Department of Agriculture and Consumer Services v. Bonanno, 74373

• Decision Date: 27 September 1990
• Docket Number: No. 74373,74373
• Citation: 568 So.2d 24
• Court: Florida Supreme Court
• Parties: 15 Fla. L. Weekly S485 DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Petitioner, v. Robert H. BONANNO, Judge, etc., Respondent.

Page 24

568 So.2d 24

15 Fla. L. Weekly S485

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Petitioner, v. Robert H. BONANNO, Judge, etc., Respondent.

No. 74373.

Supreme Court of Florida.

Sept. 27, 1990.

Robert A. Butterworth, Atty. Gen., David G. Guest, Desmond V. Tobias and Ronald G. Stowers, Asst. Attys. Gen., Tallahassee, and Parker D. Thomson of Thomson, Muraro, Bohrer and Razook, P.A., Miami, Special Asst. Atty. Gen., for petitioner.

James S. Moody, Jr. and Johnnie B. Byrd, Jr. of Trinkle, Redman, Moody & Swanson, P.A., Plant City, and Elizabeth S. Wheeler, Brandon, for respondent.

David C.G. Kerr and Susan W. Fox of Macfarlane, Ferguson, Allison & Kelly, Tampa, amicus curiae for Lykes Bros., Inc.

Paul H. Amundsen and Ernest L. Reddick, III of F. Philip Blank, P.A., Tallahassee, amicus curiae for Indian River Citrus League.

M. Stephen Turner and David K. Miller of Broad & Cassel, Tallahassee, amicus curiae for May Bros., Inc.

Ellen Neil Kalmbacher, Gerald Spurgin and Robert J. Kline of Holland and Knight, Tampa, and Julian Clarkson of Holland and Knight, Tallahassee, amicus curiae for A. Duda & Sons, Inc.

Harry O. Thomas and Susan Davis-Morley of Aurell, Radey, Hinkle & Thomas, Tallahassee, and Robert E. Doyle, Jr. of Asbell, Hains, Doyle & Pickworth, Naples, amicus curiae for Glenn Simpson.

Kerry M. Wilson and J. Davis Connor of Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., Winter Haven, amici curiae for Gary M. Mahon and Chrystal D. Mahon, and Chrystal D. Mahon, d/b/a Pokey's Citrus Nursery; Douglas A. Holmberg, d/b/a Hillsborough Wholesale Nursery; Fred J. Snell; Charles W. Dewitt; Environmental Citrus Nursery, Inc.; Forrest Nursery, Inc.; Floyd Philmon; David S. Prosser, Jr.; Southern Citrus Nursery, Inc.; W.A. Williams Nursery Service, Inc.; Bruce Wilson, d/b/a Bruce Wilson Nursery; and Peter F.A. Hutchinson, d/b/a Hutchinson Citrus Nursery.

Robert L. Shevin of Stroock & Stroock & Lavan, Miami, and D. Stephen Kahn and Thomas R. McSwain, Tallahassee, amicus curiae for Bob Crawford, President of the Florida Senate.

Richard A. Hixson and Sonia R. Crockett, Tallahassee, amicus curiae for Tom Gustafson, Speaker of the Florida House of Representatives.

Anthony J. Abate and Donald D. Clark of Abel, Bank, Brown, Russell & Collier, Chartered, Sarasota, amicus curiae.

PER CURIAM.

The Department of Agriculture and Consumer Services (Department) seeks a writ of prohibition from this Court, restraining Circuit Judge Robert H. Bonanno from exercising the jurisdiction of the Thirteenth Judicial Circuit Court over the consolidated cases of Sweat v. Department of Agriculture & Consumer Services, No. 88-16980; Janvrin v. Department of Agriculture & Consumer Services, No. 88-16979; and Balm Citrus Nursery, Inc. v. Department of Agriculture & Consumer Services, No. 88-17170. We have jurisdiction. Art. V, § 3(b)(7), Fla. Const.

In 1984, a form of citrus canker was discovered in central Florida. The Secretary of the United States Department of Agriculture (USDA) declared an extraordinary emergency in the State of Florida because of the citrus canker. Fearing that the disease would devastate the citrus industry, the Department of Agriculture and Consumer Services, with the cooperation of the USDA, embarked upon a Citrus Canker Eradication Program (the Canker Program) under which many diseased plants, as well as healthy plants which had been exposed to the disease, were destroyed. In Department of Agriculture & Consumer Services v. Mid-Florida Growers, Inc., 521 So.2d 101 (Fla.), cert. denied, 488 U.S. 870, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988), this Court held that the state was required to compensate the owners of healthy but suspect citrus plants destroyed under the Canker Program.

The underlying actions in the circuit court are suits in inverse condemnation in which the plaintiffs seek compensation from the State of Florida for citrus plants destroyed pursuant to the Canker Program. The Department filed a motion to dismiss arguing that chapter 89-91, Laws of Florida (the Act), deprived the circuit courts of jurisdiction over this type of case. Judge Bonanno denied the motion to dismiss and ruled that the Act is unconstitutional because it "takes away rights presently vested in the Plaintiffs and imposes new burdens upon the Plaintiffs ... to prove 'just compensation' and to overcome a presumptive value in doing so."

Chapter 89-91 sets forth a mechanism for payment of compensation for citrus plants destroyed pursuant to the Canker Program. For those claimants who choose not to accept the compensation offered, the Act provides that "the sole and exclusive remedy" is through the administrative hearings process with appellate review by the First District Court of Appeal. The Act imposes a value schedule for destroyed citrus plants which is presumed to represent full and fair compensation unless rebutted by the claimant. The Act provides for the payment of attorneys' fees for the prosecution of claims before the hearing officer as well as for services rendered in connection with prior lawsuits. The Act took effect on June 30, 1989, but specifically provides that it is to apply

to all claimants, including, but not limited to, those who have filed lawsuits prior to the effective date of this act involving compensation for destruction of citrus nursery plants as a result of the Citrus Canker Eradication Program begun in 1984, except those in which there is a final order as to damages, attorney's fees, or costs, from which no appeal has been taken.

Ch. 89-91, § 2(2)(a), Laws of Fla. Because the Act purports to remove jurisdiction from Judge Bonanno's court, prohibition is the proper remedy. State ex rel. Girard v. McNulty, 348 So.2d 311 (Fla.1977).

Preliminarily, we disagree with Judge Bonanno that the Act "applies only to citrus nursery plants and not to trees pulled from groves" and therefore is inapplicable to plaintiffs Sweat and Janvrin who are grove owners. ¹ Although the Act does use the term "citrus nursery plant," that term is not defined in the Act. However, the statement of legislative intent in section 2(2)(a) of the Act states that the Act is intended to apply to "all claimants, including, but not limited to, those who have filed lawsuits prior to the effective date of this act involving compensation for destruction of citrus nursery plants." (Emphasis added.) Further, in the schedule of presumptive values included in the Act, there is a value listed for "resets," i.e., citrus plants that have been replanted into a grove, as well as for potted nursery plants. Ch. 89-91, § 3(1), Laws of Fla. It is evident from review of the Act as a whole that the legislature intended the Act to apply to all claimants whose citrus property was destroyed pursuant to the Canker Program.

The administration of the Canker Program and the subsequent judicial and legislative response are remarkably similar to that which occurred as a result of efforts to eradicate the citrus disease known as spreading decline caused by the burrowing nematode. In Corneal v. State Plant Board, 95 So.2d 1 (Fla.1957), this Court held that the State Plant Board could not destroy healthy trees thought ultimately to be subject to the disease without paying compensation to the owners. Thereafter, the legislature enacted a statute providing for the destruction of uninfested trees upon the payment of "just and fair compensation" as determined by the State Plant Board. Subject to certain exceptions, the constitutionality of the statute was upheld in State Plant Board v. Smith, 110 So.2d 401 (Fla.1959). Subsequently, the statute was held to represent a constitutional exercise of power which was binding upon parties whose trees had been destroyed prior to the enactment of the statute. Cunningham v. State Plant Board, 112 So.2d 905 (Fla. 2d DCA), cert. denied, 115 So.2d 701 (Fla.1959). The relevance of these decisions will become more apparent as the several constitutional attacks upon chapter 89-91 are discussed.

The plaintiffs argue that chapter 89-91 unconstitutionally deprives them of a jury trial. Article I, section 22, of the Florida Constitution, provides in pertinent part that "[t]he right of trial by jury shall be secure to all and remain inviolate." This Court in In re Forfeiture of 1978 Chevrolet Van, 493 So.2d 433, 435 (Fla.1986), determined that the proper inquiry to be made under this state constitutional provision was "whether under English and American practice at the time Florida's first constitution became effective in 1845, there existed a right to a jury trial" in a given type of proceeding. No right to a jury trial in condemnation proceedings existed at common law. Carter v. State Rd. Dep't, 189 So.2d 793, 795 (Fla.1966). Therefore, the right to have a jury determine just compensation in Florida is statutory, section 73.071, Florida Statutes (1987), and is not required by the Florida Constitution.

The plaintiffs also contend that chapter 89-91 violates the requirement of separation of powers as set forth in article II, section 3, and article V, section 1, of the Florida Constitution. Thus, the plaintiffs argue that the determination of what constitutes just or full compensation for property taken by the government is a judicial function which may not be constitutionally performed by either the legislative or executive branches. They contend that by mandating that the Division of Administrative Hearings determine just compensation for citrus canker cases the legislature has essentially constituted the agency as a court for that purpose.

Notwithstanding the plaintiffs' arguments, chapter 89-91 is much like the spreading decline statute that was approved in Smith, in which the State Plant Board made the determination of just and fair compensation, subject to judicial review. The plaintiffs seek to distinguish Smith by pointing out that at that time article V, section 1, of the Florida Constitution of 1885 authori...