Foley v. County
Posted on Wednesday, August 12th, 2009 at 3:44 pmJen: Today in the mailbox were two envelopes from the court regarding our case against Orange County, specifically the case against the Code Enforcement Board. Both envelopes contained an order reassigning our case to a new judge. One envelope – from the Criminal Division and postmarked the 11th – contained an order from the new judge requiring a supplemental brief within ten days of the order dated August 7th. In other words, the court expects action on or before Monday the 17th; when the language of the order uses the expression “from the date of this order” no time is added for mailing. My plan is to move for an extension. However, I do need your signature. Please stay in contact through the blog so that we can arrange that … I think it should be possible to leave it at my dad’s office for you to sign that morning BUT I would like to be very sure it happens. In the meantime, I will try to get you a copy of the order which, among other things, declares our case moot because we complied … Strange! David
David: I’ll be able to drop it off early afternoon. Will ask Ken to give you a call. Jen
Jen: I think that motion is the final. So, if possible, print it, sign it, and drop it off at Dad’s office this morning. David
OK. Here is the latest version of our Motion for Clarification. It is better, I think, in several ways. First, unnecessary citations have been removed. Second, two additional supportive points have been added. Three, Judge Padovano, perhaps the most respected voice on Florida appellate procedure, has been cited. Fourth, Padovano is cited for an article he wrote in the Stetson Law Review – Stetson is the alma mater of the judicial counsel to the senior judge on the four judge panel reviewing this case.
You might be interested in reading the opinion in the Mazer case cited in the motion. Mazer’s attorney asked the county to provide him a copy of the county code. The county refused claiming they had no copy to offer and that copyright law prohibited providing a photocopy of the code. Mazer’s attorney filed a Petition of Mandamus with the Circuit Court seeking an order to compel production of a copy of the code. The county then found a copy and made it available. The Circuit Court declared Mazer’s Petition moot, as they now would like to declare our Appeal moot. The District court, however, said that although the copy of the code had been provided, the unresolved question was where Mazer was due attorney’s fees as authorizied by the Public Document Statutes when a governmental body illegally denies access to public documents. However, the District Court refused to rule on whether or not the county had illegally denied access.
Anyway, if you wanted to read that decision, you might find it on the website for the 5th District Court of Appeals.
Well, all this lit me up this morning and I tweeked the motion you have before you.
B.R.: A little pressure can feel good…a lot just hurts. Well, cleaning the coils didn’t do the trick…but they are clean! I’ve contacted a new Barter member who is coming by Friday. I’ll have everything ready for him to look at to keep the cost down…will let you know the outcome. After coil cleaning, fan checking (both units work)…freon is next on the list. I’m home a little early to take Ellen to the 9th grade center for her initial visit…school ID…schedule…we go back to orientation/tour tomorrow night…then she is off to band practice again.
What about the motion? When should I expect to download/print/sign and deliver?
Jen
Of course I’m applying pressure – that’s what a back rubber does!
Ms. Coil Cleaner: A court order and you could have Mr. Back Rubber within arms’ length before Saturday! B.R.
David: I will cancel the card tonight and have a new set issued. As soon as the cards arrive, I’ll let you know and leave one with Ken at your Dad’s office.
The coil cleaning went fairly well…I found the brushes, but didn’t use them afterall…what worked best was the foaming coil cleaner I bought and a toothbrush…along with the contortions I performed to reach the coils…they were very dirty on the inside…top of the unit was clean. New filter is in place. Should know by morning if the dirty coils caused the freezing.
When I was about to leave George’s, a report about credit card fraud came on TV…I told George what happened to the VISA and he said someone he knew had the same thing happen…first a .50 charge…then, $2.00, then $98.00! Then she noticed and called her credit card company…glad VISA blocked future charges on ours…well, I’m going to call VISA now, then relax a bit and go to bed.
Jen
Jen: If VISA says cancel the card, then do it. But don’t do it unless that’s what they recommend. So, you don’t know who Click-N-Buy is? Is it possible to contact the online game host?
There are some odd shaped brushes in the shed for cleaning coils. You’ll need a screw driver to change the filter. David
David: No connection to the anger…except maybe from the “Gods.” I just tried to use the card at Home Depot…was denied…called VISA. I’m pretty positive Click-n-Buy (or Click-n-Pay) was the company used to upgrade Ellen’s online game for three months…I asked the VISA operator why a charge for .50 was flagged and she said that Click-n-Buy was a fradulant company and that “someone” may be testing the card. So, I’ll check with Ellen when she comes home from band practice to make sure although I doubt that she tried to do anything with the card or for .50. Then, I believe our only option is to cancel the card and have new cards reissued…I know this is a hassle with the many on-line places that have our account on file…but we’ll have to deal with it. The new cards take 3-5 days to arrive so in the meantime withdrawl what you need from the Bank Account…Right now, I am getting ready to spend the next couple of hours at George’s…his air conditioning unit froze. I am going to clean the coils…remember that job? Lucky I do, too…that’s where I’m going to start before calling anyone out to check freon. Will let you know how it goes and post back after 9 pm regarding the card before I call VISA back. Sorry for the inconvenience. Jen
Jen: VISA placed an emergency hold on our card yesterday. There is a charge they question for $.50 from Click-n-Buy. VISA told me that they would like you to call and talk with someone there about the charge. I learned this because I was stuck inside due to a storm and decided to do some book keeping. I couldn’t download the statement. And I couldn’t access the VISA account via internet. So, I called. Please, let me know how it all works out. Too, keep in mind that this occurred after you left me dangling with a post that said you were angry. David
D: Well the sun is rising and so am I…the extra hour of sleep was good. Didn’t see that you posted the final revision to the motion. Will check back again tonight…just let me know exactly what you call it so I download the correct version. J
D: That was a good one…well, I’m not Hungry…but I am Angry, Lonely and Tired…3 out of 4 is bad so, I’m going to bed and hopefully, the sun will come up tomorrow 🙂
J
Little internet fiber might help with that … a food blog, perhaps.
OK…just let me know when it’s ready. The download/print/sign drop at Dad’s office will be convenient…thanks…saw your other posts…kinda of blocked with blogging…maybe later. Jen
Hey, Jen, I’ve got another edition but I’m not posting it because I plan to shepardize an appendix and that may change the motion. So, there’s no pressure to get this in until we hear from the court on the request for an extension of time. David
OK, Jen. Here is the fouth revision. It adds a clause regarding ongoing harm at item number four. Again, you can print this out and drop it off. I can copy your original. David
Jen: Caught a large bass. Fish dinner tonight!
There is something I want to add the motion. When it’s uploaded you can then download it, print it, sign it, and drop at Dad’s. How’s that? David
D: Improved, yes, easier to follow. If you want to drop it off at your Dad’s office today, ask Ken to give me a call and let me know its there. If I can make it to the office before it closes today, I will…if not, then in the morning on my way to work. J
D: Found it. Will read it over now. J
D: No link to the revised version? How did the Gar fishing go? Catch anything? J
OK, JT. Here is an improvement that incorporates some of your suggestions – a punctuation change that graphically isolates the two real questions, and drop the ‘succinct’ sentence to rely on similar wording in the balance of the motion. There are some other clean up and clarification changes to. Thanks for your help. Ken is on his way over to do some gar fishing. You could call Judge Blackwell and see if she’d grant you an ’emergency’ motion to let you come over!! David
Jen: I like your idea. I don’t like your application. I would like a better motion. And I like the sentence you suggest I drop because the court is saying that the appeal will be dismissed unless we prove that we disobeyed the first order.
I’ll work on it a bit more. And I’ll send you a revision. I won’t be asking you to sign anything tomorrow. But I don’t think you’ve given me any time next week. Please think about that. Fruit delivery is easier if I do it myself. David
D: I read over the Order Directing Filing of Supplemental Briefs and your Motion for Clarification.
Comments: In your Motion: The first sentence is very long…consider intermittent punctuation: …..is not a final order? Or, if a final order,….pursuant 162.09 Fla.Stat.? Or, 11-37, O. Co. Code; that…
Regarding the last sentence on the first page: Put succinctly… – because it doesn’t appear to be the only question you are asking the court to answer – seems to get in the way of a smooth transition to the next line: This point of law…. You may want to consider dropping it.
From one 12 stepper to another…take what you like…
I did not find any typos. I can possibly stop by your Dad’s office Monday on my way home…but would like to have Tuesday morning (8 am) as a back up…just let me know when the paperwork will be ready to sign.
Jen
Great, Jen. I’ve already made a few revisions to make it more succinct. Here is the revised version. The idea is give the court something that is easy to understand. David
David: I’ll be able to read it over later this afternoon and respond. Jen
Jen: I’ve uploaded the motion I worked on today. If you’ve time, please read it over. I think I’ll get some other input. It would be nice to make it simpler and more concise. My motions always seem a little edgy. Anyway, here it is. David
Maybe. I may ask you to sign something Monday. But it is at your discreation. In others words, if I finish the motion I am writing now, I may ask you to sign it Monday, but if you need a day, that’s OK. My folks are coming in earlier than planned. I am leaving here in a couple of hours to get them at the airport.
Ellen and I had a very nice visit … we were very chatty, both of us.
Thanks for clarifying. Am I going to have to sign anything on Monday? J
Jen: You ask what having a new judge means. The new judge has issued an order requesting supplemental briefs. That order basically says that we have nothing to appeal if we complied with the CEB order to get a building permit or destroy the flights. I don’t believe that is right; I believe we can appeal the CEB order even if we did comply with it. This is an important point – Do we have ‘standing’ to appeal, or not? I have relied on a case called ex parte Young. Its a Federal Supreme Court case where the court said that a government can not make it so incredibly costly to challenge a law that no one could possible challenge the law. It does not say a government can not make it costly to challenge a law. Nor does it say that we have standing to challenge a law after obeying the law. So, I have a little work to do there. Another angle I have to work is what I’ll call the ‘proper remedy’ angle – the court is supposed to provide the proper remedy, even if we ask for the wrong one. So, if we appeal, when we should have sought declaratory relief, the court should decide that our appeal was really a suit for declaratory relief … I think … But it’s good that the court has given us any indication of it reasoning because it could simply dismiss the case without comment as it has in the past. David
D: We can only communicate through the blog, and/or emails through Mike Morris’ office. I have seen the emails from Maitland Art Center/Board. May be getting more emails from the MAC in general, since I bought a membership (membership was a requirement to be on the Associate Board). I have been in touch with Ami and Kent…thanks for the message. Well it’s just after 7 am…time for me to move on. Hope you have a good day today. J
D: Your thought on gift giving is a positive character trait that I’ve always admired in you. Rather than “just anything” the thoughtful gift does linger and transform into something richer – “the better part”. J
D: Yes, Deb is staying here. She had planned the trip earlier in the summer…to come down and see Dad…then when Dad went in through the Emergency Department she decided to come down then, too…now, as you know, he’s still in in-patient rehab. He made some small steps yesterday, literally, a good sign that he is progressing. Today I am meeting with the team (docs/physical therapists/case workers), Mom and Dad, to talk about what will/can happen over the next month. His physical therapist believes he needs another month of the care/therapy he is getting now…I do, too…because he really needs to be able to get from one place to the other on his own before he comes home. Send some good thoughts. J
D: I believe the majority of the court documents are in the shed to the left of Ellen’s bike on the shed floor under the shelves/other boxes. I’m going out there this morning and will pull them out a bit so you can find them easily. So, with a new judge, does this give the opportunity to re-hear the appeal? J
Regarding email … You did permit me to monitor email, right? Did you expect me to tell you here that someone is trying to reach you by email? The Maitland board is always trying to reach you.
It’s gift giving weekend at Family Ties. It says so on the back of the visitation card. Have you thought about that? I’m thinking about it. I mean, a gift is easy, but the thought behind it … what is that? I just think the ‘thought’ can be the better part. You know, everytime you look you remember that thought. I’m tired.
I’m sorry I missed you. I didn’t have my email on when you made your comments. If I had, you would have rung ‘my bell’ and we could be chatting, maybe, if you’re not busy straightening the place for guests.
Well, that’s great. I mean – thanks for giving me a chance to go by the house.
Is Deb staying with you or with your folks?
D: Email sent to Mike Morris with a cc to Vivian regarding access tomorrow, Aug. 13 from 1-5 pm. J
David: Just walked in the door. I will keep tabs on the blog so I don’t miss anything in regards to the case, signatures…etc.
Aunt Deb is flying in tomorrow evening and staying through early Sunday morning so tomorrow will be the best time for you to come by and get the court documents you need (they may be in the shed)…I’ll send the email to Mike/Vivian tonight for access between 1-5 pm tomorrow August 13.
Ellen is feeling much better today and went to band camp today.
Jen
Jen: I have scanned the court documents described above and in the above added links to those scanned documents. I regret that I missed the opportunity today to gather my files on this case – I need them. If you can find them (a big notebook), please take them to Dad’s office. If you can not find them, please consider giving me access to the house before Monday so that I can find it.
I gathered sticks. I ran the shovel down the curb. I pulled some weeds.
David