wordsworth

Back again after – like the last post – finishing a box of fried chicken yesterday. The ups and downs are still, otherwise, unexplained. I am eating a lot of beans & chorizo stew. Drinking OJ (or apple cider) & ginger ale, until my conscience (the "judge" within) says, "Water! Only water!" And I am off and on with vitamins and supplements – concerned that my breathing machine, or my juice and soda intake is upsetting the PH levels required for proper body function. This morning I took a Zyrtec because the day began with sneezing.

But I am here (stimulated) regarding another matter – Substantive Due Process.

I’ve made notes elsewhere concluding that the thing that is "substantive" in due process is the Court itself. That has left me to explain the Court’s focus on "individual rights" in its discussions of substantive due process. Why does the Court focus on individual rights, if what it defends in substantive due process is it’s own role?

I say – because, as in any case, it must first resolve the individual’s standing to sue. This idea is my own; it is not expressed in anything I’ve read; it is not expressly supported. So, I am either very right, or very wrong – above, or below, all. Who shall love me? And who despair?

But what of my "Three Points?"

1. Art.IV,§9,Fla.Const. Violation of Art.IV,§9,Fla.Const., violation of the state’s defined separation of powers, is sufficient to state a violation of what is substantive in due process [Bradley v. Fischer; Seminole BCC v. Long], because it is the quasi-judicial role of FWC’s executive that the quasi-judicial BCC displaced.
2. Judicial decisions. Rejection of Florida court decisions is sufficient to state a violation of what is substantive in due process [FWC decisions and those regarding exercise of authority "in doubt"], because rejection of the court is a rejection of what is substantive in due process.
3. Oophorectomy of the court. "Gaming the System," as here, to deny an adequate state court review of a retrospective deprivation by effecting the deprivation through an inappropriate prospective process, is quite simply to subvert the role of the Court.

The last of these three points is going to be the challenge – the 11th Circuit should ask if there was an opportunity to challenge the "Game" prior to injury. Was there an opportunity to go to state court and say the "Game" was futile, that even if we got what we wanted, we would still suffer injury that we could not protect during the "Game" and that we could not recover afterward? Or, an opportunity to request the court fix the "Game" with a procedural protection of our claimed right to keep and sell birds?

There are both procedural and substantive elements to this problem. The procedural element is protecting the challenged property right during the "Game." The substantive element is the lack of post-deprivation remedy. I’m imagining a procedural remedy that might obviate any substantive challenge …

What if the aviary permit – which requires us to agree too broadly to no "commercial activity," rather than no commercial aviculture activity – what if the aviary permit had gone further and provided an adequate remedy. What if – rather than "Pet Birds Only, No Commercial Activity" – it had said something like:

The limits placed upon commercial activity relating to aviculture at 1015 N. Solandra Dr., by the Zoning Manager’s Determination of May 25, 2007, will be enforced no sooner than thirty days after the date the BCC considers and upholds that Determination, unless certiorari review of, and/or declaratory relief from, the BCC decision is sought in state court within thirty days of that decision, in which case the limits placed upon commercial activity relating to aviculture will be those of the later of any final state court orders regarding the BCC decision, and will be enforced as of the date of that order. 

Something like this could have been in the Determination. Perhaps it should have been. 

Was it our duty to go to state court after Gordon released the Determination and claim that his reliance of Code Enforcement evidence supported a claim that the Determination was in fact an enforcement proceeding? Or, that because the aviary permit had no review, we had immediate standing to sue?

I want to say – No, because the BCC could have provided all relief, including compensatory relief. Or, it could have denied jurisdiction on grounds the Determination was an enforcement action (though we did not object to enforcement  jurisdiction). And No, because even if we had gone to court, we would still be without aviaries during the pendency of state court proceedings (even if we sought immediate injunction?), and effectively out of business. They had to provide the safe-guards.

 Should the Eleventh Circuit say that Certiorari permitted all due process concerns, one response is that the Ninth Circuit’s decision to ignore Art.IV,§9, precluded raising improper assumption of jurisdiction as an issue. That would raise an altogether new question – who is responsible for the Ninth Circuit’s error?!