wordsworth

In August Jen and I had a couple of online counseling sessions with Yale Kushner. In the first session Jen made a point of telling Yale that at an early age she identified with a statement made by Lucy in the Peanuts comic strip – “If everybody agreed with me, they’d all be right.” This was not news to me; she had told me the same thing years ago (see 2009 post).
After the last session with Yale (which did not go well) I decided to ask Google “Is Lucy a narcissist?”

Sending this out to you Ellen! It’s got it all. Wheels. Masks. And an "angel" picking up the pieces of a Sad Story.

 "Sad Story (Out Of Luck)"

A sad story.

Might find it boring.

 

Lost his mum to a drug named heroin.

Father’s gone.

So, grandma’s left with everything –

two grandkids and a daughter’s coffin.

 

I never really knew him when he was growing up.

But I assumed that it was a little fucked –

no parents for him to look up to –

just a brother whom I knew was a dodgy fuck.

 

Shit!

I used to think he was a dick –

tried too hard to fit,

and never grew out of it

 

Now he don’t talk too much, talk too much

He’s probably given up, given up

I think he’s had enough, had enough

Cause he ran out of luck, out of luck

 

Never left his home town.

That’s what probably did it.

Never saw the other worlds;

he didn’t want to go and get it.

Occupied by fitting in where minds are small,

where small things

make the small kids feel so tall.

 

Will he ever change?

 

Well, apparently

He reapplied for college and was waiting for his grades.

It wouldn’t help his case…

Oh, I couldn’t ever say.

 

Now he don’t talk too much, talk too much

He’s probably given up, given up

I think he’s had enough, had enough

Cause he ran out of luck, out of luck

 

But, wait, my life’s out!

A night out!

Brothers in town.

Sum the doubt:

a few fights now; kicked out clubs…

 

Shit!

The suns up!

 

One look’s all it took

for his girl to cuss another.

 

Dudes being dudes,

they blow at the chest –

to impress these breasts

that’d just started this mess.

 

They must protect the damsel in distress?!

So, other girl’s man decides to clench his fists.

 

And then, he threw and missed.

Brother’s hit.

As did his –

dropped him quick.

Then one kick

to the head…

Oh, shit!

Other man is dead.

 

Now he don’t talk too much, talk too much

He’s probably given up, given up

I think he’s had enough, had enough

Cause he ran out of luck, out of luck

 

And now he’s locked away –

21 years of age.

 

How many lives must go to waste –

fathers’ graves –

until I see some fucking change?

 

Oh!

And I don’t even know why.

We can change it too!

Find one another now!

I want another life!

 

Now he don’t talk too much, talk too much

He’s probably given up, given up

I think he’s had enough, had enough

Cause he ran out of luck, out of luck

Robert Louis Stevenson

From Songs of Travel
(To the Tune of Wandering Willie)

 

Home no more home to me, whither must I wander?

Hunger my driver, I go where I must.

Cold blows the winter wind over hill and heather;

Thick drives the rain, and my roof is in the dust.

Loved of wise men was the shade of my roof-tree.

The true word of welcome was spoken in the door —

Dear days of old, with the faces in the firelight,

Kind folks of old, you come again no more.

 

Home was home then, my dear, full of kindly faces,

Home was home then, my dear, happy for the child.

Fire and the windows bright glittered on the moorland;

Song, tuneful song, built a palace in the wild.

Now, when day dawns on the brow of the moorland,

Lone stands the house, and the chimney-stone is cold.

Lone let it stand, now the friends are all departed,

The kind hearts, the true hearts, that loved the place of old.

 

Spring shall come, come again, calling up the moorfowl,

Spring shall bring the sun and rain, bring the bees and 

flowers;

Red shall the heather bloom over hill and valley,

Soft flow the stream through the even-flowing hours;

Fair the day shine as it shone on my childhood —

Fair shine the day on the house with open door;

Birds come and cry there and twitter in the chimney — 

But I go for ever and come again no more.

 

 

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?!

 I had a great day today. I felt great all day. And it was odd. It was odd to feel so good after a day that felt so bad. I think it was constipation that made yesterday so bad. And the constipation may have had something to do with eating fried chicken four meals in a row. When it ended this morning, all was well!

Anyway, today I really felt more at ease with my thoughts on oral argument. And I came up with an idea – three corners. Or, points. A triangle.

1. We came to federal court because there was no state remedy.
2. We are claiming precisely what defense says we cannot – that defendants’ violation of Florida’s Constitution, specifically Art. IV, §9, Fla. Const., did deprive us of rights guaranteed by the First, Four, and Fourteenth Amendment of the Constitution of the United States.
3. The two most important words for us in this appeal are "custom" and "policy," and the most important question is – "Were defendants enforcing an ordinance or a custom and policy.

Tomorrow’s another day. I hope I can make as much of those points then as I felt I did today.

At another time the heathens wanted to make fun of the Torah, and of the rabbis. They asked one another:

"Are all rabbis as kind as Hillel? Are all Jewish teachers as good as Hillel? Are all rabbis as patient as Hillel?"

So one of them said:

"I shall go and find out." He came to Shammai, also a famous rabbi, and cried:

"Your Torah, your wonderful Torah—I can learn it while I stand on one foot. Rabbi Shammai, you teach it to me while I stand on one foot." You see, he was just making fun of the Torah.

Now what do you suppose Shammai did? Do you think he had patience with a man who was making fun of the Torah? Who ever heard of learning the whole Torah while standing on one foot? The rabbis had spent all their lives in studying the Torah and even then they were not sure that they knew all of it.

Rabbi Shammai took a stick and shouted angrily:

"Get out of here, you scoffer! Do you think I have time to waste on people who mock our holy Torah?"

The heathen ran away. He thought he would go to Hillel and see what Hillel would do.

All out of breath, he came to Hillel’s home. Hillel thought the man had come for something very important. So Hillel said:

"What is the matter, my good man?" And the heathen answered:

"Teach me the Torah while I stand on one foot."

Of course Hillel, too, saw that the heathen was scoffing, but calmly and patiently he said:

"You want to learn a great deal quickly, don’t you? Very well, I shall teach you the Torah while you stand on one foot. This is our Holy Torah: ‘What is hateful to you, do not do unto others.’ "

The heathen forgot that he had come only to jeer.

"Does it mean that the heathens and the Jews and all of us are brothers? Does it mean that we must be kind to one another like brothers?" asked the heathen, wonderingly.

"That’s it, my son. That’s the meaning of the whole Torah. All the rest is only an explanation of that. Go, go, my son. Go and study it," said Hillel kindly.

"When may I come for another lesson?" asked the heathen humbly.

There are alot of things I’ll do just to be like Ellen. I’ll wear a goofy hat. I’ll wear sunglasses. I’ll wear white socks and black shoes. I’ll even shift my weight from one hip to another, all the while maintaining a tight lipped, expressionless, super-spy, poker face. BUT – you’ll never, never see me in a bikini!

Love is patient, love is kind.

It does not envy, it does not boast, it is not proud.

It does not dishonor others, it is not self-seeking, it is not easily angered, it keeps no record of wrongs.

Love does not delight in evil but rejoices with the truth.

It always protects, always trusts, always hopes, always perseveres.

Love never fails.