In Bogorff v. Scott, the Florida Supreme Court revealed the difficulty many property owners face when it comes to enforcing the constitutional right to just compensation.
The case began over a decade ago, when the state of Florida tried to stop the spread of citrus canker, a plant disease that destroys crops with unsightly lesions. From 2000 to 2006, the Florida Department of Agriculture systematically destroyed hundreds of thousands of citrus trees within a 1900-foot radius of infected trees. The order included healthy trees in home gardens. After this program began, the state legislature passed a law requiring the Department to pay owners $55-100 per healthy tree, significantly less than the value of many trees. As far as state officials were concerned, they owed nothing more when they ordered these healthy plants destroyed, because they felt their goal was noble—saving the state’s important citrus industry.
But the Takings Clause in the Fifth Amendment requires that the government pay *just* compensation when it takes private property for a public purpose, not just any old compensation the state thinks adequate. As the Supreme Court of the United States has said many times over, the purpose of the Takings Clause is to prevent the government from “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Likewise, Florida’s constitution has a similar compensation provision, which state courts have interpreted as offering identical protection. Both ensure that government cannot escape its duty to pay just compensation merely because the goal of the taking is to benefit the public as a whole. Thus it wasn’t surprising when in 2008, the trial court in the Bogorff case held that the state owed residents in Broward County who lost trees to this program more than $8 million as just compensation.
The case, however, took an odd turn. In 2012, a state appellate court held that the plaintiffs would have to first lobby the state legislature for payment, pursuant to Section 11.006 of the Florida Statutes, before they could collect via a writ of execution. The court said the property owners' constitutional claim was not ripe until the state legislature had an opportunity (pursuant to the statute) to voluntarily pay the full amount. Odd and unfair, yes. But to takings lawyers, this sounds similar to the oft-criticized U.S. Supreme Court decision, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, which holds that federal takings claims against state and local governments are ordinarily not “ripe” until state courts have the opportunity to order the government to pay just compensation.
The Bogorff plaintiffs unsuccessfully lobbied the Legislature and then went back to court again for relief. The court again denied them relief. The appellate court this time decided that although the owners satisfied the requirement that they ask the Legislature for an appropriation, the right to collect just compensation was still not ripe because they had not yet filed for the writ of mandamus provided for another subsection of Section 11.003 of the Florida Statutes. Thus they filed for a writ of mandamus in the trial court, which is still pending.
While the writ was pending, the Florida legislature finally passed a budget which included an appropriation for the plaintiffs' losses. But Governor Rick Scott line-item vetoed the appropriation. At that point, the Bogorff plaintiffs turned to the Florida Supreme Court, asking it to hold unconstitutional the governor’s decision. All but one Justice held that the veto was plainly within the governor’s powers in Florida, even as several lamented that it has taken much too long for the plaintiffs to get paid.
The Governor’s decision was lawful, but its consequences further delay the compensation that everyone agrees the property owners deserve and are entitled to pursuant to our state and federal constitutions. This latest delay may be attributed to the veto, but the Florida courts deserve the lion's share of the blame for the delay.