wordsworth

Admissions

Admissions should be drafted as soon as possible. The first drafts should be directed to the individual defendants and based upon the allegations of the complaint.

Subpoenas

The federal rules say that I can subpoena anyone. Jerry Jennings? Pet stores (i.e., Bird Crazy)? Florida Association of Counties? FWC licensees. I need to start on that as soon as possible. Next week. Review the rule. Check the case law.

It did occur to me (after sending out an email request) that the information I’ve asked FWC licensees to volunteer (and might demand by subpoena) is precisely the information the FWC requires them to keep on record. So, I could ask the returning chair of the FWC Rodney Barreto to help me: we want the same information; and, that information (by increasing the damages award) will give the ultimate judicial decision more weight.

In 2007 the defendants knew or should have known that what they were doing to us violated Article IV, Section 9, and Article VIII, Section 1(j), of Florida’s Constitution. We say "they knew or should have known" because the language of those two provisions of the state constitution is perfectly clear.

Article IV, Section 9, says County government has no authority to regulate wild animal life.

And Article VIII, Section 1(j), says County government has no authority to decide how it will prosecute code violations.

We say that in 2007 "they knew of should have known" what they were doing to us violated Article IV, Section 9, because Florida’s Attorney General told them so five years earlier in Attorney General Opinion 2002-23. And the Florida Fish and Wildlife Conservation Commission told them the same thing in its 2007 Memorandum of Law.

We say that in 2007 "they knew of should have known" what they were doing to us violated Article VIII, Section 1(j), because that provision very clearly and simply states: "Persons violating county ordinances shall be prosecuted and punished as provided by law."

Woke up this morning thinking that I should request the violation notice and CEB order of the specific cases identified by the Ninth Circuit orders I’ve collected which cite code sections 38-3, 38-74, and 38-77. These cases included very different, but very specific, verbal descriptions of the respective violations. That practice contrasts sharply with the vague violation description in our case. So, their specific description will assist in making the argument that in our case Code Enforcement was intentionally vague in describing the violation. I hope to work on the second request for production later today after doing yard work.

I did drive over to Cielo Ct. yesterday to see if I could talk with Vera Clark. But no one was home. So, I wrote a letter I must post today.

Compare BCC, BZA, and CEB agendas.

At the same BCC meeting during which Ordinance 2016-19 was adopted, the lawyer-son of the resident of 7506 Cielo Ct, Vera Clark, appeared to ask for a zoning variance in order to avoid a pending zoning violation. At the hearing Commissioner Edwards effectively found the resident guilty of the violation. That is, he urged the variance be denied because he objected to "after-the-fact" variances. I think I would like to know more. I would like to talk to the resident, to the lawyer-son, and I would also like to review the transcript of the hearing to properly quote Edwards.

I am now receiving BCC agendas by email. I think I would like to contact the person sending the email to see if they can help me get to archived agendas that are not available on the County’s website. They may also direct me to archived agendas of the BZA and CEB.

I have found OrangeTV’s internet archive of BZA meeting videos – https://netapps.ocfl.net/Mod/meetings/2

I have created a FileMaker database that allows me to find the first, second, third, fourth, or fifth, weekday of each month for any year between 2002 to 2022. This helps to identify the date of regularly scheduled meetings of the CEB, BZA, and BCC.

I have absolutely no idea how I will reduce a collection of agendas to a comparative database that can identify people who went to the BZA after a CEB hearing.

I have collected (from general Google web-searches) BCC agendas that do reference "code enforcement action" and "code violation." This does provide some evidence that code enforcement pushes people to seek BZA and BCC approval of something. It doesn’t prove the BZA and BCC adjudicate additional violations in the process. Transcripts of these proceedings might help to do that.

Bird prices.

I still need to reach out to FWC licensees to establish bird prices and/or code enforcement interference.

I have created an email list of Orange County FWC licensees. But I’ve yet to draft an email. I am slow to resolve my concerns about their reaction to signing an affidavit, or to testifying. And I am thinking that I should do an email, get some prospects, and then ask about that, rather than ask about it in the first email.

I have also drafted an email to FWC requesting all licensees. I feel I need to cast a wider net to establish change in bird pricing. In particular, all Florida licensees would put me in touch with more bird stores … and bird stores will provide the most reliable evidence of price change.

I have thought about contacting Jerry Jennings. But I don’t want to hear him tell me how much he wants to be paid to be a professional witness. Not right now, anyway.

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?!

The Foleys argue that substantive component of the due process clause protects only fundamental rights – those that are fundamental in the individual and those that are fundamental in the state. The Foleys argue that the standard of review is always strict scrutiny – either strict scrutiny in favor of the individual right or strict scrutiny in favor of the state right.  Ultimately, in every case involving substantive due process the Court has weighed the competing rights in due process to determine which party has the vested right that overcomes the rival’s claim.

Between the two World Wars, the Court in Meyer found a contradiction in state law that undermined Nebraska’s rationale for its ban on instruction in German before age twelve. The contradiction was that the ban contained an exception – instruction could be given in Latin, Greek, and Hebrew.

The Court concluded its opinion by saying –

As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities.

Meyer is often criticized as an instance of judicial activism, as a case in which the Court re-wrote the Constitution and declared a new "unenumerated" right not found in its text – a right to teach, a right to direct the education of one’s child, etc. However, the Court’s ratio decidendi did not require manufacturing such a right. It required only finding a contradiction in the laws of the state that removed all justification for the challenged statute.

The Court did something similar in Roe v. Wade when it found that Texas could not deny a woman the assistance of a physician in abortion if it permitted her – as it did – to do the abortion herself.

We allege that defendants’ denied us due process in several ways. One allegation we make is that defendants’s used a species of "forum shopping" to deny us due process.

Black’s Law Dictionary defines "remedy" as follows:

remedy, n. 1. The means of enforcing a right or preventing or redressing a wrong; legal or equitable relief.

Black’s Law Dictionary, pg. 1296, (7th ed. 1999)

At minimum, Alexander Hamilton, considered "due process of law" to include a remedy in court; constitutional rights can not be deprived by the legislature without recourse to the court.

In one article of [the Constitution of New York], it is said no man shall be disfranchised or deprived of any right he enjoys under the constitution, but by the law of the land, or the judgment of his peers. Some gentlemen hold that the law of the land will include an act of the legislature. But Lord Coke, that great luminary of the law, in his comment upon a similar clause, in Magna Charta, interprets the law of the land to mean presentment and indictment, and process of outlawry, as contradistinguished from trial by jury. But if there were any doubt upon the constitution, the bill of rights enacted in this very session removes it. It is there declared that, no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers. The words “due process” have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.

“New York Assembly. Remarks on an Act for Regulating Elections, [6 February 1787],” Founders Online, National Archives (http://founders.archives.gov/documents/Hamilton/01-04-02-0017, ver. 2014-02-12). Source: The Papers of Alexander Hamilton, vol. 4, January 1787 – May 1788, ed. Harold C. Syrett. New York: Columbia University Press, 1962, pp. 34–37.

The 13th article of the constitution [of New York] declares, “that no member of this state shall be disfranchised or defrauded of any of the rights or privileges sacred to the subjects of this state by the constitution, unless by the law of the land or the judgment of his peers.” If we enquire what is meant by the law of the land, the best commentators will tell us, that it means due process of law, that is, by indictment or presentment of good and lawful men, and trial and conviction in consequence.

"A Letter from Phocion to the Considerate Citizens of New York, [1–27 January 1784],” Founders Online, National Archives (http://founders.archives.gov/documents/Hamilton/01-03-02-0314, ver. 2014-02-12). Source: The Papers of Alexander Hamilton, vol. 3, 1782–1786, ed. Harold C. Syrett. New York: Columbia University Press, 1962, pp. 483–497.

Likewise, at minimum, John Bingham, the principal author of the Fourteenth Amendment, considered "due process of law" to mean a judicial remedy.

No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without a remedy.

Cong. Globe, 39 Cong., 1 Sess. 2542-3, May 10, 1866.

In Chapter 162 of its statutes, Florida does provide for judicial review in county court of alleged violations of county codes [See §162.21(3)(a), Fla. Stat.]. Florida also gives county government the option to substitute judicial review with local administrative review before a code enforcement board created by the county [See §162.03(1), Fla. Stat.]. Where the county exercises this later option, Florida provides for appellate review in state court of the orders of the code enforcement board [See §162.11, Fla. Stat.]. This appellate review permits the appellant to challenge the constitutionality of the ordinances at issue.

Orange County has created a code enforcement board pursuant Ch. 162, Fla. Stat., and incorporated the appellate review provision of §162.11, Fla. Stat., in its code at §11-40, OCC.

As to "equal protection" the question is which law is to be given equal effect – Orange County’s ordinance or the supremacy of FWC subject matter jurisdiction?

The first section of the Fourteenth Amendment reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The final two clauses in the second sentence of section one are applicable to our case. The first of these is the "due process" clause.

• nor shall any State deprive any person of life, liberty, or property, without due process of law

The second of these is the "equal protection" clause.

• nor deny to any person within its jurisdiction the equal protection of the laws.

Both these statements place restraints on State government. These restraints in turn create corresponding individual liberty rights to be free of State action that does not observe the restraints of "due process" and "equal protection".

Is "substantive due process" just another name for the historic role of courts to check abuses of the the other branches of government?

 Massachusetts v. Mellon, 262 US 447 (1923) See also this post.

The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other and neither may control, direct or restrain the action of the other. We are not now speaking of the merely ministerial duties of officials. Gainesv. Thompson, 7 Wall. 347. We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding.

Marbury v. Madison, 5 US 137 (1803)

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.