Amicus Curiae Brief — Stenberg v. Carhart
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MOTION FI) ~
FEB 29 2000 ZY Reh 2] dovd
No. 99-830
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1999
DON STENBERG, Attorney General of the
State of Nebraska, et al.,
Petitioners,
Vv.
LEROY CARHART, M.D.,
Respondent.
On Writ of Certiorari to the
United State Court of Appeals for the Eighth Circuit
MOTION FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF
UNDER RULE 37.3(b) WITH ATTACHED BRIEF AMICUS CURIAE
OF JAMES J. CLANCY (MEMBER OF THE SUPREME COURT
BAR) IN SUPPORT OF NEITHER PARTY, SUGGESTING
REVERSAL OF THE JUDGMENT FOR RESPONDENTS FOR LACK
OF ARTICLE 3, §2 FEDERAL SUBJECT MATTER JURISDICTION;
PURSUANT TO THE AUTHORITY OF THE 11™ AMENDMENT,
WATSON V. BUCK, 313 U.S. 387 (1941); YOUNGER V. HARRIS, 401
U.S. 37 (1971); HUFF. V. , 420 U.S. 592 (1975); AND
THE YOUNGS” - HUFFMAN ABSTENTION DOCTRINE.
JAMES J. CLANCY*
9055 La Tuna Canyon Road
La Tuna Canyon, California 91352-2221
(818) 352-2069 FAX: (818) 352-6549
Amicus Curiae.
February 28, 2000 *Counsel of Record.
lifer
éhe
QUESTIONS PRESENTED
Re: Lack of Federal Subject Matter
Jurisdiction under the 11™ Amendment, See
iddlesex ics Comm. v. Garden State
Assn., 457 U.S. 423 at 432 and 437, 73
L.Ed.2d 116, 102 S.Ct. 2515 (1982), Infra at
page 2; and Nebraska v. Divis, 256 Neb. 328,
589 N.W.2d 537 (1999), Infra at Pages 6-9.
I 3
Whether the Opinion and Judgment of the 8™ Circuit
Court of Appeals Abridges the Sovereign Right of the State of
Nebraska under the 10™ and 11™ Amendments to the U.S.
Constitution; as Construed by this Court in Watson v. Buck,
313 U.S. 387 (1941), and the Watson v. Buck Abstention
Doctrine, as That Doctrine Has Been Factored into Younger v.
Harris, 401 U.S. 37 (1971), and Huffman v. Pursue, Ltd. , 420
U.S. 592 (1975), reh. den., 421 U.S. 971, and the Younger and
Huffman Abstention Doctrines; Which Require That New
Legislation (Civil and Criminal) Involving an “Important State
Interest”; i.e., Public Morals, Which Can Be Given a
Constitutional Construction, must Be Initially Construed and
Applied by the Nebraska Judiciary; Which, under the Doctrine
of Separation of Powers Is Required, Where Possible, to Give
the State Statute a “Saving Construction”, and Thereby Assist
the Nebraska State Legislature in its Effort to Write a State
Statute Which Will Meet the Constitutional Requirements of the
Federal Judiciary with Respect to the Federal Constitution ?
- ii -
Whether the U.S. District Court for the District of
Nebraska Lacked Article 3, §2 Subject Matter Jurisdiction of
Respondent Carhart’s Federal Civil Rights Action for Failure of
the Trial Court to Make the Jurisdictional Findings of Fact
Required by the 11™ Amendment and Watson v. Buck, 313
U.S. 387 (1941) and the Watson v. Buck Abstention Doctrine,
as Factored into the Younger - Huffman Abstention
Doctrines by this Court’s Opinions in Younger v. Harris, 40)
U.S. 37 (1971) and Huffman v. Pursue, Ltd, 420 U.S. 592
(1975), Reh. Den., 421 U.S. 971 (1975); Where the State
Legislature Has Enacted Legislation Dealing with the Public
Crime of “Infanticide” Which Is Engaged in under the Mantra of
_ a Personal Right to an Abortion; and Where Such Important
State Legislation on Public Morals Is Not Unconstitutional on
its Face and Can Be Constitutionally Construed by t: e Nebraska
Judicial System; Which, Pursuant to the Doctrine of
Separation of Powers Is under a Constitutional Duty, Where
Possible, to Give Such Legislation a Constitutional
Construction ?
ee
TABLE OF CONTENTS
QUESTIONS PRESENTED, ......- 00 ee eee eee errr eeeeeecees i
TABLE OF CONTENTS, .... «66. e cece cece eee e eee weeeeees iii
TABLE OF AUTHORITIES, ..... «6. sec cece eee eeweeweees vi
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF,
CASES, 0... cccccccccccccccccessecescsccssesess vi
FEDERAL RULES, STATUTES, ......- 66 eee ceeeee vi
AMICUS CURIAE BRIEF,
CASES, ....ccccccccccccccccccccescsessceseseees vi
FEDERAL RULES, STATUTES, ...... 6-0 eee eee eceee x
STATE RULES, STATUTES, .... «6. 6 eee e cere eeeees x
TEXTS, LAW REVIEWS, MISCELLANEOUS, ....... xi
MOTION FOR LEAVE TO FILE AN AMICUS CURIAE
BRIEF UNDER RULE 37.3(b) IN SUPPORT OF
NEITHER PARTY, SUGGESTING A SUMMARY
REVERSAL OF THE JUDGMENT FOR THE
RESPONDENT CARHART UNDER STEEL CO. V.
§23 U.S. 83 (1998) FOR LACK OF FEDERAL
SUBJECT MATTER JURISDICTION DUE TO
FAILURE OF THE TRIAL COURT TO MAKE
THE JURISDICTIONAL FINDINGS OF FACT
F.SUPP. 1404 AT 1420 (JAN. 26, 1998) IN
RELATION TO BILL PRYOR V. SUMMIT
MEDICAL ASSOCIATES, NO. 99-1041., .... 000005: 3
-iv-
CERTIORARI SHOULD BE GRANTED IN BILL PRYOR V.
SUMMIT MEDICAL ASSOCIATES, NO. 99-1041
AND SET FOR ORAL ARGUMENT IN TANDEM
WITH STENBERG V. CARHART.,...........04+: 4
BRIEF OF AMICUS CURIAE JAMES J. CLANCY IN
SUPPORT OF NEITHER PARTY., .......-546- 1
UTC Tees cc ccc cccccccccceccccccecceeses 1
THE “GIST” OF THIS AMICUS CURIAE BRIEF., ......... 2
THE IMPORTANCE OF STENBERG V. CARHART, NO. 99-830., 6
CONTENTIONS OF AMICUS CURIAE JAMES J. CLANCY., .. 9
I INTEREST OF AMICUS CURIAE:
BACKGROUND., «..ccccesececccccccecees 10
il INTEREST OF THE AMICUS CURIAE: A
RE-EXAMINATION OF HUFFMAN V. PURSUE,
LTD., 420 U.S. $92 (1975) IS CONTRAINDICATED.,
ITTTITITITITIT TTT TTI TTT TT TT 12
(A) The Critical Status of the Ohio State
Court’s Jurisdiction and Huffman’s
Dn covccccccesééococeseseseess 13
1(B) Abdication of this Court’s Primary Duty
re Jurisdiction in Huffman— Ohio’s
Concern re Moral Depravity, an
Important State Interest under the
10™ and 11™ Amendments., ........... 14
1(C) The Prosecuting Attorney’s Interests
Versus This Court’s Interests in
i 16
1D) The Battle was Won, but the “War” was
Lost. This Court Can, and must Correct
Theat Baths cocccscccccccccesoosocs 18
CONCLUSION.,
INTEREST _OF _THE AMICUS _CURIAE:
STATEMENT OF THE CASE OF CLIENT
CLARENCE F. MURPHY, IN THE U.S. SUPREME
COURT IN CASE NO. 98-1442, .. 2... cee eeeees
IM(A) Adequate Relief Cannot Be Obtained by
Murphy in Any Other Forum or from
Any Other Court for the Following
RIN, aiid 64 ceeutnenante ddeeebnasonnt 23
1(B) The Refusal of a Majority of Federal
Courts to Acknowledge the
“Jurisdictional” Aspect of the Huffman
Abstention Doctrine in Such a Situation,
Where Each Party Claiming Jurisdiction
in a Different Entity, Manifests a Need for
Re-Examination of the Huffman Cases.,.... 23
The Refusal of The Federal Courts of Appeal to
Recognize And Treat The Right of The State
Judiciary to Interpret New Legislation Under
Watson vy. Buck Abstention as an
11™ Amendment Right Involving Important State
Interests And State Public Policy Has Had a
Devastating Effect on Law Enforcement in The
Public Morals Area And Needs to Be Corrected
(See Appendix D to This Amicus) And in a
Forceful Manner by Vacating the Judgments and
Sending All of The Partial Birth Abortion Cases
Which Are on Its Docket Back to The State
Courts For Their Initial Interpretation And
Cees c ce ccccceceseoeoseocososeoes
TTTITITITITITI LTT TTT TTT TTT Tee 24
-Vi-
TABLE OF AUTHORITIES
Motion for I 0 File Amicus Curiae Brief
CASES (MOTION)
v. No. 73-296
Abstention Doctrine, )
420 U.S. 592, 611-613,43 L.Ed.2d 482,
95 S$.Ct. 1200 (1975); reh. den., 421 U.S. 971,
44 L.Ed.2d 463, 95 S.Ct. 1969,................ 1-2, 4-5
». Citi .
523 U.S. 83, 140 L.Ed.2d 210, 118 S.Ct. 1003,
at Point If] (March 4, 1998), ................... 1-2, 5
Watson v. Buck, (Watson v. Buck Abstention)
1 |} ® € |. 4: ERS eee 2,4
Kounger ». PE ISTEr Sisco na —e
S. 37, 27 L.Ed.2d 669, 91 S.Ct. 746 (1971), . 1-5
FEDERAL RULES, STATUTES, (MOTION)
United States Constitution, ...................... 1,5
pL art peer 2,5
EY, og. J vhd cenicdhocostes cass 2-5
United State Supreme Court Rule 37.3(b),............. 1
AMICUS CURIAE BRIEF
CASES (AMICUS)
449 U.S. 90 at 100,
104, 60 L Ed 24 308, 101 S.Ct. 441 (1980), .......... 21
- Vii -
398 U.S. 281,
s L . . capalenpalin 1739 dan 70) (Younger at 40),
~~ 18, 25-26, 29
))
86 oe Ed 2d 394, 408-410, 105 S.Ct. 2794 (1985) . 18, 28-29
14, 24-26
peas V. Si isi lik
103 S.Ct. 1303 (1983)
460 US. 462. 75 LEd.2d 206,
(see Rooker-Feldman Abstention), .............. 3, 23
380 U.S. 479, 14 L.Ed.2d 22,
85 S.Ct. 1116 (1965) (Younger at 48), ............ 9, 30
Ex Parte Young, 2” U.S. 123, 52 L.Ed. 714,
28 S.Ct. 441 (1908) (Younger at 45), ............. 3-4, 9
Fenner v. Boykin, 27\ U.S. 240, 70 L.Ed.2d 927,
46 S.Ct. 492 (1926) (Younger at 45-46),.............. 9
Hicks v. Miranda,
422 U.S. 322, 45 L.Ed.2d 223, 95 S.Ct. 2281 (1975), 10,15
No. 99-1152, Oct. Term 1999, _
or filed Jan. 10,2000,............ 29
No. 99-1156, Oct. Term 1999,
or filed Jan. 10,2000,............ 29
No. 99-1177, Oct. Term 1999,
or Certiorari filed Jan. 14,2000,............ 29
- Vili -
No. 73-296
yoo Doctrine, )
420 U.S. 592, 606 fn. 18&19, 611-613,
43 L.Ed.2d 482, 493-494 fn. 18&19, 95 §.Ct. 1200 (1975);
reh. den., 421 U.S. 971, 44 L.Ed.2d 463, 95 S.Ct. 1969,
Re hs. MA PRE Say 2-5, 11-14, 16-20, 22-24, 30
es CS because cas 6 ohav be eated 12-13, 16
In Re Clarence Murphy, U.S.S.C.T. No. 98-1442,
Petition for Writ of Mandamus, ......... -.... £1,13,18
426 U.S. 394, 48 L.Ed.2d 725, 96 S.Ct. 2119 (1976), .
457 o S. 423, 73 LEd.2d 116, 102 § Ct. 2515(1982) .
2
299 NW 2 BaT at 692 (lows Supreme ourt a 19
y 589 N.W.2d 537,
256 Neb. 328, 330-332, 334-335 (1999),.......... 6-9, 29
0
716 F.2d 1194 (1983),
Parratt v. Taylor, 451 U.S. 527,
68 L.Ed.2d 420, 101 S.Ct. 1908 (1981)....... ...... 21
Pennzoil Co. v. Texaco, Inc., 481 U.S. | at 14-17, fn.9,
95 L.Ed.2d 1, 107 S.Ct. 1519 (1987), ................ 3
Roe v. Wade, 410 US. 113, '
35 L.Ed.2d 147,93 S.Ct. 705 EE ak ak aie WU re Oo l
ym ay errs Doctrine
(see and District of Columbia Court, etc.), ... 3, 23
Fidelity Trust Co., 263 U.S. 413, (1923)
Tieen Abstention)............... 3, 23
tthe” athlete
SUS BY 140 Edda 210 118s Cr 10OF
at Point III (March 4, 1998), .................. 14, 22
tal, 984 F Supp. 1404. 1419-1420. 1432-143,
en a 3, 4
iL, No. 98-6129 (11™ Cir Tay 15, 1999),
68 US.L.W. at 1079 (publ. Aug. 10, 1999), .......... 10
University of Tennessee v. Elliott,
478 U.S. 788, at 799, 92 L.Ed.2d 635,
ie li eS 2
Watson v. Buck, (eton ». Buck Abstention)
313 U.S. 387, 61 S.Ct. 962 (1941)
(Younger at 46, 49,53), ..........000005.. 9, 24-25, 30
389 KS 90, 19 L.Ed.2d 305, 88 S.Ct. 269 (1967), ..... 22
No. 97-461,
524U.S.__, 141 L.Ed.2d 364 at 375-378,
SOU NOME DUO, ico cccccetccodeces ce 22
-X-
Kounger v. Harris ( Younger Abstention Doctrine),
401 U.S. 37, 45-46, 49, 27 L.Ed.2d 669,
FS es: HN "See hee da bse 2-5, 9-12, 16-17, 30
FEDERAL RULES, STATUTES, (AMICUS)
Judicial Doctrines
TELE AT pe ramen aeet 3, 19-23
ere ee 30
Re er ae 3, 22-23
SEE cs-0 240d oe cha kad a oe .~». ae
United States Codes
Se i I ogg ee eo ea 12, 21-22
28 U.S.C. §2281 (repealed in 1976), .......... 12
ER os 5g werd 4 Gra cla os G-c'be 12, 20-22
ee ea, So 0 6 c'4s oes beak Gas 20, 22, 30
United States Constitution,
(ASAIN RE ICS PASSER Ep 2, 12, 22-24, 29
Fr a i ss kw al aa ae 9
10™ Amendment, .............. 9, 12, 14-15, 18
11™ Amendment, .. 2-4, 9-12, 14-15, 17-25, 29, 30
14™ Amendment, (Due Process Clause), ....... 12
STATE RULES. STATUTES (AMICUS)
Bettendorf Zoning Code
REO NENT ary Sea ire dey oy Came 19
§24.4 (20% Rule [procedural] “Protest”), .. . 19-20
Iowa Constitution,
Article 1, §9 and §18 (“Vested Rights” claim), .. 19
Ohio Revised Codes, Chapter 3767 (re Huffman), ..... 15
ce
TEXTS, LAW REVIEWS, MISCELLANEOUS (AMICUS)
Rollin M. Perkins,
Criminal Law,
Foundation Law Press, 3*° Ed. (First published in 1955)
IG Hs a haw ees covtpasgsaneeesene ae. 15
ice, 7” Ed., Stern, Gressman,
Shapiro and Geller, ©1993, at page 495, ...... 22
ite
MOTION FOR LEAVE TO FILE AN AMICUS CURIAE
BRIEF UNDER RULE 37.3(b) IN SUPPORT OF
NEITHER PARTY, SUGGESTING A SUMMARY
REVERSAL OF THE JUDGMENT FOR THE
RESPONDENT CARHART UNDERSTEEL CO. V.
CITIZENS FOR A_ BETTER ENVIRONMENT,
§23 U.S. 83 (1998) FOR LACK OF FEDERAL
SUBJECT MATTER JURISDICTION DUE TO
THE FAILURE OF THE TRIAL COURT TO
MAKE THE JURISDICTIONAL FINDINGS OF
FACT REQUIRED BY YOUNGER V. HARRIS, 401
U.S. 37 (1971), AND HUFFMAN V. PURSUE, LTD.,
420 U.S. 592 (1975).
NOW COMES James J. Clancy, Attornev at Law, and
a member of the Supreme Court Bar, to move this Court
pursuant to Rule 37.3(b) // for leave to file a Brief Amicus
Curiae, in support of neither of the Parties, suggesting a
summary reversal of the Judgment for Respondent Carhart
under Steel Co. v. Citizens for a Better Environment,
523 U.S. 83 (March 4, 1998) for lack of federal subject matter
jurisdiction due to the failure of the Trial Court to make the
Jurisdictional Findings of Fact required by Younger v. Harris,
supra, and Huffman v. Pursue, Ltd., supra.
The Steel Co. case is cited for the Proposition of Law
which holds that the first duty of every Court is to make a
determination whether, under the U.S. Constitution, the court
has jurisdiction over the subject matter of the action which is
before it. It matter not that Attorney General Stenberg did not
raise the issue of lack of subject matter jurisdiction in Stenberg
v. Carhart, at the trial, or on appeal, or in his Petition to this
Y — Consent of all parties was requested and has been denied. See
correspondence at Appendix Hi to this Brief Amicus Curiae. No counsel for
a party authorized this Brief in whole or in part, and no person or entity,
other than the Amicus Curiae, made a monetary contribution to the
preparation or submission of this Brief.
a before the Oral Argument ia
this Court in Ste woe v. Carhart, and has framed the issues in
two specific Jurisdictional Questions at pages i and ii to this
Brief. Amicus contends that Steel Co., supra, requires this
Court to consider both Jurisdictional Questions, sua sponte,
because of the seriousness of the 11™ Amendment
Constitutional infringement involving Watson v. Buck, 313 U.S.
387 (1941).
The judgment of the U.S. District Court and that of the
8™ Circuit Court of Appeals must be vacated upon the grounds
of lack of Article 3, §2 federal subject matter jurisdiction,
pursuant to the 11™ Amendment; Watson v. Buck, 313 U.S.
387 (1941); Younger v. Harris, 401 U.S. 37 (1971); Huffman
v. Pursue, Ltd., 420 U.S. 592 (1975); and the Younger -
Huffman Abstention Doctrines for failure of the Trial Court
to make the specific jurisdictional findings of fact required by
Younger and Huffman, see, in particular, Huffman, 420 U.S.
at 611-613 (last three [3] paragraphs of Chief Justice
Rehnquist’s opinion) reading:
2 Younger, and its civil counterpart which we
apply today, do of course allow intervention in those
cases where the District Court properly finds that the
state proceeding is motivated by a desire to harass or is
conducted in bad faith, or where the challenged statute
whomever on offic sieht ba seedasto agai t.”” roe we
have noted, the District Court in this case did not rule on
the Younger issue, and thus apparently has not
considered whether its intervention was justified by one
of these narrow exceptions. Even if the District Court’s
opinion can be interpreted as a sub silentio determination
that the case fits within the exception for statutes which
are ‘ “flagrantly and patently violative of express
et
constitutional prohibitions,” ’ such a characterization of
the statute is not possible after the subsequent decision
of the Supreme Court of Ohio in State, ex rel. Ewing v
A Motion Picture Film Entitled “Without a Stitch,’
37 OhioSt.2d 95, 307 NE2d 911 (1974). That case
narrowly construed the Ohio nuisance statute, with a
view to avoiding the constitutional difficulties which
concerned the District Court.” (Our emphasis. )
™ We therefore think that this case is appropriate
for remand so that the District Court may consider
whether irreparable injury can be shown in light of
“Without a Stitch’, and if so, whether that injury is of
=e 4 nature that dps ES _
vacated and the cause is remanded for further
proceedings consistent with this opinion.” (Qur
emphasis. )
» It is so ordered.”
THE IMPORTANCE OF SUMMIT MEDICAL
ASSOCIATES, P.C., ET AL. V. FOB JAMES, JR,
ET AL., 984 F.SUPP. 1404 AT 1420 (JAN. 26, 1998)
IN RELATION TO BILL PRYOR V. SUMMIT
MEDICAL ASSOCIATES, NO. 99-1041.
As noted by the Trial Court below in Summit Medical
Associates, P.C., et al. v. Fob James, Jr., et al., supra, the
11™ Amendment issue presents a case of first impression in the
partial birth abortion area. Governor Fob James, Jr. and
Attorney General Bill Pryor pleaded the 11™ Amendment and
the Younger Abstention Doctrine as a jurisdictional bar which
precluded the Federal Court from asserting subject matter
jurisdiction over the Plaintiffs Complaint as filed. The Motion
of Amicus Curiae James J. Clancy, timely filed in Pryor, supra,
oii.
on February 2, 2000, was made necessary because the iss
— matter — under the bea Amendment, whi
fen of Ae is on discussed i in the Attorney
Petition for Writ of Certiorari.
For the past 26 years, Amicus has been waiting for the
day when a case such as v.
No. 99-1041, would reach this Court’s Docket and
issue as to whether the Younger v. Harris, 401 U.S. 37 ond
and Huffman v. Pursue, Ltd, 420 U.S. 592 (1975) and
Watson v. Buck, 313 U.S. 387 (1941) Abstention Doctrines
are jurisdictional w
eeaaanie in the Federal Court and |
trial.
|
CERTIORARI SHOULD BE GRANTED IN
V. SUMMIT MEDICAL ASSOCIATES, NO. 99-1041
AND SET FOR ORAL ARGUMENT IN TANDEM
WITH STENBERG V. CARHART.
Governor Fob James’ Motion to Dismiss the Civil Rights
complaint in j v.
supra, for lack of subject matter jurisdiction pursuant to the
11™ Amendment has framed the 11™ Amendment issue. The
issue of Governor James’ jurisdictional defense having been
raised in Amicus James J. Clancy’s Brief in Bill Pryor v.
Summit Medical Associates, No. 99-1041, this Court must now
decide that jurisdictional issue in Pryor, supra, at the outset, sua
Te nian eee
therefore, gran: its writ of certiorari in Bill Pryor v. Summit
Medical Associates now and set it for oral argument in tanaem
with Stenberg v. Carhart.
Under Amicus’ analysis of “subject matter jurisdiction”,
the definitive question in Bill Pryor v. Summit Medical
1
Association, No. 99-1041, under the U.S. Constitution and
Steel Co., supra, is: “Is it a case of 11™ Amendment
(constitutional) subject matter jurisdiction for the state court to
decide, or is it Article 3,§2 (statutory) federal subject matter
jurisdiction for the U.S. District Court to decide. The issue of
“lack of subject matter jurisdiction” which is before the Federal
Court in Governor Fob James, Jr.’s case, pursuant to the
Younger - Huffman Abstention Doctrines, is adversarial, and
is jurisdictional— jurisdiction is in either the State Court or it is
in the Federal Court— it cannot be in both!
Nor has the 11™ Amendment jurisdictional bar been
“waived” where the facts demonstrate that the issue could and
should have been raised by Arkansas and Nebraska. The failure
to raise the issue, very definitely, was not a conscious waiver on
the part of the State of Arkansas or Nebraska.
A decision in Bill Pryo :
supra, that Governor James was correct and thet his motion
must be granted to allow the Alabama State Judiciary to perform
its constitutional duties with respec! to new legislation on behalf
of the Sovereign State of Alabama will require that all of the
other Partial Birth Abortion cases which will reach this Court’s
Docket, must be vacated in order that each of the States of
Alabama, Nebraska, Illinois, Wisconsin, and the other States
might have their State Courts render an initial State Court
construction pursuant to Steel Co., supra, and the
11™ Amendment.
Dated: February 28, 2000
ie
BRIEF OF AMICUS CURIAE JAMES J. CLANCY IN
SUPPORT OF NEITHER PARTY.
INTRODUCTION
In 1998, the underlying rationale of Roe v. Wade, 410
U.S. 113 (1973) was seriously eroded by two scientific events
which took place in the form of: (1) a mishap which, only
recently, has come to light; and (2) benefits in the form of an
operation to cure the genetic disease of Spina Bifida which were
bestowed upon an unborn “child-person” of 24 weeks while
“partially” out of the womb.
In 1998, a scientific “mishap” occurred which recently,
has been brought to the public’s attention. As a result of this
mishap, it has been revealed and established by irrefutable
“living” proof that “an entire person” with a separate and
distinct D.N.A. identification is “created” at the fertilization of
the female embryos by the male sperm, and before the
implantation in the womb of the female (see the analysis of
Thomas F. Fee and other news articles of such “mishap” at
Appendix A and Appendix B to this Amicus Brief).
One of the results of the second scientific event is to
raise a question whether due process and equal protection of the
law are being accorded unborn “child-persons”, while in the
womb of the female, and whether the female should be held
responsible for its “care” while in the womb. See, in this regard,
and compare the unequal protection of the laws of a community
which confers a benefit upon a 24 week old unborn “child-
person” in the form of an operation and cure, at the instance of
an exceptionally qualified physician-surgeon for the genetic
disease of Spina Bifida, while “partially” out of the womb, while
at the same time tolerating the death and destruction by
dismemberment of the body of a healthy unborn “child-person”’,
also age 24 weeks by Abortionist Leroy Carhart while
performing a “partial” birth abortion, as described by the U_S.
District Court at Appendix A-1 to this Amicus Brief. See the
ihe
news reports at Appendix B to this Amicus Brief and compare
the same with the news account at Appendix A.
If one unborn, healthy “child-person” at age 24 weeks
can be destroyed by being dismembered by Abortionist Carhart
while “partially” out of the womb, for the mere convenience of
the woman, while another unborn “child-person” at age
24 weeks with a birth defect is being saved (cured) through an
extraordinary operation by an experienced surgeon at the
expense of the community, can these two events be reconciled
with the“due process”, and “equal protection of the laws”
concepts, and the oath of our forefathers when they signed the
Declaration of Independence and swore to uphold the Laws of
Nature and Nature’s God ?
THE “GIST” OF THIS AMICUS CURIAE BRIEF.
Amicus Curiae respectfully submits that the Huffman
Abstention Doctrine as it is presently being administered is
wrong-headed. It was formulated as a jurisdictional rule to
separate Article 3, §2 jurisdiction (based upon the fiction that
the state actor is a “rogue”) from 11™ Amendment
jurisdiction, and should have been applied, as such, by the U.S.
District Court. However, during the ewe 27 years this Court
ay of the suny eplsions on Go Beunper - Huffman
Abstention cases.
This Court can and should correct that defect in Bill
Pryor _v. Summit Medical Associates, supra, by granting
certiorari in that cases and ordering U.S. District Judge Myron
H. Thompson to vacate his judgment in the trial court for lack
of subject matter jurisdiction under the 11™ Amendment, the
Huffman Abstention Doctrine and its progeny: Middlesex
Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423
(1982), Migra v. Warren City School Dist Bd of Ed., 465
U.S. 75 (1984), University of Tennessee v. Elliott, 478 U.S.
788 at 799 (1986), and Plough v. West Des Moines
wBe
Community School District, 70 F.3d 512 at 516-517 (CA 8™
1995); and under the Rooker-Feldman Abstention Doctrine,
the Res Judicata Doctrine and the Stare Decisis Doctrine of
this Court as set forth in the Amicus Curiae Brief of James J.
Clancy, filed February 2, 2000, in Bill Pryor v. Summit Medical
Associates, No. 99-1041, and herein on February 28, 2000, in
Stenberg v. Carhart
In his opinion, U.S. District Judge Myron H. Thompson
erroneously assumed that the Younger Abstention Doctrine
was not applicable because a case involving the Statute was not
pending in the State Court. See Summit Medical Associates,
984 F.Supp. 1404 at 1432-1433. Amicus contends that Judge
Thompson’s assumption is fatal to his judgment for the
Plaintiffs. The 11™ Amendment, which is the foundation for ©
and “factored” into Younger - Huffman Abstention, is a
broader and more fundamental doctrine. See Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1 at 14-17 (1987) at fn. 9 on page 16:
proceedings in which the question could be raised. See
Railroad Comm'n of Texas v. Pullman Co., 3\2 U.S.
496, 85 L.Ed.2d 971, 61 S.Ct. 643 (1941).” (My
case”. The Laguistion # Genie involves an “as ater
constitutional claim. The Trial Court’s “referral of questions”
to the Alabama Supreme Court and that Court’s refusal to reply
makes the Federal Court’s Opinion merely “advisory” and
satisfies the requirement of Pennzoil Co. v. Texaco, Inc., supra,
and the 11™ Amendment.
In the trial of the Alabama Partial Birth Abortion case,
Summit Medical Associates, et al. cannot reinterpret Ex Parte
ile
Young, supra, or use it to overrule Younger, supra, because Ex
Parte Young was “factored” into Justice Hugo Black’s majority
opinion in Younger. The Federal District Court is bound by
Younger and Huffman, supra, and is required to make the
special jurisdictional findings which Younger requires. See
Huffman, 420 U.S. at 611-613 and page 3 of the Motion for
Leave to file an Amicus Curiae Brief. That jurisdictional burden
was on the Federal Plaintiff Vv
to be in the Federal Court. None of the Plaintiffs in any of the
Partial Birth Abortion cases on file in this Court has satisfied its
burden.
The Younger Abstention Doctrine is controlling even
where there is no state case pending at the time of filing the
federal action where, as here, the State Court has not had an
he § 5 ' )
interpretation can “save” the Statute— the so-called Watson v.
Buck, supra, exception which is referred to and “factored into”
Justice Black’s opinion in Younger v. Harris, 401 U.S. 37 at
45-46 and 49.
In his analysis, Judge Thompson did not consider the
Younger - Huffman Abstention Doctrines as an integral part
of the 11 Amendment challenge See Summit Medical
Associates, supra, 984 F.Supp at 1419:
“IV. ATTORNEY GENERAL DEFENDANTS’
JURISDICTIONAL CHALLENGES
“
a For the sake of clarity, and to ensure that it fully
and properly resolves each of the attorney general
defendants’ challenges, the court will address them
eT eee For er eevee
To resolve this issue, the court will address whether the
plaintiffs enjoy standing to bring their various claims, as
well as whether any of these claims has been rendered
moot, and hence non-justiciable, in light of the
defendants’ wes “p48 actions. » Ennely. she. sonst nil
emphasis. )
The U.S. District Judge’s analysis of the Alabama Attorney
General’s Jurisdictional challenges which appears thereafter at
pages 1420-1439 reads:
“A, 11™ Amendment, 934 F.Supp. 1404 at 1420-
1425.
“B. Article [III Case or Controversy requirements,
1425-1432. oe
1. Standing, 1425-1430.
2. Mootness, 1430-1432.
“C. Abstention Doctrines, 1432-1439.
1. Younger Abstentioh, 1432-1434.
2. Equity Principles, 1434-1436.
3. Pullman Abstention, 1436-1439.”
As can be seen from the above outline, the Younger Abstention
Doctrine, which should be analyzed at “Point A” on page 1420
(at the very beginning) because it and the Huffman Abstention
Doctrine are squarely on point and controlling, appears, as an
afterthought, as one of the General Abstention Doctrines to be
considered as a mere matter of Equity.
=
THE IMPORTANCE OF STENBERG V. CARHART,
NO. 99-830.
As to Stenberg v. Carhart, the review exercised by the
8™ Circuit Court of Appeals below must be regarded as being
merely “advisory”, as a matter of law. It very clearly does not
meet the “Standard of Review” which the Nebraska Judiciary
has established as a part of the Public Policy of the Sovereign
State of Nebraska. See Nebraska v. Divis, 256 Neb. 328, 589
N.W.2d 537 (1999), “Standard of Review’, reading at 256
Neb., page 330:
Whetl ’ puicnel i
of law, with respect to which an appellate court has an
obligation to reach a conclusion independent of that of
the trial court. State v. Torres, 254 Neb. 91, 574
N.W.2d 153 (1998); State v. Roucka, 253 Neb. 885,
573 N.W.2d 417 (1998). The party challenging the
constitutionality of a statute bears the burden to
‘ “clearly establish{ ]’ ” the unconstitutionality of a
statutory provision. State v. Schmailzl, 243 Neb. 734,
736, 502 N.W.2d 463, 465 (1993), quoting Weiner v.
State ex rel. Real Estate Comm., 217 Neb. 372, 348
N.W.2d 879 (1984). Statutes are presumed to be
constitutional, and all reasonable doubts will be resolved
in favor of constitutionality. State v. Philipps, 246 Neb.
610, 521 N.W.2d 913 (1994). A penal statute must be
construed so as to meet constitutional requirements, if
such a construction can be reasonably accomplished.
State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154
(1996).” (Qur emphasis.)
and at page 331:
Fe
a suspect classification. Robotham v. State, 241 Neb.
379, 488 N.W.2d 533 (1992).
“Id. at 383, 488 N.W.2d at 538. See, also, United
States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95
L.Ed.24 697 (1987) (holding that facial challenge to
and at page 332:
Neb. Const. Art. Il, §1. It provides:
‘The powers of the government of this state are
divided into three distinct departments, the
legislative, executive and judicial, and no person
“State v. Philipps, 246 Neb. 610, 614, 521 N.W.2d 913,
916 (1994). See Otey v. State, 240 Neb. 813, 485
N.W.2d 153 (1992).” (Qur emphasis. )
and at page 334:
- Similarly, the Legislature has the authority to fix
the penalty range with can be imposed for the crimes it
has defined. The Legislature determines the nature of
the penalty imposed, and so long as that determination
is consistent with the Constitution, it will not be
disturbed by the courts on review. In this regard, in
State v. Tucker, 183 Neb. 577, 579, 162 N.W.2d 774,
776 (1968), quoting State ex rel. Nelson v. Smith, 114
Neb. 653, 209 N.W. 328 (1926), we observed:
‘ “The legislature is clothed with the power of
defining crimes and misdemeanors and fixing
their punishment; and its discretion in this
respect, exercised within constitutional limits, is
not subject to review by the courts.” ’
“See State v. Tatreau, 176 Neb. 381, 126 N.W.2d 157
(1964).”
and at page 335:
“E.K. Buck Retail Stores v. Harkert, 157 Neb. 867,
872-73, 62 N.W.2d 288, 294 (1954).” (Qur emphasis.)
CONTENTIONS OF AMICUS CURIAE JAMES J.
CLANCY.
Younger v. Harris, supra (1971), was a 5-4 decision.
The majority opinion, which was written by Justice Hugo Black,
clearly rejected the type of interference which was employed by
the Federal Court in this case. Although Justice Black was an
absolutist on the 15" Amendment, he was a stronger supporter
of “State’s Rights” under the 11™ Amendment, which is
reflected in his Younger opinion, which involved a prosecution
involving free speech. His “Younger” opinion (the Younger
Abstention Doctrine) “reconciled” the principles expressed in
5 cases: Ex Parte Young, 209 U.S. 123 (1908): Younger at 45;
Dombrowski v. Pfister, 380 U.S. 479 (1965): Younger at 48;
Watson v. Buck, 313 U.S. 387 (1941): Younger at 46, 49, 53;
Fenner v. Boykin, 271 U.S. 240 (1926): Younger at 45-46;
Atlantic Coast Line R. Co. v. Engineers, 398 U.S. 281 (1970):
Younger at 40. The Younger Abstention Doctrine is firmly
grounded upon the Sovereign right of each state under the
10™ and 11™ Amendment to have its important state interests
(both criminal and civil) tried and decided by the State Judiciary,
which has the absolute right to “interpret” the statute and
“assist” the State Legislature in its effort to write constitutional
legislation, where possible, see Watson v. Buck, supra. See, in
this regard, the public policy expressed by the Nebraska
Supreme Court in Nebraska v. Divis, supra, at pages 6-9 of this
Amicus Brief.
Summit Medical Associates’ race to the courtroom in
No. 99-1041 was fatal to its cause. By filing its Complaint in
July, two weeks before the Statutes became effective (on
-10-
- August 15' and 12™, 1997), it is unable to establish that the
U.S. District Court had federal subject matter jurisdiction at the
time the Complaint was filed because the statutes did not exist
in July and were not effective. See, also, Hicks v. Miranda, 422
U.S. 332 (1975) which would have been available to the
Alabama Attorney General had he elected to use it (i.e., by filing
a declaratory judgment action in the State Court alleging all of
the i issues noagu by Somat om moving to ome - Federal
under the um Amendment, r= first interpretive dae of
the Statute must be by the Alabama Supreme Court after the
first trial under the Statute except where the Younger special
findings of fact exist).
I INTEREST OF AMICUS CURIAE:
BACKGROUND.
Amicus learned of the Alabama Attorney General’s
11™ Amendment challenge to Federal jurisdiction and the
11™ Circuit’s Opinion in Summit Medical Associates, P.C.; et
al v. Pryor, et al No. 98-6129 (July 15, 1999) from a
subscription copy of 68 U.S.L.W. at 1079, dated August 10,
1999 and requested his computer operator to obtain a copy from
the Internet.
On August 18, 1999, Amicus received a copy of the
opinion from the (BNA) Internet and made four phone calls to
the Attorney General’s Office in Montgomery, Alabama (334-
242-7300). Upon inquiry, he was informed that Bert Jordan in
Birmingham was one of the attorneys for Attorney General
Pryor on appeal.
On September 2, 3, 10, 11 and 14, 1999, Amicus phoned
Bert Jordan (205-870-0555). On September 14™ Amicus had
a lengthy (44 minute) phone conversation with Jordan in which
the importance of the Alabama Attorney General’s
11™ Amendment challenge as a case of first impression was
discussed at great length. Jordan informed Amicus that he was
ef
one of the attorneys on the case, and that a petition for rehearing
en banc would be filed.
On October 18, 1999, Amicus had a second lengthy
(43 minute) phone conversation with Jordan and was informed
that a petition for rehearing would be filed on or about
November 10, 1999 and that the matter of filing a petition for
certiorari was being discussed, but it was not known who would
prepare the petition.
During the above two lengthy phone conversations with
Jordan, Amicus expressed his interest in the Alabama Attorney
General’s Petition for Certiorari and his convictions: (1) that
the Summit case should be reversed upon the authority of
Younger v. Harris, supra, and Huffman v. Pursue, Ltd., supra,
because they were squarely in point on the 11™ Amendment
issue and were controlling; and (2) that Amicus had been
attempting to raise that issue in the U.S. Supreme Court since
1975 (25 years); and was presently trying to do so in a case
known as In Re Clarence Murphy, No. 98-1442, etc.; and also
explained most of the contentions of Amicus regarding his
reason why the Younger and Huffman Abstention Doctrines
were controlling.
On Saturday, January 15, 2000, Amicus learned from an
L.A. Times news article that this Court had granted a Writ of
Certiorari in Stenberg v. Carhart, No. 99-830. On Monday,
January 24, 2000, Amicus was informed by the Alabama
Attorney General in Montgomery (334-242-7445 [Michael
Jackson]) that Attorney Jay Sekulow in Washington, D.C. was
preparing the Petition for the Alabama Attorney General. On
On Sonne? 28, 2000, hades faxed a pee for consent to
-12-
filing an Amicus Curiae Brief for the benefit of the Court on the
11™ Amendment and the Younger - Huffman
Abstention issues so that those issues could be argued.
On February |, 2000, Simon Heller refused to consent
in writing as attorney for Summit Medical Associates. Walter
Weber has not yet responded in writing for Petitioner Bill
Pryor. On February 2, 2000, the Clerk of this Court timely filed
the Amicus Curiae Brief of James J. Clancy in Case No. 99-
1041, which addressed the Subject Matter Jurisdiction Issue
which was inadvertently omitted from the Alabama Attorney
General’s Petition.
11 INTEREST OF THE AMICUS CURIAE: A
RE-EXAMINATION OF HUFFMAN V. PURSUE,
LTD., 420 U.S. 592 (1975) IS
CONTRAINDICATED.
27 years ago (May 1973), the substantial federal
question which controls this case; namely, the conflict that
necessarily occurs between the subject matter jurisdiction of
federal courts under the 14™ Amendment (42 U.S.C. §1983)
and Article 3, §2 of the U.S. Constitution; and the subject
matter jurisdiction of state courts under the 10™ and 11™
Amendments to the U.S. Constitution, was squarely before
re Court in two forms: (1) in yyy
Ditties No. 72-1613 Misc., being a ‘Moten = om to file
a Petition for Writ of Mandamus and Petition for a Writ of
Mandamus as to this Court’s original jurisdiction pursuant to
28 U.S.C. 1651(a); and (2) in Lawrence S. Huffman vy.
Pursue, Ltd., No. 73-296, which is now reported as 420 U S.
592, supra, being an appeal from an adverse judgment of a three
judge court with respect to the constitutionality of the Ohio
Public Nuisance Statute as applied in the Lima, Ohio Public
ote
Amicus Curiae James J. Clancy ” was Counsel of
Record for Allen County, Ohio Prosecutor Huffman (hereinafter
“Huffman”) in Huffman’s two cases in 1975. A duplicate copy
of the Jurisdictional Statement and the Petition for Rehearing in
Huffman v. Pursue, Ltd, No. 73-296 and the Motion for
Leave to File a Petition for Writ of Mandamus and Petition for
Writ of Mandamus in Huffman v. U.S. District Court, No. 72-
1613 Misc. was filed with this Court as “Exhibits 1A,
1B and 1C” to the Petition for Writ of Mandamus in Jn Re
Murphy, No. 98-1442, with a request that this Court take
Judicial Notice of such pleadings.
tl (A) The Critical Status of the Ohio State Court's
Jurisdiction and Huffman’s Dilemma.
The final judgment which closed the Cinema | Theater
in Lima, Ohio as a Moral Public Nuisance in the Ohio public
nuisance case was filed on November 30, 1972. The attorneys
for the theater transferred the ownership to a newly formed
Corporation and on the next day (December |, 1972) filed a
civil rights action in the U.S. District Court attacking the
constitutionality of the Ohio Public Nuisance Statutes (which
required Appellate review by a three judge federal court).
On December |, 1972, the date the action was filed
(which is the date upon which the subject matter jurisdiction of
the federal court is routinely tested and determined), the
ne yy Ry sy agp Lice mm meyer
mation, the filing of notice of cosed and motions for
attorneys’ fees, etc.
In the two Huffman cases which were before this Court,
Y Amicus Curiae James J. Clancy also was and is counsel of Record
for Clarence F. Murphy in his Petition for Writ of Mandamus in Jn Re
Murphy, U.S. Supreme Court No. 98-1442, October Term 1998. See
Point III, infra, at pages 1* 24, and see Appendix C to this Amicus Brief.
-14-
Huffman made a determined effort to focus the Court’s attention
on Lack of “ Subject Matter Jurisdiction” which, according to
Environment, 523 U.S. 83 [March 4, 1998]) and properly
belonged in the Ohio State Court System. This tactic was
Oe ee ee vesseess sa ananee
Huffman “test case” (which ruling would pceme. Coun
“precedent” in other State Public Nuisance Abatement cases
wd on RAB Bn Ae BB
| (B) Abdication of this Court’s Primary Duty re
Jurisdiction in Huffman— Ohio’s Concern re Moral
Depravity, an Important State Interest under the
10™ and 11™ Amendments.
Unfortunately, this Court, as in Cooper v. Mitchell
Brothers’ Santa Ana Theater, infra, at pages 24-25 to this
Amicus Brief, avoided answering the lack of “subject matter
jurisdiction” question which was squarely raised in the (original)
Petition for Leave of Court to File a Petition for Writ of
Court that the “Jurisdictional Statement” on the mandatory
appeal had been filed in the interim and that the “jurisdiction”
question “could” (not “would”) be addressed in that case when
this Court heard that appeal pursuant to its mandatory appellate
MILSUILLIOL © ' Ue JUURS WUMEL JULIO Li
In 1973, the National need for a decision and an
extraordinary writ upholding the subject matter jurisdiction of
a state court on important state matters such as the abatement
-15-
of moral public nuisances pursuant to Chapter 3767 of the
Ohio Revised Codes and the 10™ and 11™ Amendments was
abundantly clear. The “moral depravity” which then was being
exhibited by the escalating pornography industry and porn
industry films, such as the film “Deep Throat”, (which
“glorified” sodomy per 0.8. [oral sodomy]) were appearing as
the regular fare at the Cinema I Theater in Lima, Ohio and on
ponteren) setae +t crewed weeds + days Leyte wortn
. "See, for example, Hicks
litigation faced by law enforcement.
my 23 years earlier (1950), Professor Rollin M. Perkins,
now Connell Professor of Law Emeritus, U.C.L.A. Professor
Emeritus, University of Hastings College of Law had instructed
Amicus Curiae herein (as a first year law student in Prof.
Perkins’ criminal law class at U.C.L.A.), and later published in
his definitive text on the Criminal Law, that the Common Law
in the United States with respect to this subject (oral sodomy)
and “public morals” was clearly defined and well documented. ¥
¥ See text of Perkins on Criminal Law (at pages 465-466), the
Foundation Law Press, 3*° Ed., (first published in 1955), which reads in
part:
. The ancient city of Sodom, reputedly destroyed because
of its unspeakable vices, is the source from which the word
‘sodomy’ is derived. The offense was regarded with such
abhorrence in the early days that Blackstone literally refused to
a mteerion fo ft only ta ‘the. int = _
ote
Ul (C) The Prosecuting Attorney's Interests Versus
This Court's Interests in Huffman.
The “Questions Presented” at pages 5-9 and the
“Statement of Facts” at pages 9-28 of the Petition for Writ of
Mandamus in No. 72-1613 Misc. was _ purposely
comprehensive * and tailored to the Prosecutor’s special needs
so that anyone in the appellate chain who later undertook a
study of those documents would immediately recognize the
validity of the jurisdictional issue being raised and the need for
an issuance of a Rule Nisi re jurisdiction.
This Court was thinking of the Federal Judiciary’s own
National needs, and was not (primarily) interested in the
practical aspects of the Public Nuisance Abatement case in
relation to the “real” needs of the State of Ohio.
At Oral Argument, Justice Stewart asked if Ohio would
be satisfied if the Younger Rule in criminal cases were extended
to civil proceedings. Prosecutor Huffman answered “No”, in
that, under this Court’ s own precedents, it must first address the
question of “subject matter jurisdiction” -ie., whether the case
nature.’ 4 Bi.Comm. *215. " (Our Emphasis.)
¥ See, in particular, at “Appendix C”, pages C-7 through C-10, the
pleading by reference of the time/motion studies of the films named, at
paragraph 7(j) and 10(c) of the Complaint to abate the Cinema | Theater
as a public nuisance.
-17-
District Court had interfered with the 11™ Amendment subject
matter jurisdiction of the State of Ohio Judicial System, as to an
important State Interest which could and should be addressed in
the State Court.
Amicus Curiae James J. Clancy recalls that, during oral
argument, with knowledge of what was happening in “society”
(in the “real world”, the State Courts were being ham-strung by
“technical” procedural decisions in their attempts to introduce
the “prints” of hard-core pornographic films like “Deep Throat”
in evidence before the State Courts on the merits) he stated, as
his opinion, that the federal courts’ ruling in the Huffman case
was underwriting “cocksucking and whore mongering”-
language never before used by Amicus Curiae in his professional
career, or in conversation. Amicus Curiae had determined that
he would “sound” this “warning prediction” to the Court if such
a statement became necessary. It was necessary, but proved to
be ineffective. A majority of the Court was determined to
extend the Younger Rule to civil cases, and would say or do no
more.
Unfortunately, the fractured nature of the Court in 1975
Ce SS ee ee ee See 6
Ally vey erteag astead of re
d | proceeding: the majorit of
hsuces complied withthe ut >y addressing the jurisdictior
fon he
“Huffman Abstention Doctrine” (as « proper response to ne
legal profession pursuant to the rudimentary rule of law that thi
Court always has jurisdiction to determine jurisdiction). Proof
of the correctness of this “jurisdictional” analysis can be four
in the last paragraph of the Court’s Opinion in Huffman |v
Pursue, Lid., supra, (see page 3 of the Motion for Leave to file
an Amicus Curiae Brief).
Ul (D) The Battle was Won, but the “War” was Lost.
This Court Can, and must Correct That Defect.
That Huffman had prevailed on his appeal was no great
victory. The “battle” was won, but the entire war against such
Huffman
obscene hard-core pornography _was lost.
acknowledged that reality by filing a Petition for Rehearing,
which was summarily denied. The case was not remanded back
_ to the Ohio Appellate Courts for their consideration, as
np by the State of ay in its Appeal, and the “closure”
"the Plaintiff in the Federal District Court, refused
to litigate further and disappeared. 4/
fll, INTEREST OF THE AMICUS CURIAE:
STATEMENT OF THE CASE OF CLIENT
CLARENCE F. MURPHY, IN THE U.S.
SUPREME COURT IN CASE NO. 98-1442.
In Case No. 98-1442, Planned Parenthood wishes to
construct and operate an abortion clinic in Bettendorf, lowa. /
* See Appendix D to this Amicus Curiae Brief, being a
contemporary historical account recently prepared by Amicus Curiae,
writing of the disaster which resulted from the inability of law enforcement
and the denial of the states’ right under the 10™ and 11™ Amendments to
obtain a resolution of the “closure” issue in the Huffman case, supra, and
other state cases in which the Federal District Court wrongfully interfered
with the State Court's pending action. See, also, the discussion as to the
two Spokane Arcades, Inc., cases, infra, which were before this Court, as
discussed hereinafter at pages 25-29 to this Amicus Brief.
© Because this Court has refused to exercise its discretion and act
upon Murphy's petitions and motions for relief from this Court, Planned
Parenthood has been able to construct a Clinic. Planned Parenthood has
not yet, however, been able to establish the right to operate an abortion
clinic within 100 feet of Murphy’s residential apartments under lowa Law
or the right of the U.S. District Judge Wolle to rezone the property from
P.U.D. to C-5. See Appendix C to this Amicus Curiae Brief.
-19-
The Bettendorf Zoning Ordinance allows abortion clinics on
property in a C-5 Zone.
Had Planned Parenthood purchased a C-5 Zoned
property, it would not have had a zoning problem. Instead, it
chose a property in a PUD Zone within 200 feet of three
relatively new residential apartment complexes and submitted an
application for approval of a C-5 Zoning Ordinance.
Murphy and two other adjacent apartment owners within
200 feet of the Planned Parenthood property made a successful
statutory protest (20% Rule) against the zone change, pursuant
to Bettendorf Zoning Code, §24.2 and §24.4 (see at
Appendix C to this Amicus Brief, Murphy's lowa District
Court Petition for a Declaratory Judgment filed on December 7,
1999 as a means of attacking and solving U.S. District Judge
Wolle’s refusal to allow Murphy to litigate Judge Wolle’s
egregious rulings in the Federal Court), which precluded the
Bettendorf City Council from adopting a C-5 Zoning Ordinance
unless the City Council voted 6-1 in favor of the Zoning
Ordinance. The City Council aligned itself with the protesters
and on March 19, 1996 voted 5-1 to reject the C-5 Zoning
Ordinance. That quasi-judicial order was not appealed and is
now final and Res Judicata under lowa Law.
Zoning Rights are “Vested Rights” under lowa Law and
the lowa Constitution. The 8™ Circuit Court of Appedie bas
so held in its decision in Nemmers v. Cit bi )
716 F.2d 1194 (1983).
Under Iowa case law, a city council’s action on a zone
change request is broadly defined to be a “judicial function”
eters + terry engage dear get
Supervisors, 299 N. 1 687 at 692 Cows Supreme Court
1980). If an appeal is not filed within 30 days, the city council’ s
actions become final, in which case, under the
11™ Amendment and Huffman v. Pursue Lid., 420 U.S. 592
- 20 -
at 606, fn. 18 and 19 and the progeny of Huffman, and Plough
v. West Des Moines Community School District, 70 F.3d 512
at 516-517 [CA 8™ 1995]), the city council’s quasi-judicial
order is both final and Res Judicata under the U.S. Supreme
Court decisions.
On March 21, 1997, one year and (wo days after the
Planned
Parenthood filed a Civil Rights Action under 42 U.S.C. §1983
in the U.S. District Court, pleading what is, in essence, an
appeal from the March 19, 1996 decision of the Bettendorf City
Council which considered essentially the same issues and facts
and denied the application for the C-5 Zoning Ordinance in a
quasi-judicial order which was not appealed to the Iowa District
Court. The federal complaint: (1) did not name the three
adjacent apartment owners who made the successful statutory
protest as defendants; and (2) demanded attorney’s fees under
42 U.S.C. §1988.
The City of Bettendorf filed a Summary Judgment
rat pa to the Huffman Ancona perenne and the
Upon conclusion of the federal trial, Judge Wolle
entered a judgment which purported to rezone the property
from P.U.D. to C-5 Zoning and awarded very substantial
attorney’s fees to Planned Parenthood under 42 U.S.C. §1988
eee deo ee for the purpose of
appealing U.S. District Judge Wolle’s Judgement on
11™ Amendment, the Huffman Abstention Doctrine and
other jurisdictional grounds, including Judge Wolle’s denial of
the City’s Summary Judgment Motion on its plea of Res
a, -
Judicata.
Judge Wolle: (1) cited one case authority (the “cited”
case actually upheld the mandatory right of Murphy to
intervene) and ruled “cursorily’ on Murphy’s “extensive”
pleadings that the Intervention Motion was “untimely”,
(2) refused to address the merits of Murphy's night to
“ ° ” 4 ,
“cited” authority); and the 11™ Amendment, Res Judicata,
and other Jurisdictional claims raised at the time of Murphy’s
Intervention Motion, and (3) refused to hear oral argument on
the intervention and jurisdictional claims.
In the Court of Appeals below, Murphy sought judicial
relief from Judge Wolle’s arrogation of Federal Judicial Power
in two forms: by the filing of a direct appeal and the filing of an
original action (a verified complaint pursuant to a Petition for
Writ of Mandamus) in the 8™ Circuit Court of Appeals,
pursuant to 28 U.S.C. §1651(a).
In a highly unorthodox ruling, which is totally
inconsistent with Federal Practice, the 8™ Circuit Court of
Appeals treated Appellant Murphy’s Opening Brief on the
direct appeal and the original petition for a prerogative writ of
mandamus, as though they had been consolidated and, in a brief
single order, summarily denied the petition for Writ of
Mandamus without an opinion, and summarily affirmed Judge
Wolle’s Judgment, also without opinion. The 8™ Circuit Court
of Appeals also denied a petition for rehearing and suggestion
of a hearing en banc in each of the two cases.
Murphy contended in his Petition for Writ of Mandamus,
pursuant to the U.S. Supreme Court’s original jurisdiction:
(1) that Planned Parenthood has not stated, and cannot state a
42 U.S.C. §1983 cause of action because it had an adequate
remedy under Iowa procedure of judicial review by the lowa
District Court (see Allen v. McCurry, 449 U.S. 90 at 100
[1980] and Parratt v. Taylor, 451 U.S. 527 [1981]), and
: -22-
(2) that it is not entitled to attorney’s fees under 42 U.S.C.
§1988 because lowa and other state courts do not customarily
award attorney’s fees in litigation involving an appeal from a
denial of a C-5 zoning ordinance and application of the
Bettendorf “Protest” Ordinance; and (3) where, as here, 4
separate 42 U.S.C. §1983 cause of action is pleaded and relied
upon, it must be tried in the lowa District Court because of the
11™ Amendment bar, and Res Judicata defense which has
been pleaded; and (4) in any event, Judge Wolle’s Judgment
must be reversed because, at this state of the proceedings, the
11™ Amendment, the Huffman Abstention Doctrine and the
Doctrines of Res Judicata and Stare Decisis control the
disposition of this case and mandate that the Federal Judgment
must be vacated for lack of Article 3, §2 subject matter
jurisdiction.
Murphy contended he is entitled to a Rule Nisi pursuant
to 28 U.S.C. §1651(a) correcting the egregious refusal of both
Courts to address the issue of “lack of Article 3, §2 subject
matter jurisdiction” under his 11™ Amendment claim. See
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83
(March 4, 1998) (duty to address the question of subject matter
jurisdiction as the first order of business, and on its own motion,
if the parties to the lawsuit do not bring the matter to the trial
court’s attention); Puerto Rico Aqueduct and Sewer Authority
v. Metcalf & Eddy, Inc., 121 L.Ed.2d 605 at 610, 506 U.S. 139
(1993) (creating a new Rule of Court re the issue “lack of
subject matter jurisdiction”); Wisconsin Dept. of Corrections v.
Schacht, 524U.S.___, 141 L.Ed.2d 364 at 375-378, No. 97-
461 (June 22, 1998) (Associate Justice Kennedy’s concurring
opinion re the issue of “lack of subject matter jurisdiction”). See
Kerr v. U.S. Dist. Ct, 426 U.S. 394 (1976); Will v. U.S., 389
U.S. 90 (1967); and Supreme Court Practice, 7 Ed., Stern,
Gressman, Shapiro, Geller, ©1993 at page 495.
-23-
Til (A) Adequate Relief Cannot Be Obtained by
Murphy in Any Other Forum or from Any Other
Court for the Following Reasons:
“Adequate Relief’ in the above context means “giving
notice to the U.S. District Courts and the U.S. Courts of
Appeals in the 11 Circuits, that the Huffman Abstention
Doctrine is “Jurisdictional” and that the Planned Parenthood
Civil Rights Action must be dismissed on those grounds where
the Huffman test has not and cannot be met. This requires a
reexamination of this Court’s opinion and decision in Huffman
v. Pursue, Lid., supra.
Iii (B) The Refusal of a Majority of Federal Courts to
Acknowledge the “Jurisdictional” Aspect of the
Huffman Abstention Doctrine in Such a Situation,
Where Each Party Claiming Jurisdiction in a
Different Entity, Manifests a Need for
Re-Examination of the Huffman Cases.
Murphy contends that the rule of law re lack of
Article 3, §2 subject matter jurisdiction under this Court’s
opinion in Huffman v. Pursue, Ltd., supra, has existed for the
past 24 years as an 11™ Amendment right; yet few of the
federal courts consider themselves bound thereby. See in this
regard, U.S. District Judge Myron H. Thompson’s analysis at
pages 3-5, infra, to this Amicus Brief.
When faced with Murphy’s lawful right to intervene as
an indispensable party and to contest the U.S. District Court’s
actions (requiring the construction of an abortion clinic within
200 feet of his apartment complex) pursuant to Murphy’s claim
of lack of Article 3, §2 subject matter jurisdiction under the
11™ Amendment, the Huffman Abstention Doctrine, the
Rooker-Feldman Abstention Doctrine, (Rooker v. Fidelity
Trust Co., 263 U.S. 413 [1923] and Dist. of Columbia Court
of Appeals y. Feldman, 460 U.S. 462 [1983]), the Res
Judicata Doctrine and the Stare Decisis Doctrine, both the
- 24-
U.S. District Court and the U.S. Court of Appeals for the 8™
Circuit dismissed such claims without an explanatory judicial
opinion, in utter disregard of this Court’s repeated admonitions
that a federal court must rule on the jurisdictional issue as its
first order of business.
Murphy submits that, i a Bele of we ak ee
this Court should clarify the rule of law on “lack of Article 3, §2
subject matter jurisdiction” in Huffman.
CONCLUSION
The Refusal of The Federal Courts of Appeal to Recognize
And Treat The Right of The State Judiciary to
Interpret New Legislation Under Watson v. Buck
Abstention as an 11™ Amendment Right Involving
Important State Interests And State Public Policy
Has Had a Devastating Effect on Law Enforcement
in The Public Morals Area And Needs to Be
Corrected (See Appendix D to This Amicus) And in
a Forceful Manner by Vacating the Judgments and
Sending All of The Partial Birth Abortion Cases
Which Are on Its Docket Back to The State Courts
For Their Initial Interpretation And Construction.
On November 30, 1981, this Court handed down its
6-3 decision in (California ex rel.) Cooper v. Mitchell
Brothers’ Santa Ana Theater, etc., et al, 454 U.S. 90, 70
L.Ed.2d 262, 102 S.Ct. 172 (1981), in which Justice Sandra
Day O’Connor voted with the majority to reverse the Orange
County Superior Court Trial Judge for his having instructed the
jury on the “beyond a reasonable doubt” criminal standard,
rather than the “clear and convincing evidence” equity standard;
yet, nevertheless, this Court refused to address the most-
important question on the right at Common Law to close the
- 25 -
Mitchell Brothers’ Santa Ana Theater as a public nuisance. See,
in this regard, the trouble that existed at that time (1981) with
regard to law enforcement as set forth in this Brief at
Appendix D: Title page and pages D-8 through D-11 (and still
exists, as can be seen from the recent opinions on Partial Birth
Abortion Litigation). Note also, that the California Supreme
Court refused to rule on “closure” because of this Court’s
restraint on that issue. See Appendix D at page D-8 and D-9.
Three weeks before the decision in the above Santa Ana
Abatement lawsuit, this Court handed down a 6-3 decision in
Brockett v. Spokane Arcades, Inc. , 454 U.S. 1022, 70 L.Ed.2d
468, 102 S.Ct. 557 (1981) (hereinafter referred to as Brockett
1981) which upheld a 9™ Circuit Court of Appeals Judgment
The Washington State Initiative in Brockett 198]
contained the Public Nuisance Abatement Law that this Amicus
had authored for the State of Washington, which was clearly
severable. Amicus had also filed an Amicus Curiae Brief for the
City of Santa Ana in support of the Washington State Initiative
which contained a comprehensive review of the public nuisance
abatement cases. See the copy lodged with the Clerk of this
Court concurrently with the filing of this Amicus Curiae Brief in
Stenberg v. Carhart.
Notwithstanding the U.S. District Court’s clear
11™ Amendment violation of the Watson v. Buck Abstention
Doctrine, this Court on November 9, 1981 affirmed by a 6-3
vote the 9™ Circuit’s interference in Brockett 1981, supra.
The Dissenting opinion which Chief Justice Warren
Burger filed in Brockett 198], three weeks before the Court’s
decision in the abatement lawsuit in Cooper v. Mitchell
- 26 -
Brothers’ Santa Ana Theater, supra, explained what was the
fund | probl it bh federal interf in 198].
See a copy of Chief Justice Burger’s dissenting opinion at
Appendix E to this Amicus Brief and in 454 U.S. at 1022-1023.
. The Court today affirms a decision of the Court
of Appeals holding unconstitutional a Washington
statute with has yet either to be enforced in or construed
by a Washington state court. I would abstain from
decision until the Washington courts are given an
opportunity to interpret the law which has been thus
invalidated. This Court— and all federal courts— have
enough to do without ‘pre-empting’ state courts on
matters initially of state concern.
“ The Washington ‘moral nuisance’ law, Wash
Rev Code §7.84.050 et seq. (Supp 1977) a
comprehensive statute directed at prohibiting the public
sale and exhibition of obscene materials— was adopted as
an initiative by the voters in the November 8, 1977,
election. Before the statute was even certified by the
Secretary of State, appellees, several corporations
engaged in the exhibition, distribution, and sale of
movies, books, and magazines, filed this action in the
Federal District Court. On February 6, 1978, less than
ay Sp pane ey 449 F Supp
1145.
Vaaeev. ad testo. 445 U. S 308
(1980) . . . The policies of federalism and comity
militate in favor of affording state judges— who are as
capable as are federal judges of enforcing the
-27-
Constitution of the United States, and have taken the
. _. . Even a cursory examination of the lengthy
statute— which contains detailed definitions of ‘lewd’ or
‘obscene’ matter incorporating the standards of Miller v.
California, 413 U.S. 15, 37 L.Ed.2d 419, 93 §.Ct. 2607
(1973), which provides for consolidation of the trial on
the merits with the hearing on the temporary injunction
and grants scheduling priority to cases brought under the
statute, and which does not specify the defenses
prereypoeeh in — a Gomaee. Bel Re
Four years later, this Court considered Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 86 L.Ed 2d 394 at 408-
410, 105 S.Ct. 2794 (1985) (hereinafter referred to as Brockett
1985) which reconsidered the same statute and same problem.
In this instance, Justice O'Connor reversed herself in a
concurring opinion which hit the nail on the head. See her
opinion in Brockett 1985 at Appendix F to this Amicus Brief,
which is highlighted in black stars, and note also, that Justice
O’Connor in 1985, in voting the exact opposite of her vote in
1981 when she voted to affirm the 9™ Circuit's interference,
told the 9™ Circuit additionally that:
“Because | believe that the Federal Courts should have
abstained and allowed the Washington Courts an
Opportunity to construe the state law in the first
instance, I think the proper disposition of these cases
would be to vacate the judgment of the Court of
Appeals on that ground.” (My emphasis.)
Here this Court also reversed itself and did a masterful
evaluation of the same issue that faced the Court in 1981 and
1985.
This same problem is now before this Court in the
abortion cases in the year 2000 and those cases should be
dispatched as a single package in the same manner, i.e, vacate
all of the federal judgments and send the Partial Birth Abortion
Statutes (both criminal and civil) back to the state courts for an
initial interpretation and construction by the state judiciaries.
In this case of the Nebraska Abortion legislation in
Stenberg v. Carhart, the State of Nebraska has the same public
policy as the State of Washington. See at Appendix F to this
Amicus Brief, Justice White’s opinion in Brockett 1985
.29.-
(Brockett v. Spokane Arcades, Inc., supra, 472 U.S 491 at
page 506, headnote 6; and Nebraska v. Divis, supra, which is
referred to at pages 6-9 to this Amicus Brief). See also
Questions I and [I at pages i-ii to this Amicus Brief
The Brockett 1985 Proposition of Law expressed in
Justice O’Connor’s concurring opinion should control these
abortion appeals. See, also, in this regard, Justice Kennedy's
ee ae oe ae ee
820 F.2d 1079 (9 Cir 1987), copies of which are set forth at
Appendix G to this Amicus Brief which reflects Justice
Kennedy’s 11™ Amendment judgment. To achieve this end
result, this Court should grant certiorari in Bill Pryor v. Summit
Medical Associates, No. 99-1041, which is squarely in point,
and all of the other abortion cases, including Hope Clinic v.
Ryan, No. 99-1177, Petition for Certiorari filed January 14,
2000, and Hope Clinic v. Ryan, No. 99-1152, Petition for
Certiorari filed January 10, 2000, and Hope Clinic v. Ryan,
No. 99-1156, Petition for Certiorari filed January 10, 2000 and
return them all to the state courts pursuant to the
11™ Amendment.
In these abortion cases, it is abundantly clear that the
Federal Court does not have Article 3, §2 (statutory) federal
subject matter jurisdiction as a matter of law, because the
Attorney General, in no way is acting like a “rogue” Quite the
contrary, he is performing his duties in a customary manner.
The state courts should have jurisdiction under the
11™ Amendment of the U.S. Constitution This is the
“either - or situation” that always exists when a federal court
wrongfully deprives a state court of its right to
11™ Amendment jurisdiction and the state challenges the
federal court’s assertion of subject matter jurisdiction. A state
government can do nothing to repair the damage after the
lpg
-30-
Ee ee ee
and 0s an acknowledgment of thet which is the besis for the
Younger - Huffman Abstention Doctrines, namely, Watson
v. Buck, supra, as the Watson v. Buck Abstention Doctrine is
factored into the Younger and Huffman opinions.
In sum, the States of Alabama and Nebraska have the
right of a sovereign state, under the 11™ Amendment: (1) to
enact a statute which criminalizes “Infanticide” and to outlaw
the inhuman practice of partial birth abortion in those States,
(2) to have that “Infanticide” criminal statute and the partial
birth abortion proscription interpreted by the Alabama and
Nebraska Supreme Courts and given a constitutional
interpretation, if possible, under Watson v. Buck, supra, (3) to
rely upon the Doctrine of Separation of Powers which
mandates that a state statute must be “saved”, if possible, by the
State Supreme Court, rather than struck by the federal courts
(which cannot “interpret” a state statute); and (4) to answer any
constitutional challenge in the State Court without being liable
for attorney fees (compare 42 ey §1988), where the
exception created by Dombrows, "fis supra, is not
oniiette tennese Ge Ganete 1s Get encsestntiend ia een)
sentence, clause, etc., nor is the Alabama or Nebraska Attorney
General's conduct in the nature of that which is required for
Dombrowski to be = in the face of a Younger
A-2
A-7
APPENDIX A
“DUE PROCESS AND EQUAL PROTECTION
UNDER THE LAW”
IN CARHART V. STENBERG, 11 F.SUPP.2D 1099,
1106 (D.NEB. 1998), THE U.S. DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DESCRIBED THE PARTIAL-BIRTH ABORTION
PROCEDURE USED BY FEDERAL PLAINTIFF
CARHART ON A “HEALTHY” FETUS AS
FOLLOWS ON A-1:
PICTURE AND ARTICLE FROM THE IRISH
INDEPENDENT NEWSPAPER ONLINE, DATED
OCTOBER 30, 1999, DESCRIBING AN
OPERATION TO CORRECT “SPINA BIFIDA”
ON A 21-WEEK-OLD FETUS, “SAMUEL
ARMAS” ON A-2:
PICTURE FROM LIFE MAGAZINE, DECEMBER
1999, SHOWING AN OPERATION ON A “SICK”
24-WEEK-OLD FETUS IN JULY, 1999, ON A-7:
(Reference: Brief Amicus Curiae of James J.
Clancy, et0., 6.66605: Page |, lines 22, 38,
WYTTTTTILTT TTT TTT Page 2, line 2. )
. . . Carhart, using forceps,
pulls the feet of the living fetus
from the uterus into the vaginal
cavity and then pulls the
remainder of the fetus, except
ithe head,
into the vaginal
To decompress the fetal skull
and evacuate the contents in
order to pull it through the
cervical canal, Carhart uses an
instrument to either tear or
perforate the skull to allow
insertion of a cannula and
removal of the cranial
contents.
to a point where the base o
the fetal skull is lodged in the
uterine side of the cervical
canal. At that point, the size o
| the head will not permit him to
pull it through the cervical
|canal into the vagi
Sometimes he will crush the
skull rather than pierce it in
order to reduce the size of the
skull. Brain death occurs
sometime during this two-to-
three-second reduction
procedure, but fetal heart
function may continue for
several seconds or minutes
after the fetus’s skull is
nd Equal Protection Under the Law:
The Physician
IRISH INDEPENDENT NEWSPAPER ONLINE
30 October, 1999,
http://www.independent.ie/1999/302/d20a shtml
Holding hands
Take a good look at this picture. It’s one of the most
remarkabie photographs ever taken. The tiny hand of a foetus
reaches out from a mother’s womb to clasp a surgeon’s healing
finger. It is, by the way, 21 weeks old, an age at which it could
still be legally aborted. The tiny hand in the picture above
belongs to a baby which is due to be born on December 28. It
was taken during an operation in America recently. Paul Harris
reports on a medical development in the control of the effects of
spina bifida . . . and on a picture which will reverberate
through the on-going abortion debate here.
Your first instinct is to recoil in horror. It looks like a close-up
A-3
of some terrible accident. And then you notice, in the centre of _
the photograph, the tiny hand clutching a surgeon’s finger.
The baby is literally hanging on for life. For this is one of the
most remarkable photographs taken in medicine and a record of
one of the world’s most extraordinary operations.
It shows a 21-week-old foetus in its mother’s womb, about to
undergo a spine operation designed to save it from serious brain
damage.
The surgery was carried out entirely through the tiny slit visible
in the wall of the womb and the “patient” is believed to be the
youngest to undergo it.
At that age the mother could have chosen to have the foetus
aborted. Her decision not to, however, led to an astonishing
test not just of medical technology, but of faith.
Samuel Armas has spina bifida, which left part of his spinal cord
exposed after the backbone failed to develop.
The operation was designed to close the gap and protect the
cord, the body’s motorway for nerve signals to the brain.
So, on an unborn patient no bigger than a guinea-pig, the
operation was performed without removing the foetus from the
womb.
The instruments had to be specially designed to work in
miniature. The sutures used to close the incisions were less than
the thickness of a human hair.
An ER-style crash-cart team was on constant standby in an
adjoining room.
When it was completed, howevez, Samuel’s battle for survival
was only just beginning. Nor would the emotional battle his
parents had already endured finish quite yet.
Julie and Alex Armas had been trying desperately for a baby.
A-4
Julie, a 27-year-old nurse, had suffered two miscarriages before
she became pregnant with the child they intended to call Samuel
Alexander if it was a boy |
Then, at 14 weeks, she started to suffer terrible cramp. An
ultrasound scan was carried out to show the shape of the
developing foetus and its position in the womb.
When the picture emerged, it was the moment that every parent-
to-be dreads. Their unborn son’s brain was mis-shapen and his
spinal cord was sticking out from a deformed backbone. He had
spina bifida. They were devastated and “torn apart” said Alex,
a 28-year-old jet aircraft engineer.
At that stage, and even weeks later, the couple could have
decided to have the pregnancy terminated. In their home town
of Georgia in the U.S. as in Britain abortion is routinely offered.
Although accurate figures are not available, many parents
accept. For Julie and Alex, who are deeply religious, it was not
an option.
That didn’t mean, of course, that they were not racked by pain
at the thought that the child they had longed for was imperfect.
It also riddled them with guilt over whether they had effectively
taken the decision to inflict their son with years of handicap,
pain and suffering.
So, this being the United States, they turned to the internet for
help.
Julie’s mother found a website giving details of pioneering
surgery being carried out by a team at Vanderbilt University in
Nashville, Tennessee. Although the results have not yet been
endorsed in medical journals, they looked encouraging to Mr.
And Mrs. Armas.
Their doctor put them in touch with Dr. Joseph Bruner (it is his
finger in the photograph). A race against time had begun.
Because it affects the spinal cord, spina bifida can lead to a
A-5
condition that causes brain damage. Mr and Mrs. Armas were
told that if they were to avoid the condition, which was not then
present in Samuel, they had to act fast.
“I wasn’t concerned about a child who couldn’t walk,” said
Julie, “but I want a child who knows me.”
The theory behind the surgery is that attention to the spine
disorder before the baby is born prevents ortimits brain damage,
and gives a better chance of healing. It does not cure spina
bifida, but it is said to provide a strong chance of limiting the
damage through early intervention.
The risks, however, are enormous. Controversy surrounds the
use of such surgery because it goes against the general medical
rule that the risk should not outweigh the benefit.
Mr and Mrs Armas were fully aware that if anything went
wrong, no attempt would be made to deliver Samuel by
Caesarean section.
Medical science does not yet have the capability to keep a 21-
week-old foetus alive outside the womb. The crash-cart was on
standby for Julie, not Samuel.
“If he dies, that’s horrible for me and for us,” said Julie before
she went into theatre. Wiping tears she added: “But not for
him. The worst thing might be if we don’t do this, and this is
standard treatment when he’s 21, and he says: ‘Why didn’t you
know about that?’ And we say: ‘We did, but we didn't do it for
you.” ”
The other major dangers were turning him in the womb to get
his back in line with an inch-long cut in the wall, through which
Dr. Bruner would operate, and that the surgery might involve
releasing the fluid around Samuel.
The movement posed the risk of sending Julie into labour
contractions, which would have been fatal for Samuel.
Thus, one morning at the beginning of last month, Dr. Bruner
A-6
could be heard urging his team to keep quiet. “Shh!” he said.
“You'll wake the baby!”
Robert Davis, who reported on the operation for U.S.A. Today
newspaper, said the lesion that exposed Samuel's spine was
found low on his backbone, decreasing the chance of nerve
damage.
Although Samuel is believed to have been the youngest patient
for such an operation, it was apparently routine enough for Dr.
Bruner and paediatric neuros\.rgeon Noel Tullpant to talk about
the weather during the opera ion.
An hour later, the womb is gently eased back into place.
“Beautiful,” said one of the technicians and relief swept the
room.
Julie was allowed home with Alex within days. The baby is due
on December 28.
He has not yet felt the touch of his mother’s skin against his
own and he knows nothing of life outside her womb. But
perhaps Samuel Alexander Armas will be able to shake Dr.
Bruner’s hand again.
The calm before the abortion debate storm
By Justine McCarthy. Nobody could be unmoved by the
powerful image of this tiny finger clinging to the surgeon's hand.
A hand that can create modern miracles and save lives that
might otherwise be doomed before they even begin. This
picture is an emotive and compelling argument against the
termination of abnormal pregnancies and it appears as Ireland
braces itself for yet another visitation of the debate.
As the range of options outlined in the government Green Paper
are being considered for the next instalment in the Irish debate,
there is a sense of an uneasy calm before the storm. With
assisted abortion technically legal here under the Supreme Court
ruling in the X Case, pro-life organisations still continue to
A-7
lobby for yet another referendum on the substantive issue
Dana's election to the European parliament last summer was
indicative of the strong pro-life undercurrent in her constituency
of Connacht-Ulster. Suggestions that similar candidates might
be fielded throughout the country at the next general election
are predicated on the belief that a referendum is still a
possibility
In fact, Dana indirectly raised the subject in Europe this week
when she put down an amendment to the Union's budget
seeking to end the funding monopoly enjoyed by the European
Women’s Lobby. She wanted to give some of the allocated
££480,000 to the World Movement of Mothers, an organisation
Dana claimed to know little about but which others described as
pro-life. The European Women’s Lobby, an umbrella
organisation that lobbies the E.U. on behalf of various womens
groups throughout the Union, claimed that the proposed cut in
its funding could jeopardise the jobs of its 10-strong staff
Though, ultimately, no vote was taken on that amendment, it
focussed the parliament’s minds on the issue of abortion once
again.
Nearly 6,000 Irish females are expected to travel to Britain this
year for abortions. In this country, however, the debate has
traditionally been concerned with crisis pregnancies rather than
abnormal foetal development. In that respect, this extraordinary
photograph may have mure relevance to the debate in Britain
where termination is legally available at 21 weeks - the age of
the world’s youngest known patient
(End of Article)
A-8
LIFE MAGAZINE, December, | 999
Beforehand, Dr. Joseph Bruner gently lifts the right arm ot the
24-week-old fetus in Trish Switzer's womb during surgery at
Vanderbuilt University Hospital in July, 1999
APPENDIX B
NEWSPAPER ARTICLES REPORTING A 19
SCIENTIFIC “MISHAP” WHICH HAS RECENT
BEEN BROUGHT TO THE PUBLIC’S ATTENTIO
WHEREIN IT HAS BEEN REVEALED AN
ESTABLISHED BY IRREFUTABLE “LIVING” PROO
THAT “AN ENTIRE PERSON” WITH A SEPARAT
AND DISTINCT D.N.A. IDENTIFICATION I
“CREATED” AT THE FERTILIZATION OF TH
FEMALE EMBRYOS BY THE MALE SPERM, AN
BEFORE THE IMPLANTATION IN THE WOMB O
THE FEMALE, WITH THE ANALYSIS OF THOMAS
FEE AND OTHER NEWS ARTICLES OF SUCH
“MISHAP”.
(Reference: Brief Amicus Curiae of James J.
Clancy, et€., 6.6606 eeeees -Page 1, line 22,
TYTTTTTILILTL TTT Page 2, line 1.)
li
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED.
Tae Qeacen tan) 16191 |
Embryo mix-up shows
why Roe-Wade needs
fixing
High Court should revisit 1973 ruling
with eye on new technology, findings
and DNA evidence on life in womb
, © Item headlined “Fertility mix-up causes an-
_ °F guish.” Accordirig to this story, Dr. Lillian Nash,
* a fertility doctor in midtown Manhattan, inadver-
tently implanted embryos from a black couple, Deborah
Perry-Rogers and Robert Rogers, along with the embryo
| oF - he Oregonian, on March 31, published a news
from a white couple, Donna and Richard Fasano, into
Donna Fasano’s uterus.
_ Nash discovered the mix-up carly In the pregnancy and
told both the Rogerses and (he Fasanos what had
wrong. Donna Fasano underwent an amniocentesis, which
determined that she was carrying two healthy babies, and a
DNA test, which determined that only one of them was ge-
netically hers. Since both babies were perfectly healthy,
Donna Fasano decided to carry them to term, and in Decem-
ber 1998 she gave birth to two — one white, one black.
The Fasanos and the Rogerses and their attorneys are
working together ih a spirit of love and goodwill to resolve
the issue and pendin results of a DNA test will give the
black child to his b parents to raise. :
. All's well that ends well?
Not quite. The birth of these two
boys seems to refule some of the favor-
ite lies of the pro-abortionists and the
Supreme Court's decision that there is
no “personhood” prior to birth.
Lie No. 1: “Nobody knows when life
Obviously, the life of the black baby
n at fertilization, and he was alive
implantation in the womb of
Donna Fasano. His white mother’s
womb gave him a place for nourish-
ment and to develop until birth. She
neither gave took yy Aes gee
from his body
all there at the moment of conception.
}
>8
B-2
Lie No. 2: “It's her body.”
The black baby obviously was not her body. The egg and
sperm and fertilized embryo belonged to the Rogerses, and
DNA proves that babies are separate and distinct persons
and not a part of the mother’s body.
Lie No. 3: The infamous Roe vs. Wade decision of 1973
stated that prior to birth there is no “personhood,” and in
the “penumbras” (shadow or gray area) of the Constitution
lay a woman's right to privacy and abortion.
Since the black baby Is the same “person” today as he was
prior to implantation in the womb, he must have been the
same “person” at his conception as he is now. So why
doesn’t the Constitution protect his right to “life, liberty
and the pursuit of happiness”? The same fallacious argu-
ment of a “non-person” was used prior to the Civil War to
deny blacks full citizenship. 7
Fortunately for all, Donna Fasano carried both babies to
term. But suppose the white mother had aborted the black
baby? Since the black baby wasn’t hers (the egg and sperm
belonged to the Rogerses), could she then have been prose-
cuted for murder? There have been cascs alleging man-
slaughter or murder of an unborn baby being killed in the
womb in automobile accidents, drive-by shootings and
other deadly accidents involving a pregnant mother.
This birth calls into question the legitimacy of the Roe vs
Wade decision. The Supreme Court should be required to
revisit it based on present-day technology, DNA evidence
and modern science’s new findings of life in the womb.
Life begins at conception. The Rogerses know it. The Fa-
sanos know it. All parents know it. It's time for the Su-
preme Court to correct its error before another 36 miDion
babies die in the womb.
Thomas F. Fee of Sunriver is a member of the board of di-
rectors of Oregon Right to Life.
B-3
http: /search. «-yshingtonpost.com/w...0/19990330/V000893-033099-:4x.htmi
Woman to Give Up Baby After Mix Up
Tuesday, March 30, 1999; 8:09a.m.EST 3/26/ 99-
NEW YORK (AP) -- A white woman who gave bi
e birth t i
= pc oe epee - ante ales
nll sw y to the couple i
biological parents, her lawyer said. ates ia nee
Donna and Richard Fasano will give u
because we love him,” they said Mondsorin as =
a both want what's in the best interest of the child," Mrs. Fasano
ae Reune gave birth Dec. 29 to two boys, one black and one
The Fasanos decided to raise the white child and allow Robert and
. Deborah Perry Rogers to raise the black child if DNA tests confirm
= are his biological parents, said Mrs
’ . F f ,
Tantleff. They hope to get visitation ri asano's lawyer, Ivan
The Fasanos have reared, loved and cared for both children i
: 108 h : as their
Bek. BE a MT esaIOD, doesn Wook af them as white and
i - from Teaneck, _ sued over the case, seeking
Court papers said that last Apri illi
pril, 71-year-old Dr. Lillian Nash, i
ee en es eggs fertilized by their husbands! ay —
aneten — —_— had tried for years to conceive a
Mrs. Rogers did not become
pregnant from the proced
Passe, bow , became pregnant with twins. mee
The mix-up was discovered two weeks into her
doctor Mrs. Ro - sow pa
SHC ES SEPANG a pas Sree
B-4
Mrs. Fasano opted to go ahead with the pregnancy after learning the
twins were healthy, even though one was not genetically hers,
Tantleff said.
Mrs. Rogers was astonished by the news that the Fasanos would
relinquish the black child, said her lawyer, Rudolph Silas.
"She was very excited to hear the good news and overwhelmed after
sO many failed efforts to conceive.” he said.
The Fasanos were expected to meet the Rogerses, for the first time.
‘me few deye.
© Copyright 1999 The Associated Press
B-5
SUNRIVER REALTY 006
http//search. washingtonpost.conyw...0/1999033 1/V000551-033199-idx br
Woman to Give Up Baby After Mix Up
By Beth J. Harpaz
Associated Press Writer
Wednesday, March 31, 1999; 4:12am EST 2/5//97
NEW YORK (AP) - They are brothers, twins born of the same _
womb. One is black, the other white. It is a baby-switching case with
a twist -- these babies were switched before birth.
Now the only mother either 3-month-old boy has ever known will
return the child who does not share her DNA -- the black child -- to
his genetic parents.
“We're giving him up because we love him,” said Donna Fasano, 37,
in a handwritten statement supplied by her lawyer Tuesday.
The babies ended up in the same womb because a doctor at a fertility
clinic apparently mixed up Mrs. Fasano’s embryos with those of
another couple.
“Both of these boys are beautiful - two precious, normal little boys,"
said her lawyer, Ivan Tantleff. ‘“They sit in the swing together. They
sit in the tub together.”
The April 24, 1998, . Fasano underwent embryo
Hip lantetians ta the Montisties othees of Dr Lillvan Nash. Another
couple, Deborah Perry-Rogers and Robert Rogers, sought help from
the same clinic at the same time.
Both women underwent in vitro fertilization, in which their own eggs
fertilized by their husbands’ sperm were implanted into the uterus.
Only Mrs. Fasano became pregnant.
Doctors discovered a problem a few weeks into Mrs. Fasano's
pregnancy, when an amniocentesis exam revealed that although she
was Carrying twins, only one was her genetic son.
The clinic had apparently inserted some of Mrs. Rogers’ eggs into
Mrs. Fasano's uterus along with her own. Since both babies were _
healthy, Mrs. Fasano decided to carry them to term, her lawyer said.
The babies were born in December. Mrs. Fasano said she didn't know
the other parents’ identity until the Rogerses sued Nash, two other
doctors and the Fasanos on March 16.
B-6
‘’This wasn't my doing,” Mrs. Fasano said in her statement. ‘People °
with infertility problems should be able to go to their doctors and
trust them to do the right thing. To them it may be a job; to me it's
my life."
The state's health department is investigating the incident. A call to
Nash's clinic was not returned Tuesday.
Tantleff said he is trying to arrange for visitation rights for the
Fasanos *’so the boys grow up to know that they are brothers."
er husband, a teacher, are amenable
Mrs. Perry-Rogers, a nurse, and h
‘It's in the children's best
to visitation, their lawyer said Tuesday.
interest,” said Rudolph Silas.
Silas said his clients will likely get custody of the little boy in a few
weeks, after DNA tests and legal papers are completed.
‘*My clients are both ecstatic,” Silas said. *‘ They are the proud
urse there's some mixed
ts of a 3-month-old baby boy. Of co
motions in the manner in which tis been brought to this point. But
they're happy she made the decision she's made.”
George Annas, a professor of health law at the Boston University
School of Public Health, said Mrs. Fasano's decision “seems like a
reasonable solution but it's got to be heart-wrenching.”
The Fasanos' phone was out of service Tuesday and the Rogerses did
not return a call. Their lawyers said the _— did not want to
comment, and would not divulge the babies’ names.
The Rogerses’ suit accuses Nash, Dr. Dov B. Goldstein and Dr.
Michael Obasaju of negligence, malpractice and breach of contract.
Goldstein ran a different clinic where the Rogerses stored their
embryos.
Lawyers agreed that the woman who gives birth is legally considered
the child's mother regardless of DNA.
‘I'm glad we don't have to contest that and litigate,” Silas said ““Her
decision to do it voluntarily saves us a lot of heartache."
© Copyright 1999 The Associated Press
SS
3-85-99
THE OREGONIAN.
Fertility
mixup
causes
anguish
i Two couples struggle to
out one of the more te a
controversies In the history of
reproductive technology
By MICHAEL GRUNWALD
The Associated Press
tility doctor in midtown Manhattan,
Now it looks like both amie on
golng to get their wish.
But
implanted embryos from
erses, as well as the Postmen ha
nna Fasano's uterus, and in De-
cember, she gave birth to two boys
— one white, one African American.
Monday, the Fasanos reluctantly
agreed to give the African American
ogerses,
they and his “twin” brother are as
sured visitation rights.
This tale ot two babies raises
thorny questions about race, genet-
Ics, parenthood and the law, and
— a tenn glimpse of the
virtually ted
= fertilization — ae
“This is a kitchen-sink
raises almost every tough ueies
has arisen from the advances in re
productive medicine,” said Glenn
~ BL... of ° ma on
t! rs ennsylvania.
— help the judge that gets this
Deborah Perry-R
— y~ 7+ ~ A S
as did become
mepant "9
asanos also plan
malpractice suit saninat Nash ~
time over the next few days. _
in
that the cotiple decided to surrender
custody, pending 4
DNA test, because <otek oe
|
g
2
g
z8
i
fie
Nash, 71, did not return calls.
This was not the first mishap In
the $1 billion-a-year high-tech birth-
ing industry, which now accounts
for about 20,000 annual live births,
up nearly 450 percent in seven
years.
In 1992, a Fairfax County, Va,
doctor named Cecil Jacobsen was
convicted of fraud and perjury after
he secretly impregnated dozens of
women with his own sperm. ’
In 1994, the University of Califor-
nia shut a fertility clinic after doc-
tors were caught stealing harvested
eggs for their research. In Utah, an
egg was accidentally fertilized with
the wrong man’s sperm.
But this is the first known mix-u
over gametes that has ended up wi
a woman giving birth to children of
different races.
George Annas, a professor of
health law at Boston University,
said the custody question would
have been quite clear had the Fasa-
nos to fight it:. Every state
but California considers the birth
mother, or “gestational mother,” not
the “genetic mother.” to be the legal
mother. /
B-8
ago — and after both cou-
ples agreed through their attorneys
that the boys should grow up know-
ing they are brothers — the
made their anguished choice.
“We're giving him up because we
love him,” Donna Fasano said.
two weeks
Roe vs. Wade:
A botched
ruling
that must be resolved
Tee Bescartin 4/4194.
Gertain profhanse Ste teadhen oe.
At to become speech
pa . ) 7
them the deve Sela votteet or-
pone Severed (2 cpeeee. Wase te Gove
class an ultrasound pi of the de-
velopment of the palate in an unborn
baby, it is not uncommon for one or two
women in his class to have tears in their
much of the media, where it is called a
“late-term abortion” — another bloodless
term and one that shifts the focus from
what happens to when it happens.
What haps as in a partial-birth abor-
tion is that a baby who has developed too
far to die naturally when removed from
his mother’s body is deliberately killed by
having his brains sucked out. When
is done, the baby is not completely A
his mother’s body because, if he were,
doctor would be charged with murder.
There is no medical reason for this pro
dure, which has been condemned by tt
American Medical Association. There :
B-11
B-10
2 ses 43 g 123,
iajiss allel iad Head iH i
ik He Sg2 po2gr92
Hi Anh Ht i Ha fe i us fi Tae
i on fin Ha 278Ee ila, i ne
i
i
3 iH
23 Hi
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a ; eitiel ids? iin 3
PSE os all ig fet th
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$2 wind 3 i
8 =.
ae
i
Hit iu ih
ities: i
Fel Hal He He ny He
au
Yet Bovw Guero B12
Black or ets
custody of ba
NEW YORK — A justice of
the state Supreme Court in
Manhattan ruled Friday that a
black baby who was born toa
white Staten Island woman af-
ter an embryo mix-up at a fer-
tility clinic belongs in the per-
manent custody of his biologi-
cal parents.
Teta
rul t the biological! par-
ents, Deborah Perry-Rogers
and Robert Rogers, a black
couple from Teaneck, NJ.,
should have custody of the &
month-old boy named Akiel .
The baby’s birth parents,
Richard and Donna Fasano,
had filed suit to force the
Rogerses to live up to a visiting
agreement. Fasano gave birth
to the boy and to her own bio-
logical son after a Manhattan
fertility clinic mistakenly
p! ced fertilized embryos from
huth couples in her womb.
B-13
Sew FOantss[e Cites € <€ £/47/99
A Wisconsin
state appeals
court judge has
ruled Deborah
Zimmerman
(shown here at
left with her
attorney, Sally
Hoelzel, in
1997) cannot
be charged with
attempted
murder because
AY
Associarend Paass
Mapison, Wis. — A state appeals court
yesterday threw out the case — a
woman accused of trying to drink her fetus
to death, ruling that she could not be
charged with attempted murder because a
fetus is not a human
In a case closely watched by civil liber-
tarians and people on both sides of the
abortion debate, the Wisconsin Court of
Appeal ruled in favor of Deborah Zimmer-
man, whose daughter was bora in 1996
with a blood-alcohol level of 0.199 percent,
twice the level considered intoxicated un-
“The term ‘human being’ was not in-
tended to refer to an unbom child, and
Deborah's prenatal conduct does not con-
stitute apo p= first-degree intentional
homicide first-degree reckless injury,”
“oom ruled.
mmerman spent the day her er
was born drinking at a bar, taldine +
blood-alcohol level exceeding 0.30 percent
at the time of birth.
a fetus is nota \ Hy f
human being. & :
Fetal-Rights Case Dismiss id -
Mom Who Drank Goes Free
At the hospital, Zimmerman allegedly
told a nurse: “I'm just going to go home
and keep drinking and drink myself to
death, and I'm going to kill this thing
because I don’t want it anyways.”
Zimmerman's baby was bon limp and
pallid. Zimmerman’s lawyer, Sally Hoeizel,
said the girl — now 3 years old and living in
foster care — is healthy.
Zimmerman has yet to stand trial. She
took hef case to the appeals cpurt after a
ed toward her own and the fetus she
carried — not another human being.
B-14
should be extended to attempted murder if
a fetus is born with injuries but survives
The agpome court ruled yesterday that
was not the Legislature's intent.
Zimmerman has been in prison for vio
lating her bail conditions inthe cas is
due for release in September.
Zimmerman’s attomeys and civil Jiber-
tarians had argued that if the state succeed-
ed, women would risk criminal charges if
they did anything — such as smoking or
drinking — that could harm a fetus.
Simon Heller, litigation director for the
Center for epee Law and ,
which handled Zimmermans defense,
there have been many rulings that a fetus is
not a human being, including the U.S.
Supreme Court's Roe vs. Wade decision
legalizing abortion.
The South Carolina Supreme Coun,
however, ruled that a viable fetus is a per-
son under a statute punishing child abuse,
he said The court did not apply it to
murder laws in that case.
APPENDIX C
A A PARENTHOOD
OF GREATER IOWA, INC, ET AL,
SCOTT COUNTY DISTRICT COURT NO. 94716:
FIRST AMENDED PETITION FOR A DECLARATORY
JUDGMENT AND AN INJUNCTION TO PREVENT
PLANNED PARENTHOOD’S USE OF LAND FOR THE
OBNOXIOUS AND OFFENSIVE TRADE OF ABORTION
AND INFANTICIDE IN VIOLATION OF:
(1) PETITIONER MURPHY’S SUCCESSFUL
STATUTORY PROTEST PURSUANT TO BETTENDORF
ZONING CODE §24.2 AND §24.4; AND (2) PARAGRAPH
3 OF THE RECIPROCAL RESTRICTIVE AND
PROTECTIVE COVENANTS THAT RUN WITH BOTH
PETITIONER MURPHY’S LOT 3 OF BLOCK 4 AND
THE ADJOINING LAND OF PLANNED PARENTHOOD
TO THE SOUTH, WHICH LIES BETWEEN BLOCK 4
AND BLOCK 1 AND WITHIN THE QUAD CITY
TECHNOLOGICAL CENTER, A PLANNED UNIT
DEVELOPMENT (P.U.D. ZONE).
(Reference: Brief Amicus Curiae of James J.
Clancy, etc., 22.445: -Page 13, footnote 1,
WTTTTTTTTTT TTT Page 16, footnote 3,
ooecccccccececcece Page 18, footnote 5,
UTTTITITIT TTT ST Page 19, line 14.)
C-1
IN THE IOWA DISTRICT COURT
FOR SCOTT COUNTY
Clarence F. Murphy,
Plaintiff,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 94716
First Amended Petition for a
Declaratory Judgment and
an Injunction to Prevent
Planned Parenthood’s Use of
Land for the Obnoxious and
Offensive Trade of Abortion
and Infanticide in Violation
Of: (1) Petitioner Murphy’s
Successful Statutory Protest
Pursuant to Bettendorf
Zoning Code §24.2 and
§24.4; and (2) Paragraph 3
of the Reciprocal Restrictive
and Protective Covenants
That Run with Both
Petitioner Murphy's Lot 3 of
Block 4 and the Adjoining
Land of Planned Parenthood
to the South, Which Lies
Between Block 4 and Block 1
and Within the Quad City
Technological Center, a
Planned Unit Development
(?.U.D. Zone).
COMES NOW Plaintiff, Clarence F. Murphy, and for
his Petition for a Declaratory Judgment and Injunction, states as
follows
C-2
PARTIES
1. Petitioner Clarence F. Murphy and his wife Hwa
Cha Murphy (hereinafter called “Petitioner Murphy” and
“Murphy’”) are citizens of Bettendorf, lowa, who reside at 2835
Willow Drive, Bettendorf, lowa. Murphy and his wife are the
owners of two twelve plex apartments known as 2655 Tech
Drive, Bettendorf (a.k.a. Lot 3, of Block 4) and 2750 Tech
Drive, Bettendorf (a.k.a Lot 2 of Block 2) of the Quad City
Technological Center, a planned unit development and hold
title to such properties in the name of Murpak Enterprises,
Inc., a Delaware Corporation which is wholly owned by
Murphy and his wife Hwa Cha.. See Exhibit pages C-3 and
C-4, infra.
2. Lot 3 of Block 4 was conveyed by Middle Road
Investors, Inc. (hereinafter called “Defendant Middle Road” and
“Middle Road”) to Petitioner Murphy by Warranty Deed dated
January 30, 1976, which was filed with the Office of Scott
County Recorder on February 18, 1976 as Document 2524-76
(after the lowa Supreme Court decision in Kuntz [infra, 1975]
and Harris, [infra, 1975]). Defendant Middle Road had
acquired its ownership by Warranty Deed from the City of
Bettendorf (hereinafter called “Defendant Bettendorf’ and
“Bettendorf’) on the same date (February 18, 1976) in partial
performance of a contract dated November 7, 1972 and
recorded in the Office of Scott County Recorder as Document
1947-73. The abstract for the Plat of Lot 3 of Block 4, which
is attached as Exhibit A and incorporated by reference herein,
contains the following certification at page A-3, last paragraph:
3 NOW THEREFORE, Middle Road Investors,
Inc., and the City of Bettendorf, Iowa, hereby declare
that the real property described in the Surveyor’s
Certificate is and shall be held, transferred, sold,
conveyed and occupied subject to the Restrictive and
Protective Covenants heretofore filed on April 11, 1973,
as Document #5134-73 with the platting of Block | of
C-3
Quad City Technological Center shall remain in effect
and apply to Lot 3 of Block 4 as platted herein.
. Dated this 20 day of January, 1976.
MIDDLE ROAD INVESTORS, INC.
By Robert D. Danico, President
By C.J. Munson, Secretary
CITY OF BETTENDORF, IOWA
By William C. Glynn, Mayor
By Margaret W. Lake, Deputy City Clerk”
3. Lot 2 of Block 2 was conveyed to Petitioner
Murphy and his wife by Ed Speer Construction, Inc. by
Warranty Deed dated February 25, 1994 and filed on March 4,
1994 in the Office of Scott County Recorder as Document
No. 7001-94 in full performance on that real estate contract
dated June 1, 1979 and recorded on January 23, 1980 in the
Office of the Scott County Recorder as Document No. 1155-80.
The abstract for the Plot of Lot 2 of Block 2 which is attached
as Exhibit B and incorporated by reference herein shows that
the Defendant Bettendorf was an owner with Middle Road of
Block 2 and contains the following certification at page B-3, last
paragraph:
ss NOW THEREFORE, Middle Road Investors,
Inc., and the City of Bettendorf, lowa, hereby declare
that the real property described in the Surveyor’s
Certificate is and shall be held, transferred, sold,
conveyed and occupied subject to the Restrictive and
Protective Covenants heretofore filed on April 11, 1973,
as Document #5134-73 with the platting of Block | of
Quad City Technological Center shall remain in effect
and apply to Lot 2 as platted herein. In addition thereto,
each lot owner of Lots in said Block 2 shall share the
common driveways into said Block 2 from Tech Drive
and P.U.D. Drive.
C-4
‘ Dated this 1" day of July, 1975.
MIDDLE ROAD INVESTORS, INC.
By Robert D. Danico, President
(Corporate Seal) By C.J. Munson, Secretary
CITY OF BETTENDORF, IOWA
By William C. Glynn, Mayor
(Seal of City of Bettendorf, lowa)
By James W. Strieck, Clerk”
4. Defendant Planned Parenthood of Greater Iowa,
Inc. (hereinafter called “Defendant Planned Parenthood” and
“Planned Parenthood”) is the present owner of a parcel of land
within the metes and bounds of the Planned Unit Development
(hereinafter “P.U.D. Zone”) known as Quad City Technological
Center to the City of Bettendorf, lying between Block | and
Block 4, the Lot having been purchased by Defendant Planned
Parenthood on April 14, 1997. The northern boundary of the
Planned Parenthood property abuts and forms the southern
boundary of Lot 1, Lot 2 and Lot 3 of Block 4. The southern
boundary of the Planned Parenthood property abuts and forms
the northern boundary of Block 1, and the northern boundary of
the right of way know as Happy Joe Drive, as shown on the two
maps which are attached to this Petition as Exhibit C and
pleaded by incorporation herein. At the time of the platting of
Lot 3 of Block 4, it was the expressed intention of Defendant
Bettendorf and Defendant Middle Road, as the developers of the
Quad City Technological Center to the City of Bettendorf, to
place the same “restrictive” and “protective” covenants that
were attached to Block | on the future development and platting
of the P.U.D. Zoned Planned Parenthood property, which was
owned in fee simple by Defendant Bettendorf and Defendant
Middle Road, so that the “benefits” and “restrictions” on all of
the said Lots in said land development were “reciprocal”, as
expressed and accomplished in the recording of the platting of
Blocks | through 6 as a whole, see Exhibit D to this Petition
(infra, at page D-3, the first paragraph and page D-6, paragraph
C-5
11) and pleaded by incorporation herein. Petitioner avers that
the terms of the restrictive and protective covenants were
extended by the developer, Defendant Middle Road, for a finite
period of 10 years to the year 2003 to provide time to complete
the platting of the plan as a whole, so that upon the completion
of that land development, each of the lots within the P UD
Zone would have and enjoy the same benefits and burdens.
5. By the platting of Lot 3 of Block 4, Petitioner
Murphy’s property was burdened by the restrictive covenants
but did not, at that time, receive the promised reciprocal benefits
(the “protective” covenants) from the adjoining Planned
Parenthood property the title to which, was thereafter “clouded”
by the “equitable protective servitude” which attached to
Murphy’s land to the north. The “restrictive” and “protective”
covenants in the platting of Lot 3, Block 4 are writings which
Road, who owned the said “P_U_D. Zoned” Planned Parenthood
land in fee simple in 1975.
6. The City of Bettendorf is named as a Defendant
because of its participation with Middle Road in the
draftsmanship and approval of Paragraphs 3 and || of the
Restrictive (burden) and Protective (benefit) Covenants as noted
above and in that part of the Abstract for the Final Plat of
Block | (see Exhibit A-2 and A-3 and Exhibit D to this
Petition at pages D-1 through D-11) which reads in part as
follows with respect to Paragraphs 3 and | 1:
“RESTRICTIVE AND PROTECTIVE COVENANTS
* MIDDLE ROAD INVESTORS, INC., an lowa
Corporation, hereby establish and declare the following
restrictive and protective covenants to be applicable to
the following described real estate located in Scott
C-6
County, lowa, to-wit: All lots in Blocks | through 6 of
The Planned Unit Development known as Quad City
Technological Research Center, to the City of
Bettendorf, lowa, which plat is recorded as Document
No. 5134-73 in the office of the Recorder of Scott
County, lowa:
1. No building... .
. 3. No obnoxious or offensive trade shall be
carried on upon any lot nor shall anything be done
thereon which may be or become an annoyance or
nuisance to the other lot owners in said addition.
“
’ 11. These restrictions shall be in force from
the date of the Owner’s Certificate to which it is an
exhibit until January |, 1993 or until such later date to
‘which the same may be extended as hereinafter
provided, and shall run with and be binding upon all lots
in said addition, and every part thereof and shall be
SNe See eterno
ten year anniversary of said date unless a written
instrument signed and acknowledged by the owners of
a majority of all the lots in Quad City Technological
Center shall prior to such date or anniversary be
recorded with the Recorder of Scott County, lowa,
abrogating or modifying the same in whole or in part to
the extent therein set forth. In determining the majority
of said lot owners, each lot shall be entitled to one vote
to be cast according to the will of a majority in interest
of any co-owners having interest therein whether such
majority is represented by a majority of the undivided
C-7
interests in an entire lot or ownership of the greater
portion of a subdivided lot. A contract purchaser or life
tenant of the legal title shall be deemed the owner. In all
other respects, ownership shall refer to record owner
ship of legal title.” (Our emphasis.)
1 11. _ Invalidity, abandonment or waiver of any
one or more of the same restrictions shall in no wise
affect any of the other restrictions, which shall remain in
full force and effect.
» 12. _ In the event any person who may at any
time own or occupy any of the numbered lots,or-part
thereof, in said Addition should violate or threaten to
violate any of these restrictions, said Middle Road
Investors, Inc. its successors and assigns, and the
owners from time to time of any of the numbered lots in
said Quad City Technological Center shall have the right
to proceed in any court of law or equity, by injunction or
otherwise, to enforce performance and restrain violation,
or pursue any other remedy to which it or they may be
entitled and shall have the right to collect from the party
or parties violating or threatening to violate the same,
either jointly or severally, all damages, costs, expenses
and counsel fees resulting from the violation thereof, or
incurred in, or in connection with, said proceedings.
“Dated at Bettendorf, lowa, this 3 day of April, 1973.
Middle Road Investors, Inc.
By: Robert D. Danico, President
(Corporate Seal) By: C.J. Munson, Secretary”
7. Thereafter, Middle Road did not plat Block 5
and 6 as planned. Instead, on June 16, 1976 (5 month after the
conveyance of Lot 3, Block 4 to Murphy), Defendant Middle
Road, without Notice to Murphy, conveyed the Planned
Parenthood property by a Warranty Deed to “Robert Versman
C-8
and Rose Versman, husband and wife, as tenants in common,
and to their heirs and assigns.” The legal document conveying
_ the real estate, contains an asterisk and the typed instruction
reading “subject to restrictive covenants recorded as document
5134-73 S.C. lowa Rec. Off.” which is initialed by Robert D.
Danico as President and C.J. Munson, as Secretary of Middle
Road, Inc. (see Document 10830-76 at Exhibit E to this
Petition).
8. 10 years later, on December 23, 1986, Robert H
Versman and Rose Versman conveyed an undivided 1/12
interest in the Planned Parenthood property to each of the
following six persons (a total of 50%):
Kenneth J. Versman
Linda Jean Versman
Stuart J. Heller
Judith Lee Heller
Frederick J. Glassman
Frances Belle Glassman
(See Document 25349-86, recorded on December 31, 1986, at
Exhibit F to this Petition which contains the typed instruction
reading: “Subject to: 1. Easements, covenants and restrictions
of record.”)
9. On December 24, 1986, Robert H. Versman and
Rose Versman conveyed an undivided 1/12 interest in the
Planned Parenthood property to each of the following six
persons (a total of 50%):
Kenneth J. Versman
Linda Jean Versman
Stuart J. Heller
Judith Lee Heller
Frederick J. Glassman
Frances Belle Glassman
C-9
(See Document 1735-87, recorded on January 28, 1987 at
Exhibit G to this Petition which contains the typed instruction
reading: “Subject To: Easements, covenants and restrictions
of record” and “This Warranty Deed confirms the deed executed
by the Grantors on December 23, 1986, . . . recorded in the
Scott County Recorder’s office as Document No. 25349-86 and
ratifies and approves the conveyance of a total of one-half of the
real property legally described in Exhibit A hereto”).
10. On January 3, 1987, Robert H. Versman and
Rose Versman conveyed an undivided 1/12 interest in the
Planned Parenthood property to each of the following six
persons (a total of 50%):
Kenneth J. Versman
Linda Jean Versman
Stuart J. Heller
Judith Lee Heller
Frederick J. Glassman
Frances Belle Glassman
(See Document 1736-87 recorded on January 28, 1987 at
Exhibit H to this Petition which contains the typed instruction
reading: “Subject to: Easements, covenants and restrictions of
record” and “This Warranty Deed confirms the deed executed
by the Grantors on Jan. 2, 1987 recorded in the Scott County
Recorders office as Document 165-87 and ratifies and approves
the conveyance of a total of one-half of the real property legally
described in Exhibit A hereto.”)
11. On April 14, 1997, Kenneth J. Versman and
Linda Jean Versman, Husband and Wife, Stuart J. Heller and
Judith Lee Heller, Husband and Wife, and Frederick J. Glassman
and Frances Belle Glassman, Husband and Wife, conveyed by
Warranty Deed the Planned Parenthood property to Planned
Parenthood of Greater Iowa, Inc. or Planned Parenthood of
Greater lowa Foundation, Inc. (See Document 09482-97, dated
April 14, 1997 and recorded April 24, 1997 at Exhibit I to this
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Petition (last in order). —
PETITIONER MURPHY’S CONTENTIONS
12. An actual controversy has arisen between
Petitioner Murphy and Defendants, relating to the legal rights
and duties of Defendant Planned Parenthood and Detendant
Bettendorf, in respect to said Lots as those rights and duties are
affected by Paragraph 3 and Paragraph 11 of the above stated
Restrictive (burden) and Protective (benefit) Covenants.
Petitioner Murphy contends that Paragraph 11 must be
construed against its co-author Defendant Bettendorf and ead
to extend the Restrictive and Protective Covenants
automatically for an additional, finite ten-year period on January
1, 1993 to January 1, 2003 without reference to that language
hicl er the “ ” which foll he d
“January 1, 1993”. It would appear that such “finite” language
was adopted to keep the first additional 10-year period
extension in compliance with the requirements of Bettendorf
Code §614.24 which was enacted in 1966 and was interpreted
by the lowa Supreme Court in Compiano v. Kuntz, 226 N.W.2d
245 (lowa 1975) and Presbytery of Southeast Iowa v. Harris,
226 N.W.2d 232, 237-38, 242 (lowa 1975). Because the
“finite” 10-year extension period was accomplished during the
first 21-year period and was a recorded document, it met the
requirements of Bettendorf Code §614.24, which then read
“unless the claimant shall, by himself, or by his attorney or
agent .. . . Shall file a verified claim with the recorder of the
county wherein such real estate is located within said twenty-
one year period”.
13. Defendant Bettendorfis a Home Rule City in the
State of lowa which is empowered to enact zoning ordinances
(i.e., P.U.D. and C-5 Zones) and amendments (zone changes) on
real property in the City of Bettendorf, acting by and through
the Bettendorf City Council, and to act as “parens patria” on
behalf of Petitioner Murphy and other Bettendorf residents
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(citizens) in defense of their property rights under such zoning
ordinances when such zoning rights of the City of Bettendorf are
challenged by third parties in a Federal District Court in a
Federal Civil Rights action pursuant to 42 U.S.C. §1983.
14. Such zoning ordinances and zone changes are
accomplished by a legislative act by the City Council to
accomplish the same. Under the Doctrine of Separation of
Powers, the general rule is that the Courts cannot write or
rewrite the zoning laws, nor force the legislative body to enact
or amend a zoning ordinance. An amendment which is adopted
in disregard of the protest of property owners who are acting
piu suant to a valid “protest” ordinance, is void. The City of
“ettendorf is a necessary party in that a Federal Judgment of
U.S. District Court Judge Charles R. Wolle in a Federal Civil
Rights action brought by Defendant Planned Parenthood,
purports to rezone the Planned Parenthood property (P.U.D.
Zone to C-5 Zone). Under the Doctrine of Separation of
Powers, the general rule is that a federal court has no power
(lack of subject matter jurisdiction) to rezone real property in
the City of Bettendorf, which function (zoning), under the U.S.
Supreme Court decision in Huffman v. Pursue, Ltd, infra.,
must be held to be both a “municipal affair” and an “important
state matter” which is protected by the 11" Amendment.
15. Defendant Planned Parenthood wishes to
construct a clinic in Bettendorf, lowa which will cater to the
“abortion” trade. The Bettendorf Zoning Ordinance allows
abortion clinics on property in a C-5 zone. Had Planned
Parenthood purchased a C-5 Zoned property, it would not have
had a zoning problem. Instead, it chose to purchase a property
ina P.U.D. Zone (which was surrounded by and within 200 feet
of three relatively new residential apartment complexes on
Lots 1, 2, and 3 of Block 4 which were benefitted by a
Bettendorf “Protest” Ordinance) and submitted an application
for a Zone Change by ordinance to C-5.
16. The adjacent apartment owners (see Exhibit C-
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Murphy and Jecklin) and Larry Whitty, the owner of Lot 1,
Block | objected and made a successful statutory protest
(20% Rule) against the zone change (being within 200 feet of
the Planned Parenthood property), pursuant to Bettendorf
Zoning Code §24.2 and §24.4, which precluded the Bettendorf
City Council from adopting a C-S Zoning Ordinance unless the
City Council voted 6-1 for the zone change. The City Council
on March 16, 1996, voted 5-1 not to adopt the C-5 Zoning
ordinance.
17. Zoning Rights are “Vested Rights” under lowa
Law and the lowa Constitution. The 8" Circuit Court of
Appeals has so held in its decision in Nemmers v. City of
Dubuque, Iowa, 716 F.2d 1194 (1983). Under lowa case law,
a City Council’s action on a zone change request is broadly
defined to be a “judicial function” which can be appealed by
Writ of certiorari to the lowa District Courts, see Montgomery
v. Bremer County Board of Supervisors, 299 N.W.2d 687 at
692 (lowa Supreme Court 1980). If such an appeal is not filed
within 30 days, the City Council’s actions become final under
lowa law, in which case, under the 11" Amendment and
Huffman v. Pursue, Ltd., 420 U.S. 592 at 606, fn. 18 and 19
and the progeny of Huffman (University of Tennessee v.
Elliott, 470 U.S. 788, 92 L.Ed.2d 635, 106 S.Ct. 3220 [1986],
and Migra v. Warren City School Dist. Bd. of Ed., 465 US.
75, 70 L.Ed.2d 56, 104 S.Ct. 892 [1984], and Plough v. West
Des Moines Community School District, 70 F.3d 512 at 516-
517 [CA 8" 1995]), the City Council’s quasi-judicial order also
becomes final and Res Judicata under Federal law, because the
federal courts are required to give this Res Judicata Rule the
same interpretation given it by the state court.
18. | OnMarch21, 1997, one year and two days after
the City Council’s denial of the zoning change, Defendant
Planned Parenthood filed a Civil Rights Action under 42 U.S.C.
§1983 in the U.S. District Court (pleading what is, in essence,
an appeal from the Bettendorf City Council’s quasi-judicial
Order denying the C-5 zoning Application). Planned
. 19. The City of Bettendorf filed a Motion for a
Partial Summary Judgment, pursuant to the 11" Amendment
and the Res Judicata Doctrine. U.S. District Judge Charles R.
Wolle (egregiously) denied the city’s Res Judicata Plea. Upon
the conclusion of the Federal trial, Judge Wolle entered a
judgment which purported to rezone the property to C-5
Zoning.
20. Petitioner Murphy timely moved to intervene
(immediately after the City of Bettendorf announced its decision
not to act as “parens patria” and pursue an appeal from the
Judgment of U.S. District Court Judge Wolle), and within the
appeal time period, for the purpose of appealing U.S. District
Court Judge Wolle’s Judgment on 11" Amendment (lack of
subject matter) jurisdictional and other grounds, including his
denial of Bettendorf’s Summary Judgement Motion on a plea of
Res Judicata.
21. U.S. District Court Judge Wolle ruled (cursorily
and egregiously) on Petitioner Murphy’s extensive pleadings:
(1) that the Intervention Motion was “untimely”, (2) refused to
address the merits of Petitioner’s mght to mandatory
intervention, and the 11" Amendment Jurisdictional and Res
Judicata issues raised by Murphy at the time of Murphy’s
Intervention Motion, and (3) further refused to set such
matters for oral argument.
22. In the Court of Appeals below, Petitioner
Murphy sought judicial relief from Judge Wolle’s arrogation of
Federal Judicial Power in two separate forms: by the filing of a
direct appeal and by the filing of a verified complaint in an
original Petition for Writ of Mandamus in the 8" Circuit Court
of Appeals, pursuant to 28 U.S.C. §1651(a).
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23. In a highly unorthodox ruling, the Court of
Appeals treated the Appellant’s Opening Brief on the direct
appeal and the original petition for a prerogative writ of
mandamus as though they had been consolidated, and in a brief
single order, denied the Petition for Writ of Mandamus without
an opinion and summarily affirmed Judge Wolle’s Judgment,
also _ without opinion. The Court of Appeals thereafter also
denied a Petition for Rehearing and Suggestion for Rehearing
En Banc in each of the two cases. The U.S. Supreme Court
refused to issue its discretionary Writ of Certiorari to review
such erroneous rulings.
24. Petitioner Murphy contends that the
11° Amendment and the Doctrines of Res Judicata and Stare
Decisis control this litigation and that both of the Federal Courts
were in error in their refusal to address the issue of “lack of
subject matter jurisdiction” of the Federal Courts under the
11" Amendment claim. See Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 140 L.Ed.2d 210, 118 S.Ct. 1003
(March 4, 1998), at Point [II (duty to address the questions of
subject matter jurisdiction as the first order of business, and on
its own motion, if the parties to the lawsuit do not bring the
matter to the trial court’s attention); Puerto Rico Aqueduct and
Sewer Authority v. Metcalf and Eddy, Inc., 12 L.Ed.2d 605
at 610, 506 U.S 139, 113 S.Ct. 684 (1993) (creating a new
Rule of Court re the issue “lack of subject matter jurisdiction’),
Wisconsi:: Dept. of Correction v. Schacht,524U.S. __, 141
L.Ed.2d 364 at 375-378, 118 S.Ct. _, No. 97-461
(June 22, 1998) (Associate Justice Kennedy’s concurring
opinion re the issue of “lack of subject matter jurisdiction”). See
Kerr v. U.S. District Court, 426 U.S. 394, 48 L.Ed.2d 725, 96
S.Ct. 2119 (1976); Will v. ULS., 389 U.S 90, 19 L.Ed.2d 305,
88 S.Ct. 269 (1967); and Supreme Court Practice, 7° Ed.,
Stern, Gressman Shapiro, Geller, at page 495.
25. Plaintiff Murphy further contends: (1) that he is
entitled to a Declaratory Judgment in the District Court of lowa
which holds that, under lowa Law, the Bettendorf City
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Council’s action on the above zone change is a “judicial”
function which became final when Defendant Planned
Parenthood did not perfect an appeal to the Iowa District Court
by Writ of Certiorari within 30 days of the date on which the
City Council acted; (2) that the record shows that the adjacent
apartment owners made a successful statutory protest which
precluded the Bettendorf City Council from adopting a C-5
Zoning Ordinance unless the City Council voted 6-1 for the
Zone Change, and that the City Council on March 19, 1996
voted 5-1 not to adopt the C-5 Zoning Ordinance; (3) that
pursuant to such successful protest, the adjacent apartment
owners acquired “vested rights” in the City Council’s Final
Order (judgment); and (4) that the City Council’s final order
which denied the C-5 Zoning Application was and is a final
judgment which, under Iowa law and the Constitutional
Doctrine of Res Judicata was and is entitled to recognition by
the U.S. District Court, the 8™ Circuit Court of Appeals and the
U.S. Supreme Court.
26. | Murphy believes and avers that the Bettendorf
City Attorney, Greg Jaeger, will acknowledge on behalf of the
Defendant Bettendorf: (1) that the adjacent property owners
did make a successful protest under the Bettendorf “Protest”
Ordinance, which reads as follows:
“24.4 In case the commission does not approve the
proposal or in case of a protest against such change
signed by twenty (20) percent or more of one or more of
the fo owing groups:
re (a) Property owners of the lots included in
such proposed change.
4 (b) Property owners immediately adjacent in
the rear thereof extending the depth of
one lot or not to exceed two hundred
(200) feet therefrom (excluding street
right-of-way).
C-16
a (c) Property owners immediately adjacent in
the front thereof extending the depth of
one lot or not to exceed two (200) feet
therefrom (excluding street right-of-
way).
i (d) Property owners immediately adjacent to
any and all sides (including the front and
rear sides) of the proposed change
extending one lot or not to exceed two
hundred (200) feet therefrom (excluding
street right-of-way).
1 Such amendment shall not become effective
except by the favorable vote of at least three-fourths
(3/4) of all the members of council.”;
(2) that the “Protest” Ordinance is constitutionally valid and
was validly applied; and (3) that the Doctrine of Res Judicata
as pleaded by Defendant Bettendorf in the Federal Civil Rights
lawsuit did, in fact, require that the Civil Rights action which
was filed in the U.S. District Court be dismissed for lack of
subject matter jurisdiction under the 11" Amendment and
Huffman, supra.
27. | Murphy further avers that, upon the successful
termination of the Declaratory Judgment proceedings before this
Court, Plaintiff intends to file a Declaratory Judgment Action in
the U.S. District Court to have Judge Wolle’s Judgment vacated
on the ground that the Federal District Court lacked Article 3,
§2 subject matter jurisdiction under the 11" Amendment, and
the U.S. Supreme Court’s Huffman Abstention Doctrine,
Rooker-Feldman Abstention Doctrine, Res Judicata
Doctrine, and the Stare Decisis Doctrine, and for other reasons
which have been made of record in the U.S. District Court, the
U.S. Court of Appeals for the 8" Circuit, and the U.S. Supreme
Court; and if necessary, will petition the U.S. Supreme Court for
a Writ of Certiorari on the 11" Amendment issue and
C-17
Substantial Federal Questions which have been presented to the |
U.S. Supreme Court by the conflict in the determination of this
issue by the State of lowa and Federal Judiciary. See, in this
regard, the copy of the pleadings on file in the U.S. Court of
Appeals for the 8" Circuit and in the U.S. Supreme Court which
are being lodged concurrently with the Clerk of this Court by
Petitioner Murphy.
28. No other adequate remedy other than that herein
prayed for exists by which the rights of the parties hereto may
be determined; in that (1) U.S. District Court Judge Wolle has
egregiously (willfully, knowingly and wrongfully) denied
Petitioner Murphy’s lawful right to intervene in the Federal Civil
Rights ‘action of Defendant Planned Parenthood, as an
indispensable party; in order that he might appeal the
(egregiously) erroneous judgment of Judge Wolle which created
the opportunity for Planned Parenthood to engage in a course
of conduct which constitutes a breach of Bettendorf Zoning
Code §24.2 and §24.4 and Paragraph 3 of the Restrictive and
Protective Covenants; (2) the Court of Appeals for the
8 Circuit refused to entertain Petitioner Murphy’s appeal from
Judge Wolle’s erroneous judgment and a Petition for Writ of
Mandate; and (3) the U.S. Supreme Court refused to exercise
its discretionary review of the Federal Court record by Writ of
Certiorari. Because Murphy was wrongfully denied the right to
intervene in the Federal Civil Rights lawsuit, he is not bound by
Judge Wolle’s Judgment in the Civil Rights action under the
Doctrine of Res Judicata, see International Union v. Scofield
382 U.S. 205, 15 L.Ed.2d 272 (1965).
29. | Murphy avers and contends that the Restrictive
and Protective Covenants which were established by the
Defendant Middle Road Investors, Inc. on April 3, 1973 at the
time of the platting of Block | (see Petition at Exhibit D-1
through D-11) and re-established and confirmed by the
Defendant Middle Road Investors, Inc. on January 20, 1976 as
the owner and proprietor of Lot 3 of Block 4, as set forth at
Exhibit A-2 and A-3 to this Petition, run with the land and were
C-18
fully operational and binding on all parties during the period
January 20, 1976 through January 1, 1993; and on that date
were automatically extended for an additional ten year period
from January 1, 1993 through January 1, 2003 by the provision
of paragraph | | of the Restrictive and Protective Covenants (see
Exhibit D-6 and D-7) and were and are presently operative and
binding on all parties, including the Defendant Planned
Parenthood of Greater Iowa, Inc. from and after April 14, 1997,
when Planned Parenthood received title to such property by
Warranty Deed from Kenneth J. Versman, etc. (see Petition at
paragraph 11 on page 6 of the Petition and Document 09482-
97, dated April 14, 1997 and recorded April 24, 1997 at.
Exhibit I to this Petition [last in order]).
30. Defendant Planned Parenthood’s projected use
of such property in the face of the successful protest of the
Bettendorf residents adjoining such property under Bettendorf
“Protest” Zoning Code §24.2 and §24.4 constitutes an
immediate and continuing breach of Paragraph 3 of the
Restrictive and Protective Covenants which requires that “No
obnoxious or offensive trade shall be carried on upon any lot nor
shall anything be done thereon which may be, or become, an
annoyance or nuisance to the other lot owners in said addition.”
(Qur emphasis. )
31. Petitioner has no adequate remedy at law to
compensate for the harm to the reputation and contemporary
community standards of the City of Bettendorf, lowa which
flows from the knowledge of the general public that land in
Bettendorf, lowa, a Home Rule City, which is adjacent and
within 200 feet of an existing residential neighborhood is being
used for the conduct of early abortions, late term abortions, and
partial birth abortions also known and referred to as
“infanticide”. Under these facts and circumstances, and upon
this record, Defendant Planned Parenthood must be held to be
engaged in a trade which is “obnoxious” and “offensive” as a
matter of law under the terms of paragraph 3 of the Restrictive
and Protective Covenants (see Exhibit D-S5 to this Petition); and
C-19
is both a public and private nuisance under the English
Common Law, the early American Common Law, the
Statutes of the State of lowa and the “Protest” Zoning Code,
§24.2 and §24.4 of the City of Bettendorf. The Defendant's
continuous breach of said Covenant and maintenance of a public
and private nuisance will result in irreparable harm to the value
of Petitioner’s land and the pecuniary amount of such damage,
which is impossible to ascertain, warrants the issuance of a
preliminary injunction.
QUESTIONS PRESENTED FOR THE IOWA DISTRICT
COURT ON THIS PETITION FOR A
DECLARATORY JUDGMENT.
1. Whether Bettendorf Zoning Code §24.2
and §24.4 are constitutional on their face?
2. Whether the order of the Bettendorf City Council
which denied the Planned Parenthood Zone Change Application
from P.U_.D. to C-5 zoning by a 5-1 vote is Res Judicata under
lowa law because Planned Parenthood did not timely appeal
such order to the lowa District Court by Writ of Certiorari?
3. Whether that part of the record which shows that
three of the adjacent property owners (Clarence Murphy
[Petitioner], owner of Lot 3, Block 4, Lois Jecklin, owner of
Lots | and 2 of Block 4, and Larry Whitty, owner of Lot 1,
Block 1) made a successful statutory protest under Bettendorf
Zoning Code §24.2 and §24.4, mandates a ruling by this Court
that the zoning on the Planned Parenthood property under lowa
law is “P.U.D.” and remains as “P.U.D.”?
CONCLUSION
The complex propositions of lowa Zoning law which are
framed by this Petition provide irrefutable, positive proof:
C-20
(1) that legal issues involving the zoning laws of a state are
“important state matters” which are protected by the
11° Amendment and the Huffman Abstention Doctrine, and
(2) that a U.S. District Judge lacks “subject matter jurisdiction”
of such issues which, according to the laws of probability, will
be decided differently for each state based upon the Judicial
Policy of the state which is affected. The U.S. Supreme Court
has held in the Huffman cases that, pursuant to the Res
Judicata Doctrine, the US. District Court must extend to such
State Court judgments the interpretation given by the State
Court Judiciary (the equivalent of the “Full Faith and Credit”
provision of the Federal Constitution which governs the
responsibility of the Judiciary of State Courts to acknowledge
the judgments of the Judiciary of other State Courts).
WHEREFORE, Petitioner prays that judgment be
entered against the Defendants:
1. For a Declaration, pursuant to lowa Law, that
the Bettendorf City Council’s action on Planned Parenthood’s
Zone Change Application from PUD to C-5 Zoning is a judicial
function which became final when Defendant Planned
Parenthood did not perfect an appeal to the Iowa District Court
by Writ of Certiorari within 30 days of the date on which the
City Council acted on such Application, that the record shows
that the “Protest” Ordinance is constitutional and was applied
in a constitutional manner; that pursuant to said successful
protest, the adjacent property owners acquired “vested rights”
in the City Council’s Final Order (judgment); that the City
Council’s denial of the C-5 Zoning Application, under the
constitutional Dectrine of Res Judicata is a Final Judgment and
that the Zoning on the Planned Parenthood property under lowa
law is “P.U.D.” as enacted by the Bettendorf City Council.
2. That during the pendency of this action, a
Planned Parenthood from the acts and conduct aforesaid.
C-21
3. That the Defendant Planned Parenthood be
cutebentnntctatectteliakiel auing to viel
and breach Bettendorf “Protest” Ordinance §24.2 and §24.4
and Paragraph 3 of the Protective Covenants that runs with
Lot 3 of Block 4 during the time the same is to remain in force
and effect;
4. For costs, and attorneys fees and other relief as
provided above; and
5. For such other and further relief as the Court
may deem proper.
DATED: January __, 2000
Respectfully submitted,
Clarence J. Murphy, Plaintiff
C-22
VERIFICATION
State of California ) Declaration under Penalty of
} SS: Perjury, Pursuant To California
Los AngelesCounty ) Code of Civil Procedure §2015.5
I am the attorney for Plaintiff Clarence J. Murphy and as
such attorney, the facts as pleaded in the above Petition are
more fully known to me. | therefore make this Declaration and
declare under penalty of perjury under the laws of California that
the forgoing First Amended Petition for a Declaratory
Judgment and an Injunction is true and correct.
Dated: January 31, 2000
Location: 9055 La Tuna Canyon Road
La Tuna Canyon, California 91352-2221
SS/
James J. Clancy, California Bar No. 26946
9055 La Tuna Canyon Road
La Tuna Canyon, California 91352-2221
(818) 352-2069 Fax: (818) 352-6549
Attorney for Petitioner Clarence J. Murphy
APPENDIX D
LAW ENFORCEMENT MEMORANDUM OF AMICUS
CURIAE JAMES J. CLANCY, DATED NOVEMBER 24,
1999, DOCUMENTING PAST HISTORICAL EVENTS,
DISASTROUS RESULTS, CONFUSION AND SERIOUS
DETRIMENT SUFFERED BY THE GENERAL PUBLIC
AS A RESULT OF THE INTERFERENCE OF THE
FEDERAL COURTS WITH THE 10™ AND
11™ AMENDMENT SOVEREIGN POWER OF THE
INDIVIDUAL STATES TO REGULATE THE
COMMERCIAL SALE, DISTRIBUTION, ETC., OF
HARD-CORE PORNOGRAPHY BY CLOSURE OF THE
PREMISES AS A COMMON LAW PUBLIC NUISANCE,
AS EXEMPLIFIED BY THE U.S. SUPREME COURT’S
DECISION IN HUFFMAN V. PURSUE, LTD., 420 U.S.
592, 43 L.ED.2D 482, 95 S.CT. 1200 (1975), REH. DEN.,
421 U.S. 971, 44 L.ED.2D 463, 95 S.CT. 1969.
(Reference: Brief Amicus Curiae of James J.
Clancy, et€., .....444. Page 14, lines 12-13,
Ceecccceccccccces Page 18, footnote 4,
TETTTITTTiTTTiTe Page 24, _iline 24,
a) “. . peeaeeotereeseone Page 25, lines 4, 8.)
D-1
The Law Office Of James J. Clancy
9055 La Tuna Canyon Road
La Tuna Canyon, Califernia 91352
(818) 352-2069 ‘
FAX (818) 352-6549
November 24, 1999
MEMORANDUM
SUBJECT: :
a. Los Angeles Times news article, dated September 1,
1999, with headline reading “L.A. Economy’s Dirty
Secret: Porn Is Thriving”; and
2. Mayor Richard Reardon’s response to the press that he
else” and that he is “ashamed of the porno industry”.
3. (a) The use of Orange County Superior Court Exhibits
(records) in the form of autoptical proferences (time and
motion studies of pornographic films to establish visual
proof of Justice Potter Stewart’s “phenomenon” ¥/ that
one knows hard-core pornography when he sees it), and
(b) the use of 11 years of public nuisance abatement
adjudications in Santa Ana (1975-1986) (pursuant to
which such pornographic films were declared to be hard-
core pornography and enjoined by Order of Court) to
prove, by example and similitude, the existence of
practices in the San Fernando Valley, (Excised Line).
¥ Phenomenon is defined in Webster's Collegiate Dictionary,
5™ Edition, as “any object known through the senses rather than thought
or intuition; specifically with Kant, the object of experience.
D-2
4. My contention that “closure” is mandated where the
visual evidence which is offered is in the form of
autoptical proferences; i.e., time and motion studies of
films which provide irrefutable proof of hard-core
pornography as the sole stock in trade, which is both a
common law public nuisance under People ex rel.
Busch v. Projection Room Theater, 16 Cal.3d 350
[Mar. 4, 1976], as modified in 17 Cal.3d 42, 130
Cal. Rptr. 328, 550 P.2d 600 [June 1, 1976] and a
statutory unlawful business practice under Business and
Profession Code §17200 and People v. E. W.A.P., Inc.,
106 Cal. App.3d 315, 165 Cal.Rptr. 73 (CA2, dv5, 5-29-
80) (hearing denied by Cal. Sup. Ct. on Aug. 21, 1980)
which can be terminated by a lawsuit brought “by any
person acting for the interests of itself, its members or
the general public” (my emphasis). Business and
Professions Code §17.204.
Pursuant to our phone conversation on October 28,
1999, I am personally delivering this Memorandum with its
supporting documents, which will corroborate my
representations in our September |, 1999 and October 28, 1999
phone conversations that the present operations of the
producers and distributers of “Porno” films and videotapes in
the San Fernando Valley can be stopped through legal process.
Both the September 1, 1999 Los Angeles Times news
article (see copy at Exhibit A to this Memorandum) and Mayor
Reardon’s remarks acknowledge that the production and
distribution of obscene motion picture films and videotapes is
rampant in the City of Los Angeles. The Mayor’s remarks imply
that there is nothing that the Mayor can do to stop that activity.
I do not agree. The Orange County Superior Court records as
to the number of injunctions which were issued in 11 years of
Public Nuisance Abatement litigation, establish that the contrary
proposition is true.
Upon reading the September 1, 1999 Los Angeles
D-3
Times news article, I immediately picked up the phone and
called to see if it would be possible for you to “access” the
Mayor and alert him to the facts (1) that he has not been fully
advised; and (2) that the production and distribution of such
pornographic films can be stopped by the use of legal process by
any person, pursuant to the Business and Professions Code.
I stated that if a foundation grant were made available for such
purposes, I could, within a relatively short period, prepare and
submit a comprehensive study and report (Excised Line) based
upon my 11 years of personal experiences with litigation in
Santa Ana, with full documentation by way of autoptical
proferences; that is, time and motion studies”, which would
establish: (1) that the production and distribution of such
pornographic films and videotapes, identical to those in the
litigation in Santa Ana, is both an unlawful business practice and
a public nuisance in Los Angeles, and (2) that such unlawful
business can now be closed down by an Equity Decree under the
Federal Constitution pursuant to the 11™ Amendment
Sovereign Powers of State Judiciaries to act upon important
State matters, and that the proposed Study would outline the
steps that need to be taken in the Courtroom to achieve that
objective.
(Excised Paragraphs [2][suggested remedy)).
As background, I performed legal services for the City
Council of Santa Ana during the 11 year period 1975-1986 ina
monumental effort by the City of Santa Ana to close the
Mitchell Brothers’ Santa Ana Theatre in Honer Plaza (formerly
a United Artist’s Family Theater) as a moral public nuisance.
Unfortunately, at that time, the membership of the
U.S. Supreme Court was badly “fragmented” and it was
impossible to get the members of the High Court to note
jurisdiction and rule on the constitutionality of the “closure”
issue. I believe that had we been able to “force” a ruling out of
the U.S. Supreme Court, we would have been able to achieve
our Orange County objective in Santa Ana and close the
Theatre, based upon past illegal conduct, and the problems that
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exist today would not have developed.
In the interim 13 years, the balance of power on the High
Court has shifted, and that objective can now be achieved, due
to the new interpretation recently given to the
11™ Amendment powers by a majority of five members on the
present Court (Rhenquist, Kennedy, Scalia, Thomas and
O’Connor) regarding “state sovereignty” and the subject matter
jurisdiction of the state judiciary as to important state matters
pursuant to the 11™ Amendment. The recent interest in the
11™ Amendment as a viable theory regarding state power,
gives states new latitude in crafting, and implementing
innovative solutions to state law enforcement problems.
In the first four years, (Sep. 1975 - Jun. 21, 1979) of our
eleven year Santa Ana operations (1975-1986), the City of
Santa Ana surveilled two pornographic films each week and did-
a comprehensive analysis of the same by the construction of
“time and motion studies” and “continuities”, as evidence in the
form of “autoptical proferences”. A list of those films which
were named in four public nuisance abatement lawsuits is
enclosed with this memo as an appendix to my Status Report to
the Santa Ana City Attorney, dated October 28, 1982. See,
also, my Status Report to the Santa Ana City Attorney, dated
March 24, 1980, at page 5, which identifies four public nuisance
abatement lawsuits and the number of pornographic films in
each lawsuit as follows:
Lawsuit Case No. Period Covered
(Gow I) 25-65-30 October 1975 -
(filed Nov. 2, 1976) April 13, 1977
(24 Programs, 48 films)
Lawsuit Case No. Period Covered
(Gow II) 28-12-14 April 13, 1977 -
(filed Dec. 20, 1977) October 19, 1977
(12 Programs, 24 films)
D-5
(Gow III) 29-91-83 July 15, 1978 -
(filed Oct. 3, 1978) November 2, 1978
(13 Programs, 26 films)
(GowIV) 31-55-93 November 2, 1978 -
(filed June 21, 1979) January, 1979
and April, 1979 -
August, 1979
(23 Programs, __42 films)
144 Films
The Courtroom litigation during the period 1976-1979
described above involved the defense of one Federal copyright
and one Federal Civil Rights lawsuit, and the prosecution of four
State Court Public Nuisance Abatement lawsuits in which all
144 pornographic films were adjudicated at hearings on Motions
for Preliminary Injunction, to be hard-core pornography and
enjoined by the Orange County Superior Court as Common Law
Public Nuisances, in violation of the California Obscenity
Statutes. Those Superior Court deliberations were affirmed by
the Court of Appeal and review was denied by the California
Supreme Court. To this date, those adjudications have not been
reversed. See, in this regard, the two bound volumes which are
enclosed containing copies of the following Eight (8) Status
Reports to the Santa Ana City Attorney dated:
April 24, 1979; December 14, 1979; March 24, 1980;
May 12, 1980; December 12, 1980; December 31, 1981;
October 28, 1982; and June 23, 1986; and other letters.
Thirteen (13) years later, resistance to the dissemination
of such hard-core pornographic videotapes has virtually
- collapsed. I am enclosing a copy of a pornographic publication
(3/4" thick, containing 350 pages), which is published every
January and distributed by the Porno Industry in Los Angeles
and elsewhere in the U.S., under the title “Adult Video News”
(A.V.N.) and “Adult Entertainment Guide”, “broadcasting” the
D-6
hard-core pornographic film titles which are now available in
Los Angeles, the identity of the L.A. Producers, and
Distributors of such pornographic films, the names of the actors
and actresses and the nature of the hard-core pornographic
content.
The remarkable part of this change in law enforcement
efforts is that almost everyone of the pornographic films which
were surveilled in Santa Ana during that 11-year period is
named in the A.V.N. Adult Entertainment Guide. See and
compare, in this regard, the titles listed in my Status Report to
the Santa Ana City Attorney, dated October 28, 1982 (at
“Appendix .H”), and pages 204-207 of the A.V.N. Adult
Entertainment Guide, listing the video titles of the hard-core
pornographic “classics” which are available, with a check mark
as to those titles which were exhibited and surveilled at the
Mitchell Brothers’ Theatre during the period October, 1975 -
August, 1979 (see copy at Exhibit B to this Memorandum),
which were the subjects of the Public Nuisance Abatement
lawsuits known as Gow I, Gow II, Gow III and Gow I'V and
enjoined by the Orange County Superior Court as unlawful
hard-core pornography, and upheld by the California Court of
Appeal and California Supreme Court !
The magazine itself is pornographic. Further, all of the
pornographic films listed therein which were held to be hard-
core pornography by the Orange County Superior Court are
products of an unlawful business practice and subject to
abatement in Los Angeles County as public nuisances as a
matter of law. To reach this conclusion , (Excised Words) need
only examine the “autoptical proference” (time and motion
study) for each of such films which is under challenge. The City
of Santa Ana would not have been able to continue to maintain
such lawsuits in the California Courts for 11 successive years
without the “time and motion” studies to rely upon, and keep
the City of Santa Ana in the courtroom. Such “autoptical
proferences” are irrefutable.
D-7
1 am transmitting two bound volumes of my
correspondence and status reports to the Santa Ana City
Attorney for the year 1979 and the years 1980 through 1986, on
the progress of the Santa Ana lawsuits, containing my analysis
of (1) the results achieved in the State and Federal Courts as
to each of the above pornographic films and videotapes, (2) the
nuisance abatement process (which was upheld by the California
Supreme Court in People ex rel. Busch v. Projection Room
Theater, supra) (see copy at Exhibit C to this Memorandum),
(3) the use of that process by seven other States (Washington,
Ohio, Idaho, Georgia, Alabama, Texas and North Carolina), and
(4) the news accounts of the closing down of the Exxxtasy and
Tuxedo Channels on Satellite T.V. by Montgomery, Alabama
District Attorney Jimmy Evans in December, 1990, using the
“time and motion” and “continuity” studies which our
Operations prepared in Los Angeles with respect to the
pornographic films (which included “The Opening of Misty
Beethoven”) which were exhibited by the Exxxtasy and Tuxedo
Channels via Satellite and broadcast to Montgomery, Alabama
and Los Angeles, California, simultaneously (see copy of the
correspondence and news accounts of the demise of the
Exxxtasy and Tuxedo Channels at Exhibit D to this
Memorandum).
Each of the pornographic films which were named in
those Santa Ana lawsuits was 2pm wd a “time and motion
on ha fied on sash fies See my letter to the City Attorney,
dated May 11, 1979. This was the “key” to our success in the
Courtroom. The use of the “time and motion study”, as
autoptical evidence (“I know it when I see it” “phenomenon” —
with no need to apply a definition and the “reasoning” mind)
precluded the Mitchell Brothers from making the obscenity
definition an issue or turning the lawsuit into a semantical
debate. The Mitchell Brothers candidly admitted in their
depositions that they produced and exhibited only hard-core
pornography. It would have been impossible for them to argue
D-8
a plausible contrary proposition or come to a plausible contrary
conclusion. For obvious reasons, no injunction was sought by
the City of Santa Ans prior to a judicial determination on the
merits.
Regretfully, on November 30, 1981, the U.S. Supreme
Court refused to grant a hearing on the “closure” issue we had
drawn in our primary lawsuit (Gow I). That is we was squarely
before the High Court twice on the Santa Ana City Petitions for
} jorari | -27 -34
(see copy of “Reasons for Granting Review” in 82-345 at
Exhibit E to this Memorandum). It took that long (5 years) to
frame the “closure” issue at trial and get Case No. 81-271
before the High Court on appeal. We did this by getting the
Trial Judge to make a finding of fact that he would have closed
down the Theatre because of the contents being exhibited
(which he described in detail) if the Constitution permitted him
to do so under the U.S. Supreme Court decisions. See Status
Reports, dated December 31, 1981, at pages 3-4, and October
28, 1982 at pages 1-2. Instead of ruling on the “closure” issue
in Case No. 81-271, the U.S. Supreme Court reversed on the
burd 7 7 | with brief )
arguments, holding that in a civil case, the Equity“clear and
convincing” burden of proof was satisfactory, and that the
criminal standard of “beyond a reasonable doubt” was not
applicable. This posed a real problem for Santa Ana, because
the California Supreme Court in People ex rel. Busch v.
Projection Room Theater, supra, had refused to consider the
“closure” issue on appeal, absent a decision from the US.
Supreme Court on the “closure” iSsue. See Associate Justice
Clark, concurring and dissenting in People ex rel Busch, \7
Cal.3d 42 at page 62 (see copy of the Busch decision at
Exhibit C to this Memorandum).
In the meantime, a coordinated effort was made to get
the “closure” issue before the High Court in one of the seven
other State cases, which were pursuing the same remedy
(Washington, Ohio, Idaho, Georgia, Alabama, Texas and North
Where es
ad
D-9
Carolina). Those efforts were also unsuccessful.
In State of Idaho, ex rel. Kidwell, Attorney General
and Leroy, Ada County Prosecuting Attorney v. U.S.
Marketing, Inc.. etal, _ldaho __, 631 P.2d 622 (March
29, 1981), the Idaho Supreme Court reversed the trial court and
held that closure was constitutional and authorized the award of
attorney fees (see copy of State of Idaho, ex rel. Kidwell and
Leroy at Exhibit C to this Memorandum). Upon appeal, the
U.S. Supreme Court first noted jurisdiction of those issues, and
then vacated that ruling when U.S. Marketing, Inc, et al
withdrew its appeal voluntarily so as not to have the High Court
rule on and uphold the closure issue. U.S. Marketing, Inc, et
al. was ordered to do so by the suppliers who did not want a
ruling on that issue. See Status Report, dated December 31,
1981. See also, pages 32-65 at page 36 of the Petition for Writ
B, No. 82-345,
ee ag 1982. pom ny op > tip
Exhibit E.
The State case (on lack of subject matter jurisdiction)
that came closest to solving Santa Ana’s problem with the
closure issue (Carol Vance, et al. v. Universal Amusement
Company, Inc., et al., No. 78-1588, U.S. Supreme Court, 1978
October Term, 455 U.S. 308 (1978) (involving state
sovereignty, the 11™ Amendment right of the state judiciary to
apply the state statute to important state matters, and the issue
of the Federal District Court’s “lack of subject matter
jurisdiction) was lost by a 5 to 4 decision when Texas Deputy
Attorney General Lonny Zwiener gave the wrong answer to
Associate Justice Stevens’ questioning during oral argument.
See my letter to Lonnie Zwiener, dated March 24, 1980. The
City of Santa Ana filed an Amicus Curiae Brief in which it
argued that the State of Texas had the right to exclude federal
jurisdiction, pending a definitive ruling by the State High Court
on the Texas Public Nuisance Statute. During oral argument,
Deputy Attorney General Zwiener, without understanding the
D-10
consequences, innocently volunteered an incorrect statement
that the State of Texas did, in fact, employ an interpretation that
Justice Stevens felt was flawed. This error at oral argument cost
the State the loss of Justice Stevens as a fifth vote, and the High
Court’s ruling upon the merits of the case, because Zwiener’s
“concession” during oral argument (which was not a part of the
record), in effect, conceded “jurisdiction” and scuttled Santa
Ana’s Amicus Curiae argument and claim that the Courts of the
State of Texas had not yet ruled definitively on such matters
The State of Texas Petitions had not raised or relied upon the
“lack of subject matter” jurisdiction defense, but the Santa Ana
Amicus brief had made it a defense which I was to argue, had
Texas been able to arrange time for Amicus Curiae to argue
The High Court, however, denied Zweiner’s motion that he be
allowed to split his argument.
After Vance, supra, it became apparent that the
“closure” issue would not be ruled upon by the U.S. Supreme
Court, absent a second appeal by Santa Ana in one of its later
cases (which would have taken years to get the “closure” issue
back to the High Court). The City of Santa Ana changed its
procedure and started filing a separate action for each new
weekly program. This also failed because the Presiding Judge
would not give such trials the necessary “priority” and assign a
courtroom to try the final injunction issue on a weekly basis.
See Status Report to the Santa Ana City Attorney, dated June
23, 1986, at pages 1-6.
Because the High Court would not rule on the “closure”
issue and the Santa Ana Superior Court would not assign a
Court to try each case weekly on the final injunction, City
Attorney Ed Cooper (who had replaced City Attorney Gow)
abandoned the courtroom attempt to close down the Theatre by
legal action in the courtroom and recommended it be done by
eminent domain, incident to a plan of the City to upgrade the
area by redevelopment.
In retrospect, it is now apparent that had Assistant
D-11
Deputy Attorney General Lonny Zweiner argued the “lack of
subject matter jurisdiction” in 1982, the Vance case would have
been decided differently and the “closure” issue could have been
“forced” upon the U.S. Supreme Court for adjudication in the
City’s second Petition for Writ of Certiorari in No. 82-345,
which was filed on August 24, 1982.
Today, because of the change in membership of the High
Court, and the adoption of a new Court Rule in Puerto Rico
v. , 506
U.S. 139, 121 L.Ed.2d 605, 113 S.Ct. 684 (1993) (which
permits the 11™ Amendment issue of “lack of subject matter
jurisdiction” of the Federal District Court to be addressed at the
commencement of the lawsuit in a pre-trial interlocutory
appeal), the defect in the Santa Ana procedures can now be
avoided. All that need be done is to apply for “closure” under
the public nuisance abatement statutes and, assuming that the
defendants remove that issue to the Federal District Court or
that they file a Civil Rights action in the Federal District Court
based upon the closure remedy, to immediately take an
interlocutory appeal (pursuant to Puerto Rico Aqueduct and
Sewer Authority, supra, with respect to the federal interference,
and the 11™ Amendment) on the “closure” issue up to the U.S.
Supreme Court.
(Excised Paragraph [suggested remedy)).
(Excised lines [suggested remedy]). My Status Report
letters to the Santa Ana City Attorney are sequential,
comprehensive, “instructive” and accurately state my position
which is as valid now as it was in 1979. (Excised lines
[suggested remedy/]).
(Excised Paragraphs [2] [suggested remedy}).
- Inclusion of both the text of my letters and the synopsis
“style” have special purposes. Both provide a different degree
of proof, each of which is needed to forestall the customary
D-12
defensive “red herring” arguments and to maximize the
probability that the judgment against the Porn Industry will
prevail (buttressed by the use of a fully comprehensive report
and autoptical evidence to“authenticate” the “summarized”
statements of the law”).
_The federal court’s “lack of subject matter jurisdiction”
issue under the 11™ Amendment which I attempted to get
Lonny Zweiner to address as his primary issue, is at the very
heart of this solution. No one understands that issue and its
sand traps and pitfalls as I do, because of my 25 years of
involvement with the 11™ Amendment issue in the intervening
years which have followed the argument in the U.S. Supreme
Court in Huffman v. Pursue, Ltd. , 420 U.S. 592, 43 L.Ed.2d
482, 95 S.Ct. 1200 (1975), reh. den., 421 U.S. 971, 44 L.Ed 2d
463,95 S.Ct. 1969.
In my 1979-1980 letters I suggested that we are really
involved in a “moral Dunkirk” of our own making. Support for
that “concept” can be found in the November 10, 1999
L.A. Times news article, a copy of which is attached to this
letter at Exhibit A, involving the staging of a Pornographic
“Trade Show” in 1998 at Cal State Northridge.
I am unwilling to admit that our Judaeo-Christian
community standards cannot be “recaptured” and “reinstated”.
All that need be done is for enough of the “good” people to do
that which is needed to restore what is the absolute “truth”
under the Natural Law, and to require that the necessary
adjustment be made to the law which, presently, is grossly
misinterpreted and misunderstood by our “younger generation” .
APPENDIX E
OPINION OF CHIEF JUSTICE WARREN BURGER,
WITH WHOM JUSTICE POWELL AND JUSTICE
REHNQUIST JOIN, DISSENTING IN BROCKETT V.
SPOKANE ARCADES, INC., NO. 80-1604, 454 U.S. 1022,
70 L.ED.2D 468, 102 S.CT. 557 (1981).
(Reference: Brief Amicus Curiae of James J.
CRANES, GBBny cccccccccccs .Page 26, line 4.)
—
E-1
MEMORANDUM CASES
No. 80-1604. Donald C. Brockett, etc., Appel-
lant v Spokane Arcades, Inc., et al.
454 US 1022, 70 L Ed 2d 468, 102 S Ct 557.
November 9, 1981. Appeal from the United
States Court of Appeals for the Ninth Circuit.
The judgment is affirmed. Dissenting opinion
by the Chief Justice with whom Justice Pow-
ell and Justice Rehnquist join.
Same case below, 631 F2d 135.
Chief Justice Burger, with whom Justice
Powell and Justice Rehnquist join, dissenting.
The Court today affirms a decision of the
Court of Appeals holding unconstitutional a
Washington statute which has yet either to be
enforced in or construed by a Washington
state court. I would abstain from decision
until the Washington courts are given an
opportunity to interpret the law which has
been thus invalidated. This Court—and all
federal courts—have enough to do without
“preempting” state courts on matters ini-
tially of state concern_
The Washington “moral nuisance” law,
Wash Rev Code § 7.48.050 et seq. (Supp 1977)
—a comprehensive statute directed at prohib-
iting the public sale and exhibition of obscene
materials—was adopted as an initiative by
the voters in the November 8, 1977, election.
Before the statute was even certified by the
Secretary of State, appellees, several corpora-
tions engaged in the exhibition, distribution,
and sale of movies, books, and magazines,
filed this action in the Federal District Court.
On February 6, 1978, less than three months
after the initiative’s adoption, and apparently
before it had ever been applied, the District
Court declared the law unconstitutional. 449
F Supp 1145.
I have previously outlined the concerns that
should lead a federal court to stay its hand in
cases such as this, when litigants have delib-
erately avoided resort to the courts of the
state whose statute is being challenged.
Vance v Universal Amusement Co. 445 US
308, 317-320, 63 L Ed 2d 413, 100 S Ct 1156
(1980) (Burger, C. J., dissenting), cf. Moore v
East Cleveland, 431 US 494, 521-531, 52 L Ed
2d 531, 97 S Ct 1932 (1977) (Burger, C. J.,
dissenting); Wisconsin v Constantineau, 400
US 433, 439-443, 27 L Ed 2d 515, 91 S Ct 507
(1971) (Burger, C. J., dissenting). The policies
of federalism and comity militate in favor of
affording state judges—who are as capable as
are federal judges of enforcing the Constitu-
tion of the United States, and have taken the
same oath to do so—the initial opportunity to
consider the scope and validity of state stat-
utes. This is particularly so when the state
law under consideration has never been ap
plied, and when its interpretation is uncer-
tain; in such a case the state court's construc-
tion of the statute may obviate the need for
adjudication of the federal constitutional is-
sues, or the state court may resolve those
issues as we would. Harrison v NAACP, 360
US 167, 3 L Ed 2d 1152, 79 S Ct 1025 (1959);
City of Meridian v Southern Bell Tel. & Tel.
Co. 358 US 639, 3 L Ed 2d 562, 79 S Ct 455
(1959), Railroad Comm'n v Pullman Co. 312
US 496, 85 L Ed 971, 61 S Ct 643 (1941).
Here, the Court of Appeals invalidated por-
tions of the nuisance law de
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