IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA CHRISTOPHER D. VAUGHAN, Appellant, CASE NO. SC L.T. Nos. 4D D vs. FLORIDA DEPARTMENT OF AGRICULTURE, et al., Appellees. / APPELLEES ANSWER BRIEF ON JURISDICTION ADORNO & YOSS LLP Wesley R. Parsons Florida Bar No Jack R. Reiter Florida Bar No Ponce de Leon Boulevard Suite 400 Miami, Florida Attorneys for Appellees Elzo and Conner

2 TABLE OF CONTENTS TABLE OF CONTENTS...ii TABLE OF AUTHORITIES...iv SUMMARY OF ARGUMENT...1 ARGUMENT...3 I. ROCHE IS INAPPOSITE BECAUSE IT DOES NOT INVOLVE QUALIFIED IMMUNITY....3 II. THE FOURTH DISTRICT S DECISION DOES NOT CONFLICT WITH ROCHE BECAUSE FLORIDA LAW AUTHORIZED A WARRANTLESS INSPECTION AND REMOVAL OF CITRUS TREES AT THE TIME THE DEPARTMENT EMPLOYEES ENTERED ONTO THE HOMEOWNER S YARD FOR THE LIMITED PURPOSE OF INSPECTING A CITRUS TREE...4 III. THE WARRANTLESS ENTRY ONTO A PERSON S YARD FOR THE LIMITED PURPOSE OF INSPECTING A CITRUS TREE WAS NOT DECLARED UNCONSTITUTIONAL UNTIL THE FOURTH DISTRICT COURT OF APPEAL DECIDED FLORIDA DEPARTMENT OF AGRICULTURE ii

3 AND CONSUMER SERVICES V. HAIRE, 836 SO. 2D 1040 (FLA. 4TH DCA 2003)...8 CONCLUSION...9 CERTIFICATE OF SERVICE iii

4 TABLE OF AUTHORITIES Cases Page Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla. 2005)...3 Camara v. Municipal Court of the City of San Francisco, 387 U.S. 523 (1967)...4 Denney v. Conner, 462 So. 2d 534 (Fla. 1 st DCA 1985)...6 Dep t of Agriculture v. Miami-Dade County, 790 So. 2d 555 (Fla. 3d DCA 2001)...7 Department of Agriculture v. Sun Gardens, 780 So. 2d 922 (Fla. 2d DCA 2001)...6 Florida Department of Agriculture and Consumer Services v. Haire, 836 So. 2d 1040 (Fla. 4 th DCA 2003)... 1, 8 Grimm v. Spell, Case No. 2:00-CV-506-FTM-29DNF (M.D. Fla. July 3, 2003)...7 Haire v. Florida Department of Agriculture and Consumer Services, 870 So. 2d 774 (Fla. 2004)...8 iv

5 Hope v. Pelzer, 536 U.S. 730 (2002)...5 Nordmann v. Florida Department of Agriculture, 473 So. 2d 278 (Fla. 5 th DCA 1985)...6 Roche v. State, 462 So. 2d 1096 (Fla. 1985)...1, 2, 3, 4 Sapp Farms v. Department of Agriculture, 761 So. 2d 347 (Fla. 3d DCA 2000)...6 Statutes Section (15), Florida Statutes...5 Section , Florida Statutes...5 Section (7), Florida Statutes...5 v

6 SUMMARY OF ARGUMENT The Court should reject jurisdiction over this matter because the Fourth District Court of Appeal s decision does not conflict with existing Florida law. The sole issue presented on appeal was whether employees of the Florida Department of Agriculture and Consumer Services (the Department employees ) could be subject to personal liability for following then-binding Florida law which authorized warrantless entry onto a person s yard to inspect or remove citrus trees infected by or exposed to citrus canker. The Fourth District affirmed the trial court, concluding that the Department employees did not have fair warning that their conduct was unauthorized because Florida Department of Agriculture and Consumer Services v. Haire, 836 So. 2d 1040 (Fla. 4 th DCA 2003), which held that a warrant is required to enter a yard to inspect a citrus tree, did not issue until after the Department employees inspected the trees in this case. The Fourth District noted that the unique circumstances presented by the citrus canker situation created sufficient doubt regarding the lawfulness of a warrantless search such that it would be improper to deprive Department employees of qualified immunity. Appellant, Christopher Vaughan ( Homeowner ) suggests that the Fourth District s conclusion that the Department employees were protected by qualified immunity conflicts with Roche v. State, 462 So. 2d 1096 (Fla. 1985), which sets 1

7 forth the general proposition that citizens may demand a warrant for an administrative or regulatory search of their property (Homeowner s Brief at 2). As a threshold matter, Roche is totally inapposite because it addressed a warrant requirement. It did not involve qualified immunity or the appropriate test for applying immunity to public officials. Thus, the two cases do not conflict they address different issues entirely. Regardless, the Fourth District s decision is consistent with Florida law and advances the strong protection of qualified immunity afforded public officials because at the time of the tree inspection, a Florida statute expressly authorized a warrantless search of the Homeowner s yard. Moreover, even if a warrant is required for such inspections generally, multiple Florida appellate courts expressly concluded that citrus canker presented an emergency, supporting a well-settled exception to the warrant requirement. That a Florida court concluded that a warrant is required to conduct such inspections years after the Department employees inspected the property in this case does not give rise to personal liability. Thus, the Fourth District correctly affirmed the conclusion that Department employees were shielded by qualified immunity in this case, and no conflict exists under Florida law. 2

8 ARGUMENT I. ROCHE IS INAPPOSITE BECAUSE IT DOES NOT INVOLVE QUALIFIED IMMUNITY. The Homeowner s contention that the Fourth District s decision conflicts with Roche is misplaced because Roche addressed the general warrant requirement in the administrative content. Roche did not involve the scope of qualified immunity that should be afforded a public official who does not have reasonable warning that conduct potentially violates someone s constitutional rights. This is critical because conflict jurisdiction requires that the conflict be express and direct or that the ruling misapply a decisional issue of law. Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla. 2005). This case is not about whether a warrant is required to inspect for citrus canker or whether a warrantless inspection violates the Constitution. This case concerns whether Department employees should be held personally liable for conducting an inspection at a time when the law did not provide fair warning that such an inspection would later be deemed unconstitutional. Because Roche only discusses the general principle of the warrant requirement but does not address the contours of qualified immunity, no conflict exists and this Court should reject jurisdiction. 3

9 II. THE FOURTH DISTRICT S DECISION DOES NOT CONFLICT WITH ROCHE BECAUSE FLORIDA LAW AUTHORIZED A WARRANTLESS INSPECTION AND REMOVAL OF CITRUS TREES AT THE TIME THE DEPARTMENT EMPLOYEES ENTERED ONTO THE HOMEOWNER S YARD FOR THE LIMITED PURPOSE OF INSPECTING A CITRUS TREE. No conflict exists with general warrant principles outlined in Roche because Florida law seemingly authorized the Department s warrantless inspection at the time Department employees entered the Homeowner s yard. Accordingly, the Department employees could not have had fair warning that their conduct would later be deemed to violate the Fourth Amendment. The Homeowner relies upon general principles of Fourth Amendment jurisprudence announced in Camara v. Municipal Court of the City of San Francisco, 387 U.S. 523 (1967) for the proposition that an administrative search conducted pursuant to a regulatory scheme requires a warrant. According to the Homeowner, because Camara and Roche set forth this general requirement, the Department s employees were on notice that they could not conduct a warrantless inspection of the Homeowner s citrus trees. Respectfully, the Homeowner is mistaken, and the Fourth District s decision is easily distinguishable from both Camara and Roche based upon the unique circumstances facing the Department and Florida residents with citrus canker cases. 4

10 As explained in Hope v. Pelzer, 536 U.S. 730 (2002), a case which outlines the scope of qualified immunity, a public official cannot be held personally liable for their actions unless the public official has reasonable or fair warning that the specific conduct at issue violated a constitutional right. When the Department employees conducted the tree inspection, Florida law authorized their conduct and no Florida appellate court held that a warrant was required in light of the unique circumstances of inspecting trees in a yard for canker. As set forth in Section , Fla. Stat., an inspector from the Department had the power to enter into or upon any place thought to house or contain anything that could threaten agricultural interests. See also Section (7), Fla. Stat (requiring the Sheriff to provide assistance and protection to Department s employees in obtaining access to property). As Section (15) further provided, the Department had the power to: To inspect plants, plant products, or other things and substances that may, in its opinion, be capable of disseminating or carrying plant pests or noxious weeds, and for this purpose shall have power to enter into or upon any place and to open any bundled, packaged, or other container containing, or thought to contain plants, or plant products or other things capable of disseminating or carrying plant pests or noxious weeds and to obtain and examine any records pertaining thereto, or to obtain a subpoena duces tecum for such records, to facilitate the termination of the origin of plant pests or noxious weeds for the purpose of pest control programs (emphasis added). 5

11 The absence of a reference to a warrant in the statute supported the Department employees reasonable belief that no warrant was required to conduct a tree inspection. Additionally, at the time of the subject inspection, several Florida courts had expressly identified citrus canker as presenting an emergency or exigent circumstance, supporting a well-settled exception to the warrant requirement. See Nordmann v. Florida Department of Agriculture, 473 So. 2d 278, 279 (Fla. 5 th DCA 1985) (approving the Department s emergency measures and rejecting the contention that the Department has failed to show imminent danger justifying use of state police power to destroy trees infected by or exposed to canker); Denney v. Conner, 462 So. 2d 534, (Fla. 1 st DCA 1985) (recognizing that the threat to the public interest in the citrus industry represented by citrus canker is of sufficient gravity and urgency that the effect of the immediate final order of the Department should not be further stayed by this Court ); Sapp Farms v. Department of Agriculture, 761 So. 2d 347, (Fla. 3d DCA 2000) (upholding right to immediate agency action to remove trees exposed to canker); Department of Agriculture v. Sun Gardens, 780 So. 2d 922, 924 (Fla. 2d DCA 2001) (recognizing the Department s finding of possibly devastating effect of citrus canker on the citrus industry ). 6

12 Each of the prior decisions preceded the Department employees warrantless inspection of the Homeowner s property. Moreover, at least one Florida appellate court expressly reversed a decision by Miami-Dade County Circuit Judge Ronald Friedman, who entered an injunction on April 18, 2001, ruling that a search warrant was necessary to search for citrus canker. The Third District Court of Appeal vacated the injunction a few months later. Dep t of Agriculture v. Miami- Dade County, 790 So. 2d 555 (Fla. 3d DCA 2001). In a concurring opinion, Judge Cope specifically wrote that the Department had the authority to search a yard that is outside curtilage without a warrant. 790 So. 2d at 559. If an appellate judge believed that a warrantless search of a yard did not, ipso facto, constitute a Fourth Amendment violation, Department employees should not be held to a higher standard. Notably, the United States District Court for the Middle District of Florida, decided an almost identical case in Grimm v. Spell, Case No. 2:00-CV-506-FTM- 29DNF (M.D. Fla. July 3, 2003) (Steele, J.), aff d, Case No FF (11th Cir. March 5, 2004), rehearing en banc denied, 104 Fed. Appx. 154 (11th Cir. April 30, 2004), cert. denied, 73 U.S.L.W (U.S. Nov. 29, f2004). In that decision, the Eleventh Circuit affirmed a finding that Department employees enjoyed qualified immunity when, as in this case, a resident sued for warrantless 7

13 tree inspections. The Fourth District noted this decision in the Opinion. Vaughan Opinion at 3. Again, a federal appellate court s opinion that the Department employees did not have fair warning that a warrantless tree inspection would later be declared unconstitutional supports the Fourth District s conclusion and undermines the claim of conflict with Roche. III. THE WARRANTLESS ENTRY ONTO A PERSON S YARD FOR THE LIMITED PURPOSE OF INSPECTING A CITRUS TREE WAS NOT DECLARED UNCONSTITUTIONAL UNTIL THE FOURTH DISTRICT COURT OF APPEAL DECIDED FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES V. HAIRE 836 SO. 2D 1040 (FLA. 4TH DCA 2003). The Department s warrantless inspection of citrus trees was not declared unconstitutional until the Fourth District Court of Appeal issued its decision in Florida Department of Agriculture and Consumer Services v. Haire 836 So. 2d 1040 (Fla. 4 th DCA 2003). In its brief, the Homeowner argues that the Haire decision issued by this court in Haire v. Florida Department of Agriculture and Consumer Services, 870 So. 2d 774 (Fla. 2004), which affirmed the Fourth District s decision, did not expressly declare the Statute unconstitutional. The Homeowner is mistaken. 8

14 In the Fourth District s Haire decision, the Fourth District expressly, and for the first time, held that Department employees needed a warrant to conduct a tree inspection on someone s yard. 1 Accordingly, Department employees did not previously have fair warning that their tree inspections would later be deemed a constitutional violation. Thus, the Fourth District correctly affirmed the trial court s finding of qualified immunity. No conflict exists. CONCLUSION The Homeowner has not identified any conflict between the Fourth District s decision and Roche. Accordingly, the Court should reject jurisdiction over this case. ADORNO & YOSS LLP Wesley R. Parsons Florida Bar No Jack R. Reiter Florida Bar No Ponce de Leon Blvd. Suite 400 Miami, Florida Telephone: (305) Facsimile: (305) Attorneys for Appellees Elzo and Conner 1 In its opinion, the Fourth District apparently mistakenly cited this Court s Haire decision, but referred to it as a Fourth District decision (Opinion at 3). 9

15 2006, on: CERTIFICATE OF SERVICE I CERTIFY that a copy of foregoing was served by U.S. Mail on June, Diane H. Tutt, Esquire Counsel for Appellant P. O. Box Davie, FL Gary Kollin, Esquire Counsel for Appellant 8211 W. Broward Blvd. Suite 440 Ft. Lauderdale, FL Michael Piper, Esquire Johnson, Anselmo, Murdoch, Burke & George, P.A. Counsel for Appellee Giuseppe Weller 790 E. Broward Blvd., Suite 400 Ft. Lauderdale, FL CERTIFICATE OF COMPLIANCE WITH RULE 9.210(A)(2) I certify that the foregoing Answer Brief was prepared using Times New Roman 14-point font, in compliance with Florida Rule of Appellate Procedure 9.210(a)(2) _JurisAns.DOC