Petition — Rose v. Bradley

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Supreme Court, U. &

——— ne,

FILED. |

SEP 6 1979

IN THE Mic ™s

SUPREME COURT OF THE UNIT#&S— SAK, JR., BLERK

OCTOBER TERM, 1978

~ 479-396

J. B. ROSE, FLORENCE ROSE and

BROWNIE-ROSE CANDIES, INC., ON

BEHALF OF THEMSELVES INDIVIDUALLY

AND AS TAX PAYERS OF THE CITY OF

LOS ANGELES AND STATE OF CALIFORNIA,

AND ON BEHALF OF ALL OTHER TAX

PAYERS OF THE CITY OF LOS ANGELES

AND STATE OF CALIFORNIA,

Petitioners

Vs.

THOMAS BRADLEY, in his capacity as the

MAYOR OF THE CITY OF LOS ANGELES,

C. ERWIN PIPER, individually and as

CITY ADMINISTRATIVE OFFICER of the

CITY OF LOS ANGELES, SAMUEL YORTY,

CHARLES LUCKMAN AND ASSOCIATES, a

corporation, CHARLES LUCKMAN, SAM

BURNETT, ROBERT MCRAE, THE CITY OF

LOS ANGELES, a Municipal corporation,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

Harold I. Glaser

1504 Arlington Federal Bldg.

Baltimore, Maryland 21201

685-7666

Attorney for the Petitioners

INDEX

TABLE OF CONTENTS

GE BE A ewes ee sw ectccccccccs

SUMSMUROEROR. 2606 600s ese eA a es

Beereee Ge Eee COBG 2c cccccccnee

Statement of Facts ........ i<@#'s0'ss

Reasons for Granting the Writ ....

The Civil Rights Statutes are

Ample to Confer Federal Juris-

SN EAE ES

The Authorities are Unanimous

That Excess Condemnation is

III

No Theory of Excess Condemna-

tion is Applicable to the Case

At Bar ee eee#e#eefee#efe#e+eestks## @ @ e268 28 © 6 © ee

Conclusion

Presumptions Are Not A Means

To Escape Constitutional Res-

CPR Oe Seas ek kee eee eek

Neither of the Doctrines Of

Res Judicata Nor Collateral

Estoppel Are Applicable To

Tre Caee Re BORER sais cee ee wes

The Infidelity of the Govern-

ment In The Condemnation Case

Deprived The Appellants Of

Due Process Of Law, Which

Deprivation Can Be Rectified

By A Collateral Attack ..seces

Vil

The "Public Use - Public

Necessity" Conundrum .........

Appendix A. Memorandum ...........

TABLE OF AUTHORITIES Page

Cases

Alcorta v. Texas (1957),

aa0 U.S. 28, 2L.E0€.2d 9 48

Allegheny County v. Frank Mashuda

Co., 360 U.S. 186, 3L.Ed.2d

1163 23

Armstrong v. Board of Education

(2963), 323 F.2d 333 15

Basista v. Weir (1965),

340 F.2d 74 iS

Baxter v. City of Louisville (Ky.)

(1928) 6 SW 2d 1074 22

Beauregard v. Wingard (1964),

230 F.Supp. 167 13

Bernhard V. Bank of America

(1942), 19 Cal.2d 807 34

Burton v. Ward (1951),

aan ARK. 253, 236 SW 24a 65 21

Brady v. State of Maryland (1963),

pre Ga, Go, O83 B.C. 1194 oh

Caldwell V. Taylor (1933),

218 Cal. 1271 44

Chasteen V. Trans World Airlines,

S20 £1.20 714, 715 (8th Cir.,

1975) As

Chicago B. & Q. R. Co. v. Chicago

(1896), 166 U.S. 226, 41 L.

Ed. 979 4 40 Sd

iii

Page

Cincinnati v. Vester,

201 -U.8.. 430; 74 be B.. 9Se;

33 F.2d 242 8442232242

Citizens' S & L Assoc. v. Topeka

(1874), 20 Wall. 655, 22

L.Ed. 455 14

Claflin v. Houseman (1876),

93 0.8. i30,. 22 be BG. Baa 16

Clendaniel v. Conrad (Del.) (1912),

63 Atl. i036 22

Cochran v. Union Lumber Co. (1972),

26 Cal. App. 3d 423 38

Curtis v. City of Boston (1924),

247 Mass. 417, 142 NE 95 20

Dombrowski v. Pfister (1965),

380 U.S. 479, 14 L.Bd.2d 22 ia

Embury v. Conner (1850),

2 WY Sis 20

Excelsior Needle Cc. v. Springfield

(1915), 221 Mass. 34, 108 NE

497 22

Ford Motor Co. v. Superior Court

(1971), 16 Cal. App.3d 442 45,54,56

Francisco Enterprises, Inc. v.

Kirby, 482 F.2d 481, 485

(9th Cir. 1973) A.2

Gibbons v. Ogden (1824),

9 Wheat. 1, 6 L.Ed. 23 16

Gideon v. Wainwright (1963),

372 U.8. 335, 3 BG.

2d 799 14

Great Western Furniture Co. v.

Porter Corp. (1965),

238 Cal. App. 2d 502 33,34

Green v. Ancora-Citronelle

Corp., 377° F.26 i360,

1383-84 (9th Cir. 1978) }

Hooker v. Klein, 573 F.2d 1360,

1367 (9th Cir. 1978) A:2

Hooper v. Britt (1911),

203 NY 144 20

Hysler v. Florida (1942),

315 U.S. 411, 86 L.Ed. 932 49

In re Albany Street (1834),

1l Wend. (NY) 148 20

In re City of Rochester (1929),

237 NY Supp. 147 20

Jennings v. State Highway Comm.

(1922), 183 NC 68, 110 SE

583 20

Johnson v. Department of

Water and Power, 450

Fr. 28. 294, 295, (9th Circ.,

1971) Av2, A3

Kessler v. Indianapolis (Ind.)

(1927), 157 NE 547 21

ee en Oy sna

Madisonville Traction Co. v.

St. Bernard Mining Co.

(1904), 196 U.S. 239, 49

L.Ed. 462 14

Marshall v. Sawyer (1962),

9th Cir., 301 F.2d 639 iS, i6

Martin v. Hunter's Lessee (1816),

4 Wheat. 316, 4 L.Ed. 579 16

McNeese v. Board of Education

(1963), 373 U.S. 668, 10

L.Ed.2d 622 16

Mondou v. New York NH and

oe Ce. (tae aae aaa U.S.

iL, 36 4.86. sat 16

Monroe v. Pape (1961),

365 U.S. 167, 5 L.Ed. 2d

492 12,13,14,15

Mooney v. Yolohan (1935),

294 U.S. 103, 79 L.Ed. 791 46,48,51

NAACP v. Alabama (1958),

357 U.8.. 449, 21 L.38. 264

1488 31

New York Times Co. v. Sullivan,

ll L.Ed.2d 686 32

Olmstead v. U.S.

277 U.S. 438, 72 L.Ed. 944 27

Olson v. U.S.,

292 U.S. 246, 78 L.Ed. 1236 14

Onondago Water Service Corp.

v. Crown Mills, Inc.

(1928), 132 Misc. (NY)

848, 230 NY Supp. 691 20

Opinion of Justices (1910),

204 Mass. 607, 91 NE 405 20,22

Opinion of Justices (1910),

113 NE 2d 452 22

Parklane Hosiery Co. v. Shore,

99 S.Ct. 645, 649 (1979) A.Z, Aad

Pennsylvania Mutual Life Ins.

Co. v. Philadelphia, 242

Pa. 47, 88 Atl. 904 20

Pentz v. Kuppinger (1973),

31 Cal. App.3d 5.0 43,44,52,53

People Ex Rel Department of

Public Works v. Lynbar,

Inc. (1967), 253 Cal.App.

2d 870 46

People Ex Rel Department of

Public Works v. Superior

Court (1968), 68 Cal. 2d

206 55

People v. Chevalier (1959),

52 Cal.2d 299 13,92

People v. Kiihoa (1960),

53 Cal.2d 748 50

People v. Lagess,

223, Cai.App.2a 23 15,16

vil

People v. Sheffield,

108 Cal.App.2d 721

People v. Stuart (1969),

272 Cal.App.2d 653

Philadelphia B. & W. R. Co. v.

Baltimore (1913), 121

MD 504, 88 Atl. 263

Richmond v. Carneal (1921),

106 SE 403, 14 ALR 1341

Roanoke v. Berkowitz,

80 VA 616

Rose v. City of Los Angeles

No. 46596 (Cal.App.2d App.

Dist. 1976)

Salisbury Land and Improvement

Co. v. Commonwealth (1913),

215 Mass. 371, 102 NE 619

Scoggin v. Schrunk, 522 F.2d

436, 437 (9th Cir., 1975)

Scott v. McNeal,

154 U.S. 34

Seattle v. Fausett (1923),

212 P. 1085

Sheridan v. Williams (1964),

Stn Cir., 333 F.24 581

Southern R. Co. v. Virginia (1933),

290 U.S. 190, 78 L.Ed. 250

viii

20,25

Spence v. Latting,

a4 3.44 93, 9¢ (10th Ciz.,

1974) A.2

Stenderup v. Broadway State Bank

(1933), 219 Cal. 593 53,54

Timmsen v. Forest E. Olson, Inc.

(1970), 6 Cal.App.3d 860 41

United Mine Workers v. Gibbs,

383 U.S. 715, 726 (1966) A.3

U.S. v. Classic (1940),

343 U.S. 299, 85 LB.

1368 14,15

U.S. v. Livingston (1959),

179 F.Supp. 9, aff'd 364

U.S. 281, 4 L.Ed.2d 1719 16

Williams v. State of Washington,

554 F.2d 369, 371 (9th Cir.,

1977) A.2

Wilton v. St. John's County (Fla.)

L9a7)« b43 B6« 327 20

Winger v. Aires (1952),

371 Pa. 242, 89 Atl.2d 521 21

Yick Wo v. Hopkins,

118 US 356, 30 L.Ed. 220 28

Young v. Gurdon (1925),

169 Ark. 399, 275 SW 890 20

Constitutions

California Constitution,

Article l, §14-1/2 20,23

United States Constitution,

Fifth Amendment BGsh lp eae47 25a

Fourteenth Amendment 13,14,17,23,28,47

Federal Supremacy Clause,

Article VI 16,17

Statutes

Code of Civil Procedure,

§124 (2) 28

28 U.S.C. §1331 and §1343 16

42 U.S.C. §1983 10,11,12,13,14,15,16

Texts and Articles

14 ALR 1350 18,19,20,25

68 ALR 837 18,20

18 CLR 284 23340

15 Columbia LR 306 23

29 Columbia LR 1151 23,25

10 RCL 41 23409

3 SCLR 121 23,25

9 Stanford Law Review 281 34

4 U. Cin. LR 34 23

Restatement of Judgments §70 38

Condemnation Practice in California

§6.10, California Continuing

Education of the Bar 55,56

Entscheidungen des Schweizerischen

Gundesgericht (Switzerland)

Vol.31 23,24

5 Michigan Law and Practice Encyc-

lopedia, Condemnation, §20 22

19 NY Jurisprudence, Eminent Domain,

§62 20

Cushman, Excess Condemnation 25

Jahr on Eminent Domain §203 22

Lewis on Eminent Domain,

Vol. 2 §600 23

McIntire,

"Necessity: in Condemnation

Cases --- Who Speaks for the

People? a2

Nichols, Eminent Domain Vol. 2,

§7.31[1] 19,29

Witkin, Calif. Proc.2d Ed.,

¥. 4 36

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO.

J. B. ROSE, FLORENCE ROSE and

BROWNIE-ROSE CANDIES, INC., ON

BEHALF OF THEMSELVES INDIVIDUALLY

AND AS TAX PAYERS OF THE CITY OF

LOS ANGELES AND STATE OF CALIFORNIA,

AND ON BEHALF OF ALL OTHER TAX

PAYERS OF THE CITY OF LOS ANGELES

AND STATE OF CALIFORNIA,

Petitioners

vs.

THOMAS BRADLEY, in his capacity as the

MAYOR OF THE CITY OF LOS ANGELES,

C. ERWIN PIPER, individually and as

CITY ADMINISTRATIVE OFFICER of the

CITY OF LOS ANGELES, SAMUEL YORTY,

CHARLES LUCKMAN AND ASSOCIATES, a

corporation, CHARLES LUCKMAN, SAM

BURNETT, ROBERT MCRAE, THE CITY OF

LOS ANGELES, A Municipal corporation,

Respondents

Petitioners, J. B. Brown, Florence Rose

and Brownie-Rose Candies, Inc., on behalf of

themselves individually and as tax payers of

the City of Los Angeles and State of

California, and on behalf of all other tax

payers of the City of Los Angeles and State

of California, prays that a Writ of Certior-

ari to review the opinion and Judgment of

the United States Court of Appeals for the

Ninth Circuit filed on the above entitled

case on August 7, 1979.

OPINION BELOW

The opinion of the United States Court

of Appeals for the Ninth Circuit is an un-

published Memorandum which appears in

Appendix A to this Petition, A.l - A.3 P

infra.

JURISDICTION

The Judgment of the United States

Court of Appeals soughtto be reviewed was

filed on August 7, 1979. The jurisdiction

of this Court is invoked under the United

States Constitution, Fifth and Fourteenth

Amendments; 28 U.S.C., §1331 and §1343; and

42 U.S.C. §1983.

QUESTIONS PRESENTED

1. Do the Civil Rights Jurisdiction

Statutes reach cases of fraud conducted

under the guise of the guise of an eminent

domain proceeding?

2. Where there has been a course of

conduct amounting to fraudulent misrepre-

sentation, concealment, perjury and studied

imposition on the court, which course of

conduct was neither discovered nor discover-

able until after such conduct resulted ina

final judgment, can the doctrines of

collateral estoppel or res judicata defeat

a cause of action seeking damages resulting

from such conduct?

3. Should an evidentiary hearing be

granted where there is probable cause to

believe that a miscarriage of justice would

;

TE, A a

result from application of the doctrines of

res judicata or collateral estoppel?

4. Are the Petitioners entitled to

maintain an action to recover on behalf of

the State, funds which have been illegally

misused by a local entity?

STATEMENT OF THE CASE

This case comes to this court after

Motions to Dismiss the Complaint were granted

without leave to amend. An order of dis-

missal was filed. At the time it opposed the

defendants' motions, the plaintiffs asked

the court to grant the appellants' motion

for an evidentiary hearing.

A notice of appeal from the judgment

of dismissal was filed.

The Complaint essentially relates a

tale of governmental overreaching in the

acquisition of property from the appellants.

For purposes of this appeal those facts are

admitted. Incidental to the scheme to reap

windfall profits for the Luckman defendants,

the City embarked upon a course of conduct

to bilk the state gas tax fund. The scheme

was spectacularly successful. The efforts

of the appellants to recoup, for the state,

its misspent gas tax funds are set forth in

the second cause of action.

In an effort to present "probable cause"

type facts to the court the appellants asked

for run evidentiary hearing on the subject of

whether this was an appropriate case to

suspend the operation of the doctrine of

collateral estoppel and res adjudicata, assu-

ming, arguendo, they are applicable. That

motion was denied.

STATEMENT OF FACTS

On or about May 4, 1959, the Defendant

City of Los Angeles filed a complaint in

condemnation in the Superior Court of the

State of California for the County of Los

Angeles, LASC No. 932216, and sought therein

to condemn certain parcels of the property

of Plaintiffs for a public use.

Said parcels were numbered 115AA, 116AA

and 115R and 116R. The named plaintiffs

herein were the owners of said property.

Said properties were described in said com-

plaint and are located in the City of Los

Angeles and are contiguous to the Los

Angeles Convention Center.

On or about February 25, 1970, a

judgment in said condemnation case became

final. Said judgment inter alia, condemned

to the use of the City of Los Angeles the

subject parcels.

Plaintiffs allege that the condemnation

of the R-parcels was by false and fraudulent

means and not for any public use all as here-

inafter set forth.

Plaintiffs allege that Pipe individually

and as CAO conspired together with Charles

Luckman Associates, Charles Luckman, and Sam

Burnett, Robert McRae, Sam Yorty and Austin

M. Hill, not a party to this action, now

deceased, to prevent the Plaintiffs from

litigating the issue of public use and to

take the R-parcels from the Plaintiffs.

The conspiracy and fraud heretofore

alleged consisted of the following overt and

covert acts of the Defendants:

(a) The R-parcels were designated as

parcels to be used for "Reservations" for

light and air to wit: to provide open space

in conjunction with the development of the

Los Angeles Convention Center and certain

accesses thereto and for a working area

during the course of construction, and were

thus represented to the plaintiffs and the

Court.

(b) Plaintiffs allege that prior to

the above representation Piper, Charles

Luckman Associates, Charles Luckman, Sam

Burnett, and Sam Yorty agreed that some of

the R-parcels should be taken to provide a

site for a future hotel and trade center,

and others to be held for speculative price

increases. It was by them contemplated that

the 115-R and 116-R sites would be made

available to Charles Luckman Associates and

Charles Luckman at less than the site's

true market value. Thereafter, it was con-

templated that Piper, CLA, Charles Luckman,

Sam Burnett and Sam Yorty would share in

profits to be made from the construction,

development and operation of said hotel and

trade center. It was further contemplated

that the City of Los Angeles speculate with

other sites for an increase in value so

that much of the cost of the Convention Center

project would be recouped.

Sam Burnett, who was the Chief Design Arch-

itect employed by Charles Luckman Associates

in the plan for the Los Angeles Convention

Center, did falsely testify that he knew of

no plan for the use of the R-parcels other

than the "Reservation" purposes. In truth

and in fact Sam Burnett knew of plans that

had been made to put the R-parcels to the

use and occupancy of a hotel and trade center.

(d) In furtherance of the conspiracy,

Piper did falsely testify and represent to

the plaintiffs that he knew of no plans for

the use of the R-parcels other than for the

"Reservation" purposes. In truth and in

fact Piper’ knew that plans had been drawn and

proposed by CLA and Charles Luckman and Sam

Burnett for use of said parcels for hotel

and trade center development. Piper express-

ly denied such knowledge when asked

specifically if he knew whether CLA offered

to purchase or represent people offering to

» purchase the contiguous areas of the

' Convention Center for use of private indus-

try.

(e) In furtherance of the conspiracy,

Austin M. Hill, who was the Director of the

Bureau of Right of Way and Land of the City

of Los Angeles, and acting within the course

and scope of said agency, did testify and

represent to the plaintiffs that he knew of

no purpose for the acquisition by the City

of Los Angeles of the R-parcels other than

for "Reservations" and that nobody within or

without the government of the City of Los

Angeles had ever consulted with him with

respect to any purpose whatever. In truth

and in fact Austin M. Hill had met with and

discussed with Robert McRae, Pipe, Charles

Luckman and Sam Burnett, as a representative

of the Charles Luckman Associates, the pro-

posed hotel and trade center.

(£) In furtherance of the conspiracy,

Piper, as CAO, authorized the expenditure of

certain gas tax funds, which were State of

California trust funds, then under the con-

trol of the City of Los Angeles, for the

acquisition of plaintiffs' R-parcels among

other R-parcels designated as Parcel 101-R

through 114-R, 117-R through 119-R, 123-R

aac fl

and 126-R. The expenditure of said gas tax

funds was in the sum of $1,051,675.54.

Said gas tax funds were, and are,

reserved for the use of street and road

construction purposes only.

Said gas tax funds were expended ille-

gally and for the purpose of further conceal-

ing the true intent and purpose of the

acquisition of plaintiffs' properties.

(g) Plaintiffs allege that in further-

ance of the conspiracy Austin M. Hill and

Robert McRae instructed the Right of Way

agents responsible for acquiring the R-parcels

to represent to the owners that it was the

desire of the majority of such owners to sell

the R-parcels.

Plaintiffs did not learn of the afore-

said conspiracy until May 16, 1972.

All of said meetings, by and between

the defendants, were secret meetings for the

purpose of not revealing to the public in

general and the plaintiffs in particular the

specific reasons and purposes of the acquisi-

tion of the R-parcels.

Access to the records and files con-

cerning such purposes was denied the plain-

tiffs.

As a proximate result of the false and

fraudulent representations and testimony,

plaintiffs were deceived into believing that

their R-properties were being acquired for

public use.

In furtherance of the conspiracy, as

aforesaid, the defendant willfully deceived

plaintiffs and covered up the true purpose

of the acquisition of plaintiffs' property

from the knowledge of the City Attorney of

the City of Los Angeles and his principal

deputy attorney in charge of the acquisition.

But for such deception and cover up by

the defendants, the City Attorney and his

principal deputy attorney in charge of said

acquisition would have made known to the

Court and to the plaintiffs that the acquis-

ition was not for any public use, and that

there was neither necessity nor authority

to condemn or otherwise acquire the R-parcels.

Said conspiracy to defraud plaintiffs,

with its misrepresentations and concealments

was practiced by the defendants upon the City

Council of the City of Los Angeles prior to

the passage of City of Los Angeles Ordinance

#1326298.

At all times mentioned herein the

defendants held themselves out to be worthy

of complete trust and reliance.

At all times mentioned herein the

defendants expressly represented to the

plaintiffs that they, the defendants, by

reason of their superior knowledge, and by

reason of their positions vis-a-vis the City

of Los Angeles, the World Trade Center

Authority, and the Convention Center Authority

had divulged all the information which they

had or was available with respect to the

purpose for which the plaintiff's properties

were being acquired; and that such information

could be relied upon as the entire truth on

the subject.

At the time such representations were

made, the defendant Piper was the City

i eT ae

Administrative Officer and the defendant Sam

Burnett was the Chief Project Architect of

the Convention Center Project of Charles

Luckman Associates.

As a proximate result of said misre-

presentations and concealments practiced upon

the City Council, said Council duly enacted

into law Ordinance #1326298.

But for said misrepresentations and

concealments, said City Council would not

have enacted Ordinance #1326298.

Ordinance #1326298 provided, inter

alia, that the acquisition of the R-parcels

- was necessary for the public uses stated in

said Ordinance.

But for the passage of said Ordinance,

plaintiffs' properties would not have been

condemned by the City of Los Angeles.

Since the question of Public Necessity

is not justifiable in a condemnation case,

the fraud practiced to obtain passage of said

Ordinance which declared such Public Neces-

sity, was not and could not have been

litigated in the condemnation action. Thus,

plaintiffs were prevented by said fraud and

concealment of the defendants from raising

such issue in the condemnation action.

Plaintiffs justifiably relied upon such

testimony and representations by not pursuing

the issue of public use beyond such testimony

and representations.

But for such testimony and representa-

tions, plaintiffs would have pursued the

issue of public use beyond such testimony

and representations.

Plaintiffs aliege that the owners of

the R-parcels other than the named plaintiffs

herein were similarly deceived and tricked

into selling their entire properties to the

City of Los Angeles when only a portion

thereof was necessary for the public use

contemplated.

REASONS FOR GRANTING THE WRIT

THE CIVIL RIGHTS STATUTES ARE AMPLE

TO CONFER FEDERAL JURISDICTION

One of the condemnor's principal sub-

stantive arguments in the case at bench is

that in selecting the amount of land to be

taken by eminent domain, the condemnor has

absolute discretion, and under California

decisional law the power to engage in ages

of fraud, bad faith and abuse of discretion,

and such behavior on the part of the con-

demnor and its co-conspirators is not

subject to inquiry by the judiciary.

However, the subject of abuse of power

by state officials to the detriment of the

constitutional rights of citizens and other

persons within the jurisdiction of the

states is the subject of federal legislation,

and subject to redress by Federal courts.

Congress, in enacting 42 U.S.C. §1983,

has created a cause of action in federal

courts for interference by state officials

with the constitutional rights of citizens

of the United States.

42 U.S.C. §1983 provides:

"Every person who, under color of

any statute, ordinance, regulation,

custom or usage, of any state or

territory, subjects, or causes to

be subjected, any citizen of the

United States or other person within

the jurisdiction thereof to the

deprivation of any rights, privi-

leges, or immunities secured by the

constitution and laws, shall be

liable to the party injured in an

action at law, suit in equity, or

other proper proceeding for redress."

The purpose of 42 U.S.C. §1983, as

shown below, is to deal with two situations:

A. Where state officials abuse

their power under color of state law, and

B. Where the state has legislation

capable of providing redress to the aggrieved

citizen, but which legislation is either not

enforced or not applied by the state.

Both of the situations which the

Congress intended to guard against by

enacting 42 U.S.C. §1983 are present in the

case at bar.

First, the condemnor argues expressly

that under decisional law of California, the

condemnor has the power to engage in acts of

fraud, bad faith and abuse of discretion in

selecting the amount of land to be taken by

eminent domain. Second, the California

Constition provides for other more extensive

excess takings it is in derogation of the

Constitution.

Therefore, property owners have, in the

case at bar, a cause of action under 42

U.S.C. §1983.

PROPERTY OWNERS HAVE STATED A CAUSE

OF ACTION UNDER 42 U.S.C. §1983

The leading modern case construing 42

U.S.C. §1983 is Monroe v. Pape (1961) 365

U.S. 167, 5 L.Ed.2d 492.

The principal issue considered by the

Superior Court in Monroe was - "... whether

Congress in enacting R.S. §1979, [42 U.S.C.

§1983] meant to give a remedy to parties

deprived of constitutional rights, privi-

leges and immunities by an official's abuse

of his position." (365 U.S. at 172, 5 L.

Ed.2d at 497.) The Supreme Court answered

the above issue in the affirmative, and held

by an 8 to 1 decision that 42 U.S.C. §1983

is applicable to all deprivations of con-

stitutional rights by all states.

"Although the legislation was

enacted because of conditions that

existed in the South at that time,

it is case in general language and

is applicable to Illinois as it is

to the states whose names were

mentioned over and again in the

debate. It is no answer that the

state has a law which if enforced

would give relief. The federal

remedy is supplementary to the

state remedy, and the latter need

not be first sought and refused

before the federal one is invoked."

(365 U.S. at 183, 5 L.Ed.2d at 502 -

503.)

The holding of the U.S. Supreme Court

in Monroe is directly applicable to the case

at bar:

"Tt is abundantly clear that one

reason the legislation was passed

was to afford a federal right in

federal courts because, by reason

of prejudice, passion, neglect,

intolerance or otherwise, state laws

might not be enforced and the claims

of citizens to the enjoyment of

rights, privileges, and immunities

guaranteed by the 14th Amendment

might be denied by the state agency."

(365 U.S. at 180, 5 L.Ed.2d at 501.)

(Emphasis added.)

In the case at bench property owners

have alleged a failure by the state courts to

enforce state law, namely, limitation on

excess taking by the condemnor.

42 U.S.C. §1983 is applicable to acts

of state officials abusing their position.

See Beauregard v. Wingard (1964) 230 F.Supp.

167, cited with approval by the U. S. Supreme

Court in Dombrowski v. Pfister (1965) 380

U.S. 479, 14 L.84.2d 22, 30.

"Congress meant to give a remedy to

one deprived of constitutional rights

by an official's abuse of his posi-

tion." 230 F.Supp. at 183 (Emphasis

the Court's).

42 U.S.C. §1983 is applicable where the

state action complained of violates the rro-

visions of the Bill of Rights made applicable

to the states by the due process clause of

the 14th Amendment. Monroe v. Pape, 365 U.S.

Wii ci. cay

at 171, 5 L.Ed.2d at 496-497. The provisions

of the 5th Amendment limiting powers of

eminent domain are binding on the states

through the 14th Amendment, both as to the

requirement that the taking be for a public

use (Citizens' S & L Assoc. v. Topeka (1874)

Truction Co. v. St. Bernard Mining Co. (1904)

196 U.S. 239, 49 L.Ed. 462; Cincinnati v.

Vester, 33 F.2d 242, aff'd 281 U.S. 439, 74

L.Ed. 950) as well as that just compensation

U.S., 292 U.S. 246, 78 L.Ed. 1236; Gideon

Wainwright (1963) 372 U.S. 335, 341-342,

L.Ed.2d 799, 803-804).

Therefore, under authority of Monroe

v. Pape, the case at bar states a cause of

action and is properly brought in this court

under 42 U.S.C. §1983.

In its opinion in Monroe v. Pape, supra

the Supreme Court relied on U.S. v. Classic

(1940) 313 U.S. 299, 85 L.Ed. 1868. The

opinion in Classic is also directly applicable

to the case at bench. For in Classic, the

Supreme Court held that state officials who

abuse their power are answerable to federal

courts in a civil action, even though such

abuse of power is counternanced by state law

or state officials.

"Misuse of power, possessed by

virtue of state law and made possible

only because the wrongdoer is clothed

with the authority of state law, is

action taken ‘under color of' state

law. (citations) "

U.S. v. Classic, 85 L.Ed. at 1383.

The reasoning of the U.S. Supreme

Court in Monroe and Classic applies a

fortiori to the case at bench. For in the

case at bench it is the condemnor's express

argument that by decisional law of California

(People v. Lagiss, 223 Cal.App.2d 23, People

v. Chevalier, 52 Cal.2d 299) The condemnor

has the power to abuse its discretion, and to

engage in acts amounting to fraud and bad

faith in selecting the amount of land to be

taken by eminent domain.

Thus, the case at bench is clearly

within the purview of 42 U.S.C. §1983. Here

we have an act under color of state law - the

condemnor's action in eminent domain in the

state court under authority of the condem-

nor's ordinance of necessity and purportedly

pursuant to the California Constitution.

This action by the condemnor - to use the

words of the Supreme Court in Classic - is

"made possible only because the [condemnor ]

is clothed with the authority of state law."

Thus under the Classic doctrine, con-

demnor's acts are "action taken ‘under color

of' state law," and give rise to this action

in federal court because 42 U.S.C. §1983 is

equally applicable where the acts of state

officials acting under color of state law

interfere with property rights protected by

the Constitution. Sheridan v. Williams (1964)

9th Cir., 333 F.2d 581. —_

42 U.S.C. §1983 is to be liberally

construed (Basista v. Weir (1965) 340 F.2d

74) and its violations are actionable in

federal courts regardless of whether there

are actual or theoretical state remedies, and

regardless of whether such state remedies

have been exhausted. Armstrong v. Board of

Education (1963) 323 F.2d 333; Marshall v.

Sawyer (1962) 9th Cir., 301 F.2d 639,646;

U.S. v. Livingston (1959) 179 F.Supp. 9, 12-

13, aff'd 364 U.S. 281, 4 L.Ed.2d 1719;

McNeese v. Board of Education (1963) 373 U.S.

668, 671-672; 10 L.Ed. 2d 622, 625.

Thus the issue is placed before this

Court, whetuer federal law (42 U.S.C. §1983)

providing a cause of action against state

officials abusing their power under state law

is to control over state decisional law

(People v. Lagiss, supra) holding that fraud,

baad faith and abuse of discretion by state

officials in selecting the amount of land to

be taken by eminent domain may not be inquired

into by the courts.

Petitioners respectfully submit that

the above conflict between state and federal

law must be resolved in favor of the primacy

of federal law. Federal Supremacy Clause,

Article VI, U.S. Constitution. Martin v.

Hunter's Lessee (1816) 4 Wheat. 316, 4 L.Ed.

579; Gibbons v. Ogden (1824) 9 Wheat. 1, 6

L.Ed. 23. Claflin v. Houseman (1876) 93 U.S.

130, 23 L.Ed. 833; Mondou v. New York NH and

HR Co. (Second Employers Liability Cases)

(1912) 223 U.S. 1, 57, 56, L.Ed. 327, 349.

Property owners have stated a cause

of action under 42 U.S.C. §1983 and have

properly invoked the jurisdiction of the

trial court under 28 U.S.C. §1331 and §1343.

The principal issue before the court

remains unchanged - is a taking by eminent

domain in excess of public use and in

violation of the prohibition of the Califomia

Constitution a taking of property owner's

property without due process of law?

The facts of the case at bar and the

legal arguments made by the condemnor also

give rise to a corollary issue - where state

decisional law, and federal statutory and

decisional law governing remedies available

to persons whose constitutional rights have

been infringed by actions of state officials

- acting under color of state law are in con-

flict, does federal law control over state

law?

Property owners respectfully submit

that both issues are readily resolved. Excess

taking by eminent domain is not a taking for

public use and thus is a violation of the

Fifth Amendment of the U.S. Constitution,

made binding on the states by virtue of the

14th Amendment. The conflict between state

law and federal law on the subject of abuses

by state officials must be resolved in favor

tS Ces thet aie bi Peat Nie a De eve Ni else isis S408»

of primacy of federal law by virtue of

Article VI of the U. S. Constitution.

In addition to the legal issues and

arguments brought before the court in the

case at bench, property owners respectfully

submit that there are present here grave

issues of public policy. The case at bench

squarely raises the question of whether any

legal doctrine can be used as a protective

cloak for acts of fraud, bad faith and abuse

of discretion on the part of state officials.

Such acts are universally viewed by civilized

society as unworthy and reprehensible. Is

it, therefore, compatible with our concept

of ordered liberty that such acts be beyond

constitutional review by the courts?

It has been said in some of the cases

which try to justify such acts of fraud, bad

faith and abuse of discretion on the part of

state officials, that such acts by state

officials are of no concern to the citizens

whose land is being taken by eminent domain

as long as just compensation is paid therefor.

Property owners submit that such actions on

the part of state officials are of concern

to every thoughtful citizen of this or any

other state. For such citizen has a right

to look to his state government and see

honorable men governing justly and wisely

within their human limitations, instead of

tyrants invested with non-justiciable power

to deal fraudulently, in bad faith or in

abuse of discretion with the very citizens

whose interests the government exists to

protect.

THE AUTHORITIES ARE UNANIMOUS THAT

EXCESS CONDEMNATION IS UNCONSTITU-

TIONAL

In researching the various areas of the

law it is rare indeed to come upon a point on

which the authorities are as uniformly in

agreement as on the subject of excess con-

demnation. Such authorities hold that excess

condemnation is unconstitutional when the

taking exceeds in quantity the property to

be actually put to a public use. 68 ALR 837

states the principle as follows:

"There seems to be no difference of

Opinion amoung the cases on the

question as to the right, in the

exercise of the power of eminent

domain, to condemn land in excess

of needs for public uses. The

authorities seem to be uniform that

such power cannot be exercised for

such purposes. As ee te in the

Original annotation, =’ even the

*/Referring to 14 ALR 1350.

legislature cannot authorize the

taking of property in excess of

that required for the public use,

such excess to be sold or devoted

to private use."

An earlier annotation, in 14 ALR 1350,

states the principle as follows:

"It is a general principle that the

legisture cannot authorize the

taking of property in excess of that

required for the public use, such

excess to be sold or devoted to

private use. (citations) "

Both of the above ALR annotations cite

a prodigious number of cases, from many

states in which attempts at condemning

excess land under various theories have been

struck down by the state courts. It is

precisely such uniformity with which state

courts have dealt with excess condemnation

in the past that accounts for the paucity

of recent decisions on the subject.

Nichols on Eminent Domain, Vol. 2,

§7.31{1], p. 673, states the above point

as follows:

"As the courts of the several states

have not as a rule attempted to

stretch the powers of their respec-

tive legislatures in taking property

by eminent domain to an unreasonable

limit, and as the Supreme Court of

the United States has not encouraged

appeals to its jurisdiction over

such proceedings by showing any

tendency to interfere except in the

most flagrant cases, suits involving

the constitutionality of state

statutes which rest for their

justification upon the customary

constitutional provision relating

to eminent domain are not very

frequently brought before the

Supreme Court of the United States."

The practice of excess condemnation has

been so uniformly struck down by state courts

that the subject has been considered settled

for many years. It is noteworthly that ALR,

after making excess condemnation the subject

of two annotations (14 ALR 1350 and 68 ALR

837) has not found it necessary to devote

any further space to this subject in the

entire ALR 2d series of annotations.

It has been held from the first im-

pression that taking in excess of a public

use is unconstitutional. Opinion of Justices

(1910) 204 Mass. 607, 91 NE 405; Salisbury

Land & Improvement Co. v. Commonwealth (1913)

215 Mass., 102 NE 619, 622; Curtis v. City of

Boston (1924) 247 Mass. 417, 142 NE 95;

Pennsylvania Mutual Life Ins. Co. v. Phila-

delphia, 242 Pa. 47, 88 Alt. 904, 907;

Jennings v. State Highway Comm. (1922) 183

NC 68, 110 SE 583, 584; Wilton v. St. John's

County (Fla.) (1929) 123 So. 527; Young v._ .

Gurdon (1925) 169 Ark. 399, 275 SW 890, 894.

Also see the New York line of cases

In re Albany Street (1834) 11 Wend. (NY) 148;

Embury v. Conner (1850) 3 NY 511; Hopper v.

Britt (1911) 203 NY 144, 149; Onondaga Water

Service Corp. v. Crown Mills, Inc. (1928)

132 Misc. (NY) 848, 855; 230 NY Supp. 691;

In re City of Rochester (1929) 237 NY Supp.

147. This line of authorities is still

followed in New York. 19 NY Jurisprudence,

Eminent Domain, §62, p. 260.

Likewise, Seattle v. Fausett (1923) 212

P. 1085; Kessler v. Indianapolis (1927) (Ind.)

157 NE 547; Richmond v. Carneal (1921) 106

SE 403, 14 ALR 1341; Roanoke v. Berkowitz,

80 VA. 616, 622; Winger v. Aires (1952) 371

Pa. 242, 89 Atl. 2 1, 522; Burton v. Ward

(1951) 218 Ark. 243, 236 SW 2d 65. oo

Over the years, some courts have

allowed very limited excess taking of very

small pieces of land. But courts in so

holding have made it clear that the excess

land must be very small in size, and the

excess must be of direct benefit to the

public improvement, and thus itself a public

use.

The Massachusetts Supreme Court, after

holding that such taking of lot remnants

"goes to the very verge of constitutionality"

said:

"While it is plain that a city or

town cannot take land outside a

public work for speculative pur-

poses, we can conceive of a remnant

of an estate, a part of which is

necessarily taken, which remnant is

so small, or of such shape and of

so little value that the taking of

it in the interest of economy or

utility, or in some other public

interest, may be fairly incidental

and reasonably necessary, in connec-

tion with the taking of land for the

public work. But this principle is

not applicable to a taking for the

larger purposes stated in the

question before us."

Opinion of Justices (1910) 204 Mass.

616, 91 NE 578, 580.

‘

ee ee I hee

The courts which have accepted the

above view have uniformly limited excess

taking to very small remnants adjoining and

directly benefitting the public improvement.

Philadelphia B. & W. R. Co. v. Baltimore,

(1913), 121 MD 504, 88 Atl. 263; Excelsior

Needle Co. v. Springfield (1915) 221 Mass.

34, 108 NE 497; Clendaniel v. Conrad (1912)

(Del.) 83 Atl. 1036, 1047; Baxter v. City of

Louisville (1928) (Ky.) 6 SW 3d 1074; eo

Opinion of the Justices (1953) (Mass.) 113

NE 52, 467-468.

Also see 5 Michigan Law and Practice

Encyclopedia, Condemnation, §20, p. 428.

The principle of unconstitutionality

of excess taking also finds support among

eminent domain writers of note:

"The taking of private property

beyond that which is required for

the particular use named in the

petition is a violation of consti-

tutional limitations."

Jahr on Eminent Domain, §203, p. 324.

".,.. we think that the Constitution

impliedly forbids the taking for

public use of what is not necessary

for such use and, therefore, though

the constitution and statute are

silent on the subject of necessity,

that the power to take is, in every

case, limited to such and so much

property as is necessary for the

public use in question, and that the

owner is entitled, either in the

proceedings to condemn or otherwise,

to be heard upon this question."

Lewis on Eminent Domain, Vol. 2,

§600, pp. 1060-1061.

Also see 18 Calif. LR 284, 3 Southern

Calif. LR 121, 15 Columbia LR, 306 (note

18),2/ 29 Columbia LR 1151, 10 RCL 41, 4 U.

Cin. LR 34, 6764.

In the face of such uniform holdings of

the authorities that statutes authorizing

excess condemnation are unconstitutional,

a number of states have adopted state con-

stitutional amendments allowing condemnation

of small remnants. In California such

amendment is found in Article l, §14 1/2 of

the California Constitution.

The decision of the U. S. Supreme

Court in Cincinnati v. Vester 281 U.S. 439,

74 L.Ed. 950, affirming the express holding

of the U.S. Court of Appeals, 33 F.2d 242,

that excess condemnation is a violation of

the due process clause of the 14th Amendment

to the U.S. Constitution, settled the ques-

tion of excess condemnation in a definitive

manner. The Vester case was cited with

approval by the Supreme Court in 1959 in

Allegheny County v. Frank Mashuda Co. 360

0.8. 1296, 3 bse. 26 L163.

It is therefore uniformly accepted law

that excess condemnation - except for taking

of small remnants - is unconstitutional as

a taking of property for a non-public use in

it is noteworthy that excess condemnation

has also been held unconstitutional in

Switzerland which has a federal constitution-

al government like the United States.

Entscheidungen des Schweizerischen Bundes-

’

Aad ahe

2/ cont.

gericht, Vol. 3l, (1905) Part l, p. 645.

Cited in 15 Columbia LR 306, supra.

yiolation of the 5th Amendment and as a

taking of property without due process of

law under the 14th Amendment.

II!

NO THEORY OF EXCESS CONDEMNATION

IS APPLICABLE TO THE CASE AT BAR

Over the years the proponents of excess

condemnation have evolved several theories

attempting to justify eminent domain taking

beyond a contemplated public improvement. In

this connection three theories have been

advanced.

The first of these is the so-called *

"remnant theory," i.e. when the taking is

a partial one, leaving behind a small sliver

or remnant of a lot which is left in such a

size, shape or condition as to be effectively

useless to the owner, then the condemnor may

take such remnant although the remnant will

not be used as part of the public improvemert.

The second theory is the "protective

theory," i.e. a small amount of land in

excess of the public improvement is taken

to provide lateral support for a street, or

in some other way directly benefit the public

improvement.

The third theory is the so-called

"recoupment theory" which is a euphemism for

the state taking land in excess of the public

improvement and then reselling to private

persons thereby speculating in land, hoping

for a profit.

These three theories have been con-

sidered by the authorities and writers at

length. Cincinnati v.- Vester, supra, 33 F.

24 242, affirmed 281 US 439, 74 L.Ed. 950; 14

ALR 1350; 18 CLR 284; 3 SCLR 121; 29 Columbia

ZR 1151; 10 RCL 41; Cushman, Excess Condemna-

tion.

The courts have had ample opportunity

to pass on the constitutionality of the three

theories suggested above. 3 Of the three

theories only the "remnant theory" and the

"protective theory" have won ever a small

measure of approval after a judicial scrutiny

for constitutionality, on the grounds that

the "excess" under the above two theories

benefited the public improvement and thus

was in itself a public use. In any evert,

the excess land taken must be very small in

size and of no practical use to the owner.

-The third theory, the "recoupment

theory," has consistently received short

shrift from the authorities. Salisbury Land

& Improvement Co. V- Commonwealth (1913)

Mass. 371, 102 NE 619; Cincinnati v. Vester,

supra, 33 F.2d 242; 14 ALR 1350; 18 CLR 284,

787. Even Robert E. Cushman, 4 proponent of

excess condemnation, states in his book,

Excess Condemnation, at P- 310, drawing his

final conclusions as to the constitutionality

of excess condemnation:

2/ Property owners' diligent search discloses

no additional theories seriously propounded

as constitutional. It would appear that

until the case at bench no condemnor has had

the temerity to suggest to the courts that

it can take as much land as it pleases with-

out any particular public use for the excess,

the excess land to be merely hoarded or sold

SiO

3/ cont.

at the condemnor's pleasure.

"If the only motive for the appli-

cation of that scheme [excess con-

demnation] was to secure to the

city treasury the profit which might

accrue from the resale of the sur-

plus land taxen it could probably

be argued with much cogency that the

financial need of the city did not

constitute a purlic purpose of the

kind which would justify the con-

demnation of the land of particular

citizens, and that the use of

eminent domain for that purpose was

a cenial of the equal protection of

the laws and a deprivation of

property without due process of law."

Applying the above theories of excess

condemnation to the case at bench it is

readily seen that neither of the two theories

which have just barely survived the test of

constitutionality, i.e. "remnant theory" and

"protective theory", is applicable here.

Surely, the condemnor hasn't suggested ser-

iously that a parcel of land of some 14,000

square feet, five times as much as the land

actually to be used for the condemnor's

street, is a mere insignificant remnant of

no use to the owner and incapable of utiliza-

tion by the owner.

Nor can the condemnor argue the

"protective theory". Even today the land

is naught but a weed-ridden, trash attractive

eyesore.

Thus, the conclusion is inexcapable.

The condemnor took five times as much land

as it will actually use for its street and

its protection for reasons which can charit-

ably be described as an arbitrary exercise

of state power. However, in view of the

condemnor's communications with the architect

and developers and lies to the property owner,

it must be concluded that the condemnor's

motives were more sinister than mere arbit-

rariness.

We usually tend to think of government

as a positive force. To borrow the expres-

sion of Mr. Justice Brandeis,?/ government

is the omnipresent teacher of our society.

But if the government be permitted to engage

in such dirty business, then what of the cit-

izens who look to the government to set an

example?

Such behavior on the part of the state,

the administrator and enforcer of laws, can

only lead to contempt for the law and dis-

respect of the administration >of justice.

Therefore, property owners respectfully sub-

mit that there is more at stake here than

the outcome of one case. This court will

not only uphold the Constitution by granting

property owners the relief sought, but also

provide a bulwark against future disregard

of constitutional limits by state officials.

In his landmark dissent in Olmstead

U.S., 277 U.S. 438, 478, 72 L.Ed. 944,

956.

PRESUMPTIONS ARE NOT A MEANS TO

ESCAPE CONSTITUTIONAL RESTRICTIONS

The test for whether a constitutional

right is violated is found in the facts of

the individual case, not the abstract words

of the statute. Yick Wo v. Hopkins, 118 US

356, 30 L.Ed. 220.

As applied to property owners at bench,

CCP §1241(2) as here applied permits the

taking of their property for other than

public use. Thus the right to own private

property recognized by the 14th Amendment and

fundamental to our system of government and

economics is violated if condemnor can take

all of the subject property under the cloak

of a presumption arising from the condemnor

blandly resolving they will use some 16,000

square feet when they only intend to use

2700 square feet.

Thus, there is another matter that

warrants comment herein. Assuming arguendo

that the mere utterance of the words "for

reservation purposes" by the condemnor's

resolution in contravention of truth, is

sufficient to establish a public use, does

that mean that the question of necessity is

forever foreclosed, no matter what the

circumstances? Must the courts stand by and

impotently watch a violation of the Constitu-

tion under a sham declaration that the use is

a public one?

These questions were answered by the

United States Supreme Court in Chicago B. &

Q. R. Co. v. Chicago (1896) 166 US 226, 41

L.Ed. 979, 984:

, |

"Can a state make anything due

process of law which, by its own

legislation it chooses to declare

such? To affirm this is to hold

that the prohibition to the states

is of no avail, or has no applica-

tion where the invasion of private

rights is affected under the forms

of state legislation.' [quoting

from] Davidson v. New Orleans, 96 US

97, 102. The same question could be

propounded, and the same answer

should be made, in reference to

judicial proceedings inconsistent

with the requirement of due process

of law."

In his authoritative work on eminent

domain, Nichols has this to say about the

non-justiciability of necessity (p. 377):

"There is, however, at least a

theoretical limit beyond which the

legislature cannot go. The exped-

iency of constructing a particular

public improvement and the extent

of the public necessity therefore

are clearly not judicial questions;

but it is obvious that, if property

is taken in ostensible behalf of a

public improvement which it can

never by any possibility serve, it

is being taken for a use that is not

public, and the owner's constitu-

tional rights call for protection by

the courts. So, also, the due

process clause protects the indivi-

dual from spoliation under the guise

of legislative enactment, and while

it gives the courts no authority to

review the acts of the legislature

and decide upon the necessity of

particular takings, it would protect

an individual who was deprived of

his property under the pretense of

eminent domain in ostensible behalf

of a public enterprise for which it

could not be used. While many

courts have used sweeping expres-

sions in the decisions in which they

have disclaimed the power of super-

vising the selection of the site of

public improvements, it may be safe-

ly said that the courts of the

various states would feel bound to

interfere to provent an abuse of

the discretion delegated to the

legislature by an attempted appro-

priation of land in utter disregard

of the possible necessity of itsuse,

or when the alleged purpose was a

cloak to some sinister scheme. In

other words, the court would inter-

pose in a case in which it did not

merely disagree with the judgment

of the legislature, but felt that

the body had acted with total lack

of judgment or in bad faith. In

every case, therefore, it is a

judicial question whether the taking

is of such a nature that it is or

may be founded on a public necessity.

But while the courts have frequently

declared their power to set aside

acts of the legislature upon such a

ground, cases in which the power has

been actually exercised seem rarely

to have arisen."

"It being settled that, while

necessity is not primarily a judicial

question, there may be such absolvte

lack of necessity as to render the

proceeding void, it necessarily

Ee Wee ee Sr ee Free Ny eee fos) Aeet ine Sete

ous Sate LIE aie sheet

Re gee ae ees ew +

~ Be me et en Bthe ew

follows that an owner who alleges

such lack of necessity is entitled

to have the question passed upon by

a judicial tribunal. It is, however,

generally held that the question of

necessity need not be determinable

in the condemnation proceedings

themselves since the legislative

assertion of necessity is primarily

conclusive, and that the constitu-

tional rights of the owner, to be

protected against a taking without

possibility of necessity, are

sufficiently guarded by his right

to institute proceedings at law or

in equity to save his property and

have the taking set aside; ..."

Thus, property owners submit all state

actions are subject to judicial review so

that it may be determined whether such state

actions are repugnant to the federal Con-

stitution. Chicago B. & Q. R. Co. v.

Chicago, supra, 166 US 226, 234; Scott v.

McNeal, 154 US 34, 38; Southern R. Co. v.

Virginia (1933) 290 uS 190, 78 L.Fd. ~ 250;

NAACP v. Alabama (1958) 357 US 449, 2 L.Ed

2q 1488.

Therefore, the act of a city council

which passes an ordinance of necessity can-

not somehow become an act of a super-state,

immune to judicial scrutiny under the due

process clause.

Can it be fairly said that a city

ordinance of necessity to condemn is clothed

with the armor of a conclusive presumption

of necessity, where the declaration itself

is sham and in patent contradiction to the

truth? Property owners submit that the

answer is in the megative. As was said by

the Supreme Court, in a different factual

context, in New York Times Co. v. Sullivan,

11 L.Ed. 2d 686, 709:

"The power to create presumptions

{ is not a means of escaping from

constitutional restrictions."

NEITHER OF THE DOCTRINES OF RES

JUDICATA NOR COLLATERAL ESTOPPEL

ARE APPLICABLE TO THE CASE AT BENCH

The defense of res judicata and colla-

teral estoppel are not applicable to the

case at bench for a number of reasons:

aA tee!

1. There is no final judgment in favor

* of the demurring defendants nor is there any

' privity between the demurring defendants and

| the parties in the former condemnation pro-

) ceeding;

2. There is no "identity of issues;"

+ and

3. The doctrines may not be invoked

| to perpetrate or compound a patent mis-

carriage of justice.

The developer respondents were not

parties nor were they in privity with the

parties to the former condemnation action.

One of the criteria which is absolutely

necessary before either the doctrine of res

H judicata or collateral estoppel may be

invoked as an absolute bar is that the

parties to the "new" suit must be identical

; to or in privity with the parties to the

former suit.

The rule in California is that in

considering the doctrine of res judicata,

either as a bar or as a collateral estoppel,

there must be an identity of the parties to

the action before the defenses may be appli-

cable. In Great Western Furniture Co. v.

Porter Corp. (1965) 238 Cal.App.2d 502, 508-

509, the Court restated the rule as follows:

"Whether the doctrine or res judi-

cata is considered in its primary

aspect as a merger or bar, or in

it secondary aspect as a collateral

estoppel (see Panos v. Great Western

Packing Co. (1943) 21 Cal.2d 636,

637-638 (134 P.2d 242); Dillard v.

McKnight (1949) 34 Cal.2d 209, 214

(209 P.2d 387, 11 A.L.R.2d 835);

McDougall v. Palo Alto etc. School

Dist. (1963) 212 Cal. App.2d 427,

428 (28 Cal.Rptr. 37); Saunders v.

New Capital for Small Business, Inc.

(1964) 231 Cal-App.2d 324, 330 (41

Cal.Rptr. 703), the general rule is

that there must be an identity of

the parties to the actions before

the doctrine can become operative.

(Code Civ. Proc., §§1908, 1910;

Rest., Judgments, §§68, 79; Witkin,

Cal. Procedure (1954) p. 1955; see

Standard Oil Co. v. J. P. Mills

Organization (1935) 3 cal.2d 128,

139 (43 P.2d 797.) Code of Civil

Procedure § 1910 provides: 'The

parties are deemed to be the same

when those between whom the evidence

is offered were on opposite sides

in the former case, and a judgment

or other determination could in that

case have been made between them

alone, though other parties were

joined with both or either.'

"In applying the doctrine of res

judicata, the law is clear that

"Parties to a judgment are not

bound by it, in a subsequent contro-

versy between each other, unless

they were adversary parties in the

Original action.' (l Freeman on

Judgments (5th ed. 1952) §422, p.

918; Victor Oil Co. v. Drum (1920)

184 Cal. 226, 239 (193 P. 243);

Standard Oil Co. v. J. P. Mills

Organization, supra, 3 Cal.2d 128,

139-141; Rest., Judgments, §82;

: Code Civ. Proc., §1910.)"

N.B. The Porter case, supra, was

decided after Bernhard v. Bank of America

(1942) 19 Cal.2d 807. Professor Brainerd

Currie, after a sometimes penetrating and

sometimes convoluted analysis of the Bern-

hard case suggests that a proper interpre-

tation of Bernhard would deny the use of

the defense in the case at bar. See9

Stanford Law Review 281 at 304;

"The foregoing discussion supports

the proposition that the defendant

in the later action should have the

plea against a claimant who was also

plaintiff in the prior action. This

is the narrow holding of the Bernhard

case. But more generally, the dis-

cussion supports two negative

propositions:

(a) One not a party to the prior

action should not be allowed to

invoke the former judgment against

one who was defendant in the prior

action, since, not having been in

control of the time and place of

the action, the party against whom

the plea is asserted may not in fact

have had a realistic opportunity to

make a full and effective defense.

(b) The language of the indemnity

cases indicates that the plaintiff

in the later action who was not

party to the prior action, should

never be allowed to invoke the

former judgment offensively against

the defendant in the later action."

And at p. 307:

"These cases lead ineluctably to the

conclusion that there is no reason,

except to avoid anomaly in the

indemnitor-indemnitee relationship,

to distinguish the case in which

the plea is asserted by the

defendant from that in which it is

asserted by the plaintiff, and that

it is only in a jurisdiction, which,

like California, has emancipated

itself from the mutuality rule that

a question becomes important whether

the party against whom the plea is

asserted had the initiative in the

prior action or not." (Footnote

omitted. )

There is No Identity of Issues.

The gravamen of the Appellants' cause

of action is that as a consequence of the

fraud practiced by the demurring Respondents

that is

the perjury and concealment of the

true facts, the Appellants were effectively

denied their day in Court. The issue in

the condemnation action was whether the City

of Los Angeles was acquiring the plaintiffs'

property for a public use.

The issue in the case at bench is

whether the demurring Respondents, by lying

about some facts and concealing others,

are responsible for any damage which those

acts might have proximately caused.

This action, by way of analogy is much

like a legal malpractice action where one is

entitled to prove that but for the wrongful

act of a third party the result would have

been different. In such cases, the plaint-

iff is always the losing party in the

former action. In such cases the plaintiff

must prove that but for the wrongful act of

a third party, not a party to the former

action, that the result would have been

different.

The case at bench is essentially the

same. The Appellants are the "losing party"

in the former condemnation action. They

allege that but for the intentional wrongs

perpetrated by the demurring Respondents,

they were in fact precluded from fully

exploring the “public use" issue in the for-

mer trial and that had they not lied the

result would have been different.

Any rule which would allow the doctrine

of res judicata to apply in these circum-

stances would not just shield those who are

intentional wrongdoers but provide them with

an incentive to be proficient in their

criminality.

Whether the issue in a new action is

the same as the one previously adjudicated

hes been the subject of prolific litigation.

Some guidelines have emerged and are

restated in Witkins Calif. Proc. 2nd Ed.

¥.4, pe 3336-3337:

"(1) Where, as is usual, more than

one issue was involved, the burden

of proof is on the party asserting

the defense of collateral estoppel

to show that this issue was adjudi-

cated. (See Horton v. Goodenough

(1920) 184 C. 451, 460, 194 P. 34;

Emerson v. Yosemite Gold Min. etc.

Ce, (i306) i467 Ca. 5G, 37, 8S FP. £4e3

Quinn v. Litten (1957) 148 C.A. 2d

631, 633, 307 P. 2d 90 (no collater-

al estoppel where issue previously

litigated was not identical); Weak

v. Weak (1962) 202 C.A. 2d 632, 634,

21C.R. 9, citing the test (issues

not the same); Solari v. Atlas -

Universal Servite (1963) 215 C.A.

2q 587, 599, 30 C.R. 407; Saunders

v. New Capital, etc. (1964) 231 C.A.

324, 330, 333, 41 C.R. 703 citing

the text; Carey v. Cusack (1966)

245 C.A. 24 357, 68, Se C.K. 244,

citing the text; Frazier v. Wasser-

man (1968) 263 C.A. 2d 120, 125, 69

C.R. 510, infra, §234; Timmsen v.

Forest E. Olson (1970) 6 C.A. 3d 860,

870, 86 C.R. 359; Eichler Homes v.

Anderson, (1970)9 C.A. 3d 224, 234,

87 C.R. 893; Rest., Judgments §68,

Comment 1; 46 AmJur. 2d 763; James,

p. 579; infra, 22199 et seq. 209 et

seq.) "In Braslow v. Kelley (1957)

151 C.A. 24 Supp. 852, $55, 312 P.

2d 432, an action on a contract

allegedly made by an agent, the prior

judgment for defendants, rendered

without findings, could have been

based either on the determination

(a) that the agent did not make the

contract at all, or (b) that he did

but lacked authority to bind the

principal. Held, the present suit

against the agent for breach of

warranty of authority was not con-

cluded because the first judgment

could have been based on the second

defense."

The apparent tendency, as revealed by

the above cases, is to find that the issues

which are being compared for identity are

not the same where there is any reasonable

dissimilarity.

3. The Doctrine Will Not Be Applied

Where Its Invocation Would Result

In Injustice.

See Restatement of Judgments §70.

This portion of the rule with respect

to the appropriate application of the doc-

trine of res judicata is of prime signifi-

cance in the case at bar.

The allegations of the Complaint, which |

must be deemed true for purposes of this |

demurrer, essentially charge the demurring |

Pespondents with the commission of perjury

for their own profit.

Cochran v. Union Lumber Co. (1972) 26

Cal.App/ 3d 423 is analogous to the case

at bench because it has the "third party”

situation. In Cochran there was no question

but that the issue waS identical to one

previously litigated.

However, the Court said that the prior

litigation, although final, was clearly

erroneous, and to apply the rule of colla-

teral estoppel would result in a patent

injustice. The court said at p. 42:

"A discussion of these questions,

although obviously germane to the

facts of this case, is not necessary;

for such would be merely supportive

and ancillary to our conclusion that

the issue of collateral estoppel in

the case at bench is governed by the

overriding policy of law which pro-

hibits application of the doctrine

whenever injustice would result.

(Emphasis added.)

"This important qualification of

the doctrine is set forth in section

70 of the Restatement of Judgment

which reads es follows: ‘Where a

question of law essential to the

judgment is actually litigated and

determined by a valid and final

personal judgment, the determination

is not conclusive between the parties

in a subsequent action on adifferent

cause of action, except where both

causes of action arose out of the

same subject matter or transaction;

and in any event it is not conclusive

if injustice would result.' (pp. 318-

319; italics added.)

"Comments to this section explains

that the determination of a question

of law by a judgment in an action

is not conclusive between the parties

in a subsequent action on adifferent

cause of action, even though both

Causes of action arose out of the

same subject matter or transaction,

if it would be unjust to one of the

parties to apply one rule of law in

subsequent actions between the same

parties and to apply a different

rule of law between other persons.

The conclusion and reasoning of the

Restatement find support in United

States v. Stone & Downer Co. (1927)

274 U.S. 225, 235-237 (71 L.Ed. 1013,

1026-1028, 47 S.Ct. 616) and are

cited with approval in a number of

California cases (see Louis Stores

Inc. v. Department of Alcoholic

Beverage Control (1962) 57 Cal.2d

749, 757 (22 Cal. Rptr. 14, 371 P.2d

758); United States Fire Ins. Co. v.

Johansen (1969) 270 Cal.App.2d 824, |

834-835 (76 Cal.Rptr. 174, 780);

Pacific Maritime Assn. v. California

Unemp. Ins. Appeals Board (1965) 236

Cal.App.2d 325, 333-334 (45 Cal.Rptr.

892); Thain v. City of Palo Alto

(1962) 207 Cal.App.2d 173, 185 (24

Cal.Rete. 315).

"Applying the above principles to

the instant case, we initially point

out that the lower court's decision

in Urban v. Union Lumber Co., supra,

was Clearly erroneous. The decision

in Urban resulted from the missapp-

lication of Gibbs v. Peterson (1912)

163 Cal. 758 (127 P. 62) Gibbs dealt

with a conveyance of timber which

was expressly to be removed within

10 years. The court in Gibbs held

that since the instrument provided

for removal of the timber within 10

years, the payment of the yearly

rental of $200 did not give plaintiff

an absolute right to perpetually

maintain such timber on the land

(p. 766). Therefore, it is apparent

that the application of Gibbs to

Urban, where the deed itself accord-

ed a right of perpetual removal to

defendant, was an error.

"In view of the facts and principles

set forth above, it is indisputable

that the instant case is based upon

a different cause of action, andthat

repeated application of the previous

wrong decision would result in mani-

fest injustice. This would

necessarily follow because the con-

clusiveness of the Urban decision

would be limited to merely cases

where Union is a party, but would

have no applicablity at all where

a similar or even identical question

would be litigated between other

lumber companies and third persons,

in which event Union would obviously

suffer a competitive disadvantage

with respect to other companies in

the industry who would remain to

litigate the issue; and, in the

light of our holding reached in the

case at bench, they would be entit-

led to a favorable decision. (In

support of the principle here ex-

pressed, see also: United States

v. Stone & Downer Co.; Louis Stores,

Inc. v. Department of Alcoholic

Beverage Control; Thain v. City of

Palo Alto; Pacific Maritime Assn.

v. California Unemp. Ins. Appeals

Board, all supra.) We conclude,

therefore, that the trial court was

not collaterally estopped to decide

the issue of time for removal of

timber in the present case."

The applicability of doctrine of

collateral estoppel was expressly rejected

in Timmsen v. Forest E. Olson, Inc. (1970)

6 Cal.App.3d 860.

In Timmsen plaintiff sued a real estate

broker, alleging, inter alia, that his

behavior in propelling the plaintiff into

a contract for the sale of real estate was

less than candid and adverse to his inter-

ests. The plaintiff had previously been the

losing defendant in a prior action brought

by the purchaser for specific performance

of the contract. The court said:

"The issues determined by Burrow v.

Timmsen were that as between the

sellers (plaintiffs herein) and the

purchaser (Burrow), the contract was

certain, just and reasonable, the

consideration was adequate, the

assent of the parties was not ob-

tained by misrepresentation, conceal-

ment, circumvention or unfair

practices, the assent of the parties

was not given under the influence

of mistake, misapprehension or sur-

prise; that there was no adequate

remedy at law, and that the contract

was capable of specific enforcement.

(Civ. Code, §§3390, 3391; 4 Witkin,

Summary of Cal. Law (1960) Equity,

§17 et. seq.) As already noted, the

brokers, (defendants herein) were

not parties to that lawsuit.

"The issues and parties in the

instant case are different from those

in Burrow v. Timmsen. Here, there

is no attack made on the validity

and enforceability of the sales

agreement; those were the issues

determined by Burrow v. Timmsen.

The issues presented by this action

are whether the agents were guilty

of withholding from their principals

material facts, whether the agents

assumed a position adverse to their

principals suffered any damages as

a proximate result thereof. Since

the issues are not identical the

doctrine of collateral estoppel is

not applicable. (Teitelbaum, supra,

58 Cal.2d 601, 604.)

"Notwithstanding this conclusion we

note that even if the requirements

for the application of the doctrine

of collateral estoppel are present,

"lin cases where a grave injustice

would otherwise result, there has

been a tendency to depart from the

general rule.’ (United States Fire

Ins. Co. v. Johansen, 270 Cal.App.

2d 824, 834 (76 Cal.Rptr. 174, 780)

(hg. den.); see also Rest., Judgments

§70.) To apply the doctrine of

collateral estoppel in the instant

case, even if all requirements were

present, would countenance an in-

justice." (Emphasis added.)

The most recent expression of Califomia

law on the subject is found in Pentz v.

Kuppinger (1973) 31 Cal.App.3d 590. That

was an action to recover assertedly excessive

amounts collected by a defendant under a

Mexican judgment which was in turn based

upon an earlier judgment in a California

court.

The defendant obtained a Writ of Execu-

tion from the Los Angeles court. She started

an action against the plaintiff in Mexico to

enforce payments due her under the writ.

In the Mexican action she demanded

amounts in excess of the California Writ.

The Plaintiff in the Pentz case appeared in

the Mexican proceedings, attacked the juris-

diction of the court, and denied the alle-

gations set forth in the complaint.

From a Mexican court judgment in favor

of the defendant the plaintiff appealed,

which judgment was affirmed. The defendant

then executed on the Mexican judgment. The

plaintiff then sued the defendant claiming

unjust enrichment. The complaint alleged,

inter alia, that the defendant failed to

disclose to the Mexican court that she had

received payments on account of the Writ and

failed to credit such payments on the amounts

cue.

The court found that the plaintiff was

denied the opportunity to acquaint the

Mexic#. court of the already received pay-

ments and that the concealment of such facts

constituted extrinsic fraud. Pentz isa

“non-fiduciary” case. The Pentz decision

relied upon a 1933 California Supreme Court

case entitled Caldwell v. Taylor (1933) 218

Cal. 1271. In the Caldwell case the court

laid down two very Significant rules:

1. "A proceeding for equitable

relief is not a collateral

attack and since its sole aim

and purpose is to avoid the

effect of such judgment, the

doctrine of res judicata can

have no application to said

judgment."

Caldwell at p. 475.

2. “The main requirement to estab-

lish extrinsic fraud is that the

unsuccessful party was prevented

by his adversary from presenting

all of his case to the court.

One of the examples given is

that of a party who is prevented

from appearing in court. It

would seem that the deceit

practiced in the instant case

was just as effective to pre-

vent the proper presentation of

a contest as if the plaintiff

had been prevented from being

present at the hearing."

(Emphasis by the court.)

If the demurring Respondents are

permitted to assert the doctrine of colla-

teral estoppel under the circumstances in

this case, not Only will they have profited

Once from their chicanery, but the court

deals them an additional ace for being

successful perjurers.

Such an anamolous result should not

be permitted where there are overriding

policies of law in which the public has a

vital interest.

In any event, the question of whether

collateral estoppel is a complete defense

should not be decided as a matter of law on

a demurrer. As in Ford Motor Co. ve

Superior Court (1971) 16 Cal.App.3d 442,

448-449;

"In this case, a trial court should

determine, after a full evidentiary

hearing, whether the requirements

for the doctrine of collateral

estoppel are present, and if SO,

whether the application of the

doctrine of collateral estoppel,

even if all the requirements are

present, would countenance an in-

justice."

THE INFIDELITY OF THE GOVERNMENT IN

THE CONDEMNATION CASE DEPRIVED THE

APPELLANTS OF DUE PROCESS OF LAW,

WHICH DEPRIVATION CAN BE RECTIFIED

BY A COLLATERAL ATTACK.

The Appellants have alleged that there

was active suppression of evidence that

would have been beneficial to them in the

condemnation case.

It was further alleged that had such

information become known to the Court and to

these Appellants, that the deception would

not have succeeded.

For the purposes of this case, those

allegations must be accepted as stating the

truth.

Where there is a relationship between

the government and its citizens where cir-

cumstances require full disclosure, failure

to make full disclosure to the prejudice of

the citizen's results in a denial of due

process of law. It should be noted at the

outset that the law of eminent domain as

it is applied to a condemnee's rights is

always subject to the scrutiny of compli-

ance with the Fifth and Fourteenth Amendments

of the Constitution of the United States.

Thus, where a state law falls short of

affording the minimum protections required

by the Fifth and Fourteenth Amendments of

the Constitution of the United States, actions

taken pursuant to such state law are uncon-

Stitutional. See Mooney v. Holohan ( 1935)

294 U.S. 103, 79 L.Ed. 791, ana People Ex

Rel Department of Public Works v. Lynbar,

Inc. (1967) 253 Cal. App.2d 870, at 880,

where the Court said:

"Just compensation under the Fifth

Amendment to the United States

Constitution, so far as taking

damages are concerned, means the

full and perfect equivalent in money

of the property taken. The owner

is to be put in as good a position

pecuniarily as he would have occu-

| pied if his Property had not been

| taken from him. (United States ve

Miller, 317 U.S. 369, 373 [87 L.Ed.

2d 336, 342 63 S.Ct. 276, 147 ALR

55]1.) We believe that the due

process clause of the Fourteenth

Amendment to the United States

Constitution requires this as well.

Thus, obtaining a judgment based upon

testimony known to the Government to be

perjured is a denial of due process. Most

of the cases dealing with that subject arise

by way of a collateral attack on a final

criminal conviction. However, there is no

legitimate distinction between criminal con-

viction obtained by a denial of due process

and a judgment in condemnation obtained by

the same means. If indeed a distinction

need be made, the condemnee who stands

accused of no wrongdoing in a condemnation

case should be afforded, at the very least,

the same protections as do those persons

where there is presumably probable cause to

believe they may have committed a crime.

The rule which has emerged may be

stated as follows: The due process of law

which is protected from State and Federal

infringement by the Fourteenth and Fifth

Amendments is denied by a judgment following

a trial in which perjured testimony on a

material point is knowingly used and where

it appears that the person against whom the

judgment has been taken suffered prejudice

by reason of the use of such testimony.

In Mooney v. Holohan (1953) 294 u.s.

103, 79 L.Ed. 791, the United States Supreme

Court declared that the requirements of due

Process of law are not met by notice and

hearing on an issue if the government has

contrived a judgment by a pretense of a

trial, which is in truth used as a means of

depriving a defendant of liberty by delib-

erate deception of the court and jury by

the presentation of testimony known to be

perjured.

One needs only to substitute the word

"property" for the word "liberty" and it

becomes evident that the Mooney case in and

of itself is dispositive of the demurrer

that was before the Court. Mooney came up

by way of a Writ of Habeas Corpus after the

judgment in the California Court became

final.

Further, in Alcorta v. Texas (1957) 355

U.S. 28, 2 L.Ed. 24 9, the petitioner, on a

Writ of Habeas Corpus, was convicted of the

murder of his wife. The jury rejected his

contention that the homicide came within

the scope of certain Texas statutes which

treat a killing under sudden Passion as

murder without malice. During the course

of the trial, the petitioner's Claim was

that the killing occurred in a fit Of passion

when he discovered his wife under compromis-

ing circumstances. At the trial, the party

with whom the petitioner said she had been

with denied that he had known the petition-

er's wife any more than casually.

Sometime later, and after the petition-

er's conviction, the reputed wife's lover

declared that he had given false testimony

at the trial. He also said that he had

informed the prosecutor before the trial,

who had advised him not to volunteer any

such information.

The United States Supreme Court set

aside the judgment of the Texas Courts even

though such state courts' judgments were

final.

In another case along the same lines,

Hysler v. Florida (1942) 315 U.S. 411, 86

L.Ed. 932, Justice Frankfurter said that

where a government obtains a judgment through

the use of perjured testimony, "It violates

Civilized standards for the trial of guilt

or innocence," and thereby deprives an

accused of liberty without due process of

law.

In addition to the cases heretofore

cited to the Court with respect to the

duties of the government's attorney there

can be added the following California cases:

In People v. Stuart (1969) 272 Cal.

App. 2d 653, at 655-656 was a prosecution

for receipt of stolen goods. In order to

prove specific intent the prosecution sought

to justify an inference of such intent by

evidence of flight from the arresting

officer.

Both the defense counsel and the pros-

ecution knew that the flight from the

arresting officer was by reason of a sus-

pected assault. On appeal the court held:

"Examination of the whole record

compels our conclusion that dis-

tortion was deliberate. The fact

that defense counsel knew that evi-

dence was being withheld and did not

object does not change the action

demanded of us in the interest of

justice. Even our assumption of the

additional possibility that defense

counsel may have withheld objection

for tactical purposes could not

affect the ultimate result. The

reason: a criminal action was pre-

sented to a trier of fact upon

partial evidence which, by reason

of the false inferences created,

became firm evidence. A case so

tried is an unfair trial which denys

the accused due process. We cannot

accept the postulation that a trier

of fact might have deemed the true

evidence more inculpatory than the

false. A trial upon false evidence

is no trial at all."

In People v. Kiihoa (1960) Cal.2da 748.

the court had before it the following facts:

a suspected felon was arrested, detained for

more than two days, and subsequently releas-

ed. He was released because prosecution

could have required the disclosure of an

informant's identity. Thereafter the in-

formant left the jurisdiction. The defendant

was rearrested and convicted. The District

Attorney asserted that he had no duty to

produce the informant. In discussing the

duties of the government attorney, the court

quoted from People v. Sheffield at 108 Cal.

App.2d, 721, 732, as follows:

"It is the duty of the District

Attorney not to obtain convictions,

but to fully and thoroughly present

to the court the evidence material

to the charge upon which the defen-

dant stands on trial and it is the

solemn duty of the trial judge to

see that the facts material to the

charge are fairly presented and the

Constitutional guarantees of the

defendant are neither violated nor

infringed."

In a case where a defendant stands

accused of nothing more than being a pro-

perty owner in the path of so-called public

improvement the quotation above becomes

much more poignant.

In Brady v. State of Maryland (1963)

373 U.S. 85; 83 Supreme Court 1194, the

court extended the Mooney v. Holohan Rule

and said: a

"We now hold that the suppression

by the prosecution of evidence

favorable to an accused upon request

violates due process where the evi-

dence is material either to guilt

or to punishment, irrespective of

the good faith or bad faith of the

prosecution."

It would be well here to reiterate the

specific language of the United States

Supreme Court in the Mooney case:

"It is a requirement that cannot be

deemed to be satisfied by mere no-

tice and hearing if a state has

contrived a conviction through the

pretense of a trial which in truth

is but used as a means of depriving

a defendant of liberty through a

deliberate deception of court and

jury by the presentation of testi-

mony known to be perjured. Such a

contrivance by a state to procure

the conviction and imprisonment of

a defendant is as inconsistent with

the rudimentary demands of justice

as is the obtaining of a like result

by intimidation."

Whether the offical is a government

attorney, ora policeman, or some other

elected or appointed official having under-

taken all of the obligations of a public

trust by reason of Public office, the

result of a breach of that trust in an un-

fair trial deprives the beneficiaries of

that trust of the due Process of law to

which they are entitled under the Fifth

Amendment of the Constitution of the United

States. In a criminal case the appropriate

vehicle to correct such a denial of due

process is a Writ of Habeas Corpus.

In a civil case the appropriate vehicle

to correct such a denial of due process is

an attack such as the Appellants have

mounted by their Complaint in this action.

Similarly, in California it has been

held that the concealment of evidence in a

Civil case vitiates a judgment which might

otherwise have a collateral estoppel effect.

Pentz v. Kuppinger (1973) 31 Cal.App.

3d was such an action.

It should be noted that the Pentz case

is a "non-fiduciary" case and the ruling

where there is a fiduciary relationship is

- F

much more liberal than in the non-fiduciary

cases.

The Court hardly needs reminding that

the conduct of a governmental agency toward

its citizens, Particularly in a condemnation

case, is that of a fiduciary. The often

misused phrase "public office is a sacred

trust" is not an empty shibboleth.

Pentz relied upon, inter alia, the case

of Stenderup v. Broadway State Bank (1933)

219 Cal. 593.” In that case, the situation

is extraordinarily similar to the case at

bench in that in the Stenderup case a prior

action for an accounting was instituted and

a final judgment therein rendered. After

the judgment became final, the plaintiff

learned that certain notes, which had been

turned over to him as uncollected, had in

fact been wholly paid.

It was alleged that the testimony given

by the officers of the bank in the account-

ing action was false and fraudulent and

that it did those things for the fraudulent

Purpose of deceiving the Court and the

Plaintiff in the accounting suit.

The Court said:

"If this conduct Was, as alleged,

for the fraudulent Purpose of

preventing information as to the

Status of these notes from reaching

Plaintiff, and to deceive them and

the Court, it was conduct extrinsic

and collateral to the issue made by

the pleadings and authorized relief

in equity under the rule relating to

extraneous fraud, recently discussed,

and perhaps extended, by this Court

in the case of Caldwell v. Taylor

(citation) ." Stenderup at 596-597.

In Ford Motor Company Vv. Superior Court

(1971) 16 Cal.App. 3d 442, 448-449, the

Court held that:

"In this case, a trial court should

determine, after a full evidentiary

hearing, whether the requirements

for the doctrine of collateral

estoppel are present, and if so,

whether the application of the

doctrine of collateral estoppel

even if all the requirements are

present, would countenance an in-

justice."

It is hard to imagine a much clearer

direction to trial courts when confronted

with the question of whether or not the re-

quirements for the doctrine of collateral

estoppel are present, and even if they are,

whether the facts would prevent the applica-

tion of that doctrine. That direction leads

incluctably to the conclusion that this

matter of collateral estoppel should not be

decided by a hearing on a demurrer.

VII

THE "PUBLIC USE - PUBLIC NECESSITY"

CONUNDRUM

The parties agree that it is important

to distinguish between the concepts of

“public use" and "public necessity" and

that they have frequently been the source

of confusion. To gO on to say, as the

respondents suggested below, that recent

Opinions have clarified the distinction is

surely too much freight for so Slight a

vehicle as People v. Chevalier (1959) 52

Cai.2G@ 299. 7

Since the Chevalier case, there has

been litigation resulting in direct challen-

ges to the issue of public necessity by rea-

son of environmental incompatibility. See

McIntire, "Necessity" in Condemnation Case

-- Who Speaks for the People? 22 Hastings

Law Journal 561 (1971).

In People Ex Rel Department of Public

Works v. Superior Court (1968) 68 Cal.2aqa

206 the government needed Slightly more than

a half acre for the use which it contem-

Plated, and sought to take 54.03 acres

which it did not need, could not use and

whose avowed Purpose was to speculate on

re-sale to a private purchaser.

During the course of working its ulti-

mate injustice upon the Property owner, the

Court illustrates that the twin concepts of

public use and public necessity are so

interrelated that distinctions between them

become more semantic than real. For instan-

ces, in that excess condemnation case, the

Court said, at p. 216:

"When, as in this case, the property

is not needed for the Physical con-

struction of the public improvement,

-the question of public use turns on

a determination of whether the tak-

ing is justified to avoid excessive

severance or consequential damages.

Accordingly, if the court determines

that the excess condemnation is not

SO justified, it might find that it

is not for public use."

and all that means is that if the Court

finds that such excess condemnation is not

justified under an allowable theory, then

the question of whether or not there has

been a public necessity is irrelevant. The

legislative determination of public neces-

sity is a hollow declaration where there is

no public use.

The characterization of the result was

accurately put by Mr. Justice Mosk at page

216 as follows:

"Whenever an illustration of the

voracious appetite of acquisitive

government is desired, the action

of the public agency here will

serve well as Exhibit A."

Moreover, to suggest that collateral

estoppel applies to an issue which is ex-

pressly made nonjusticiable in a condemna-

tion case is to defy logic.

If indeed the issue that was tried in

the condemnation case was the issue of

public use, then the question which this

Court must answer is not whether that issue

was tried and is therefore res judicata, but

whether the Complaint alleges that the

plaintiffs were prevented, by the fraud of

the defendant, from fully trying that issue.

That requires an evidentiary hearing as

directed by the Ford case, supra.

CONCLUSION

The Petitioners respectfully request

that this Honorable Court grant the requested

Writ of Certiorari for the reasons discussed

herein.

Respectfully submitted,

HAROLD I. GLASER &

IRWIN M. FRIEDMAN

BY: Harold I. Glaser

Attorneys for the

Petitioners

APPENDIX A.

MEMORANDUM

United States Court of Appeals for

the Ninth Circuit.

J. B. Rose, etal, Plaintiffs-Appel-

lants vs. Thomas Bradley, etal, Defendants-

Appellees. No. 75-3004 before Trask and

Wallace, Circuit Judges and Hoffman, Dis-

trict Judge.

Filed: August 7, 1979.

Appellants, J.B. Rose, Florence

Rose and Brownie-Rose Candies, Inc. filed

Suit in federal district court under 42

J.S.C. §1983 alleging that the City of Los

Angeles (City) its mayor Thomas Bradley,

and various city officials and private

individuals violated appellants' civil

rights as well as the rights of others

Similarly situated. Appellants argue

that the City engaged in fraud and a con-

Spiracy to obtain land improperly from

appellants and certain other Owners of

Property in downtown Los Angeles through

the use of the City's eminent domain power.

According to appellants, the City took the

land for private and not for public use

and appellees, in carrying out this alleged

scheme, made various fraudulent statements

during the state condemnation proceeding.

Appellants' pendent claim alleges that the

City misspent gasoline tax funds to pur-

chase the land.

The district court dismissed the claim

against Mayor Thomas Bradley and issued

a summary judgment in favor of the other

appellees. In so ruling, the court took

note of appellants' two previous unsuccess-

ful attempts to litigate the same claims

in California state courts. See Rose v.

City of Los Angeles, No. 46596 (Cal.App.

2d App. Dist. 1976) (unpublished opinion),

cert. denied, 431 U.S. 903 (1977). The

district court thus held that appellants'

federal suit was barred by the principles

of res judicata and collateral estoppel.

We agree with the district court and affirm

its ruling.

We have previously applied res judicata

principles to preclude parties from re-

litigating claims in federal district court

under 42 U.S.C. §1983 after they have

received an adverse determination on the

merits of such claims in state courts, See

Williams v. State of Washington, 554 F.2d

Joo, 371 (9th Cir. 1977); Scoggin v. Schrunk

522 F.2d 436, 437 (9th cir. 1975), cert.

denied, 423 U.S. 1066 (1976); Francisco

Enterprises, Inc. v. Kirby, 482 F.2d 481,

485 (9th Cir.1973), cert. denied, 415 U.S.

916 (1974); Johnson v. Department of Water

and Power, 450 F.2d 294, 295 (9th Cir. 1971)

cert. denied, 405 U.S. 1072 (1972); see also

Chasteen v. Trans World Airlines, 520 F.2d

714, 715 (8th Cir. 1975); Spence v. Latting,

512, F.2d 93, 98 (10th Cir. 1974), cert.

denied, 423 U.S. 896 (1975). Appellants'

claim that the land was not taken for

public use was determined against them in

a state condemnation hearing. Appellants'

subsequent assertion that the condemnation

hearing itself was tainted by fraud was

dismissed by a state court of competent

jurisdiction and the dismissal was upheld

on appeal. In such circumstances, both the

law of res judicata, see Parklane Hosiery

Co. v. Shore, 99 S.Ct. 645, 649 (1979) ;

A.-2

woes

Hooker v. Klein, 573 F.2d 1360, 1367 (93th

Tir. 1978) and the law of collateral es-

toppel, see Parkland Hosiery Co. v. Shore,

supra; Green v. Ancora-Citronelle Corp.,

577 F.2d 1380, 1383-84 (9th Cir. 1978),

prevent appellants from mounting another

attack on the condemnation through the use

of 42 U.S.C. §1983. As this court stated

in Johnson v. Department of Water and Power,

supra, in dealing with a similar attempt to

use $1983 to circumvent an adverse state

court judgment:

"Appellant had every opportunity

to present his side of the case

in the state courts (footnote

omitted). He cannot now rein-

stitute the same cause, against

the same defendants, based on the

same facts, by merely changing his

legal theory and crossing from the

state to the federal courthouse."

(Citations omitted). 450 F.2d at

295.

In light of the adverse adjudication of

appellants' federal claims, it was proper

for the district court to dismiss appellants'

pendent claim alleging improper expenditure

of state gasoline tax funds. See United

Mine Workers v. Gibbs, 383 U.S. 715, 726

(1966).

Our disposition of this appeal by

reason of the principles of res judicata

and collateral estoppel means that we need

not reach the district court's alternative

grounds for deciding the case. Johnson v.

Department of Water and Power, supra, 450

F.2d at 295.

Judgment AFFIRMED.

A.-3

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