Tuesday, October 2, 2012

Can a Legislature Pass Laws Limiting the Right to Compensation for a Taking?

Over the past week, I've been writing about a case before the U.S. Supreme Court that asks whether a property owner can be compensated for its timber, where the government destroyed the trees. Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012). In Florida, we have a long line of cases dealing with the destruction of trees because the state has the power by statute to destroy citrus trees where they pose a danger to other trees, such as by citrus canker infection. A recent case highlighted the problem of compensation for the trees and answered an interesting property rights question.

What if a legislature decided that private property takings claims were becoming too burdensome? Could the legislature pass a law limiting the right to compensation for inverse condemnation? The 3d DCA recently addressed this question head-on. Florida Dept. of Agric. & Consumer Services v. Brignoni, - So. 3d -, 37 Fla. L. Weekly D2199 (Fla. 3d DCA 2012). According to the 3d DCA, the answer is no:
The provision of the Florida Constitution providing that “[n]o private property shall be taken except for a public purpose and with full compensation,” Art. X, § 6(a), Fla. Const., is self-executing; therefore, “it is immaterial that there is no statute specifically authorizing recovery for loss.” Dep't of Agric. & Consumer Servs. v. Mid–Florida Growers, Inc., 521 So.2d 101, 103 n. 2 (Fla.1988). “[T]he point is that the common law and statutory provisions for inverse condemnation do not displace the constitutional requirement for just compensation....” Dep't of Agric. & Consumer Servs. v. Bogorff, 35 So.3d 84, 90 (Fla. 4th DCA), review denied, 48 So.3d 835 (Fla.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2874, 179 L.Ed.2d 1188 (2011). 
The relevant compensation portion of Florida's Citrus Canker Law, § 581.1845(4), Fla. Stat. (2006), provides: The specification of a per-tree amount paid for the residential citrus canker compensation program does not limit the amount of any other compensation that may be paid by another entity or pursuant to court order for the removal of citrus trees as part of a citrus canker eradication program. 
As the Florida Supreme Court has stated: [The] Citrus Canker Law sets a compensation floor that is consistent with the established principle that “the determination of what is just compensation ... is a judicial function that cannot be performed by the Legislature.” Haire v. Fla. Dep't of Agric. & Consumer Servs., 870 So.2d 774, 785 (Fla.2004) (quoting State Plant Bd. v. Smith, 110 So.2d 401, 407 (Fla.1959)); see also Patchen, 906 So.2d at 1008 (“[W]e conclude that the schedule established by the Legislature sets a floor but does not determine the amount of compensation. When the State destroys private property, the State is obligated to pay just and fair compensation as determined in a court of law.” (quoting Haire, 870 So.2d at 785)). 
In sum, it is not only beyond legislative purview to displace the constitutional requirement of just compensation upon a taking, but section 581.1845 expressly contemplates the entry of a court order obligating the State to compensate a homeowner for the destruction of his or her residential citrus trees under the CCEP in excess of the statutory per-tree amount. The Florida Supreme Court, finding the statute remedial, gave section 581.1845 its plain meaning, “which is to provide compensation to homeowners who had trees destroyed on or after January 1, 1995.” Patchen, 906 So.2d at 1008. Although the concurring and dissenting opinions in Patchen suggest concern over whether the majority opinion impliedly eliminated the right to pursue an inverse condemnation claim for the destruction of residential citrus trees, the majority opinion limits the scope of its opinion to the certified question posed.3 See Patchen, 906 So.2d at 1005–09. Accordingly, “[i]f the compensation required by the Constitution exceeds a statutory amount, the State will have to pay that amount.” Bogorff, 35 So.3d at 91.
That is, in Florida, the Legislature is welcome to set a minimum for compensation to injured property owners.  It could not, however, arbitrarily cap the amount of compensation that a property owner could receive, or keep the property owners out of court in an effort to recover just compensation. Put simply, the Legislature must respect the rights protected in the federal and state constitutions.