# Amicus Curiae Brief — Stenberg v. Carhart > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0347%3A36 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 530 U.S. 914 ## Text 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 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 dealing with the issuance of temporary and permanent injunc- tions against establishments exhibiting “lewd” or “obscene” matter, on the grounds that, inter alia, (1) “[nJjo limits are set forth in the statute to confine the discretion of the court to issue the temporary abatement in- junction,” 631 F2d 135, 138 (CA9 1980), (2) “there is no assurance that there will occur the required prompt final judicial determina- tion on the merits,” ibid.; and (3) “a defense of nonobscenity presumably is unavailable at a trial for violation of an injunction” (emphasis added), ibid. Even a cursory examination of the lengthy statute—which contains detailed definitions of “lewd” or “obscene” matter in- corporating the standards of Miller v Califor- nia, 413 US 15, 37 L Ed 2d 419, 93 S 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 avail- able in contempt proceedings—discloses that the state courts might well have construed the law so as to avoid each of these perceived deficiencies. It is ironic that, having exhibited no hesitation to construe the many provisions E-2 MEMORANDUM CASES of this complex statute without guidance from the state courts, the Court of Appeals wholly ignored an explicit severability clause and “declined” to preserve those parts of the stat- ute not found unconstitutional, demurring that the reconstruction required to salvage the statute would be better handled by “the legislature of the State of Washington.” 631 F2d, at 139. In sum, both the District Court and the Court of Appeals should have declined to act until the parties had exhausted available state remedies, at least absent a showing that resort to the state courts would have been futile. There was no need whatever for fed- eral courts to render a declaratory judgment as to the validity of a state law on which the state courts have not yet had an opportunity to speak and on behalf of parties against whom the law has not yet been applied. I would reverse and remand with directions to do now what should have been done initially. No. 81-186. James A. McClure, United States ~ Senator, Appellant v Ronald Reagan, Presi- dent of the United States and Abner J. Mikva 454 US 1025, 70 L Ed 2d 469, 102 S Ct 559. November 9, 1981. Appeal from the United States District Court for the District of Idaho. The judgment is affirmed. Justice Rehnquist took no part in the consideration or decision of this case. Same case below, 513 F Supp 265. No. 81-477. Donald M. Witte, Appellant v Bar Committee of the Twenty-First Judicial Cir- cuit, ete. 454 US 1025, 70 L Ed 2d 469, 102 S Ct 559. November 9, 1981. Appeal from the Su- preme Court of Missouri. The appeal is dis- missed for want of jurisdiction. Treating the papers whereon the appeal was taken as a — for writ of certiorari, certiorari is Same case below, 615 SW2d 421. No. 81-5422. William J. Crane, Appellant v B. Ross, et al. 454 US 1025, 70 L Ed 2d 469, 102 S Ct 559. November 9, 1981. Appeal from the United States Court of Appeals for the Seventh Cir- cuit. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied. Same case below, 645 F2d 78. No. 81-478 Stephen D. Rabideau, Appellant v Attorneys Board of Professional Responsi- bility of Wisconsin 454 US 1025, 70 L Ed 2d 469, 102 S Ct 559. November 9, 1981. Appeal from the Su- preme Court of Wisconsin. The appeal is dis- mi for want of a substantial federal ques- tion. Same case below, 102 Wis 2d 16, 306 NW2d 1. No. 81-524. Irene Johnson, as surviving spouse of Chester Johnson, Appellant v Kerr-McGee Oil Industries, Inc. 454 US 1025, 70 L Ed 2d 469, 102 S Ct 560. November 9, 1981. Appeal from the Court of Appeals of Arizona, Division Two. The is dismissed for want of a substantial question. Same case below, 129 Ariz 393, 631 P2d 548. APPENDIX F OPINION OF JUSTICE WHITE, JOINED BY BURGER, BLACKMUN, REHNQUIST, STEVENS, AND O’CONNOR; WITH CONCURRING OPINION OF JUSTICE O’CONNOR, JOINED BY BURGER AND REHNQUIST; AND DISSENTING OPINION OF JUSTICE BRENNAN, JOINED BY MARSHALL, IN » NO. 84-28, 472 U.S. 491, 86 L.ED.2D 394, 105 S.CT. 2794 (1985), REVERSING 9™ CIRCUIT COURT OF APPEALS, WHICH HAD HELD THE WASHINGTON STATE PUBLIC NUISANCE STATUTE TO BE UNCONSTITUTIONALLY BROAD. (Reference: Brief Amicus Curiae of James J. Clancy, etc., ....... -Page 28, lines 11, 37.) U.S. SUPREME COURT REPORTS 86 L Ed 2d (472 US 491) DONALD C. BROCKETT, Appellant v SPOKANE ARCADES, INC., et al. (No. 84-28) KENNETH EIKENBERRY, Attorney General of Washington, et al., Appellants v J-R DISTRIBUTORS, INC., et al (64-143) 472 US 491, 86 L Ed 2d 394, 105 § Ct 2794 (Nos. 84-28 and 84-143] Argued February 20, 1985. Decided June 19, 1985. Decision: Invalidation in its entirety of state statute aimed at preventing and punishing the publication of obscene materials held improper. SUMMARY Various purveyors of sexually oriented books and movies filed suit for Satay on Te SE Cees Ge enees of a moral nuisance statute, not yet enforced, which p—-1 persons dealing in “obscene matter,” defined in part as matter appealing to a “prurient” interest, which in turn was defined as “that which incites lasciviousness or lust.” The United States District Court for the Eastern District of Washington rejected all constitutional challenges to the — of the statute (544 F Supp 1034). The United States Court of for the Ninth Circuit reversed, holding that the statute was ne Re By Ee Rn By nh, A WB by including “lust” in its definition of “prurient,” it reached material which merely stimulated normal sexual and that it was appropriate to iustiiiete Ge enliven chatete on tho teen, even Gah & had ost yet bern authoritatively interpreted or enforced, because the very existence of the statute might have a chilling effect on protected expression (725 F2d 482). On appeal, the United States Supreme Court reversed and remanded. In an opinion by Wurre, J., joined by Burcer, Ch. J., and Buackmun, Renn- Briefe of Counsel, p. 789, infra. 394 Se ee F-2 BROCKETT v SPOKANE ARCADES, INC. 472 US 491, 86 L Ed 2d 394, 105 S Ce 2794 quist, Stevens, and O’Connor, JJ., it was held that the First Amendment involvement in this case did not render inapplicable the rule that a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it, and that the statute in question should have been invalidated only insofar as the word “lust” is to be understood as reaching protected materials. O'Connor, J., joined by Burcer, Ch. J., and Rennquist, J., concurred, expressing the view that the federal courts should have abstained from deciding the case and allowed the state courts an opportunity to construe the statute in the first instance. BRENNAN, J., joined by MarsHatt, J., dissented, expressing the view that the statute was unconstitutionally overbroad and thus invalid on its face for the reasons stated in his dissent in Paris Adult Theaters I v Slaton (1973) 413 US 49, 37 L Ed 2d 446, 93 S Ct 2628. Powe t, J., did not participate. U.S. SUPREME COURT REPORTS F-3 86 L Ed 2d e HEADNOTES Classified to U.S. Supreme Court Digest, Lawyers’ Edition Constitutional Law § 930; Statutes §58 — obscenity law — par- tial or facial invalidation for overbreadth la-ld. A state moral nuisance stat- ute which is allegedly overbroad in violation of the First Amendment, in that its definition of the proscribed obscene matter includes “that which incites . . . lust” and thus purport- edly reaches constitutionally pro- tected material which arouses only a normal, healthy interest in sex, and which has been challenged by per- sons who desire to publish this sort of material and claim that they face punishment if they do so, should be invalidated only insofar as the word “lust” is to be understood as reach- ing protected materials and not in —~ *x Am Jur 2d, Statutes § 346 38, 71, 73 Statutes §§ 37, 38, 38.5, 58 Lewdness, and Obscenity Press; Lewdness, Indecency, Supreme Court's speech and press. 41 L Ed 2d 1257. ALR3d 1214. TOTAL CLIENT-SERVICE LIBRARY® REFERENCES 16 Am Jur 2d, Constitutional Law §§ 260 et Jur 2d, Lewdness, Indecency, and Obscenity §§ 3 et seq.; 73 7 Am Jur P! & Pr Forms (Rev), Constitutional Law, Forms 21, . 18 Am Jur Proof of Facts 465, Obscenity—Motion Pictures 10 Am Jur Trials 1, Obscenity Litigation USCS Constitution, First Amendment US L Ed Digest, Appeal § 1258.5; Constitutional Law § 930; L Ed Index to Annos, Freedom of Speech, Press, Religion, and Assembly; Indecency; Statutes ALR Quick Index, Freedom of Speech and Press; Indecency, Federal Quick Index, Censorship; Freedom of Speech and AutoCite®: Any case citation herein can be checked for [ form, parallel references, later history and annotation ref- erences through the Auto-Cite computer research system. ANNOTATION REFERENCES Supreme Court's views as to overbreadth of legislation in connection with First Amendment rights. 45 L Ed 2d 725. development, since Roth v United States, of standards and principles determining concept of obscenity in context of right of free Modern concept of obscenity. 5 ALR3d 1158. Validity of procedure designed to protect the public against obscenity. 5 seq., 507; 50 Am Obscenity F-4 BROCKETT v SPOKANE ARCADES, INC. 472 US 491, 86 L Ed 2d 394, 105 S Ct 2794 its entirety, where such a limiting construction is feasible and will not invalidate the intent of the enacting legislature. (Brennan and Marshall, JJ., dissented from this holding.) Appeal § 1258.5 — review — fol- lowing lower federal court's construction of state statute 2. The United States Supreme Court will normally defer to the con- struction of a state statute given it by the lower federal courts; but this rule is not ironclad, and the court surely has the authority to differ with the lower federal courts as to the meaning of a state statute. Constitutional Law § 930; Statutes §58 — obscenity law — par- tial invalidation — effect of First Amendment issues 3. The involvement of the First Amendment in an action by purvey- - ors of sexually oriented material challenging the constitutionality of an allegedly overbroad state moral nuisance statute does not render in- applicable the rule that a federal court should not extend its invalida- tion of a statute further than neces- sary to dispose of the case before it. Constitutional Law § 930; Statutes §§ 37, 58 — partial or facial invalidation — First Amend- ment issues — where affected persons are parties 4. An individual whose own speech or expressive conduct may validly be prohibited or sanctioned may chal- lenge a statute on its face where it also threatens others not before the court who desire to engage in | protected expression but may refrain from doing so rather than risk prose- cution or undertake to have the law declared partially invalid; and if the overbreadth is substantial, the law may not be enforced against anyone, including the party before the court, until it is narrowed to reach only unprotected activity; however, where the parties challenging the statute are those who desire to engage in protected speech which the over- broad statute purports to punish, or who seek to publish both protected and unprotected material, there is no want of a proper party to chal- lenge the statute, and the statute may be declared invalid to the ex- tent that it reaches too far but oth- erwise left intact. Statutes § 38.5 — partial invalida- tion — legislative intent as to retention of valid part 5. The partial invalidation of a statute is improper if it is contrary to legislative intent in the sense that the legislature has passed an unsev- erable act or would not have passed it had it known that the challenged provision was invalid. Statutes § 38 — partial invalidity — Washington law 6. Under Washington law, a stat- ute is not to be declared unconstitu- tional in its entirety unless the in- valid portions are unseverable and it cannot reasonably be believed that the legislature would have passed one without the other, or unless the elimination of the invalid part would render the remainder of the act in- capable of accomplishing the legisla- tive purposes. SYLLABUS BY REPORTER OF DECISIONS A Washington statute declares to be a “moral nuisance” any place “where lewd films are publicly ex- hibited as a regular course of busi- ness” or “in which lewd publications constitute a principal part of the F-5 U.S. SUPREME COURT REPORTS 86LEd2dq © stock in trade.” The statute provides appeals to a shameful or morbid that “lewd matter” is synonymous with “obscene matter” and defines these terms to mean, inter alia, any matter which the average person, applying contemporary community standards, would find, when consid- ered as a whole, “appeals to the prurient interest.” “Prurient” is de- fined to mean “that which incites lasciviousness or lust.” Appellees— various individuals and corporations who purvey sexually oriented books and movies—challenged the statute on First Amendment grounds in Federal District Court, seeking in- junctive and declaratory relief. The District Court rejected appellees’ constitutional challenges. The Court of Appeals reversed, invalidating the statute in its entirety on its face on the ground that the definition of “prurient” as including “lust” was unconstitutionally overbroad in that it reached constitutionally protected material that merely stimulated nor- mal sexual responses. Held: The Court of Appeals erred in facially invalidating the statute in its entirety. (a) These cases are governed by the normal rule that partial, rather than facial, invalidation is the re- quired course. Unless there are countervailing considerations, the Washington statute should have been invalidated only insofar as the word “lust” is to be understood as reaching protected materials. (b) Since prurience may be consti- tutionally defined for the purposes of identifying obscenity as that which interest in sex, Roth v United States, 354 US 476, 1 L Ed 2d 1498, 77 S Ct 1304, 14 Ohio Ops 331, if the Washington statute were invalidated only insofar as the word “lust” is taken to include normal interest in sex, the statute would pass constitu- tional muster and would validly reach a whule range of obscene pub- lications. Moreover, if the Court of Appeals thought that “lust” refers only to normal sexual appetites, it could have excised the word from the statute, since the definition also refers to “lasciviousness.” (c) Even if the statute had not defined prurience at all, there would have been no satisfactory ground for striking it down in its entirety. The statute itself contains a severability clause, and it is evident that if the statute were invalidated insofar as it proscribes materials that appeal to normal sexual appetites, the remain- der of the statute would retain its effectiveness as a regulation of ob- scenity. In these circumstances, the issue of severability is no obstacle to partial invalidation. 725 F2d 482, reversed and re- manded. White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Rehnquist, Stevens, and O'Connor, JJ., joined. O’Connor, J., filed a concurring opinion, in which Burger, C. J., and Rehnquist, J., joined. Brennan, J., filed a dis- senting opinion, in which Marshall, J., joined. Powell, J., took no part in the decision of the cases. APPEARANCES OF COUNSEL Christine O. Gregoire argued the cause for appellants in 84-28 and 84-143. F-6 BROCKETT v SPOKANE ARCADES, INC. 472 US 491, 86 L Ed 2d 394, 105 S Ct 2794 John H. Weston argued the cause for appellees in 84-28 and 84- 143. Briefs of Counsel, p 789, infra. OPINION OF THE COURT [472 US 493) Justice White delivered the opin- ion of the Court. {1a} The question in this case is whether the Court of Appeals for the Ninth Circuit erred in invalidating in its entirety a Washington statute aimed at preventing and punishing the publication of obscene materials. I On April 1, 1982, the Washington state moral nuisance law became effective. Wash Rev Code §§ 7.48A.010-7.48A.900 (1983)! It sets forth a comprehensive scheme establishing criminal and civil penal- ties for those who deal in obscenity or prostitution. The statute declares to be a “moral nuisance” any place “where lewd films are publicly ex- hibited as a regular course of busi- ness” and any place of business “in which lewd publications constitute a principal part of the stock in trade.” §§ 7.48A.020(1), (3). Subsection (2) of the “Definitions” section of the stat- ute provides that “lewd matter” is synonymous with “obscene matter,” and defines these terms to mean any matter: “(a) Which the average person, applying contemporary commu- nity standards, would find, when considered as a whole, appeals to the prurient interest; and “(b) Which explicitly depicts or describes patently offensive repre- sentations or descriptions of: “(i) Ultimate sexual acts, normal or perverted, actual or simulated; or “(ii) Masturbation, fellatio, cun- nilingus, bestiality, excretory func- tions, or lewd exhibition of the genitals or genital area; or (472 US 494] “(iii) Violent or destructive sex- ual acts, including but not limited to human or animal mutilation, ~~ crane rape or torture; an “(c) Which, when considered as a whole, and in the context in which it is used, lacks serious lit- erary, artistic, political, or scien- tific value.” § 7.48A.010(2). The word “prurient,” as used in sub- section (2Xa), is defined in subsection (8) to mean “that which incites las- civiousness or lust.” § 7.48A.010(8). On April 5, four days after the effective date of the statute, appel- lees—various individuals and corpo- rations who purvey sexually ori- ented books and movies to the adult publict—challenged the constitution- ality of the statute in Federal Dis- trict Court, seeking injunctive and declaratory relief. One of their asser- tions was that the statute’s defini- tion of “prurient” to include “that which incites .. . lust” was uncon- 1. An earlier moral nuisance law, Wash Rev Code § 7.48.052 et seq. (1983), adopted as an initiative measure in 1977, was struck down as an impermissible prior restraint. See Spokane Arcades, Inc. v Brockett, 631 F2d 135 (CA9 1980), summarily aff'd, 454 US 1022, 70 L Ed 2d 468, 102 S Ct 657 (1981). 2. Seven separate suits were originally filed in the District Court for the Eastern District of Washington, where they were consolidated. stitutionally overbroad because it reached material that aroused only a normal, healthy interest in sex and that the statute was therefore to be declared invalid on its face.? Ap- pellees alleged that the sexually ori- ented films and books they sold were protected by the First Amendment, and that the state authorities would enforce the new legislation against them unless restrained by the Court. App 33. On April 13, the District Court for the Eastern District of Washington issued a preliminary in- junction against enforcement of the statute. Id., at 35. After trial, the District Court re- jected all of appellees’ constitutional challenges to the validity of the stat- ute. 544 F (472 US 495) : Supp 1034 (1982).* A di- vided panel of the Court of Appeals for the Ninth Circuit. reversed. 725 F2d 482 (1984). It first held that a facial challenge to the allegedly overbroad statute was appropriate despite the fact that the law had not yet been authoritatively interpreted or enforced. This was necessary when First Amendment rights were at stake lest the very existence of the statute have a chilling effect on protected expression. The Court of Appeals acknowledged that facial in- validation required “substantial ov- F-7 U.S. SUPREME COURT REPORTS 86 L Ed 2d erbreadth,” Broadrick v Oklahoma, 413 US 601, 37 L Ed 2d 830, 93 S Ct 2908 (1973), but concluded that the requirement applies only when the challenged statute regulates conduct, as opposed to “pure speech.” 725 F2d, at 487. Nor did the court find this to be an appropriate case for abstention. See Railroad Comm'n v Pullman Co. 312 US 496, 85 L Ed 971, 61 S Ct 643 (1941). Reaching the merits, the Court of Appeals held that by including “lust” in its definition of “prurient,” the Washington state legislature had intended the statute to reach mate- rial that merely stimulated normal sexual responses, material that it considered to be constitutionally pro- tected. Because in its view the stat- ute did not lend itself to a saving construction by a state court and any application of the statute would depend on a determination of ob- scenity by reference to the “uncon- stitutionally overbroad” definition, the Court of Appeals declared the statute as a whole to be null and void.® (472 US 496) The defendant state and county officials separately appealed to this Court. We noted probable jurisdic- tion in both cases, 469 US 813, 83 L Ed 2d 25, 105 S Ct 76 (1984).* 3% Appellees also challenged the Washing- ton statute’s paraphrasing of the second and third parts of the test set forth in Miller v California, 413 US 15, 37 L Ed 2d 419, 93 S Ct 2607 (1973). See infra, at 497, 86 L Ed 2d, at 402. The District Court rejected these attacks, and the Court of Appeals did not address them. Appellees have not renewed these claims in this Court. 4« The District Court stayed its judgment to allow appellees to seek a stay pending appeal from the Court of A which the Court of Appeals subsequently granted. 725 F2d 482, 485 (1984). Thus, the statute was not enforced pending appeal. 5. Having struck down the statute in toto on overbreadth grounds, the Court of Appeals nevertheless went on to conclude that the statute's civil fine provisions were constitu- tionally invalid, on the theory that “the legis- lature will undoubtedly try again.” 725 F2d, at 493. This part of the opinion was obviously unnecessary to the Court of Appeals’ holding, and in view of our [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0347%3A36. Public record. Not legal advice.