wordsworth

The opening and only line in Robert Redford’s meditation on "being" – All Is Lost – really is the essence of "last words:"

13th of July, 4:50 pm. I’m sorry. I know that means little at this point, but I am. I tried, I think you would all agree that I tried. To be true, to be strong, to be kind, to love, to be right. But I wasn’t. And I know you knew this. In each of your ways. And I am sorry. All is lost here, except for soul and body, that is, what’s left of them, and a half day’s ration. It’s inexcusable really, I know that now. How it could have taken this long to admit that I’m not sure, but it did. I fought till the end. I’m not sure what that is worth, but know that I did. I have always hoped for more for you all. I will miss you. I’m sorry.

Today I took a look at the calculus book. It is pretty helpful. I tried to look through the chapter on derivatives to see if any of it made sense. I looked at the problems first, which probably was not the best idea, so of course I had no idea what they were asking me to solve. I mean I knew what the equations where saying, I could understand the notation and such, but when I went to check my answers they were not right and I could not understand why I got them wrong. So then I went back to the previous chapter to see what that was about. Chapter  1: Introduction to Calculus, 1.5: A review of trigonometry. I took a lot of notes on the chapter. Read it a few times. And then did some of the homework problems. They went ok, but I think I still have to work on them. I did not do that many problems. Now I have more to do. Which is great because I still may not understand it? I am not sure. But anyway I will start working on it again tomorrow and see how far I get. First the video and then the book and then the homework problems. Seems like a great plan to me.

And now for some math jokes that I recently heard and thought where funny:

Q: What did one math book say to the other?

A: Don’t bother me I’ve got my own problems!

Q: What do you call a number that can’t keep still?

A: A roamin’ numeral

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?

John Harrison of the University of Virginia in his 1997 Virginia Law Review article Substantive Due Process and the Constitutional Text compares the text of the Due Process Clauses in the Fifth and Fourteenth Amendments to the decisions of the U.S. Supreme Court and several State supreme courts. His conclusion is that the text of the Due Process Clauses does not explain any of these decisions or the courts’ evolving theory of substantive due process; substantive due process flows from a source other than the text of the Fourteenth Amendment.

To define what substantive due process is, Harrison defines in brief what it is not – it is not either of two types of procedural due process. The first type of procedural due process requires that judges and executive officers "follow the rule of law" – any deprivation of life, liberty, or property must be "in accordance with established law." Procedural due process, per Harrison, also requires the "rule of law" be fair.  Harrison concedes this second type of procedural due process – fairness – is an attack on the substance or content of legislated procedure but distinguishes this (without immediate explanation) from substantive due process which attacks the substance or content of other types of legislation.

… I must end this post without completing it.

Ultimately, I disagree with Harrison’s premise that the Fourteenth Amendment is superfluous. Harrison concludes that the large body of constitutional common law the Supreme Court claims is grounded in the Fourteenth Amendment’s due process and equal protection clauses is better understood by reference to other fundamental elements of the Constitution.

I believe the Fourteenth Amendment’s use of the word "person" does something that the other fundamental elements of the Constitution do not – I believe the use of the word "person" removes from dispute that the restraints elsewhere in the Constitution – clearly applicable to conflicts between the States and the Union, and between the branches of the federal government – are also applicable to conflicts between a person and her government.

I sent Harrison an email (2/19/14) asking if the word "person" – a word he never included in his textual analysis – changed his conclusion. I haven’t heard from him (2/25).

Dowling, in Cases on Constitutional Law, concludes his review of Marbury v. Madison by drawing this quote from Massachusetts v. Mellon:

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. Gaines v. 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.

In sum, the Court can only require either the Legislature or Executive to do what they have a ministerial duty to do.

There’s a low tech way to determine and set the level of a floor in preparation for the application of a "self" leveling poly/concrete mixture.

• Place a couple free-standing poles at either end of the floor.
• Stretch a string taut between them at any height.
• Level the string with a string-level.
• Measure the height of the string along its entire course; the difference in each measurement will pinpoint the precise depth or height off level below the string.
• Mark high spots.
• In low spots place a screw in the floor at the height required of level. 

Parratt v. Taylor, 451 US 527 (1981). The Supreme Court’s decision in Parratt is not directly referenced in any of the documents filed in Foleys v. Orange County. It is referenced only indirectly through cases the Court cites in its orders 150 and 290: Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985); Fetner v. City of Roanoke, 813 F.2d 1183 (11th Cir. 1987); Soldal v. Cook County, Illinois, 506 U.S. 56 (1992); and, McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994).

Parratt, a prison inmate, claimed he was negligently deprived of property (a hobby kit) by employees of a Nebraska prison who failed to properly follow the prison’s mail handling procedure. The Court decided that because the deprivation was "random and unauthorized", the Court could not require a pre-deprivation hearing, but only a post-deprivation hearing.

The last post [oh darling] was made January 2011! Wow. Nearly two years ago. I know what happened … kind of … at least on my end. The theme got behind the WordPress upgrades, and a strange greek code began leaking out onto every page of the blog. So, I just gave up for awhile. I didn’t try to fix it. I didn’t post. I just changed my priorities. And then – not long ago – I returned to update when the Diary-Cute theme and WordPress were ready to sync. And today I’ve returned again to make this post.

Cuttings of the stems of most evergreen azaleas can be rooted rather easily. Use new growth for the cuttings, at any time from June onwards, depending on the weather and the variety of azalea. The exact timing depends on the condition of the cutting wood, which should be somewhere between soft and brittle: it should not bend like rubber, and it should not snap like a matchstick. At the proper time, it will probably be putting out a new terminal bud.

Take cuttings from the short shoots that come from the ends of existing wood, not the strong thick shoots that come from the base of the plant. Cut them two to five inches long, preferably in the morning, and preferably from a well-watered plant in good condition.

Cut off all but the top cluster of leaves, or carefully strip them off without also removing the tender bark. If the terminal leaves are quite large, consider cutting them in half. If the cuttings will not be stuck immediately, moisten them, shake off the excess water, put them in a plastic bag and put the bag in a refrigerator. Some people think overnight refrigeration is preferable to sticking them immediately.

When you are ready to stick the cuttings, wound the bottom half inch or so of each cutting by scraping off the bark with a knife or thumbnail. You can optionally use a rooting hormone. With a liquid hormone such as Wood’s, use a 5% solution (mix 1 part of the hormone with 20 parts of water), and put the bottom inch of the cutting in the liquid for no more than 5 seconds. If the solution is stronger or the immersion is longer, you may burn the cutting and it will not root. A talc-based rooting powder such as Hormodin or Rootone is safer to use. Put the bottom inch of the cutting in the powder and shake off the excess. In general, evergreen azaleas root well without any hormone.

The most commonly used rooting medium is 50/50 peat and perlite, although various other mixtures of peat, coarse perlite, sand, fine pine bark and vermiculite are used. The goal is to provide both moisture and oxygen. The medium should be from four to six inches deep, and may be in a flat for large quantities, or a one gallon pot for up to a dozen or so cuttings. Prepare it a few days before you will use it, and water it several times to moisten it well. Leave the medium loose to promote drainage and aeration.

If planting in a flat, use a straight-edge to prepare each row. Lay the board on top of the medium and use a knife to cut a two- to three-inch deep line along the edge of the board. Insert the cuttings into the cut every two to four inches, depending on the size of the cuttings and how long you intend to leave them in the flat. Move the board, cut a new line, insert more cuttings, and so on. In a pot, use a large nail or a pencil to make a hole for each cutting. Use a consistent convention for labeling the cuttings, such as a pot label at the beginning of each row, or a pot label at the beginning of the cuttings for each different kind of azalea.

After sticking the cuttings into the medium, water them in to settle the medium around the cuttings, preferably without wetting the leaves. Then cover the flat or pot with plastic to seal in the moisture. A large zip-lock bag works well with a one gallon pot, and a plastic tent can be made for a flat. Finally, put the flat or pot where it will get as much light as possible, with no direct sunlight. While brief exposure to early morning or late afternoon sun is not harmful, strong daylight sun will heat the enclosure and burn up the cuttings.

The cuttings should root in four to eight weeks. Be patient. While a very gentle tug can indicate progress, it can also break off any initial roots before they get established. When the cuttings have rooted, the enclosure should be gradually opened a little to acclimate the cuttings, and opened entirely in a few more days. Finally, transplant the rooted cuttings to pots or flats of peat moss, sand and leaf mold and keep them from freezing temperatures in a greenhouse or cold frame for at least one year.

Cuttings of deciduous azaleas are more difficult to root. The first problem is rooting them at all, and the second problem is getting them to break into new growth after they have grown some roots. The general procedure is the same as for evergreen azaleas. The differences start with the cuttings, which should be taken earlier, while the wood is still quite soft and green, usually around late May. They will require the use of a rooting hormone. While a stronger rooting hormone will increase their chances of rooting, it makes it harder to get them to break dormancy and go into active growth.

The cuttings will do best in a greenhouse with bottom heat from electric heat cables at around 75 degrees F, and with a mist system during the day to ensure they get all the moisture they can use. However, they can also be rooted under plastic as described for evergreen azaleas.

As soon as they have rooted, the cuttings should be fertilized with half strength liquid fertilizer and given three to four hours of extra light through the summer to force them into active growth. Use 75 watt incandescent bulbs or a mix of incandescent and flourescent bulbs, as close as possible to the cuttings without burning them, which is about 6 inches away. In late September, stop the extra light to let the cuttings harden off for the winter. Do not disturb their roots until they begin to grow the following spring, at which time they may be potted up or moved to a bed in the garden.

D: I’d like to borrow the book and CD set after you’ve listened to it. OK? Jen