wordsworth

This morning I woke early with a couple new defenses for our due process claims.

The first relies on the reservation of "executive" authority in FWC by Art.IV,§9,Fla.Const. This argument would focus on the second portion of the "rational basis" test of legislation. The first part of the "rational basis" test requires the legislation be rationally related to its purpose – in our case, the Court claims incorrectly that the aviculture ordinances do relate to their purpose. The second part of the "rational basis" test requires that the legislature enacting the legislation have a reasonable belief that the legislation can achieve that purpose. The argument relying on this later part of the test is simple – without executive authority to enforce the legislation, the legislature (defendants) could not reasonably believe that the legislation could achieve its purpose.

The second defense of our due process claims particularizes the property right we claim Orange County is depriving. This should entirely change the due process analysis. This approach takes its lead from Perry v. Brown, 671 F.3d 1052 (9th Circ. 2012), in which the Ninth Circuit applied an unusual due process analysis to a right that was granted by the California legislature and then taken away by a popular (non-legislative)  amendment to the California Constitution. Perry is hardly a perfect fit for our purposes. Nevertheless, the Ninth Circuit’s decision in that case to shift its analysis from the amendment’s general purpose to a specific effect, helps me to imagine a similar shift of the analytical focus in our case.

In our case the Court’s due process analysis focused on the real property right and not the personal property right. While we claim the defendants have infringed upon real property rights in our home granted to us generally by the State of Florida in Art.I,§2,Fla.Const., we more pointedly claim that the defendants have infringed upon personal property interests in our birds that are granted, not generally by the State of Florida as a basic right, but specifically to us by the State’s executive agent FWC. The Court failed entirely to apply a due process analysis to defendants’ deprivation of our personal property interests in our birds. Such an analysis would require this be asked: Is rejecting the restraint of Art. IV, §9, Fla. Const., rationally related to the County’s (legitimate) purpose?