $ $ 1 1 .066 (3) and ( ). The legislative history of$ 1 1.066

confinns that the provision was intended to address the State's exercise of its police powers during

an earlier ite¡ation ofthe CCEP. Conîractpoitx¡986 So,2d at 1266-67. The Senate Appropriations

Committee discussed that the impetus fol enacting these sections resr ted from constitutional

fakings judgments entered by the judicial lrranch in lavor of private propefiy ownels whose trees

were destroyed under the CCEP during the 1980s. 1d. atn.5. There isno reference to acrisis, nol

could there be, arising from those constitutional takings cases. Regardless, the entry of

constitutional takings judgrnents by the judiciary - which includes protections of appellate review

- does not establish any public necessity warranting a blanket prohibition on the enforcement and

payment of constitutional takings judgments.

51
 'I'hei-e is no basis 1-or the application of $$ 1 1.066 (3) and (a) to the constitutìonal takings

jndgments entered in this case, muoh less a necessiLy tndet Klttger, Indeed, the "citt'us canker

claims" identified by the Legislatrue to justifu the enactment of $$ 11 .066 (3) and (4) ale no more

compelling than the "financial clisis" that was citecl by the Legislature, but rejected by the Flolida

Supreme Courft in Smith v. Dep't of lns.,507 So.2d 1080 (Fla' 1987).

\n Smith, the þ-lorida Sttpreme Courl appliecl Kluger and stntck statutoty caps on

noneconomic damages includecl in the 1986 Tort Relorm Act as violalive ofthe plaintifls right of

access to the courts. The Legislature's purpofted basis fol the unconstittttional caps in Smith was

a so-oalled "financial crisis in the liability insurance industry, causing a serious lack ofavailability

of many lines of commelcial liability insurance," Smith, 507 So.2cl at 1084 (citing the preamble

ofthe act). The Court found these conchrsory asseÍions insuffìcient, and concluded that there was

no legìslative showing of al "overpowering public necessity fol the abolishment of [the] right" of

access to the couds. Id. at 1089.

The situation here is no clifferent. There has been no possible legislative showing of an

"overpowering pnblic necessity" to j ustily abolishing the Lee Homeowners' right of access to the

courts by preclucling ot' othenvise preventing lull payment oftheir constitutional takings judgments

under the slield of $$ 1 1.066 (3) and (4).

There are alternative legislative methods of meeting any "public necessity." The seconcl

prong of lhe Kluge¡ test is the functional equivalent ofthe "narrowly tailorecl" requirenent of the

strict scrutiny rcyiew. Mftchefi 786 So.2cl at 528. Assuming arguendo a litigatíon crisis existed

involving constitutional takings clerims brought againsl the State arising from the exercise of its

police powers as part of the CCEP, the enactment of $$ 11.066 (3) and (a) to thwafi the payment

52
of lawfully entered constitutional takings judgmerfs is not at all narrowly tailored to address its

effects.

As Justice Lewis observed in McCall, "[e]ven if the[] conclusions by the Legislature are

assumed to be true," the caps still fail because "the available evidence fails to establish a rational

relationship betwee¡. a cap on noneconomic damages and the alleviation ofthe purpofied crisis"

tlre stated purpose of the cap. McCall, 134 So.3d at 909. Because $$ 11.066(3) and (4) vest the

Legislature with complete discretion of whether or not to pay lawfully entered constitutional

takings judgments, in whole or in parl, the statutes do not bear any relationship to a legitimate state

objective as applied to the instant case,

Respondents have not shown that $$ 11.066 (3) ard (4) were narou'ly tailored to addtess

any particular crisis, nor did Respondents show that the Legislatule had no lesser restrictive

method of addressing that alleged crisis. The Legislattrre could have controlled payment of

lawfully entered constitutional takings judgments in any number of ways that would not have

impacted citizens' right ofaccess to the coufts. For example, the Legislature could have provided

that it be given one year or one fuÌl Legislatíve session following final appellate review of a

constitutional takings judgment to appropriate funds to pay such ajudgment in ful1, failing which

the prevailing ptopeúy owner would be entitled to enforce i1s judgment through tladitional

methods. Such an alternative, ol othels, would not have impacted access to the courts at all.

Because alternative means existed to address the prospect of inverse condemnation claims arising

from the State's exelcise of its police powers under the CCEP, whicli woulcl not have inplicated

the fundamental right of access to the coufls, $$ 1 1.066 (3) and (a) are not natrowly tailored and

do not nreet the second prong of Kluger.

53
 C. Application of $$ 11.066 (3) and (a) ¿rlso unconstitutionnlly interfere lvith the
porver of the judiciary and thereby violate Article V, $ 1 and Article II, $ 3 of
the X'lorida Constitution.ls

Application of $$ 11.066 (3) and (a) also sets them at odds with another long-settled and

well-enshrined principle; the determination of ftrl1 compensation is ajudicial fturction that can¡ot

constitr-rtionally be performecl by the Legislature. As the Florida Sr.rpleme Court long ago held in

Daniels v. State Road Dep'l, 170 So.2d 846, 851 (Fla. 1964):

It is well settlecl thaf the detelmìna[ion oljust compensation fol the taking
of private propetty for public use 'is a ittdicial fun.ctiott th(ll cannot be
perþrmecl by the Legislatttre either directly or by any method of
indirection.'

kt. 'àT 851 (ernphasis added, qLroting .Sp afford v. Brevartl, 1 10 So 451 , 45 5 (Fla. I 926)).

Indeecl, this oft-repeatecl principle is a hallmark of citrus cankel j urisprud ence. See' e.g.,

Potchen\,. Dep't of Agricutture, g06 So.2c1 1005, 1008 (Fla. 2005) (holding that "the determination

ofwhat isjust compensation ... is ajudicial function that cannot be performed by the Legislature")

(.qtroÍing Dep't of Agrictltme v. Haire,870 So.2cl at785); Dep't of Agrücutture v. Bonnanno,568

5o.2d24,31 (Fla. 1990) ("lt is true that the legislature may not set conolusive values for propefiy

taken for a public pmpose because the determinatiou ofjust compensation is a juclicial fuction.");

State Plent Bd. v. Smith, 1 10 So.2d 401., 407 (Fla. 1959) ("But where, as here, a plovision f'ot 'j ust

compensation' is a clear reqr-risite to ihe act of destlrLction, then we find no authority for the

Legislalure's specification of the maximnm cornpensatiol to be paid."); I)ep't of Agricultttre t.

IIait'e,836 So.2d 1040, 1048 (Fla. 4th DCA 2003), afi't1,870 So 2ci 774 (Fla.2004) ("Although

L8
Article V, $ 1 states: "The judicial power shall be vested in a supreme cout, clistrict courts of
appeal, cilcuit courts, and county oourls." Arlicle II, $ 3 states: "1'he powers of the state
government shall be divided into legislative, executive, andjudicial blauches. No person belonging
to one branoh shall exercise any powers apperlaining to either of the other branches unless
expressly so inclicatecl."

54
the Legisiature had set the amount of compensation in the act, ... the determination of what

constitutes 'just compensation' [is] a 'judicial Íùnction' which [cannot] be preempted 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 detennine full compensation,

instead of vesting such authority in the Legislature, is sound and cotrtrols here. As stated in

Daniels

The just compensation clause may not be evaded or inpaired in any form
of legislation. Against the opposition of the owrer of pdvate pl'operly taken
fol a public use, the Congtess may not directly or through any legislative
agency finally determine the amorurt thal is safeguarded to him in the
clause. . .. [W]hen he applopriately invokes thejust compensation clause, he
is entitled to a judicial detetmination of the amount . .. And in
Monongahela Naûgafion Co. v. U.5., supra, 148 U. S. 3I2, 13 S.Cf. 622,37
L.Ed. 463, in which the Supreme Coud struck down an Act of Congless
puporling to exclude an element of value ..., the coutl 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 legislation, congress
seems to have assumed the right to determine what shall be the measure of
compensation. But this is ajudicial, and not a legislative question. * * * Í
does not rest witl't lhe pttblic, taking the properry, though congress or the
legislature, its representative, to say whal cornpensation shall be paid, or
even what shall be the rule of compensation. The Constitution has declared
that jusl compensation sha1l be paid, and the ascertainment of that is a
judicial inq uiry.

170 So.2d at 852 (quoting ßahimore & Ohio R. Co. v. U.5.,298 U.S. 349,368 (1935)) (emphasis

in origirul).

To the extent that $$ 11.066 (3) and (a) are inlerpreted to pelmit the Legislature (by the

appropriations process) to control the ar¡ount ofcompensation, ifany, that Petitioners will actually

l.eceive under their lardully-entered constitutional takings judgments, the Legislature, in effect,

will both inpose the taking and then determine whether or not, aud in what amount, it will pay -
in essence supplarfing thejury's verdict with their own. Such a lesult resoundingly and repeatedly

has been rejected by the Florida Supreme Court as noted in some of the afotementioned cases. A

55
statute that allows the Legislatr-rre to exercise its discletion to determine whether or not, and in

what amount, it will pay lawfr-tlly entered constitrLtional takings judgments is no dillerent than

legislation that purports to fix fLll compensation. Iudeed, as succinctly statecl by the F'ourth

District:

While the govel'nment has the ability to establish procedutes for payment
of its constitutional obligation, it does not have the luxury of avoiding it,
Should the Ciass fail ìn obtaining a writ of mandamus, pursuaût to section
11.066(4), the constitutional issue will ripen, ancl he courts will be lef[ with
no choice but to er.rforce Aúicle X, section 6(a) of the Florida Constitution

Bogorffll, 191 So.3d at 512.

Because the determination of fulÌ compensation uncler Arlicle X, $ 6(a) is a jttdicial - not

legislative - ftinction, application of $ $ 11 .066 (3) ancl (a) to prevent payment of the jr.rdgments

arvarcling constitutional compensation is constitutionally inhrm. Àccordingly,lhe Cornt concludes

that $$ 11.066 (3) and (a) cannot be constitutionally applied to prevent payment of the thee

constitutional takings judgments entered in this case.

I). Application of $ 1I.066(4) to inverse condemnation judgments

unconstitutionally conflicts with $ 74'091.

Section 11.066(4) catves ont a significant exception - "notwithstanding section 74.091" -

by which the Legislature waived the statutory prohibition against enlbrcement by execution

against the State for "quick{ake" eninent domain ploceeclings institutecl rnclet Chaptet 74.

Section 74.091, entítled "Eflfect of failnre to pay fìnal judgment," plovides:

Where an o1'c1er of taking has been entered . . . persons 1awfully entitled to

compensation may slle out in execution, ... and such execution may be
levied upon the properly so conclemnecl ... and any other ploperty of the
fState] lø the sctme rn(lnner cts ex.ecutions ¿tre levied in common law.

Section 74.091, Florida Statutes (2010) (emphasis added)

s6
 Although the Fourth Distlict in Mendez concluded that the exception 1o issuance of writs

of execution under $ 74.091 is inapplicable to an inverse condemnation proceeding, there is no

compelling distinction between the availability of comtnou law writs of executiou against the

sovereign for one species of taking as opposed to another that justifies lirniting the exception

contaìned in $ 1 1 .066(a) to "quick{ake" eminent domain proceedings only. After all, the Florida

Constitution compels payment of full compensation in a1l takings cases, whethel initiated by the

State (eminent domain) ol by the propeúy owner (inverse condemnation). See, e.9., Joint

Ventures, Inc. v. Dep't ofTransp.,563 So.2d 622,624 (Fla. 1990) (illustlating how tl.Le State is

constitutionally obligated to pay property ownets under two sets of circumstances, when it

confrscates private property for public use in the exercise of eminent domain a:rd when, in the

exercise of its police powers, it effects a taking by inverse condemn atlon); Stewarl, 429 So.2d aî.

785 ("The full compensation required by the constitution in a direct condemnation action is equally

required in inverse condemnation proceedings."). Indeed, in ConÍlãcl:point, the Florida Supreme

Coult noted the "exceplion in section 74.091." Contractpoint, 986 So.2d ar1264,n.3.

Application of $ 11.066(4) to preclude issuance of a writ of execution on tJre lawfully

entered constitutional takings judgments enteled in this inverse condemnafion case

unconstitutionally conflicts with the right of property owners to obtain a writ of execution to

enforce a judgment entered in a "quick-take" eminent domain proceeding, creating a wholly

"unconstitutional resulf." Murray, 994 So.2d at 1057 .

Based on the Fourth District's holding in Mendez, this Court cannot declare $ 11.066(4)

unconstitutional because it conflicts with $ 74.091. The Court includes its analysis of this

argument to enable the parlies to pt'eselve it for appellate review. See, generally, Mendez,98 So.3d

at 608.

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 ConclusioI

Based on the cleat and convincing evidence presentecl to this Cou¡t - muoh of it largely

ancl wholly r.rntlisputed, as well having considered the arguments of counsel and applicable law,

this Court finds and concludes that that S$ 11.066(3) and (4), Fla. Stat., are unconstitntional øs

applied to the thlee hnal judgments entered in this constitutional takings proceeding under the

facts ofthis case. Based upon this conclusion, the Courl further hncls ancl concludes that issuance

of a writ of mandamus is the ploper remecly to compel payment of the lull anlounts due under

these constitutional takings judgments. Accoldingly, this Cout hereby I'uther FINDS' ORDERS,

and ADJUDGES as flollor,vs:

1. Sections 1L066 (3) and (4), Fla. Stat., are declared unconstitutional as applied to

the three constitntional takings judgrnents enterecl in this case;

2. The Court will issne a wrìt of mandamus ordeling and directing Responclents to

immediately pay or issue the necessary vouchers authorizing payment by the Chief Financial

Olficer of the State o.f Florida of the three constitutional takings juclgments entered in this case:

the (i) lrnal judgment in the amount of $ 1 3,625,249.09 plus post-judgment interest from August

18, 2014 through the clate ofpayment; (ii) final judgment in the amount of$821,993.12 plus post-

jr.rclgment interest from March 18,2015 tll'ough the date of payment; and (iii) final jr-rdgment in

the amount of $70,t192,50 plus post-judgment interest ftom Decetnber 22,2016 through the date

of payment. Petitioners are directecl to plomptly submit a Writ of Manclarnus to the Coufi for its

consideration in conformance herewith;

3. In the event Respondents fail to fully and faithlully comply r.vith the Writ of

Mandamus, this Court will consider ently ol'an Ordel to Show Cause Why Respondents Should

Not Be Fleld in Contempt;

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 4. in the evesrt Responclent. ¿fuii to fully and faithfully comply with the Writ of
',r t'I
,Mandamus, this Coult wi.$ also consiller issuing a Writ of Execution authorizing Petitioners to
i
execute on specific tangible and real pùoperty. ofRespondents, as applicable. Petitioners are hereby
:-
authorized to conduct a deposition in aid ofexecution ofRespondents to ascertain and cornpile the

list of ploperty that may be suitable to satisfy the hnal judgments entered in this case. Thereafter,

Petitioners a¡e directed to submit to this Court a list of Respondents' property that is believed to

be sufficient to satisfy the amounts due and owing under the tluee final judgments entered in this

case, including but not necessarily limited to a general description ofthe properly (including legal

description, as applicable), the location of said property, and its custodian (as applicable). The

Courl will review said list anc1, following a duly noticed hearing with counsel for the parties, with

make a fìnal decision concerning which, ifany, properly rnay be the subject ofa Writ ofBxecution;

5. Petitioners shall lecover their reasonable attorneys' fees and costs incurred in this

snpplenrental proceeding, as provided under $$ 13.091 ønd 73.092,F1ø,. Stat., in an amount to be

determined by separate Order. The parties are directed to confer with good faith within thity (3 0)

days following entry ofthis Order in an efforl to reach agreement on the amount offees and costs

to be awarded to Petitioners and taxed against Respondents. In the eveú the parlies are unable to

reach agreement on all such issues within thirty (30) days, Pefitioners are directed to notify the

Cout of the need for an evidentiar:y hearing and provide the estimated amount of time needed for

an evidentiary healing to resolve the dlsputed issues; and

6. This Court reserves jurisdiction to resolve any other matters arising frorn the taking

ofthis property, including but not limited to any othel post-judgment matters as may be applopriate

under the circumstances.

DONE AND ORDERED at Ft. Myers, l,ee County, Florida on March20,2018.

s9
 Hon. the Jndicial

Copies fr.rnished to;

Robert C. Gilber1, Esq.

Bruce S. Rogow, Esc1.
William S. Williarns, Esq.
Wesley R. Parsons, Esq.
Aftomey General Pam Bondi
Solicitor General Amit Agarwal

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