# Reply Brief — Department of Agriculture & Consumer Services v. Mid-Florida Growers, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 870

## Text

IN THE

Supreme Court of the United States

OCTOBER TERM 1987

No. 87-2123

DEPARTMENT OF AGRICULTURE AND CONSUMER
SERVICES, an agency of the State of Florida, Petitioner,

ws

MID-FLORIDA GROWERS, INC. and
HIMROD & HIMROD CITRUS NURSERY, Respondents.

REPLY TO BRIEF IN OPPOSITION TO PETITION
FOR CERTIORARI

MALLORY HORNE, ESQUIRE
General Counsel

and

HARRY LEWIS MICHAELS, ESQUIRE

(Counsel of Record)

Assistant General Counsel

Department of Agriculture and
Consumer Services

Mayo Building, Room 512

Tallahassee, FL 32399-0800

Telephone No. (904) 488-6851

S

TABLE OF CONTENTS

pp ss rr eee ee ii

REPLY TO ARGUMENTS FIRST RAISED IN BRIEF
eS RE Tee ee Pee Ce TERE Oe |

a) The Destruction Of Exposed Citrus Plants Was
Justified As A Reasonable Valid Exercise Of The Police
Power To Control A Public Nuisance. ........... l

b) The Decision Below Presents A Case Or Controversy
eC eas aa cca dM nee «oa Ae Le 3

EN a asa ao da wh oda RA Ke de Ew We She 8

I Ga dA chau dead bes deed ess nkaanvawae wee A-1

TABLE OF AUTHORITIES

Cases Page
Albrecht v. State,
404 So.28 8 Gia. 1900 0. biicsccsnandeetasse cea: ; 8

Campoamor vy. State Livestock Sanitary Board,
136 Fla. 451, 162 So. 277 GFia. FSSS) «wc scenes 6

Corneal v. State Plant Board,
95 So.28.1 GPa BI. IN 6 is a ae 6

County of Los Angeles v. Davis,
440 US. GBS CPT i cdesiiecanciaeOina eee 3

County of Volusia v. Pickens,
439 So.2d 276 (Pia. Sh DCA 1963) .. 0 ccevcccee: 4

Cox Broadcasting Corp. v. Cohn,
490 US. GER Cae si ko ohn s inc ecacnnvien conawes 4,5

Delaware v. Van Arsdall,
O75 U.S. GIs Clee i ca bnddenincesedespeeweeerass 6

First English Evangelical Lutheran Church of Glendale
v. County of Los Angeles, California,
482 U.S. ____, 107 S.Ct. 2328, 96 L.Ed.2d 250
CUDGT) once vciksccdascenedndeseweaueneueseseires 2

Graham v. Estuary Properties,
999 So.2d 1376 Gam. TFG) «cc ccccdsascocescesss 7

Goldblatt v. Hempstead,
968 0.5. SI GEE os vs nwssnbxesawa Nee eneen’ 7

Keystone Bituminous Coal Association v. DeBenedictis,
480 U.S. , 107 S.Ct. 1232, 94 L.Ed.2d 472

Kentucky v. Stincer,
482 U.S. , 107 S.Ct. 2658, 96 L.Ed.2d 631
CIGRT) ow 0 sc cevane nd paeeaneeneeeeneeeeeeen es 6

iii

Loretto v. Teleprompter Manhattan CATV Corp.,
Ne oad is 6 donne dhe rane ee ans ws

Maryland v. Garrison,
480 U.S. ____, 108 S.Ct. 1013, 94 L.Ed.2d 72
ee ee ld sec edieascdec

Michigan vy. Long,
ae desc cekeae ex en cones

Miller v. Schoene,
i

Mugler v. Kansas,
EO coke beck eceee sae ekece ewes

New York v. Class,
I ons ewe oscceecnesceeseesetss

Penn Central Transportation Co. v. New York City,
Rg ie 8b o 06 6kd0bncce ee ede ss

Pennsylvania Coal Co. v. Mahon,
a vc ven y cde wins casedeccsees

Pinellas County v. Brown,
420 So.2d 308 (Fla. 2nd DCA 1982)..............

Pinellas County v. Brown,
450 So.2d 240 (Fla. 2nd DCA 1984)..............

State Plant Board v. Smith,
EL

Three Affiliated Tribes of the Fort Berthold Reservation
v. Wold Engineering, P.C.,
ee igs Gk aby keeenacecaacasens

United States v. General Motors Corp., oS
EN on ot 6 Ph ewe ce vencvecsenencs

iV

Zacchini v. Scripps-Howard Broadcasting Co.,
433 U.S. 562 (1977)

Statutes

Other
ee ca ewe becasinc 2
Florida Rules of Appellate Procedure,
NS ERE REN Fen ee en 3

IN THE

Supreme Court of the United States

OCTOBER TERM 1987

NO. 87-2123

DEPARTMENT OF AGRICULTURE AND CONSUMER
SERVICES, an agency of the State of Florida, Petitioner,

Vv.

MID-FLORIDA GROWERS, INC. and
HIMROD & HIMROD CITRUS NURSERY, Respondents.

REPLY TO BRIEF IN OPPOSITION TO PETITION
FOR CERTIORARI

The Petitioner Department of Agriculture and Consumer
Services, an agency of the State of Florida, respectfully submits
this Reply to the issues first raised in the Respondents’ Brief in
Opposition to Petition for Certiorari.

a. The Destruction of Exposed Citrus Plants Was
Justified As A Reasonable Valid Exercise Of The Police Power
To Control A Public Nuisance.

Respondents have contended throughout this case that they
need not prove the emergency citrus canker regulations were
unreasonable.' In following this assumption the Supreme Court
of Florida did not consider the propriety of the emergency rules

' During the trial, Respondents’ counsel stated ‘‘We are not trying the regulatory
program. ...We’re not attacking their ability to take emergency action. That’s
up to them and that’s fine. The question is did the trees have value on the date
of the taking. And that’s the only issue we’re dealing with in this case.’”’
(Transcript of Trial, p.124).

2

which defined the trees as suspect and subject to destruction and
stated ‘‘we do not disagree with the Department’s contention that
the State’s order was a valid exercise of police power.’’ Rather,
the Court simply held that a valid exercise of the police power
may still result in a taking, citing Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419 (1982) and First English
Evangelical Lutheran Church of Glendale v. County of Los
Angeles, California, 482 U.S. ____, 96 L.Ed.2d 250 (1987). In
continuing to compound this error, Respondents have, in their
statement of the question presented, asserted that compensation
is required since their citrus plants were ‘‘healthy and harmless’’
and posed ‘‘no imminent danger ... to warrant destruction’’.
As a result, the Brief in Opposition is not responsive to the cen-
tral constitutional issue presented by Petitioner — under what
circumstances may Petitioner’s valid exercise of police power,
under its regulations to control the spread of a public nuisance,
result in an unconstitutional taking for which just compensation
is required.

Petitioner has asked this Court to clarify its takings juris-
prudence as it relates to the enforcement of safety regulations.
This Court indicated in Keystone Bituminous Coal Association
v. DeBenedictis, 480 U.S. __, 94 L.Ed. 472, 492 at n.22 (1987)
that the initial question in applying the nuisance exception is
whether the states’ action was justified:

“‘the issue of compensation cannot arise until the ques-
tion of justification has been disposed of. In the typical
nuisance prevention case, the question is resolved
against the claimant.’’ [quoting, R. Epstein, Takings,
at 199}.

The opinion of the Florida Supreme Court and Respondents’
Brief in Opposition is founded on the improper assumption that
the question of justification may be determined in ‘‘hindsight’’.
As explained in the dissent of Chief Justice McDonald, the ques-
tion of justification should be whether the government acted
reasonably in response to a perceived emergency:

The department had the duty to take emergency
measures to prevent an immediate harm - the spread

3

of canker. In viewing its actions from an emergency
standpoint, those actions were not unreasonable. The
trial judge appeared to base his judgment of inverse
condemnation solely on the basis that healthy trees were
taken. The issue is not whether the plaintiffs’ trees were
actually healthy, but rather whether the government,
acting responsibly, had reasons to conclude that they
might not have been and that it was necessary to destroy
them to prevent the spread of a deadly disease. View-
ed in this light, the evidence fails to support a claim
for inverse condemnation. 521 So.2d at 106.

Thus, Respondents in their Brief in Opposition have attempted
to avoid this issue altogether by adopting the major premise that
the destruction of the trees were not necessary. This assumption
is clearly inappropriate where it presupposes that the issue of
justification may be exclusively decided in judicial hindsight.

b) The Decision Below Presents A Case Or Con-
troversy For This Court.

The burden of demonstrating mootness is a heavy one. See
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). This
case certainly is not moot. After the Florida Supreme Court
affirmed the order of liability for taking, this case was tried on
the damages issue and a final judgment was entered, however,
that judgment has not been paid and further proceedings to review
the amount of damages awarded are pending in the Second
District Court of Appeal of Florida. The Petitioner has an
automatic stay of the judgment pending such review.” Should
a further stay become necessary to preserve this Court’s jurisdic-
tion in these certiorari proceedings, the Petitioner will seek and
obtain such a stay.

The Respondents suggest that a reversal by this Court of the

Florida Supreme Court’s finding of liability for a taking would
not affect the final judgment on damages because the

? The Florida Rules of Appellate Procedure, Rule 9.310(b)(2), state: “The timely
filing of a notice [of appeal] shall automatically operate as a stay pending review,
...when the State, any public officer in an official capacity, board, commis-
sion, or other public body seeks review... .*’.

4

Respondents ‘‘have already prevailed at trial on non-federal
grounds.’’ (Brief in Opposition, page 7). The flaw in this argu-
ment, of course, is that the damages judgment is predicated upon
the decision below, i.e., that Petitioner is liable for an unconstitu-
tional taking. The subsequent trial was not on the merits of the
Respondents’ takings claim, but on the issue of compensation
alone.? The Respondents thus erroneously conclude that their
“*right to compensation has already been decided solely upon state
law’’ (Brief in Opposition, page 8), and that they have ‘‘already
established and won their claim under the state constitution’’
(Brief in Opposition, page 9), because the compensation issue
was tried solely on state law.

If this Court reverses the holding that a taking occurred in
this case, the final judgment predicated on the order of taking
and the subsequent trial on damages will be nullified. Rather than
establish mootness, the Respondents’ argument demonstrates that
the federal issue presented in this case is final for purposes of
28 U.S.C. Section 1257 under the rule stated in Cox Broadcasting
Corp. v. Cohn, 420 U.S. 469 (1975). Reversal of the Florida
Supreme Court’s finding of liability for a taking would preclude
further litigation on the question whether the Fifth and Four-
teenth Amendments of the U.S. Constitution require just com-
pensation in this case. Respondents’ argument therefore merely
affirms Petitioner’s contention that the remaining litigation does
not raise other federal questions which might be brought to the
Court in later proceedings for review, and that the federal issue,
finally decided by the highest court of the State of Florida, will
survive and require a decision regardless of the outcome of fur-
ther proceedings. This satisfies the first and second categories
of finality outlined in Cox Broadcasting Corp. v. Cohn, supra,
420 U.S. at 479-80.

? The subsequent trial admittedly raised only state law issues since Florida courts
apply the same rules to both eminent domain and inverse condemnation pro-
ceedings in awarding damages. See County of Volusia v. Pickens, 439 So.2d
276 (Fla. Sth DCA 1983). Logic and reason is deemed to compel equal treat-
ment. /d. at 277. Chapter 73, Florida Statutes, establishes the elements of com-
pensation awardable in eminent domain proceedings, and Petitioner and
Respondents have agreed that these standards are more liberal than federal com-
pensation standards.

5

Similarly flawed is Respondents’ argument that “‘[i]f a
dispositive federal issue had existed [in this case], the opportunity
to present it for review in this Court has passed.’’ (Brief in Op-
position, page 13 at n.6). It is difficult to conceive when Peti-
tioner may have had a prior opportunity to present this case for
review in this Court, and how this Court’s jurisdiction over the
dispositive federal issue could have been thwarted by the
Respondents’ manipulation of interim events. Indeed, this Court
has shown a willingness to review a federal issue which has been
finally decided but may become mooted by subsequent cir-
cumstances. Cox Broadcasting Corp. v. Cohn, supra, 420 U.S.
at 481.

While clothing this argument in the doctrine of mootness,
the Respondents’ true focus appears to be on the alleged absence
of a federal question since, they contend, their rights were
established based solely on the Florida Constitution. As sum-
marized in Three Affiliated Tribes of the Fort Berthold Reser-
vation v. Wold Engineering, P.C., 467 U.S. 138 (1984), this Court
‘‘retains a role when a state court’s interpretation of state law
has been influenced by an accompanying interpretation of federal
law.’’ Because the Florida Supreme Court erred in understand-
ing cases of this Court and provisions of the United States Con-
stitution, this Court should so declare and leave the state court
to decide the issue solely as a matter of state law. See Zacchini
v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568 (1977).
Since the Florida court’s decision is inextricably interwoven with
federal law, and there is no ‘“‘plain statement’’ enunciating a
separate state ground for decision, this Court must presume that
the Florida Supreme Court decided this case the way it did because
of its misapprehension of federal constitutional law. Michigan

v. Long, 463 U.S. 1032 (1983).* This Court is not prohibited by
the case or controversy requirement of Article III from vacating
the judgment of the state court and remanding the case so that
the state court may reconsider the state law question free from
misapprehension about the scope of federal law. See Three
Affiliated Tribes, supra.

The takings issue clearly was not determined solely on the
Florida Constitution or on other state law grounds. The opinion
of the Supreme Court of Florida relies upon three decisions of
this Court construing the Fifth Amendment takings clause.* Each
of the four Florida cases cited also rely upon federal constitu-
tional grounds. The two cases Respondents refer to as ‘‘freestand-
ing authority’ to show an independent state ground for a deci-
sion, likewise rely upon the U.S. Constitution and this Court’s
construction of federal constitutional law in reaching their deci-
sions.® The decision of the Supreme Court of Florida itself men-

* In applying the presumption of Michigan v. Long, this Court has never re-
quired that the federal cases cited in a state supreme court opinion be ‘‘free-
standing authority’’ and has found a state supreme court to be interwoven with
federal law when the opinion ‘‘makes use of both’’ federal and other opinions
from that state ‘‘in its analysis, generally citing both for the same proposition.”’
See New York v. Class, 475 U.S. 106, 109 (1986). See, also, Delaware v. Van
Arsdall, 475 U.S. 673, 678, n.3 (1986). Inasmuch as the Florida Supreme Court
gives no indication that Respondents’ rights under Article X, Section 6 were
distinct from, or broader than Respondents’ right under the Fifth Amendment,
it may be presumed under Michigan v. Long that this opinion is interwoven
with federal law. See Kentucky v. Stincer, 482 U.S. __. 107 S.Ct. 2658, 96
L.Ed.2d 631 (1987), Maryland v. Garrison, 480 U.S. ___., 108 S.Ct. 1013,
94 L.Ed.2d 72 (1987).

5 Those cases are United States v. General Motors Corp., 323 U.S. 373 (1945);
Loretto v. Teleprompter Manhattan CATV Corp., supra; and First English
Evangelical Lutheran Church of Glendale v. County of Los Angeles, Califor-
nia, supra.

® In State Plant Board v. Smith, 110 So.2d 401 (Fla. 1959), the Court specifically
cites the Fourteenth Amendment of the U.S. Constitution and relies upon
Mugler v. Kansas, 123 U.S. 623 (1887), as well as cases from other jurisdic-
tions discussing federal constitutional standards. Corneal v. State Plant Board,
95 So.2d 1 (Fla. 1957) is likewise intertwined with the federal constitution. It
cites to the Fourteenth Amendment of the U.S. Constitution, and relies on
Florida cases decided based on federal constitutional grounds. For example,
the Corneal decision expressly relies upon Campoamor v. State Livestock
Sanitary Board, 136 Fla. 451, 182 So. 277 (Fla. 1938), which expressly relies
upon Miller v. Schoene, 276 U.S. 272 (1928) and treatises on the federal
constitution.

tions the Fifth Amendment once and the Florida Constitution
only once.’ The terms ‘‘full’’ and ‘‘just’’ compensation are used
indiscriminately, referring respectively to the Florida and Federal
Constitutions.

The Supreme Court of Florida ‘‘approve[d] the decision of
the district court’’ which even more clearly relied expressly and
solely on federal constitutional grounds. The decision of. the
district court cites the Fifth Amendment of the U.S. Constitu-
tion twice, and does not cite to the Florida Constitution at all.
It relies upon six cases of this Court including three of the leading
cases, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922),
Goldblatt v. Hempstead, 368 U.S. 590 (1962) and Penn Central
Transportation Co. v. New York City, 438 U.S. 104 (1978), con-
struing the Fifth and Fourteenth Amendments. The Florida cases
cited in the district court’s opinion are also directly traceable to
this Court’s leading decisions on Fifth Amendment takings law.®

The Respondents’ own Brief submitted to the Florida
Supreme Court clearly reveals that Respondents were seeking to
establish their taking claim under the Fifth and Fourteenth
Amendments of the United States Constitution. To illustrate this
fact, Petitioner has included in the Appendix to this Reply the
first two pages of the ‘‘Argument”’ section of Respondents’ Brief
to the Supreme Court of Florida. Repeated reference is made to
the Fifth Amendment, but nowhere in the Brief is the Florida
Constitution even cited as a ground for a decision.

? $21 So.2d at 103.

8 Albrecht v. State, 444 So.2d 8 (Fla. 1984) and Graham vy. Estuary Properties,
Inc., 399 So.2d 1374 (Fla.), cert. denied, sub nom. Taylor v. Graham, 454 U.S.
1083 (1981), were decided on the express authority of Pennsylvania Coal v.
Mahon, supra; State Plant Board v. Smith, supra, as shown above, relies upon
Mugler v. Kansas, supra. Two other cases cited in the opinion, Pinellas Coun-
ty v. Brown, 450 So.2d 240 (Fla. 2nd DCA 1984) and Pinellas County v. Brown,
420 So.2d 308 (Fla. 2nd DCA 1982) rely on Graham v. Estuary Properties,
supra which, as shown above, relies directly on Pennsylvania Coal v. Mahon,
supra.

CONCLUSION

The Respondents’ Brief in Opposition contains many in-
correct statements of federal law and false descriptions of the
facts and record in this case. Only full briefs on the merits of
this case can adequately address those factual and legal issues.

This case presents a dilemma which only this Court can
resolve. Only this Court can bind the Florida court and all other
courts in interpretations of federal constitutional law. The im-
portance of this case has been demonstrated by the many parties
appearing as amici curiae and by the U.S. Attorney General’s
issuance of Guidelines for the Evaluation of Risk and Avoidance
of Unanticipated Takings, referred to in the Amici Briefs. The
Solicitor General should be invited to make an appearance to ad-
dress the position of the United States, particularly on behalf of
the USDA and of other federal agencies administering health and
safety regulations.

This Court should find that it has jurisdiction in this case
and allow the parties to submit briefs on the merits of this most
important issue.

Respectfully submitted,

MALLORY HORNE, ESQUIRE
_ General Counse!
and
HARRY LEWIS MICHAELS, ESQUIRE
(Counsel of Record)
Assistant General Counsel
Department of Agriculture and
Consumer Services
Mayo Building, Room 512
Tallahassee, FL 32399-0800
Telephone No. (904) 488-6851

APPENDIX

A-|l

EXCERPT FROM RESPONDENTS’ BRIEF
BEFORE SUPREME COURT OF FLORIDA

ISSUE FOR REVIEW

WHETHER THE STATE MUST CONSTITU-
TIONALLY PAY JUST COMPENSATION FOR
SUMMARY DESTRUCTION OF SUSPECT
CITRUS PLANTS LATER SHOWN TO BE
HEALTHY?

ARGUMENT

The Department contends that valid exercise of its police
power precludes an inverse taking. This is not the law as the
Second District opinion thoroughly explains. Moreover, the
Supreme Court of the United States in Case No. 85-1199, First
English Evangelical Lutheran Church of Glendale v. Los Angeles
County, just decided on June 9, 1987, US.
S.Ct. at Slip Op. at p.9, reiterates:

‘‘The basic understanding of the (fifth) Amendment
makes clear that it is designed not to limit the govern-
mental interference with property rights per se but
rather to secure compensation in the event of other-
wise proper interference amounting to a taking. Thus,
government action that works a taking of property
rights necessarily implicates the constitutional obliga-
tion to pay just compensation.’’

See also Loretto v. Teleprompter Manhattan T.V. Corp., 458
U.S. 415, 425, 102 S.Ct. 3164, 3170 (1982) (a taking may occur
and suit for inverse condemnation proceed even if governmental
action depriving Plaintiff of property was a valid exercise of police
power); San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621,
648-49, 101 S.Ct. 1087 (1981) (dissenting Op. of J. Brennan.?

2 Justice Brennan’s dissenting opinion to the Court’s refusal to accept jurisdic-
tion in San Diego Gas was cited with approval by the majority opinion in First
English Evangelical Lutheran Church of Glendale v. Los Angeles County, supra,
Slip Op. at pp. 10 & 11.

A-2

‘*{I]n Goldblatt v. Town of Hempstead, 369 U.S. 590,
8 L.Ed.2d 130, 82 S.Ct. 987 (1961),.. .the Court cau-
tioned: ‘That is not to say, however, that governmental
action in the form of regulation cannot be so onerous
as to constitute a taking which constitutionally requires
compensation.’ Id., at 594, 8 L.Ed.2d 130, 82 S.Ct.
987. On many other occasions, the Court has recog-
nized in passing the vitality of the general principle that
a regulation can effect a Fifth Amendment “‘taking.’’
See, e.g., Prune Yard Shopping Center v. Robins, 447
U.S. 74, 83, 64 L.Ed.2d 741, 100 S.Ct. 2035 (1980);
Kaiser Aetna v. United States, 444 U.S. 164, [450 U.S.
6491] 174, 62 L.Ed.2d 332, 100 S.Ct. 383 (1979);
Andrus v. Allard, 444 U.S. 51, 65-66, 62 L.Ed.2d 210,
100 S.Ct. 318 (1979); United States v. Central Eureka
Mining Co., 357 U.S. 155, 168 2 L.Ed.2d 1228, 78
S.Ct. 1097 (1958).

See also Albrecht v. State, 444 So.2d 8, 12 (Fla. 1984) (settled
proposition that a regulation may meet standards necessary for
the exercise of the police power but still result in a taking).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1950%3A6. Public record. Not legal advice.