Appendix — Korey v. City of Davenport

g 5 . 9 q 8 (y) uy + 2 S.

NOV 13 1985

NO. JOSEPH F. SPANIOL, JR,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

MOSE KOREY,

Petitioner,

VS.

CITY OF DAVENPORT, IOWA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

MOSE KOREY, Pro Se

3026 Belle Avenue

Davenport, Iowa 52803

Phone: (319) 359-0272

“BEST AVAILABLE COPY ©

APPENDIX

Letter, Dr. John F,. Collins,

dated April 29, 1985 A-1

Ruling and Order Granting

Defendant's Motion for Ae2, Aw}

Summary Judgment, Ae, A=-5

entered April 12, 1985 A-6, A-7

A-8, A-9

A-10, Aewll

Order Denying Motion to

Reconsider, entered Ael2, A-13

May 8, 1985 A-1h, A-15

Letter and Order, dated Aw-16, A-17

August 15, 1985 A-18

Letter and document, dated

September 19, 1985 A-19, A-20

Letter dated October 3,

1985, transmitting A-21

mandate of the Court

Letter and enclosure Re:

Motion to Correct

Error, dated A-22, Aw23

October 11, 1985

Letter dated November 6,

1985 A-24, A-25

From Plaintiff's Exhibit h,

as filed with:

Plaintiff's Affidavit of Material

Facts in Support of Resist-

ance to Defendant's Motion for

Summary Judgment

(CIVIL NO. 83=174-Del)

om 1 ~

| PAGE

Notice to Defendant of

Order to Show Cause A-26, Aw27

(Cause No. 51298) A-28, A-29

filed June 9, 1969;

Order for Hearing on

Temporary Injunction

(Cause No. 51298) A-30, A-31

filed June 9, 1969;

Order for Temporary

In junction

(Cause 51298)

filed June 11, 1969

after being served by

Sheriff, Scott County,

Towa A-32, Aw33

Sheriff's Return on

Order served June9,

1969, on Allyn Wiese,

City Clerk, filed

June 11, 1969

(Cause No. 51298) A-3)

Defendant's answer to

Interrogatories, No.2

(CIVIL NO. 83-174-D-1) A-35, A-36

United States District

Court for the

Southern District of

Iowa

(CIVIL NO. 78-112-D)

(CIVIL NO. 78-113-D)

Ruling and Order, A-37, A=-38

filed April 25, 1980 A-39, A-lO

oe

AS

]

<< iactct

amaaeaegean. a aa a

ODMDON FOOD ON +

Sta NWAWAWAW\0 80 80

Stewet# testa

aqaitatatatataetctactc

co

c

Oo

rc

o~

oO

d

a)

uo]

©

ca

wt

H

Order,

L1ii

TABLE OF AUTHORITIES

CITED IN APPENDIX

PAGE

Cases:

Allen v. McCurry

101 S.Ct. 411 (1980)--A-57

Board of Regents

v. Tomanio

a

100 S.Ct. 1790,1795,

1798, 1799

(1980) --------- A-52, A-60

Branchcraft v. Brewer

° 1

(8th Cir. 1982)---A-7

Burford v. Sun Oil Co.

1 ed e 1 aw--Aal2

Burt v. Abel

° 13, 616

n.e7 (kth Cir. 1978)-A-64

Cahill v. Cedar

Count Iowa

eoUupp. » 4.

(N.D. Iowa 1973)—=-A-5

Chadon v. Fernandez

* “ + 1 81 )--A-7

Curtis v. Loether

- < a 93

(1974) ------- A-62

EEOC v. Liberty Loan

Corp.

F.2d .

(8th Cir. 1978)-A-50

George v. Parratt

28 F.od 616

(8th Cir. 1979)=-A-2

- iv -~

PAGE

Green v. Ten Eyck

1233, 1237,

1238, Si antes A-53, AS6

A-60

Heille v. City of

St. Paul, Minn.

1 ll

(8th Cir. 1982 )--A-5

Towa State Highway

Commission v. Read

° se s

(1975)

appeal after remand

262 N.W.2da 533

(1978) ------- A-1

Johnson v. Railway

Express Agency,

Inc,

421 U.S. Wp » yoo

1975 )------- A-52, A-53

Lunday v. Vogelmann

1 ow. » 907

(Iowa 1973)------ A-55

McClain v. Meier

61

. » 356

(8th Cir. 1979)---A-50

Monroe v. Pape

365 U.S. it? 183

SO aie A-61

Parratt v. Taylor

er R » 536

101 S.Ct. 1908

68 L.Ed.2d 420 (1981)-A-)

Pernell v. Southall

Realty

* OF

375=381 (1974.) ----- Ae62, Auw63

1

— Vv -

PAGE

Richards v. City of

Muscatine

(Iowa 1975)----A-51

Robbins v. District

Court of Worth

Count

. 17

(8th Cir. 1979)----A-57

Roberts v. Brownt

1 ° >

(8th Cir. 1978) ----A-50

Rosales v. Lewis

supp. 956, 958

(S.D. Iowa 1978) =-ah~53, A-Su

Ross v. Bernhard

“396 U.S. 531, 537,

538 (1970)-------- A-63

Sigafoos v. Talbot

owe Oly (1008)----A-5

State ex rel.

Iowa State Highway

Commission v. Read

oN « 3

(Iowa 1975)------- A-58

Steffel v. Thompson

eo © , ,

473 (197) ------A-60

Stellingwerf v.

Leninhan

owa

85 N.W.2d 912,

915 (1957) a----8A-1

Stovall v. City of St.

Louis Board of

Education

1 ° » 9:

(8th Cir. 1978)-—-A-.9, A-50

— vi ~_

PAGE

Thornberry v. State

Board of Re ons

157 (1971) onecn---A-)

Warren v. Norman Realty

Co

735 3p Cir.)

cert. den. 423 U.S.

855" (1975) anan--A-56

Constitution, Statutes,

Rules and Regulations:

Constitution of the United

States of America:

Fifth Amendment--------- A-65,

Seventh Amendment------- A-62

Fourteenth

Amendment ----«--------A-65, A

Civil Rights Statutes

of 18 beonseneces ceaececee A-64

Title 2, U.S.C.

Section 1500 (6 Jenanqne-ie5S3,

Section 1982---~.----..- A-

Section 1983---.-.--.-.. A-2 ,

A-70

Section 1985 --mncennne--A-2 »

A-38,

Seetion 1 9Bbcacccccececcche?

Section 5305 (a) SP lancnsliat?

- vil ~

A-68

Federal Rules of

Appellate Procedure

Rule 40---------------- -A-\0

Rules of the United

States Court of

Appeals for the

Eighth Circuit

Rule 12 (a ) ence eee eeehe) 8

Federal Rules of

Civil Procedure

Rule 36--..-. sncucasescafing)

Rule 56----- eo eee eeeeeee A-1l

Rule 56 (e)-«- ------ w= ---A-9

Code of Iowa (1971)

Chapter 72

Section 472.23--------A-l\0

Code of Iowa

(Supp. 1979-1980)

Chapter 472

Section 472.21------ --A-0

Code of Iowa

Chapter 306-------------A-6

Chapter 4.03------------- —-6

Chapter 72-----------«- he

ALB

Section 472.21--<------ A-

Chapter 613A----------- —_

A-

Section 613A.1(3)----- A-55

Chapter 61

Section a re

A-56

- vill e

» Aw-62

» A=39

» A-54

» A-55

PAGE

Miscellaneous:

46 Am. Jur. 2a

Section 417----------- A-0

9 Wright and Miller,

Federal Practice

and Procedure

Section 2302 at

21-22 (1971 )-8-----A-66

| JOHN F. COLLINS, M.D., P.C.

430 West 35th Street

Davenport, Iowa 52806

Telephone 386-255

To whom it may concern:

Mose Korey

This is to certify that Mose Korey

is unable to proceed with a court

action at the present time due to a

recent stroke, which has affected

his speech and his ability to get

about. He also suffers from post

irradiation treatment for a tumor.

Sincerely,

/s/

John f. Collins, M.D.

P.C.

JFC :k

Awl

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

MOSE KOREY, )

‘ ) CIVIL NO.

Plaintiff, 83<174-D-1

vs. ) RULING AND

) ORDER GRANTING

CITY OF DAVENPORT, ) DEFENDANT'S

) MOTION FOR

Defendant. ) SUMMARY

) JUDGMENT

The Court has before it

defendant's motion for summary

judgment which plaintiff has re-

sisted. The Court finds that the

motion is fully submitted and

ready for ruling.

On October 21, 1983 plaintiff

filed a civil rights action, pursuant

to h2 U.S.C. Sections 1982, 1983,

1985 and 1986, alleging that defend.

ant deprived him of real property, in

derogation of his constitutional

rights. Plaintiff's multiple alle-~

A-2

gations arise from defendant's 1969

and 1980: condemnations of approx-

imately twenty acres of plaintiff's

real property, for park purposes. In

1972, plaintiff obtained a jury award

in the amount of $33,020.00, plus

attorney fees and costs, as the result

of his state court action challenging

the 1969 condemnation. In 1980, the

condemnation commission awarded

plaintiff $11,000 as compensation for

land condemned in that year. Plainte

iff brought various actions in state

court from 1971 until 1982, attacking

the 1969 condemnation proceeding on

various grounds in each instance. On

October 21, 1983, plaintiff filed a

complaint in this Court requesting

that the 1969 condemnation proceeding

by the city be set aside and that

A=3

actual and punitive damages be award-

ed. On June 18, 1984 defendant filed

a motion for summary judgment grounded

on the statute of limitations and res

judicata. Plaintiff, proceeding pro

se, has vigorously resisted.

I. Plaintiff has not stated a

claim upon which relief can be

granted under 42 U.S.C. Section 1983.

1. Plaintiff asserts that defend-

ant, acting under color of state law,

deprived him of real property and

affected his ability to engage in bus-

iness as a truck farmer by reducing his

acreage from twenty-seven acres to

seven acres, through condemnation. See

Parratt v. Taylor, 451 U.S. 527, 536,

101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

Plaintiff's business as a truck farmer

was affected indirectly by the said

Awl,

condemnation, but an adverse effect

indirectly resulting from valid governe-

mental action is not protected by due

process. Heille v. City of St. Paul,

Minn., 671 F.2d 1134, 1137 (8th Cir.

1982). No “protected property right"

has been infringed. Id.

2. Plaintiff has not been dee

prived of any “rights, privileges or

immunities secured by the Constitution

and its laws." Cahill v. Cedar County,

Iowa, 367 F.Supp. 39, 45 (N.D. Iowa

1973). Iowa law, under which defendant

exercised its right of eminent domain,

affords a condemnee full procedural due

process. In Iowa, a property owner has

a constitutional right to a jury trial

when his property is taken by eminent

domain. Id.; Sigafoos v. Talbot,

25 Iowa 21) (1868). In Cahill,

Ae5

plaintiffs attacked the state's failure

to proceed under the generel condem-

nation statute, Chapter 472, The Code,

alleging that they were not afforded

full due process when the state pro-

ceeded under’Chapter 306, The Code.

Id. Plaintiff received the benefits

of Chapter 72, The Code, and exercised

his right to trial by jury, recovering

nearly twice the amount offered by the

city. Plaintiff also recovered attor-

ney fees and costs as required by state

law. Plaintiff did not seek a jury

trial or an appeal from the condeme

nation commission's 1980 compensation

award.- Plaintiff states no claim,

under Section 1983 or Section 1982,

for violation of due process or

equal protection.

A-6

II. Claims accruing prior to

October 21, 1978 are time barred.

Federal civil rights actions

brought pursuant to 42 U.S.C.,

Sections 1983 and 1985 are subject to

Iowa's five-year statute of limite

ations. Branchcraft v. Brewer, 683

F.2d 251 (8th Cir. 1982). The limit-

ations period begins to run at the

time of the alleged wrong. Chadon v,.

Fernandez, 45 U.S. 6, 8 (1981).

Plaintiff's action accrued on June 9,

1969, by notice of condemnation.

III. Claims arising since

October, 1978 have been adjudicated

in the state court. The claims pere~

taining to floodings and drainage

problems are not cognizable under

civil rights statutes. Plaintiff's

state remedies have been pursued and

A-7

exhausted. No further remedy is

available in this court.

1. The 1980 condemnation in-

volved the taking of a strip of

plaintiff's land, adjacent to the

1969 land condemned, for purposes of

constructing temporary and permanent

drainage easements as part of the park

project. Plaintiff did not challenge

the compensation award received in

1980.

2. Plaintiff alleges that his

privacy was invaded and that he has

been harrassed and vandalized by reason

of the proximity of a bikeepath, con-

structed by defendant on plaintiff's

previously condemned property.

Plaintiff's 1980 application to the

state court to enjoin the city from

entering and constructing the bikepath,

A-8

which was begun in 1973, was denied.

Plaintiff then lost his action to

quiet title in 1982. Plaintiff's

appeal from the Court's adverse

decision was dismissed,

3. Plaintiff's 1982 action for

damages for the flooding of his crops

and for an injunction to abate nuise-

ance obstructing drainage from his own

property was also dismissed by the

state court in 1982. Plaintiff has

been afforded, and has taken advante

age of, state remedies on each cause

of action that may have accrued since

October 21, 1978, five years before

the filing of his complaint.

Any remedy plaintiff had against

the city for invasion of privacy and

various allegations of discriminatory

treatment appears to be time barred

A-9

under Iowa law Chapter 613A, the

Code.

lu. Plaintiff alleges that the

city refused to’allow him to farm or

plant a garden, or carry away firewood

from the condemned property while

others were allowed to do so. The

latter claim appears not to be viable

in view of plaintiff's jurisdictional

problems.

The Court finds that defendant's

motion for summary judgment will be

granted. Under the facts of this case,

plaintiff has not been deprived of

property in violation of his rights to

due process and equal protection and

has no cause of action in this court.

Accordingly, there is no genuine issue

of material fact and defendant is

entitled to judgment as a matter of

A-10

law. Federal Rule of Civil Procede

ure 56.

IT IS THEREFORE ORDERED that

defendant's motion for summary judg-

ment shall be, and hereby is,

granted.

Signed this 12th day of April,

1985.

W.C. STUART, CHIEF JUDGE

SOUTHERN DISTRICT OF IOWA

A-1l

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

Defendant.

MOSE KOREY, )

) CIVIL NO,

Plaintiff, ° 83-174-D-1

vs. ) ORDER DENYING

) MOTION TO

CITY OF DAVENPORT, REC ONS IDER

)

)

The Court has before it plaint-

iff's letter dated May 2, 1985,

Plaintiff expresses his feeling that

the Court's Order granting summary

judgment to defendant was unfair be-

cause the Order was entered after

plaintiff had requested a stay of all

proceedings due to health problems.

Plaintiff's letter will be treated as a

motion to reconsider the entry of

judgment in favor of defendant,

Defendant's motion for summary

judgment was filed on June 18, 198).

A-12

Plaintiff was granted an extension of

time until July 13, 1984, to respond

to the motion. A further extension was

granted until July 27, 1984. Plaintiff

filed his resistance to the motion for

summary judgment on July 27, 1984. The

resistance was accompanied by a sixe-

page memorandum in support thereof, a

separate fourteen-page memorandum of

points and authorities, a twenty-page

affidavit of material facts, and

twenty-nine exhibits. Defendant's sub-

sequent request for oral argument was

also resisted by plaintiff.

On November 30, 1984, plaintiff

filed an application for a stay of six

months due to health problems. This

motion was not ruled on by the Court.

On April 12, 1985, having reviewed

defendant's motion and plaintiff's re-

A-13

sistance both to the motion and to

defendant's request for oral argu-

ment, the Court deemed the matter

fully submitted and proceeded to rule-

on the motion for summary judgment. The

Court's ruling will stand, and plaint-

iff's motion to reconsider will be dee

mied. Plaintiff fully resisted defend-

ant's motion and expressed his belief

that oral argument was not necessary.

A period of four months then passed be-

fore plaintiff requested a stay. At

any time during that period, the Court

could have considered the motion for

summary judgment fully submitted and

proceeded to rule thereon. If plaint.-

iff desired to make further arguments,

he had ample opportunity to do so be-

¢ November 30. Plaintiff does not

now state what additional arguments he

Aw-1l,

would have made, and the Court can

conceive of none. Summary judgment

in defendant's favor was clearly

appropriate.

IT IS THEREFORE ORDERED that

plaintiff's motion to reconsider

is hereby denied.

Signed this 8 day of May,

1985.

W.C. STUART, JUDGE

SOUTHERN DISTRICT OF IOWA

AeW15

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

U. S. Court & Custom House

1114 Market Street

St. Louis, Missouri 63101

Robert D. St. Vrain

Clerk

August 15, 1985

Mr. Mose Korey

3026 Belie Avenue

Davenport, IA 52803

Re: No. 85-1669-SI

Mose Korey vs. City of

Davenport, Iowa

Dear Mr. Korey:

Enclosed is a copy of an order

entered by us today at the direction

of the court.

Sincerely,

/s/

Michael E. Gans

Chief Deputy

MEG/cg j

Enclosure

cc: Patricia Rhodes Cepican

James RK. Rosenbaum, Clerk,

U.S. District Court

FOR INFO ONLY:

Honorable William C. Stuart

(83-1274 D 1)

A-16

Pee rreeereeneeeeeeeeemenemnmnemnance

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 85-1669

MOSE KOREY, +

% Appeal from the

Appellant, # United States

* District Court

x for the Southern

% District of Iowa.

CITY OF +

DAVENPORT, IOWA, *

Ve

Appellee. +

Submitted: August 1, 1985

Filed: August 15, 1985

ORDER

Mose Korey appeals from an

order of the district court grant-

ing summary judgment in favor of the

City of Davenport, Iowa. After

reviewing the record, we find that

the district court committed no error

A-17

— AS Tt DS mc TE ee

of law or fact. Accordingly, we

conclude that the issues presented

do not require further consideration.

We affirm the district court. See

8th Cir. R. 12(a).

A true copy.

Attest:

CLERK, U. S. COURT OF

APPEALS, EIGHTH CIRCUIT.

A-18

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

U. S. Court & Custom House

1114 Market Street

St. Louis, Missouri 63101

Robert D. St. Vrain

Clerk

Mr. Mose Korey

3026 Belle Avenue

Davenport, Iowa 52803

Re: No. 85-1669-SI

Mose Korey v. City of

Davenport, Iowa.

Dear Sir:

Enclosed please find copy of

order entered today at the direct~

ion of the Court.

Sincerely,

s

Linda L. Penberthy

Senior Deputy Clerk

rmh

Enclosure (1)

ec: Patricia Rhodes Cepican

James R. Rosenbaum, Clerk,

U.S. District Court

(83-17)-D-1)

A-19

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 85-1669-SI

MOSE KOREY, %

a

Appellant, * Appeal from the

+ United States

vs. * District Court

* for the Southern

CITY OF *% District of Iowa

DAVENPORT, IOWA, %

+

Appellee, %

+

Appellant's petition for

rehearing is denied by the Court

on the basis of untimely filing.

September 19, 1985

A-20

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

U. S. Court & Custom House

1114 Market Street

St. Louis, Missouri 63101

Robert D. St. Vrain

Clerk

October 3, 1985

Mr. James R. Rosenbaum, Clerk

U. S. District Court

200 U. S. Cthse.

Des Moines, IA 50309-2084

Re: No. 85-1669-SI

Mose Korey vs. City of

Davenport, IA

(83-174-D-1 )

-Dear Sir:

The mandate of this Court is

enclosed together with a receipt

therefore in the above case. We

would appreciate it if you would

sign, date and return the receipt

to this office.

Returned are two volumes of

original files.

Sincerely,

eh ROBERT ST. VRAIN, CLERK

Encl 3 By E. Hoffman

Deputy Clerk

cc: Mose Korey

Patricia Rhodes Cepican

A-21

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

U. S. Court & Custom House

1114 Market Street

St. Louis, Missouri 63101

Robert D. St. Vrain

Clerk

October 11, 1985

Mr. Mose Korey

3026 Belle Avenue

Davenport, Iowa 52803

Re: No. 85-1669-SI

Mose Korey v. City of

Davenport, Iowa.

Dear Mr. Korey:

Receipt is acknowledged of your

motion to correct error. Petitions for

rehearing must be filed within fourteen

days of entry of judgment per FRAP ho.

The three-day mailing privilege is not

extended to petitions for rehearing, at

least by this Circuit, and petitions

that are untimely by even one day may

be rejected by the Court. I wish to

assure you, however, that the Court did

view the content of your document and

considered your comments.

The fact that your petition has

been dented does not preclude you from

proceeding with the case to the Supreme

Court of the United States. You are

A-22

however urged to insure that your

petition is timely filed with that

Court.

Sincerely,

s

Linda L, Penberthy

Senior Deputy Clerk

LLP/rmh

Enclosure (1)

cc: Patricia Rhodes Cepican

James R. Rosenbaum, Clerk,

U. S. District Court.

(83-1274-D-1)

A~23

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

U. S.~ Court & Custom House

1114 Market Street

St. Louis, Missouri 63101

Robert D. St. Vrain

Clerk |

November 6, 1985

Mr. Mose Korey

3026 Belle Avenue

Davenport, Iowa 52803

Re: No. 85-1669SI

Mose Korey v. City of

Davenport, Iowa

Dear Mr. Korey:

The opinions and dispositive

orders of this Court which are issued

by the Clerk's office are all entered

at the direction of a panel of judges

after consideration of the record and

any briefs or other pleadings which

have been submitted by the parties. In

your case, the entiive original file of

the United States District Court was

obtained from the district court. The

district court file and the pro se

brief which you filed were sent to a

panel of judges which considered your

appeal. The panel consisted of Judges

Donald Ross, Theodore McMillian and

George Fagg. The Order of August 15,

1985 affirming the district court's

action and the order of September 19,

1985 denying your petition for

An2h

rehearing were entered only after this

office received directions from the

three judges to issue those orders,

Because the Eighth Circuit Court

of Appeals includes seven states and

the judges are located throughout the

seven states opinions and orders must

be issued from se central source-the

Clerk's office in St. Louis. Opinions

and orders must be duplicated for dis-

tribution to the parties, the district

court and the media. It is impractic-

al to have these documents individually

signed by each judge on the panel. The

August 15 Order disposing of your

appeal should have identified the mem-

bers of the panel which considered your

appeal. I apologize for that admin-

istrative oversight. Your case was

properly handled by this office. The

case was considered by and ruled on by

a three judge panel and the appeal was

officially concluded with the issuance

o58e. Court's mandate on October 3,

1965.

Sincerely,

/s/

Robert St. Vrain

Clerk of Court

RStV/eg

A-25

IN THE DISTRICT COURT

OF THE STATE OF IOWA

IN AND FOR SCOTT COUNTY

ORDER TO SHOW

CAUSE

DAVENPORT, IOWA

Defendant.

MOSE KOREY, )

. ») IN EQUITY

Plaintiff, )

) NO. 51298

vs. )

) NOTICE TO

CITY OF DEFENDANT OF

)

)

)

TO: CITY OF DAVENPORT, IOWA

a municipal corporation

You are hereby notified that

there is now on file in the office of

the Clerk of the District Court of

Scott County, Iowa, the petition and

affidavit of the plaintiff in this

action, alleging that “sa landowner

shall not be dispossessed, under

condemnations proceedings, of his

residence, dwelling house, outhouse,

orchard or gardens, until the damages

thereto have been finally determined

A-26

and paid", “+. plaintiff has not

consented to the establishment of said

park on his orchard or gardens and does

not and will not consent thereto, and

praying that a temporary injunction

restraining the defendant from estab-

lishing a park thereon.

You are furt‘er notified that on

the 9th day of June, A.D., 1969, upon

reading the said petition and affida-

vit of the plaintiff and hearing the

evidence in support thereof, the

Honorable Nathan Grant, Judge of said

Court, entered an Order and Decree that

the defendant show cause before him as

such Judge of said Court, at 2:30

o'clock P.M., on the 26th day of June,

A.D., 1969, at the Court House in

Davenport, Iowa, why an injunction

should not be issued enjoining and

A-27

restraining you as the defendant in the

case from condemning the real estate of

the plaintif. and for such other and

further relief with reference to said

cause as may be just and equitable in

the premises, and that in the meantime

that you as the defendant be restrained

and forbidden to commit or permit any

of said acts until further Order of

this Court.

You will therefore take due notice

of such restreining Order to avoid the

penalties of the law.

You will also take due notice that

unless you appear and show cause at the

above stated time and place, that your

default will be entered and judgment

and decree rendered as provided by law

granting such relief, as prayed in said

petition, as may »e necessary in the

A-28

premises, and that a temporary injunc-

tion will issue as prayed to be in

full force and effect until final

hearing in this action.

Dated at Davenport, Scott

County, [owa, this 9th day of June,

A.D., 1969.

Don A. Petruccelli

Attorney for Plaintiff

716 First National

Building

Davenport, Iowa 52801

Phone: 323-087)

AW29

IN THE DISTRICT COURT

OF THE STATE OF IOWA

IN AND FOR SCOTT COUNTY

MOSE KOREY,

ORDER FOR HEARING

Plaintiff, ON TEMPORARY

INJUNCTION

vs.

NO. 51298

CITY OF

DAVENPORT, IOWA, IN *QUITY

Defendant.

Cane? Cae? Cmat Cee ee “ee ee ey ee ee

Now, on this 9th day of June,

A.D., 1969, it satisfactorily appearing

from the petition of the plaintiff and

the affidavit and evidence in support

thereof, that sufficient grounds exist

for the issuance of a temporary ine

junction as prayed:

IT IS HEREBY ORDERED, ADJUDGED and

DECREED that the defendant show cause

before the undersigned Judge of this

Court, at 2:30 o'clock A.M. on the 26th

day of June, A.D., 1969, at the Court

A~30

House in Davenport, Iowa, why an

injunction should not be issued

enjoining and restraining the defendant

from condemning the real estate as

shown in Exhibit "A" attached to the

petition and for such other and further

relief with reference to the said cause

as may be just and equitable in the

premises.

IT IS FURTHER ORDERED, ADJUDGED

and DECREED that, in the meantime, the

defendant is hereby restrained and

forbidden to commit or permit any or

said acts until the further Order of

this Court.

NATHAN GRANT, JUDGE

Seventh Judicial

District of Iowa

A-31

IN THE DISTRICT COURT

OF THE STATE OF IOWA

IN AND FOR SCOTT COUNTY

DAVENPORT, IOWA,

Defendant.

MOSE KOREY, )

) ORDER FOR TEMPORARY

Plaintiff,’ ) INJUNCTION

)

vs. ) NO. 51298

)

CITY OF ) IN EQUITY

\

]

)

\

/

)

Now, on this 9th day of June,

A.D., 1969, it satisfactorily appearing

from the petition of the plaintiff and

the affidavit and evidence in support

thereof, that sufficient grounds exist

for the issuance of a temporary

injunction as prayed:

IT IS HEREBY ORDERED, ADJUDGED and

DECREED that the defendant show cause

before the undersigned Judge of this

Court, at 2:30 o'clock P.M. on the 26th

day of June, A.D., 1969, at the Court

A=-32

a ne |

House in Davenport, Iowa, why an

injunction should not be issued

enjoining and restraining the defendant

from condemning the real estate as

shown in Exhibit "A" attached to the

petition and for such other and further

relief with reference to the said cause

as may be just and equitable in the

premises.

IT IS FURTHER ORDERED, ADJUDGED

and DECREED that, in the meantime, the

defendant is hereby restrained and

forbidden to commit or permit any or

said acts until the further Order of

this Court.

NATHAN GRANT, JUDGE

Seventh Judicial

District of Iowa

A=33

STATE OF IOWA )

):SS

SCOTT COUNTY )

[, William A, Strout, Sheriff of Scott

County, Iowa do hereby certify that I

received the attached Order for Temp-

orary Injunction on June 9, 1969, and

on said date I served personally City

of Davenport, Iowa by serving Allyn

Wiese, Clerk for the City, by giving

and reading to him a true copy

thereof. Said service being made in

the City of Davenport, Scott County,

Iowa.

William A. Strout, Sheriff

Scott County, Iowa

By Jim Alexander

Deputy Sheriff

Defendant's Answers to

Interrogatories, No. 2

1. State whether or not Defendant

obtained prior written approval from

the Secretary of Housing and Urban

Development for conversion of open-

space land to any other uses, such as

water mains and sewer lines, as

required by Title 42, United States

Code, Section 1500c, and if so, state

the date of such approval and a

description of all documentation known

to Defendant in connection with the

application for such prior written

approval and the written approval

itself.

ANSWER: It is not believed that

any prior written approval was obtain-

ed. By way of further answer, defend-

ant states that the uses are consist-

ent with the purposes of the Open

Space Program and it is not altogether

clear that prior written approval for

such uses was or is required,

2. State whether or not Defend-

ant was served a copy of Order for

Temporary Injunction and Order for

Hearing on Temporary Injunction,

dated June 9, 1969, signed by Judge

Nathan Grant, and state the date on

which service was made upon Defendant

and whether or not Defendant has a

copy of said orders in its posses-

ion.

A=35

ANSWER: Defendant has no

independent recollection that it was

served or when it was served. Defend-

ant does have a copy of the order

issued June 9, 1969. The sher’ “f's

return of serviee shown service on

Allyn Wiese, City Clerk, on June 9,

1969. Defendant further states that

no temporary injunction was ordered,

issued, or served on June 9, 1969,

or at any other time,

A-36

;

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

ROBERT E. SHOEMAKER,

)

et al., )

) CIVIL NO.

Plaintiffs, 78-112-D

vs.

CITY OF MUSCATINE, )

IOWA,

Defendant. )

) RULING AND

ROBERT PAPE, et al., ORDER

Plaintiffs,

vs. ) CIVIL NO.

) 78-113-D

CITY OF MUSCATINE, )

IOWA,

Defendant. )

)

On December 27, 1979, the Court

entered an Order reviewing several

motions in the above-captioned cases

initiated by property owners in

Muscatine, Iowa against the City of

Muscatine challenging the legality and

constitutionality of the defendant's

A-37

condemnation of certain described

property. The Court in that Order

granted the plaintiffs' unresisted

joint motion for consolidation, and

the defendant's motion for summary

judgment as to plaintiffs Shoemakers'

and Papes' claims initiated under 42

U.S.C. Sections 1982 and 1985. In

addition, the Court denied the defend-

ant's motion as to the plaintiffs'

Claims initiated under 2 U.S.C.

Section 1983, and ordered the plaint-

iffs to respond to the res judicata and

abstention issues raised by the defend-

ant. On January 28, 1980, the plaint-

iffs filed their responses and affidav-

its. The defendant on January 30, 1980

filed a brief in support of its summary

judgment motion, and filed a supporting

affidavit on February 22, 1980. The

5

Ae 50

|

plaintiffs filed a reply to this

affidavit on March 3, 1980. The

issues in question are now fully

submitted.

As to the defendant's res

judicata claims, the Court does not

believe the plaintiffs' actions

presently before the Court are barred

because of the plaintiffs' initiation

and litigation of claims in Iowa

District Court pursuant to Chapter 472

of the Iowa Code. It is true that a

party cannot avoid the effects of res

judicata by falling to assert matters

in the former litigation that were |

properly subject to litigation there,

The rule is stated as follows:

The phase of the doctrine of res

judicata precluding subsequent

litigation of the same cause of

action is much broader in its

application than a determination

A=-39

of the questions involved in the

prior action; the conclusiveness

of the judgment in such @ case

extends not only to matters act-

ually determined, but also to

other matters which could proper-

ly have beén raised and

determined therein.

hé Am. Jur. 2d Section 17.

The Court does not believe, howe

ever, that the issues raised in the

above-captioned action could have been

raised at the time their respective

appeals were taken to the district

court. When their appeals of their

condemnation awards were initiated

pursuant to Iowa Code Annotated

Section 472.21 (Supp. 1979-50), the

sole issue available for determin-

ation by the district court appeared

to be the amount of damages owed by

the condemnor. Iowa Code Annotated

Section 472.23 (1971);

A= 0

State ex rel. towe State Highway

Commission v. Read, 228 N.W. 2d 199,

2° 975), appeal after remand 262

N.W. 2d 533 (1978); Stellingwerf v.

Leninhan, 249 [Towa 689, 85 N.W, 2d

912, 915 (1957). See also Thornberry

v. State Board of Regents, 166 N.W. 2d

15u, 156-57 (1971). The constitutional

claims asserted in this action could

not have been raised by plaintiffs.

The cases cited by defendant in support

of its contention that res judicata

bars the plaitntiffs' federal actions

are inapplicable here because in those

cases the plaintiff either had or could

have previously litigated a question or

claim before coming into federal court.

Therefore, the defendant's motion for

summary judgment is denied.

The Court has remaining before it

A-\1

seer eet

for consideration the defendant's claim

that the Court should invoke the doce

rine of abstention. After careful

sonsideration, the Court believes that

it should not abstain from col

ation of the plaintiffs' claims, ee

reorge v. Parratt, 60e¢ fF. ed O10

(Sth Cir. 1979).

As to the Papes' claims, there is

no ongoing state action involving their

Slaims which could eliminate or alter

the constitutional issues before this

— |

Court. The Papes would have no state

--

remedies availabie at this time to

assert their claims if their federal

action is dismissed. In addition, the

surt does not belleve that federal

sourt disposition of Papes' claims

smeata & e r _ hoy

would interfere with a comprehensive

»+ be -« ; $ . ws > ‘

Ss ALE DOU A riord V.,. Ul LJ Jes

a? ° 5 , » | ‘5 » @ 5 "

. i ii an | 2 e ierisia ire

of the State of Iowa has established

the procedure in Chapter 72 to be

followed by condemnees in challenging

the amount of condemnation awards, but

no such procedure has been created for

challenges to the legality and consti-

tutionality of the condemnor's actions.

Therefore, disposition of Papes! claim

shall proceed without interruption.

In addition, even though

Shoemakers presently have an appeal

pending before the Iowa Supreme Court

of the Iowa district court's dismis-

sal of Division IV of their state law

complaint, the Court feels applicae

tion of the doctrine of abstention

would be inappropriate. The Court has

already determined that consideration

of the Papes' claims must proceed,

Since the cases initiated by the Papes

A=l.3

and Shoemakers have been consolidated

and raise substantially the same

issues, it would not further the int-

erests of judictal efficiency to split

consideration of the cases between the

federal and state judicial systems.

Further, as was the case with the

Papes' claims discussed above, the

Court does not believe that federal

court consideration of the Shoemakers'

claims would interfere with a compre-

hensive state policy. Therefore, the

Court does not believe it is justified

in staying any further action on

Shoemakers' claims,

This ruling will not preclude

defendants from reasserting their

motion for abstention, if the Iowa

Supreme Court remands the issues in

Division IV of Shoemaker to the

A-l)

District Court of Iowa for trial upon

the merits. Dismissal of the appeal

could create additional res judicata

issues not presently before the Court,

IT IS THEREFORE ORDERED that the

defendant's Motion for Summary Judge

ment as to the plaintiffs' claims

under 42 U.S.C. Section 1983 is hereby

denied.

IT IS FURTHER ORDERED that the

Court shall not stay further action on

the plaintiffs claims initiated

pursuant to 42 U.S.C. Section 1983.

Signed this 25 day of April,

1980.

W.C. STUART, CHIEF JUDGE

SOUTHERN DISTRICT OF IOWA

A-5

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

ROBERT E. SHOEMAKER,

IOWA,

)

Ov Dlx )

: ) CIVIL NO.

Plaintiffs, 78-112-D

VS. )

)

CITY OF MUSCATINE, )

IOWA,

Defendant. )

) ORDER

ROBERT PAPE, et al.,

Plaintiffs,

VS. )

) CIVIL NO.

CITY OF MUSCATINE, ) 78+113-D

)

)

)

Defendant.

This matter is Ai the Court

pursuant to motions to strike jury

demand and for summary judgment, filed

by defendant on March 26, 1981 and

resisted by the Shoemakers on April l,

1981. The Papes' filed their resist-

ance to both motions on May 26, 1981.

A-l6

On May 26, 1981, defendant's motions

came on for hearing before the Court.

All plaintiffs by agreement were rep-

resented by Bruce Washburn and defend-

ant by Patrick Ryan. Having carefully

considered the file in the above-cap-

tioned case together with the argu-

ments of counsel, and being otherwise

fully advised in the premises, the

Court enters the following Order,

This is a civil rights action

initiated by Muscatine, Iowa property

owners to contest the legality and

constitutionality of the appropria-

tion of certain described property

pursuant to an urban renewal project.

Specifically, plaintiffs allege that

their property was wrongfully taken in

the context of condemnation proceedings

instituted under an urban renewal plan

A-4.7

premised on false and nonexistent fact-

ual findings purportedly derived in an

arbitrary and capricious manner by the

defendant's City Council. Chapter 403

of the Iowa Code requires the City to

make particular findings of fact as

part of the condemnation procedure pre-

scribed by state urban renewal law. It

is plaintiffs' contention that the acts

of the City Council were perpetrated

knowingly, wil?fully and in excess of

its authority, with the intent to

effect the confiscation of plaintiffs'

property without due process of law in

order to permit the utilization of such

property by a private corporation for

development.

I. Motion for Summary Judgment

Defendant moves for summary judge

ment on the grounds that plaintiffs'

A-,8

claims under section 1983 are barred

by the applicable state statute of

limitations and through the operation

of the doctrine of res judicata.

Federal Rule of Civil Procedure

S6 in general provides that where the

record discloses no genuine issue of

material fact and where one of the

parties is entitled to judgment as a

matter of law, that party may move for

and, if appropriate, obtain summary

judgment. Once the movant supports his

motion with matters outside the plead-

ings, the party opposing such motion

cannot rest on the allegations of his

complaint, but is required to come

forward with evidentiary facts in

resistance. Federal Rule of Civil

Procedure 56(e). See Stovall v.

City of St. Louis Board of Education,

A-l.9

61h F. 2a 619, 621 (8th Cir. 1980);

Roberts v. Browning, 610 F. 2d 528,

S536 (8th Cir. 1978). The Court must

assess the facts in the light most

favorable to the nonmovant, and the

latter must be afforded the benefit of

all favorable inferences which may be

derived from the underlying facts as

revealed in the pleadings, depositions

and affidavits filed therein. McClain

v. Meier, 612 F. 2d 349, 356 (8th Cir.

1979); EEOC v. Liberty Loan Corp.,

58h F. 2a 853, 857 (8th Cir. 1978).

A. Statute of Limitations

Resolution 74067, which contains

the findings of fact upon which this

lawsuit is premised, was passed by the

Muscatine City Council on July 18,

1974. Although the initial appraisal

of plaintiffs' property had been under-

A-50

taken pursuant to the urban renewal

plan outlined in the resolution, the

implementation thereof was suspended

until November 12, 1975, at which time

the Iowa Supreme Court issued a ruling

upholding the City's incremental finane

cing arrangement in the test case of

Richards v. City of Muscatine, 237

N.W. 2d 48 (Iowa 1975). In light of

the state court decision, the City

Council voted on December 18, 1975 to

proceed with the urban renewal project.

It was not until December 22, 1976,

however, that the actual taking of

plaintiffs' property was effectuated.

The Shoemakers and Papes filed their

complaints in this Court on the 9th and

llth days of December, 1978,

respectively.

In the Court's estimation, the

A-51

deprivation of plaintiffs' property

occurred at the point of the actual

taking, on December 22, 1976. Prior to

that date, plaintiffs could not have

sought to maintain an action for damag-

es under section 1983, since no legally

cognizable injury to plaintiffs' cone

stitutional rights had yet been inflice

ted. The statutory period within which

the condemnation could be attacked did

not commence until December 22, 1976.

Because section 1983 does not

contain express time limits within

which suits arising thereunder are to

be filed, the Court must review the

timeliness of plaintiffs' cause by ap-

plying the most analogous Iowa statute

of limitations. Board of Regents v.

Tomanio, _U.S.__, 100 S.Ct. 1790,

1795-1795 (1980); Johnson v. Railway

A-52

Express Agency, Inc., 421 U.S. 45h, 462

(1975); Green v. Ten Eyck, 572 F. 2d

1233, 1237 (8th Cir. 1978). In order

to do so, the Court must ascertain the

underlying cause of action under state

law and enforce the limitation which

the state would enforce if the action

had been brought in its court system,

Rosales v. Lewis, 4Sy F. Supp. 956,

958 (S.D. Iowa 1978). This rule pree

sents little difficulty where state

law provides for a limitations period

directly analogous to the federal

claim; however,

where a more attenuated analogy

is required, the Court (1) may

look to the nature of the

defendant's conduct and apply

the statute of limitations

applicable to tort actions

premised on similar conduct, or

(2) may apply the state's limit.

ation relating to statutorily-

created liabilities. (Citations

omitted).

A-53

Rosales v. Lewis, 45u F. Supp. at 958.

Defendant argues that the Iowa

Tort Claims Act Chapter 613A, furnishes

a closer analogy to plaintiffs' federal]

cause of action than the general two-

year limitation period delineated in

Section 614.1(2) of the Code. Bearing

in mind, however, the generous nature

of the relief afforded under section

1983 as well as the marked trend

evident in recent Supreme Court decis-

lions toward expansion of municipal

liability in civil rights actions, the

Court is persuaded that a severe cire

cumscription of the federal remedy

which would result if the brief limite

ation prayed for were imposed cannot

be sanctioned. Accordingly, the Court

finds that the most analogous Iowa

Statute of Limitations is the two-

A-54

year limit on suits predicated upon

injuries to persons or reputation

delineated in section 614.1(2).

One of the primary purposes of

section 613A.1(3) abbreviated notice

and limitations components is to alert

the municipality of the commission of

the alleged tort, in order to permit

prompt investigation. See Lunday v.

Vogelmann, 213 N.W. 2d 904, 907 (Iowa

1973). Since defendant acknowledges

and the facts plainly demonstrate that

the City Council had ample forewarning

of plaintiffs' vigorous objections to

its urban renewal project and the cone

commitant expropriation of their prope

erty, the legislative intent underly-

ing Section 613A.5 is not frustrated by

this Court's choice of the general two-

year statute of limitations. See

A=55

. y . ry ~

tosales v. Lewis, uUdSuU FF. SUDpDp. at OU,

Moreover, where tre language of Chappe

+ . »

ter 613A does not evince an overiding

cise forr o! tortious conauct omor ise

ing the snb ject matter ; +hie laws Lt,

he reument for application of its

limitations proviston becomes less

compelling. See Green v. Ten Eyck,

o

FP. 24 at 1237-1235; Warren v. Norman

fir.) cert. den., 423 U.S. 855 (1975).

Having determined that the date of

the alleged wrong was December 22, 1976,

and because plaintiffs filed thelr res-

pective complaints within the applicable

twoeyear time frame provided in section

614.1(2), both the Papes and Shoemakers

are entitled to litigate their constle

tutional slaims in this Court.

A-~56

B. Res Judicata

With regard to defendant's argu-

ment that the Shoemaker's continued

maintenance of this action is pre-

cluded by the doctrine of res judi-

cata, the Court after a perusal of

the authorities cited for this prope

osition finds that defendant's mote

ion for summary judgment on this

ground should be denied. Admittedly,

principles of res judicata operate in

section 1983 lawsuits to bar relitigae

tion of constitutional issues actuale

ly or necessarily adjudicated in a

previous lawsuit involving the same

cause of action. See Allen v. McCure

ry, ___ ‘U.S. __, 101 S.Ct. 411 (1980);

Robbins v. District Court of Worth

County, 592 F. 2d 1015, 1017 (8th Cir,

1979).

A-57

However, the constitutional

questions raised in Division IV of the

Shoemaker's state law complaint were

not properly before the state district

court, and thus could not have been

actuallw or necessarily disposed of in

that court. Under the rationale set

forth in the Order of April 25, 1980,

the state court's subject matter juris-

diction was restricted pursuant to Sec-

tion 72.21 of the Code to a determin-

ation of the propriety of the amount of

damages assessed by the condemnation

commission. State ex rel. Iowa State

Highway Commission v. Read, 228 N.W. 2d

199, 203 (Iowa 1975), appeal after ree

mand, 262 N.W. 2d 533 (197 Iowa 1978).

Therefore, since the claims pending be-

fore this Court could under no circume-

stances have been entertained by the

A~58

state district court, the principle of

res judicata does not foreclose

plaintiffs' right to pursue such

claims herein.

Defendant insists that its

motion must be sustained as a result of

plaintiffs' failure to challenge the

legality of the condemning public

body's actions in a separate proceed-~

ing in equity, whereby the plaintiff

condemnees could have requested an

injunction prohibiting the condemnor

from confiscating their property. In

effect, defendant is not seeking jud-

icial application of res judicata pre-

cepts to prevent readjudication of

matters which were actually or which

could have been asserted on appeal of

a condemnation award, but to foreclose

further review of plaintiffs putative

A-59

constitutional claims because the

latter did not resort to a collateral

state remedy.

The foregoing argument as framed

by defendant may well have prevailed on

appeal to the Iowa Supreme Court of the

state district court's dismissal of

Division IV of the Shoemaker state

complaint. Upon careful evaluation of

the case, however, the Court is not

persuaded that the mere existence of an

available collateral remedy compels its

disregard of the well-established axiom

that exhaustion of state judicial or

administrative avenues of relief is not

a prerequisite to suit under section

1983. See Board of Regents, 100 S.Ct.

at 1798-1799; Steffel v. Thompson,

415 U.S. 452, 472=473 (1974); Green v.

Ten Eyck, 572 F. 2d at 1239. For as

A-60

the Supreme Court has observed:

fi_/'t is no answer that the State

as a law which if enforced would

give reliet. The federal remedy

is supplementary to the state

remedy, and the latter need not

be first sought and refused before

the federal one is invoked.

Monroe v. Pape, 365 U.S. 167, 183

(1961). Accordingly, the defendant's

motion for summary judgment on res

judicata grounds is hereby denied,

II. Motion to Strike

As to defendant's motion to strike

plaintiffs' jury demand, no allegation

is raised therein as to plaintiffs'

noncompliance with the procedural ree

quirements delineated in Rule 38 of

the Federal Rules of Civil Procedure,

Instead, defendant argues that the

issues involved in this lawsuit, while

legal in nature, are not triable to a

jury. By way of response, plaintiffs

A-61

contend that the factual issues under-

lying their claims are appropriate for

consideration by a jury.

Rule 38 preserves intact the

Seventh Amendment right of trial by

jury. Although the amendment was des-

igned to incorporate the right to jury

trial as it existed in 1791, it has

long been settled that the right ex-

tends beyond the common iaw forms of

action recognized at that time.

Curtis v. Loether, 415 U.S. 189, 193

(1974). Where a legislature creates an

action unheard of at common law, the

Seventh Amendment mandates a trial by

jury if that action implicates rights

and remedies traditionally enforced in

an action at law. Pernell v. Southall

Realty, 416 U.S. 363 (197).

In Curtis, a statutory action

A-~62

establishing a right to recover damages

was deemed to have been instituted to

vindicate legal rights. Of importance

in ascertaining the character of a

statutory action is the nearest his-

toric analogue. See Pernell v. South-

all Realty, 416 U.S. at 375=381. Ult-

imately, whether or not a party is

entitled to a jury trial is contingent

upon the legal aspects of the issues to

be tried, as opposed to the character

of the overall lawsuit. Ross v. Bern-

hard, 396 U.S. 531, 537-538 (1970).

According to defendant, the

nature of the primary issue to be ad-

judicated herein, the validity of the

City Council's decision to condemn

plaintiffs' property for an ostensibly

public use, militates against a grant

of plaintiffs' jury demand. Albeit its

A-63

admission that plaintiffs' suit is

essentially legal in nature, defendant

maintains that the Council's inherently

legislative de tornination is reviewable

by the Court alone, under a deferential

"arbitrary and capricious” standard,

There is no question that the

compensatory relief requested under

Section 1983 is analogous to that typ-

ically sought in a tort action for

damages. Moreover, defendant concedes

that complainants, whose cause of

action is subsumed under the civil

rights statutes of 1866, enjoy 8

general right to trial by jury of their

constitutionally cognizable grievances.

See Burt v. Abel, 585 F. 2d 613, 616

n.7 (uth Cir. 1978).

Thus the question becomes whether

the presence of several matters to be

A-6)

adjudicated by the court as a matter of

law nullifies plaintiffs' jury demand.

Non-legislative issues of fact which

may properly be disposed of by the jury

include the actual truth or falsity of

factual findings upon which the city

council's conclusions were based,

whether such findings were made with

the intent to deprive plaintiffs of

their property without due process of

law and whether the challenged urban

renewal plan, MURP II, conformed to

the comprehensive plan adopted by the

City of Muscatine, as mandated by state

law. The specific determinations of

whether (1) the characterization of

plaintiffs' property as "blighted" was

arbitrary and capricious and in excess

of the Council's authority under the

Fifth and Fourteenth Amendments, and

A-65

(2) the confiscation of such property

was effected for a private rather than

a public benefit are ultimately for the

Court, as are all constitutional issues.

However, the Court believes that the

factual questions upon which such legal

determinations must rest may be joined

before a jury.

In the final analysis, therefore,

the Court is persuaded that defendant's

motion to strike plaintiffs' jury

demand must be denied. Over the years,

the Supreme Court has developed a

strong policy favoring jury trials,

which in doubtful cases such as the one

at bar warrants judicial adherence

thereto. See 9 Wright and Miller,

Federal Practice and Procedure, Section

2302 at 21-22 (1971) and cases cited

therein. In this light, the Court must

A-66

recognize the existence of disputed

factual questions which while forming

a predicate for pure issues of law,

may nonetheless be submitted to a

jury, thereby attesting to the general

propriety of plaintiffs' jury demand.

Those matters of law which cannot be

considered by the jury will of course

be adjudged by the Court.

IT IS THEREFORE ORDERED that

defendant's Motions to Strike Jury

Demand and for Summary Judgment are

hereby denied.

Signed this 6th day of July,

1981.

W.C. STUART, CHIEF JUDGE

SOUTHERN DISTRICT OF IOWA

A-67

:

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

The Fifth Amendment to the United

States Constitution provides:

No person shall be held

to answer for a capital,

or otherwise infamous crime,

unless on a presentment

or indictment of a Grand

Jury, excepting cases

arising in the land or

naval forces, or in the

militia, when in actual

service in time of war

or public danger, nor

shall any person be

sub ject for the same

offence to be twice put in

jeopardy of life or limb;

nor shall be compelled in any

criminal case to be a witness

against himself, nor be de-

prived of life, liberty, or

property, without due process

of law; nor shall private

property be taken for public

use without just compensation.

The Fourteenth Amendment of the

United States Constitution provides

in pertinent part:

SECTION I. All persons

born, or naturalized in the

United States, and subject to

A-68

the jurisdiction thereof, are

citizens of the United States

and of the State wherein they

reside. No State shall make or

enforce any law which shall ab-

ridge the privileges or immun-

ities of citizens of the United

States; nor shall any State

deprive any person of life,

liberty, or property, wthout

due process of law; nor deny

to any person within its juris-

diction the equal protection

of the laws.

Title 42, United States Code,

Section 1500(c) provides:

No openespace land for the

acquisition of which a grant

has been made under this

chapter of this title shall

be converted to uses not

originally approved by the

Secretary without his prior

approval. Prior approval will

be granted only upon satisfact-

ory compliance with regulations

established by the Secretary.

Such regulations shail require

findings that (1) there is

adequate assurance of the

substitution of other open-

Space land of as nearly as

feasible equivalent usefulness,

location, and fair market value

at the time of the conversion;

(2) the conversion and substi-

tution are needed for orderly

A-69

growth and development; and

(3) the preposed uses of the

converted and substituted land

are in accord with the then

aoplicable comprehensive plan

for the urban area, meeting

eriterfa established by the

Secretary.

Title 2, United States Code,

Section 1982 provides:

All citizens of the United

States shall have the same

right, in every State and

Territory, as is enjoyed by

white citizens thereof to

inherit, purchase, lease, sell,

hold, and convey real and

personal property.

Title 42, United States Code,

Section 1983 provides:

Every person who, under

co.or of any statute, ordin-

ance, regulation, custom, or

usage, of any State or Tere

ritory or the District of

Columbia, subjects, or causes

to be subjected, any citizen

of the United States or other

person within the jurisdiction

thereof to the deprivation of

any rights, privileges, or

immunities secured by the

Constitution and laws, shall

be liable to the party injured

A-70

in an action at law, suit in

equity, or other proper proe

ceeding for redress. For the

purposes of this section, any

Act of Congress applicable

exclusively to the District of

Columbia shall be considered

to be a statute of the District

of Columbia.

Title 2, United States Code,

Section 1985 provides in pertinent

part:

(3) If two or more persons

in any State or Territory

conspire to go in disguise on

the highway or on the premises

of another, for the purpose of

depriving, either directly or

indirectly, any person or class

of persons of the equal protec-

tion of the laws, or of equal

privileges and immunities under

the laws; or for the purpose

of preventing or hindering the

constituted authorities of any

State or Territory from giving

or securing to all persons

within such State or Territory

the equal protection of the

lawS seeeeein any case of

conspiracy set forth in this

section, if one or more per-

sons engaged therein do, or

cause to be done, any act in

furtherance of the object of

such conspiracy, whereby

A-71

another is injured in his

person or property, or deprive

ed of having and exercising

any right or privilege of a

citizen of the United States,

the party so injured or

deprived may have an action

for the recovery of damages

occasioned by such injury or

deprivation, against any one

or more of the conspirators,

Title 2, United States Code,

Section 1986 provides:

Every person who, having

knowledge that any of the

wrongs conspired to be done,

and mentioned in section

1985 of this title, are about

to be committed, and having

power toprevent or aid in

preventing the commission of

the same, neglects or refuses

so to do, if such wrongful

act be committed, shall be

liable to the party injured,

or his legal representatives,

for all damages caused by such

wrongful act, which such

person by reasonable diligence

could have prevented; and such

damage may be recovered in an

action on the case;.....But

no action under the provisions

of this section shall be sus-

tained which is not commenced

within one year after the

cause of action has accrued,

Aw72

Title 42, United States Code,

Section 5305(a)(2), which was in

effect at the time of the actions

complained of, said in pertinent

part:

eeesin addition, an

applicant may use block grant

funds to acquire or construct

parks, only if assistance for

such parks under other federal

laws or programs is determined

to be unavailable,

Rule 56(e), Federal Rules of Civil

Procedure, Notes of Advisory Committee

on Rules, 1963 Amendment, provides in

pertinent part:

eeeeeWhere the evidentiary

matter in support of the moe

tion does not establish the

absence of a genuine issue,

summary judgment must be

denied even if no opposing

evidentiary matter is

presented.

A~73

The above APPENDIX TO PETITION

FOR WRIT OF CERTIORARI respectfully

th

day of

submitted on this

December, 1985.

Wb a

» Prd Se

3026 Belle Avenue

Davenport, Iowa 52803

Phone: (319) 359-0272

STATE OF IOWA )

) S83:

COUNTY OF SCOTT )

CERTIFICATE OF SERVICE

This is to certify that the

5th

undersigned did on this day of

December, 1985, deposit in the U.S.

Mail, postage prepaid for delivery by

first class mail to the following

addresses:

1. Mr. Alexander L. Stevas,

Clerk

United States Supreme

Court Building

1 First Street, N.E.

Washington, D.C. 20543

forty-three (43) copies of:

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

for filing, of which three (3) copies

are to be returned to Petitioner

after filing.

2. Patricia Rhodes Cepican

3432 Jersey Ridge Road

Davenport, Iowa 52803

three (3) copies of same document,

I further certify that, in

compliance with Supreme Court Rule

28.5(c), all parties required to be

served have been served,

Subscribed and sworn to

before me on this UV day

of December, 1985.

Vanes Aw ruch |

A PUBLI