November 5, 2015

Florida Supreme Court sends message to government attorneys

By Mark Miller Senior Attorney

Today, the Florida Supreme Court told government attorneys that their client (the government) will pay extra in eminent domain cases if those government attorneys engage in “tactics that cause excessive litigation.” That’s a win for property owners, all citizens of Florida, and the Constitution.

The case is called Joseph B. Doerr Trust v. Central Florida Expressway Authority. The case has a long and tortured history; suffice it to say that the trial judge found that the government attorneys had engaged in a “clear pattern” of excessive litigation in fighting over the value of the property it took from the property owner.

In its ruling, the Supreme Court of Florida explained that attorney’s fees are part of what makes a property owner whole when the government takes the property owner’s property:

In clear and direct terms, article X, section 6(a), of the Florida Constitution provides that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.” (Emphasis supplied.) It is also fundamentally clear that full compensation under the Florida Constitution includes the right to a reasonable attorney’s fee for the property owner.

The Court went on to explain why the government’s excessive litigation tactics violate the constitutional rights of property owners in eminent domain cases:

It must be borne in mind that in a condemnation proceeding the property of the land owner is subject to taking by the condemnor without the owner’s consent. The condemnee is a party through no fault or volition of his own. Our Declaration of Rights, Section 12, Constitution of the State of Florida, F.S.A., makes it incumbent upon the condemnor to award “just” compensation for the taking. In view of this constitutional mandate, the awarding of compensation which is “just” should be the care of the condemning authority as well as that of the party whose land is being taken. Unlike litigation between private parties condemnation by any governmental authority should not be a matter of “dog eat dog” or “win at any cost.” Such attitude and procedure would be decidedly unfair to the property owner. He would be at a disadvantage in every instance for the reason that the government has unlimited resources created by its inexhaustible power of taxation. Moreover it should be remembered that the condemnee is himself a taxpayer and as such contributes to the government’s “unlimited resources.”

Noting that the trial court found that the government engaged in excessive litigation tactics, the Court held that the attorney’s fees must be increased even beyond what Florida law usually allows if and when the government needlessly and excessively litigates a case. The Court reached this conclusion because otherwise the government would be able to violate the constitutional rights of property owners with impunity by needlessly driving up the costs of counsel to an amount for which Florida law would not otherwise reimburse the property owner.  In that way, the government could sap the property owner of the ability to fight the government on the amount he is due for the fair value of the property the government intends to take, because he could not pay his attorney and the attorney could not expect to get paid by the government in a fee award.

Kudos to the Court for getting this one right, and congratulations to the property owners and attorneys (including Craig Willis, Joe Fixel, and former Florida Supreme Court Justice Major Harding) who fought long and hard for justice— and found it.

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