Petition for a writ of mandamus — In Re Jack R. Finnegan, Petitioner

supreme Court, U S

FILED

DEC 1 4 2020

OFFICE of the CLERk-

No.

JO-133

SUPREME COURT OF THE UNITED

STATES

In re JACK R. FINNEGAN, Petitioner

v.

COURT OF APPEALS, Respondent

PETITION FOR WRIT OF MANDAMUS

OR OTHER APPROPRIATE RELIEF

APPELLATE CASE NO. 19 56360

DISTRICT COURT CASE NO. 8:i9-cv-02110-JLS-

Jack R. Finnegan

Counsel ofRecord

871 Avenida Acapulco

San Clemente, CA 92672

949-492-3837

QUESTIONS PRESENTED FOR REVIEW

The courts have no authority to arbitrarily

impose a misapplication of a legal doctrine to an

action in equity. This elliptical action leads to

incorrect results in classification of actions. None of

the extraordinary powers of a court of equity are

required in order to give relief sought. In classifying

an action as legal or equitable, the court should look

to its substance, i.e. to the nature of the right

involved and the demand for remedy sought.

Rights are such as belonging to every citizen of

the United States by the United States Constitution.

Nowhere in the document filed with the

District court, Request For An Injunction, Pursuant

to 28 USC SS1367(aO, 1657(a), 1746, and FRCP Rule

65(d) and Applicable Provisions of Rule 52(a)(b)(c),

was a demand for damages only equitable relief was

stated.

The Appellate Memorandum apparently was

conceived upon bias and prejudice, as if to say that

acting for oneself, somehow diminishes the United

States or California Constitutional guarantees.

Was Petitioner denied under the Equal

Protection Clause, the 14th Amendment guarantee

that the government must treat a person or class of

persons the same as other persons or classes in like

circumstances?

The ground for equitable relief among others

is intrinsic and extrinsic fraud by preventing a fair

adversary proceeding, which cannot be enforced.

See, Goldberg v. Kelly, 397 U.S. 254 (1970): United

States v. Throckmorton (1878) 98 U.S. 61, 25 L.Ed.

93.

LIST OF PROCEEDINGS

United State District Court, of Equity

Jurisdiction, Case No. 8:i9-cv-02110-JLS, Request

for Injunction, 28 USC 851367(a), 1657(a), and 1746,

FRCP 65(d), and applicable provisions of Rule

52(a)(b)(c). Date of Opinion, November 18, 2019.

United State Court of Appeals, for the Ninth

Circuit, 19-56360,'City of Dana Point, Memorandum,

Date of Order, November 3, 2020.

TABLE OF CONTENTS

Question Presented

List of Proceedings

Table of Contents

Table of Authorities

Basis of Jurisdiction

Constitutional, Statutory Provisions

Federal Questions

Reason for Granting the Writ

Statement of Issues

Conclusion

Prayer

Verification

Certificate of Compliance

i

n

n

IV

vi

vi

vi

Vlll

1

13

15

16

16

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

United States Constitution vi, vii, ix, 1, 2, 12, 13

Article I, Section 10[l]

1

Article III, Section 2[l]

4

Article III, Section 2[2]

1

Article VI, Section [.2]

13

u

Fourth Amendment

13

Fifth Amendment i, vi, viii, 1, 2, 3, 4, 6, 9, 10, 15

Sixth Amendment

12

Ninth Amendment

12

Fourteenth Amendment i, vi, viii, 3, 8, 10, 15

CALIFORNIA CONSTITUTION

California Constitution

Article 1 81

Article 1 83(b)(2)

Article 1 83(b)(4)

Article 1 84

Article 1 87(a)

Article 1 87(b)

Article 1 89

Article 1 813

Article 1 815

Article 1 819(a)

Article 1 819(c)

Article 1 819(e)(3)

Article 1 819(b)

Article 1 824

Article 1 826

Article 1 828(e)

Article 1 828(f)

Article 3 81

Article 4 816(a)

Article 4 816(b)

Article 6 813

Article 11 87

Article 11 813

ix, 3, 12, 15

10, 12

12

10, 12

vi, 10

vi, 10, 12

vi, 12

10, 12

vi, 10

10

vi, 10, 12

12

vi, 12

vi, 10, 12

vi, 12

vi, 10, 12

10, 12

10, 12

10, 12

12

12

10, 12 '

12

12

in

TABLE OF AUTHORITIES, CASES

Armstrong v. United States, 364 U.S.

40, 49 (i960) (Just Compensation)

4,8

Berman v. Parker, 384 U.S.

26 (1954) (Public Use)

9

Bogart v. Chapell, 396 F.3d 548, 555

(4th Cir. 2005) (Clear legal error)

10

Central Vermont Pub. Serv. Corp., v. Herbert

341 F3d 186, 190 (2««* Cir. (2003) (Clear

usurpation of judicial power)

10

Cole v. LaGrange, 113 U.S.

1, 8 (1885) (Public Use)

5

Continental Gas Co., v. Howard, 775 F.2d

876 (7* Cir 1985)> (Real parties)

11

Dolan v. City of Tigard, 512 U.S.

374 (1994) (Taking)

9

FCC v. Beach Communications Inc., 508 U S

307, 313-314 (1993) (Due Process and

Equal Protection)

9

Ferguson, 852 P2d at 207 (Direct Invasion) 8

First English Evangelical Lutheran

Church v. County ofLos Angeles, 482 U.S.

304 (1987) (Due Process)

9

Frothingham v. Mellon, 262 U.S.

447 (1923), (Jurisdiction)

3, 10

Goldberg v. Kelly, 397 U.S. 254 (1970)

(Trial type hearings)

i, 1, 12

Gonzalez V. Crosby, U.S. 125 S. Ct.

2641, 2646 Lm. 2d. (2005) (Exception To

Finality)

12

Gonzales v. Raich, [citation omitted] (Taking)

3

Hawaii Housing Authority v. Midkiff 467 U S

229, 241, (1984) (Public Use)

9

IV

Henry v. Mississippi, 379 U.S. 443 (1965)

14

In re Jessup, (1889) 81 C. 408, 21 P. 976, 22

P. 742, 22 P. 1028. (Errors of law)

11

Jacobs v. United States, 290 U.S. 13 (1933),

quoted in, Cotton Land Co. v. United States,

109 Ct. Cl. 816 (1948) (Taking)

2

Marhury v. Madison, 1 Cranch 137, 174

(1803) (Public Use)

5

Missouri Pacific R. Co. v. Nebraska, 164 U.S.

403, 417 (1896) (Public Use)

5

Monongahela Nav. Co. v. United States,

148 U.S. 312, 325 (1893) (Just Compensation)

4

Mulger v. Kansas, 123 U.S. 623 (1887)

8

Muskrat v. United States, 219 U.S. 346

8

(1911) (Real Party in Interest)

Myers v. United States, 272 U.S. 52, 151

(1926) (Public Use)

5

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)

(Ripe for Review)

9

Sabri v. United States, 541 U.S. 600, 613

(2004) (Taking)

3

San Diego Gas & Electric Co. v. City ofSan

Diego, 450 U.S. 621, 638 n.2 (1981) (Taking)

8

Servants ofParaclete v. Does, 204 F.3d 1005,

1012 (10th Cir. 2000) (Misunderstood controlling

law)

11

Thompson v. Consolidated Gas Util. Corp., 300

U.S. 55, 80 (1937) (Public Use)

5

United States v. Clarke, 445 U.S.

253, 257 (1980) (Taking)

8

United States v. Cress, 243 U.S. 316, 328,

37 S. Ct. 380, 385 (Direct Invasion)

8

United States v. Throckmorton (1878) 98 U.S.

61, 25 L. Ed. 93 (Jurisdiction)

i, 1, 12

Wellenkamp v. Bank ofAmerica, 21 Cal. 3d 043

947, 582 P. 2d 970, 972 (1978), (Must plead

facts)

11

Williams v. Georgia, 349 U.S. 375, 399 (1955)

Williamson v. Lee Optical of Okla., Inc., 348 U.S.

483 (1955) (Due Process and Equal Protection)

9

Yee v. Escondido, 112 S. Ct. 1522 (1992) (Taking) 3

28 USC 1651(a)

28 USC 1652

10

California Civil Code, 3422(l)(2)(3) &3482

12, 15

California Code of Civil Proceed., 526(a)(l)(2) 12

BASIS OF JURISDICTION

The basis of jurisdiction issuance by the Court of an

extraordinary writ is authorized by Article III,

Section 2[l], 28 USC 681292(a)(1), and 1651(a).

CONSTITUTION STATUTORY PROVISIONS

Fifth Amendment, , Deprived of Property, Due

Process of Law, Property taken for public use

without just compensation.

Fourteenth Amendment, No State shall make or

enforce any law which shall abridge the privileges or

immunities, life, liberty, or property without due

process of law, nor deny equal protection of the laws.

CALIFORNIA CONSTITUTION

Article 1 84, deprived of property without due process

of law.

Article 1 87(a), Due process or equal protect of laws.

Article 1 87(b), Invidious Discrimination.

vi

Article 1 §13, Unreasonable seizures.

Article 1 519(a), Private property may not be taken,

without compensation, ascertained by a jury.

Article 1 519(b), Eminent domain, owner occupied,

for the purpose of conveying it to a private person.

Article 1 519(e)(3), Owner occupied residence

includes independent living facilities.

Article 1 524, Rights guaranteed, not dependent on

the United States Constitution.

Article 1 526, These Provisions are mandatory and

prohibitory.

FEDERAL QUESTIONS RAISED

The Federal question of the United States

Constitution, and Federal Statutes were raised in

each and every court proceeding by Motions, Opening

Briefs, and Reply Briefs.

Vll

REASON FOR GRANTING THE WRIT

The decisions by the lower courts in the

unsupportable wisdom of the departure of

established Constitutional guarantees and laws

established by the United States Constitution and

United States Supreme Court, and contributed to

the irreparable injury caused by Taking, and the

miscarriage of justice.

Published decisions has precedential effect,

pursuant to the Doctrine of Principles of law.

Mandate will lie where it appears judicial discretion

could be exercised in only one way, and where the

Appellate Court is under a duty to' act in a particular

way but refuses to do so and where the facts support

only one decision. A. writ of mandate issues to

correct an abuse of discretion or compel the

performance of a duty. There is no other adequate

remedy in the ordinary course of law.

This petition involves one or more questions of

exceptional importance, the panel’s decision conflicts

with the authoritative guarantees of the United

States Constitution and that of published decisions

of the United States Supreme Court and every other

United States Court of Appeals that has addressed

the issue.

It is necessary to resolve this issue promptly,

because it constitutes exceptional circumstances

warranting writ review, and to grant immediate writ

review in the interest of decided law. The Official

Record supports the substantial evidence of the

Taking, and the sale to another private person.

Interests comprehended within meaning of

either “liberty” or “property” under procedural

viii

guarantees of the due process clause of the Fifth and

Fourteenth Amendment include interests that are

recognized and protected by state law, and interests

guaranteed in one of the provisions of the Bill of

Rights which have been incorporated into the Fifth

Amendment; “nor he deprived of life, liberty, or

property, without due process of law, nor shall

private property be taken for public use, without just

compensation.” See, Paul v. Davis, 424 U. S. 693 47

S. Ct. 1155, 32 L Ed. 2d 405 (1976).

The self-enforcing desistance of Article III,

Section 2[l], authorized “The Judicial Power shall

extend to all Cases, in law and Equity, arising under

this Constitution, the laws of the United States”, the

principles of federalism still have weight. See, Rizzo

v. Goode, 423 U.S. 362, 46 S. Ct. 598, 40 L. Ed. 2d

561 (1976).

Extraordinary circumstances justify federal

judicial intervention exist where there is a threat of

irreparable injury which is both great and

immediate. See, Mitchumv. Foster, 407 U. S. 225,

92 S. Ct. 2151, 32 L Ed. 2d 705 (1972). Where there

is a showing of bad faith or harassment by state

officials, or where the commencement and carry out

of a legal action has been undertaken without hope of

obtaining a valid judicially sound result where the

proceeding is flagrantly and patently violative of

expressed constitutional prohibitions, or where there

are other extraordinary circumstances in which the

necessary irreparable injury can be shown. Kuglerv. HeIfant, 407 U. S. 117, 95 S. Ct. 1524, 44 L Ed. 2d

15 (1975). Middlesex County Ethics Committee v.

Garden State Bar Assn 457 U.S. 423, 102 S. Ct.

2515, 73 L. Ed. 2d 116 (1982).

IX

The Petition for Writ of Mandamus should be

granted because the illegal Order involves several

clauses of violations of the United States

Constitution, and several clauses of violations of the

California Constitution and several violations of

Federal and California State Statutes. This was a

clear case of Government Overreaching, intrinsic and

extrinsic fraud, and an illegal taking of personal and

real property, and substantial denial in the interest

of justice. These are compelling reasons because the

Orders decided important federal questions and has

departed from accepted and usual course of judicial

procedure as to call for an exercise of this Courts

supervisory power, to correct a miscarriage of justice.

The granting of the writ will be in aid of the

Court’s appellate jurisdiction, that exceptional

circumstances of Constitutional guarantees being

violated, warrant the exercise of the Court’s

discretionary powers, and that adequate relief cannot

be obtained in any other form or from any other

court.

Jack R. Finnegan purchased the subject

property in 1963, designed the home, (Licensed

Architect), built the home, permit #B05994 and

#B00126 (Licensed General Contractor), prior to the

City ever existing, (26 years), made timely mortgage

and property tax payments for over 52 years, had the

property illegally taken on 12/1/14 without one cent

being deposited with the court and the property was

sold to a private individual, on 3/23/17 a violation of

Federal and State Constitutions.

x

MAY IT PLEASE THE COURT

STATEMENT OF ISSUE

Was Petitioner denied his historical basis and

inalienable right to decide matters in equity?

An injunction is a typical form of equitable

relief sought for an action arising out of a tort against

violations of persona l rights established by the United

States Constitution,

The United States Constitution guarantees the

fights, power, privilege, or immunity and Due Process

and Equal Protection.

These Rights are such as belonging to every

citizen of the United States by the 4th, 5th, 9th, and

14th, Amendments, prior to the infringement of

individuals’ rights and entitlements? Notable, in

Goldberg v. Kelly, 397 U.S. 254 (1970).

The ground for equitable relief among others is

fraud by preventing a fair adversary proceeding,

which cannot be enforced.

United States v.

Throckmorton (1878) 98 U. S. 61, 25 L. Ed. 93.

Was Petitioner (hereinafter Finnegan) denied

his United States Constitutional rights under Article

I, Section 10[l], Article III, Section 1, Article III,

Section 2[l], and Article III, Section 2[2] of the United

States Constitution as it relates to this proceeding?

The simple fact is the City violated several

fundamental rights, (The Public Use and the Taking

Clauses) of both Constitutions, took private property

from Finnegan, and gave it to another private party,

and took not legally justified unjust enrichment.

-1-

The Taking clause is a prohibition, not a grant

of power, the Constitutions both the United States

and California does not expressly grant the

government the power to take property for any

purpose whatsoever, and thereby invades individuals’

traditional rights in real and personal property, “To

lay hold of! to gain or receive into possession; to seize."

to deprive one of the use or possession of to assume

ownership is a Taking.”

The Constitution provides that a man’s

property shall not be taken for public uses without

just compensation. Fifth Amendment of the United

States Constitution. Property may be deemed “taken”

within the meaning of these constitutional provisions

when it is totally destroyed or rendered valueless, or

in connection with an actual taking or when there is

interference with the use of property to owner’s

prejudice, with resulting diminution in value thereof.

A “Taking” has occurred when an entity clothed with

power of eminent domain substantially deprives

owner of use and enjoyment of his property “Taking”

of property within the Consti tution is not restricted to

mere change of physical possession but includes

permanent or temporary deprivation of use to owner

if such deprivation amounts to abridgement by reason

of state of lawful rights of ind ividual to possession , use

or enjoyment of his land.

It is well settled that all Taking claims are

under the Constitution. See, Jacobs v. United States,

290 U.S. 13 (1933), quoted in, Cotton Land Co. v.

United States, 109 Ct. Cl. 816 (1948).

-2-

The Government may take property only when

necessary and proper to the exercise of an expressly

enumerated power. For a law to be within the

Necessary and Proper Clause, it must be an “obvious,

simple, and direct relation” to an exercise of Congress

enumerated powers, Sabri v. United States, 541 U.S.

600, 613 (2004), and must not “subvert basic

principles of constitutional design, Gonzales v. Raich,

[citation omitted] in other words, a taking is

permissible under the Necessary and Proper Clause

only if it serves a valid public purpose. See, Yee v.

'Escondido, 112 S. Ct. 1522 (1992) The Taking practice

largely bears out this understanding of the Public Use

Clause of the Fifth Amendment (adopted in 1868) and

the California Constitution (adopted in May 7, 1879)

Article 1, Section 19(a) and 19(b), and the limits of the

Fourteenth Amendment of (adopted in 1868).

In Frothingham v. Mellon, 262 U.S. 447 (1923),

a unanimous Supreme Court held that the proceeding

“must be disposed of for want of jurisdiction” because

the City “has no such interest in the subject-matter,

nor is any such injury inflicted or threatened, as will

enable the City to sue”.

Chief Justice Burger added; “To permit a

petition who has no concrete injury to require a court

to rule on important constitutional issues in the

abstract would create the potential for abuse of the

judicial process, distort the role of the Judiciary.

Though citizens might allege “an arguable conflict

with some limitation of the Constitution, it can only

be a matter of speculation whether the claimed

-3-

violation has caused concrete injury to the

particular complainant.” The fact that there was

genuine adverseness between the parties, assuring

able arguments, was not enough to justify recognition

of standing. Justice Stewart added, “Standing is not

found wanting because an injury has been suffered by

many, but rather because none of the petitioners has

alleged the sort of direct, palpable injury required for

standing under Article III of the Constitution. Justice

Douglas emphasized two ingredients of standing: (i)

The Article III requirement that the challenged action

Caused the petitioner “injury in fact” They were found

to lack standing —because theirs was not a “legal

injury.”

It has long been accepted that the sovereign

may not take the property of ”A” for the sole purpose

of transferring it to another private party “B”, even

though “A” is paid just compensation.

To reason that the incidental public benefits

from the subsequent ordinary use of private property

render Taking for public use, is to wash out any

distinction between private and public use of property,

and thereby effectively to delete the words for public

use from the Taking Clause of the Fifth Amendment.

The Taking must be for a public use and just

compensation must be paid to the owner.

The just compensation requirement spreads

the costs of condemnations and thus prevents the

public from loading upon one individual more than his

just share of the burdens of government.

Monongahela Nav. Co. v. United States, 148 U.S. 312,

325 (1893); see also Armstrong v. United States, 364

U.S. 40, 49 (i960). The public use requirement, in

-4-

turn, imposes a more basic limitation,

circumscribing the very scope of the eminent domain

power: Government may compel an individual to

forfeit his property for the public’s use, but not for the

benefit of another private person.

A purely private purpose scrutiny of the public

use requirement; it would serve no legitimate purpose

of government and would thus be void. Court cases

have repeatedly stated that one person’s property may

not be taken for the benefit of another private person

without a justifying public purpose, even though

’compensation be paid. Thompson v. Consolidated Gas

Util. Corp., 300 U.S, 55, 80 (1937); see also Missouri

PacificR. Co. v. Nebraska, 164 U.S. 403, 417 (1896).

Marbury v. Madison, 1 Cranch 137, 174 (1803);

Myers v. United States, 272 U.S. 52, 151 (1926); Cole

v. LaGrange, 113 U.S. 1, 8 (1885).

When the

government takes property and gives it to a private

individual, and the public has no right to use the

property, it strains language to say that the public is

employing the property. The term public use then,

means that either the government or its citizens as a

whole must actually employ the taken property. The

Constitution’s text, in short, suggests that the

Takings Clause authorizes the taking of property only

if the public has a right to employ it, not if the public

realizes any conceivable benefit from the taking. The

Public Use Clause, in short, embodied the Framers’

understanding that property is a natural,

fundamental right, prohibiting the government from

taking property from A. and giving it to B.

It is equally clear a City may transfer property

from one private party to another if future “use by the

-5-

public” is the purpose of the Taking. The City would

be forbidden from taking Finnegan’s property for the

purpose of conferring a private benefit on a particular

private party; it would serve no legitimate purpose of

government and would thus be void. Nor would the

City be allowed to take property under the mere

pretext of a public purpose, when its actual purpose

was to bestow a private benefit and the Taking was an

illegitimate purpose,

Other polar propositions

encompassing regulations that compel the property

owner to suffer a physical invasion of his property, no

matter how minute the intrusion, and no matter how

weighty the public purpose behind it, we have

required compensation. The other polar propositions,

is where regulation denies all economically beneficial

or productive use of the property.

The Fifth

Amendment is violated when regulation “does not

substantially advance legitimate state interests or

denies an economically viable use of his property.”

The Federal Courts frequently expressed belief

that when the owner of real property has been called

upon to sacrifice all economical beneficial use, he has

suffered a Taking.

Where permanent physical occupation of

property is concerned, the Courts have refused to

allow government to decree it anew (without

compensation), no matter how weighty the asserted

public interest involved similar treatment must be

accorded confiscatory actions that prohibit all

economically beneficial use of property.

Any

limitation so severe cannot be decreed (without

compensation). A law or decree with such an effect

must, do no more than duplicate the result that could

have been achieved in the courts.

-6-

The total Taking will ordinarily entail (as the

application of state nuisance law ordinarily entails)

analysis of the degree of harm to adjacent private

property. The fact that a particular use has long been

engaged in by similarly situated owners ordinarily

imports a lack of common-law prohibition, so also does

the fact that other landowners, similarly situated, are

permitted to continue the use, denied to Finnegan.

The City must identify background principles of

nuisance and property law that prohibit the uses in

which the property is found. Only on this showing can

'the City fairly claim the act is harmful or injurious to

its citizens or the community and is taking nothing,

and that it is not relying on an implausible state trial

court finding. The court has the power to decide a case

that turns on an erroneous finding unless the use

prohibited by the City is a background common-law

nuisance or property principle. The City may not

require a property owner to give up a constitutional

right, when no legitimate state interest exist. If the

City cannot demonstrate that its action is directly

proportional to the specifically legitimate state

interest, the action becomes a veiled exercise of the

power of eminent domain and a confiscation of private

property behind the defense of police regulations.

The distinction must be made between an

appropriate exercise of police power and an improper

exercise of a Taking is whether the requirement has

some reasonable relationship or nexus to the use to

which, the property is being made or is merely being

used as an excuse as an exercise for taking property.

The City must make some sort of individualized

determination that the action is

-7-

justified while Finnegan is defending hearth and

home against the king’s intrusion.

Taking of the entire parcel denied all viable

economic and productive use of property gives rise to

an unqualified obligation to compensate for value of

property, whenever government physically takes

property. No subsequent action by government can

relieve it of the duty to provide just compensation.

Interest in protecting individual property

owners from bearing public burdens which, in all

fairness and justice, should be borne by the public as

a whole. Armstrong v. United States, 364 U.S. 40 [438

U.S. 104, 124 49] (1960).

Due Process Clause of the 14th Amendment

. bars state governments from depriving people of their

property without due process of law. The first Clause

prevents government from depriving a person of

property without due process of law. It applies to any

deprivation of property, not just takings for public

purposes. The second prevents the government from

taking private property without just compensation.

The due process Clause of the 14th, Mugler v. Kansas,

123 U.S. 623 (1887).

They were the product of a direct invasion of

Finnegan’s domain as stated in United States v.

Cress, 243 U.S. 316, 328, 37 S. Ct. 380, 385; Ferguson,

852 P2d at 207 it is the character of the invasion.

Taking (or damaging) of property without just

compensation. San Diego Gas & Electric Co. v. City of

San Diego, 450 U.S. 621, 638 n.2 (1981), United States

v. Clarke, 445 U.S. 253, 257 (1980).

We are asked to hold that state courts and state

legislatures have deprived their own citizens of life,

liberty, and property without due process of law. First

-8-

English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304 (1987).

The Supreme Court in Dolan v. City of Tigard,

512 U.S. 374 (1994), that a Taking had occurred when

the City did not show that any reasonable relationship

for public access for the Taking.

The Supreme Court in Palazzolo v. Rhode

Island, 533 U.S. 606 (2001), held that a Taking Claim

can be ripe for review if the owner did everything, he

could reasonable and necessary to avoid the loss, and

how much use and value may be destroyed before Just

Compensation is due. The Taking Clause is to prevent

the government from “forcing some people alone to

bear public burdens which, in all fairness and justice,

should be bourn by the public as a whole.

The United States Supreme Court has

established a number of tests under which a state

regulation constitutes a Taking per se. These are

physical invasion denial of all economical viable

private property uses among others.

The Public Use Clause of the United States

Constitution, Fifth Amendment, and stated in Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 241,

(1984) see also Berman v. Parker, 384 U.S. 26 (1954).

This differential standard of review echoes the

rational-basis test used to review economic regulation

under the Due Process and Equal Protection Clauses,

see e.g. FCC v. Beach Communications Inc., 508 U.S.

307, 313-314 (1993); Williamson v. Lee Optical of

Okla., Inc., 348 U.S. 483 (1955). A court confronted

with a plausible accusation of impermissible

favoritism to private parties must treat the objection

-9-

as a serious one and review the record. Undetected

impermissible favoritism of private parties is so acute

that a presumption of invalidity is warranted under

the Public Use Clause.

Legal missteps of the City that leads to the

conclusion this court must reach, is that the Taking

was a violation of the United States Fifth and

Fourteenth Amendments, and pursuant to 28 USC

81652, the California Constitutions of Article 1

Section 1, Article 1, Section 3(b)(4), Article 1 Section

4, Article 1, Section 7(a), Article 1 Section 9, Article 1,

Section 13, Article 1 Section 15, Article 1, Section

19(a), Article 1 Section 19(b), Article 1, Section 26,

Article 1 Section 28(e), Article 1, Section 28(f), Article

3 Section 1, Article 6, Section 13.

FACT & LAW.

The Official Record

demonstrates that no 30'day Notice was ever sent or

filed in any court, without this 30-day Notice being

given to Finnegan, there can be no declared nuisance.

Bogart v. Chapell, 396 F.3d 548, 555 (4th cir. 2005)

[Clear legal error],

FACT. The Official Record demonstrates that

there was no condition of disrepair, or substandard,

the house and the property located at 12546

Manzanita Drive, Dana Point, has always been

maintained in perfect condition. Central Vermont

Pub. Serv. Corp., v. Herbert, 341 F3d 186, 190 (2nd Cir.

(2003) [Clear usurpation of judicial power]. The

Official Record demonstrates that there was no

condition harmful to health, or indecent or offensive

to the senses, or a loss of enjoyment of life.

FACT & LAW.

The Official Record

demonstrates that when the City filed the Petition

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against Finnegan and not the Property, the City

waived its right to assert a nuisance or other police

power. Continental Cas Co., v. Howard, lib F.2d 876

(7th Cir. 1985), [Real Parties]

FACT & LAW.

The Official Record

demonstrates that the City was not harmed, See,

Frothingham v. Mellon.

FACT & LAW.

The Official Record

demonstrates that no offensive situation or activity

met the legal definition of a nuisance. In re Jessup,

(1889) 81 C. 408, 21 P. 976, 22 P. 742, 22 P. 1028.

[Errors of law].

FACT & LAW.

The Official Record

demonstrates

that

unsubstantiated

alleged

accusations were never filed in any court of law, or

adjudicated in any court of law. Wellenkamp v. Bank

of America, 21 Cal. 3d 043, 947, 582 P. 2d 970, 972

(1978), [Must plead facts].

FACT & LAW.

The Official Record

demonstrates that there was no perceptible injury

caused by Finnegan, and allegations of perceptible

injury cannot create a cause of action where none

exists, that expansion of the law in this area would

have the undesired effect of fostering ill will and a

proliferation of litigation, In the absence of an

unlawful act, a landowner’s right to use his property

lawfully is a fundamental precept of a free society this

would clearly extend the statute to absurd

proportions. Servants of Paraclete v. Does, 204 F.3d

1005, 1012 (10th Cir. 2000) [Misunderstood controlling

law].

-11-

FACT & LAW.

The Official Record

demonstrates that the City never had no right, title,

estate, or interest in, or to the aforementioned real

property, or any part or portion thereof.

FACT & LAW.

The Official Record

demonstrates that there was no injunction filed which

is expressly authorized where it appears that a party

is doing an act that violates the rights of another

party. The City could not provide evidence pursuant

. to Cal. C.C. $3422(1)(2)(3), or CCP S526(a)(l)(2), that

an injunction was necessary, or that the City was

■entitled to any relief. United States v. Throckmorton,

(1878) 98 U.S.61, 25 L. Ed. 93.

FACT & LAW.

The Official Record

demonstrates that there was a violation of the Sixth

Amendment of the United States Constitution and

Articles 1 Section 15, 24, 26, and 28(f), of the

California Constitution. Gonzalez V Crosby, U.S. 125

S. Ct. 2641, 2646 L .Ed. 2d. (2005), [Exception To

finality].

FACT & LAW.

The Official Record

demonstrates that there was a violation of the Ninth

Amendment of the United States Constitution and

Articles 1 Section 1, 3(b)(2), 3(b)(4), 4, 7(a), 7(b), 9,

19(a), 19(b), 19(c), 19(e)(3), 24, 26, 28(e), 28(f), Article

3, Section 1, Article 4, Sections 16(a), 16(b), Article 6,

Section 13, Article 11, and Sections 7, 13. of the

California Constitution. Goldberg v. Kelly,j397 U.S.

254 (1970) [Trial type hearings].

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CONCLUSION

Where the validity of a State statute is

sustaining a ruling repugnant to the United States

Constitutions and laws, and California Constitution,

or where any title, right, privilege or immunity is

specially set up or claimed under the Constitution,

treaties or statutes of, or commission held or authority

exercised under, the United States, and the decision

is in favor of its validity. When the state courts

nevertheless enforced its action, its action constituted

“an affirmation of its validity when so applied. United

States Constitution, Article VI, Section [2],

Supremacy Clause.

Jurisdiction was broadened in 1914, when

review was for the first time extended to assurance of

greater uniformity in federal law interpretation, not

simply assurance of federal supremacy, thus became

a major goal of the review statute.

The federal power over state judgments is to

correct them to the extent that they incorrectly

adjudge federal rights. United States Constitution,

Fourth Amendment.

In constitutional litigation, the most common

example of an independent and adequate state

substantive ground is a state court ruling that a state

ruling violates both the state and federal

constitutions.

Justice Clark’s dissent in Williams v. Georgia,

349 U.S. 375, 399 (1955), “A purported state ground is

not independent and adequate in two instances. First,

where the circumstances give rise to an inference that

the state is guilty of an evasion—an interpretation of

state law with the specific intent to deprive a litigant

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of a federal right and where the state court decision

lacked fair support in the state law. Second where the

state law, throws such obstacles in the way of

enforcement of federal rights that it must be struct

down as unreasonably interfering with the

vindication of such rights ” In Henry v. Mississippi,

379 U.S. 443 (1965), suggested that state procedural

grounds are subject to broader Supreme Court

reexamination than state substantive grounds.

Justice Brennan’s majority opinion stated “that a

litigant’s procedural defaults in state proceedings do

not prevent vindication of his federal rights unless the

State’s insistence on compliance with its procedural

rules serves a legitimate state interest. In every case

we must inquire whether the enforcement of a

procedural forfeiture serves such an interest. If it

does not, the state procedural rule ought not be

permitted to bar vindication of important federal

rights.”

Where a state court has decided a federal

question of substance not theretofore determined by

this court, or has decided it in a way probably not in

accord with applicable decisions of this court. Where

a court of appeals has rendered a decision in conflict

with another court of appeals on the same matter; or

has decided an important question of federal law

which has been settled by this court; or has decided a

federal question in a way in conflict with applicable

decisions of this court; or has so far departed from the

accepted and usual course of judicial proceedings, or

so far sanctioned such a departure by a lower court, as

to call for an exercise of this court’s power of

supervision.

•14-

The City cannot state a cause of action for

nuisance under California law, and does not give rise

to a heightened duty of care, Cal. C.C. S3482, Acts

Authorized by Law, therefore this court must find that

the action by the City was a Taking.

Since the matter has been fully briefed,

however, thereby demonstrating that there is

absolutely no factual basis for a nuisance cause of

action, and since no prejudice results to the City, this

Court must find that the City violated the Fifth and

Fourteenth Amendments, of the United States

Constitution and numerous California Constitutional

violations, and there was a Taking.

PRAYER

Writ of Mandamus should issue, that property

at 25146 Manzanita Drive, Dana Point, be returned in

the exact condition when Taken, free and clear of

encumbrances, restitution of all property rights, all

personal property be returned, California Prop. 13, be

reinstated, the I.R.S. credit for sale of home be

reinstated, the illegal placed fire hydrant be removed,

all retaining walls that existed be replaced. All orders

granted to the City, and others of any fees or costs be

reversed. Expungement of the illegally placed Lien on

the San Clemente property, of all lis pendens and

expungement of all abstract judgments.

Dated: December J_L, 2020

Jack R. Finnegan

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