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Another lawsuit attempts to get juice out of the citrus scare by overturning Rick Scott's veto

Canker 1997@MaryEllenKlas

The legal saga of thousands of lost citrus trees took a new twist late Tuesday as homeowners in Broward and Lee counties asked the court to reverse Gov. Rick Scott's line-item veto of $37.3 million to compensate trees destroyed a decade ago.

The unusual lawsuit, filed in the Florida Supreme Court, claims that Scott's veto of two specific appropriations -- $20.9 million and $16.4 million -- was unconstitutional because it undermines the state's obligation to make good on an illegal "taking" of private property. 

After years of litigation, the Legislature for the first time set aside the money this year to compensate homeowners who lost "healthy, uninfected residential citrus trees" as part of the state's Citrus Canker Eradication Program between 2000 and 2006 and to pay their attorneys fees.

In 2008, Broward courts awarded 70,036 homeowners in that county $20.9 million as payment for their lost citrus trees. In 2014, another court awarded 167,677 homeowners in Lee County $16.4 million for their lost trees.

The state was ordered to make the payments on the grounds that destroying the trees without adequate compensation was an unconstitutional "taking."

But in his veto message, Scott rejected the payments  -- saying they were vetoed "because of ongoing litigation."

The homeowners argue that there is no ongoing litigation -- except the lawsuit to collect the payments.

They say his reason was not only wrong, it was unconstitutional and violates their rights to due process.

The veto "undermines the State’s constitutional obligation to pay full compensation for the taking of private property."

They cite the Florida Constitution which states: “No private property shall be taken except for a public purpose and with full compensation therefore paid to each owner or secured by deposit in the registry of the court and available to the owner.”

If the court accepts the case, it could test the premise offered the Fourth District Court of Appeals that said if the state didn't authorize the payments, Broward homeowners and their lawyers could pursue a writ of mandamus "to enforce the judgments."

Throughout Florida history, only the state Legislature has had the power to overturn a governor's veto of an appropriation in the state spending bill.

Lawmakers set aside the money to compensate homeowners this year after the Fourth District Court of Appeals held that "while the government has the ability to establish procedures for payment of its constitutional obligation, it does not have the luxury of avoiding it."

In an attempt to follow through the on the suggested remedy, attorneys filed a claim with the Broward circuit court, seeking a mandamus judgment. The case is still pending.

The petition filed Tuesday asks the state's highest court to issue a writ of mandamus to "expunge" the vetoes from the record and "direct the Chief Financial Officer" to pay the homeowners as set forth in the settlement agreement the state signed.

Under the failed citrus eradication program, state agriculture inspectors deployed crews with chain saws to chop down 577,253 orange, grapefruit and key lime trees throughout the state — even if the trees showed no signs of infection.

Outraged property owners representing counties with 94 percent of the lost trees joined five class action lawsuits to seek compensation. In four of the cases, the court ordered the state to pay more than $100 million in judgments, attorneys fees and interest.

The fifth case, involving Miami-Dade residents who lost 40 percent of the healthy trees removed in Florida, is still pending. The bench trial in that case ended June 2016 but the judge has not ruled.

Broward homeowners sought compensation for the destruction of 133,720 healthy trees and Lee County homeowners sought payment for 33,957 healthy trees.

Lawmakers added the money to the budget for only two of the four counties in which judgments have been rendered. They did not include money for homeowners in Orange and Palm Beach counties.  

The courts uniformly disagreed with lawyers for the Department of Agriculture, and Commissioner Adam Putnam, who argued against paying homeowners for the lost trees. They contended that trees exposed to canker were a public nuisance and their removal is not a taking that should be compensated by the state.

Petitioners include homeowners, Toby and Robert Bogorff, Timothy Farley, Beth and Roald Garcia, Deanna and John Klockow, Lois and Charles Stroh, and Nancy and Joseph Dolliver and the law firms of Grossman Roth, Robert C. Gilbert, P.A., Lytal Reiter Smith Ivey & Fronrath, and Weiss Serota Helfman Cole & Bierman, P.L. who represented the owners of residential properties in Broward and Lee Counties, Florida.

"The importance of deciding this issue before the commencement of the new budget year cannot be overstated,'' the petition argues.

"Absent an immediate decision by this Court, the State will argue that no appropriated funds exist with which to pay and satisfy the constitutional takings judgments held by Petitioners, and Petitioners will be left holding constitutional takings judgments that cannot be satisfied.

"The process will continue to recur unless this Court puts an end to it once and for all."

Photo: A work crew mulches a citrus plant in Hialeah in 1997, the early stages of South Florida’s canker war. Roberto Koltun El Nuevo Herald